Opinion letter to the Honorable John J. Johnson

Opinion Letter Answered by Klaff enbach Jamtary 12, 1970 OPINION LETTER NO . 36 Honorable J ohn J. JohnsJn Sena tor - 15th District 11001 Petrina Court Afton, Missouri 63126 Dear Senato r Johnson : FJL r::D 1 ~6 This letter is in response to your opinion request con- cerning whether or not the board of aldermen of a f ourth class city can by ordinance provide for the appointment of specia l counsel when the mayor'e temporary appointee and nominee f or the office of city attorney is not acceptable to the board. You have furnished us wi th certain i nf ormation i ncluding what purports t o be an ordinance of the fourth class city appointing a person as special coWlsel and "acting city attorney" for a period of two years and for a designa t ed consideration and authorizing sa i d special counsel to pe rfor m the duties of the city attor ney . Insofar as the appointment of a temporary appointee to the office of city attorney is concerned, we note that Section 79.280, RSMo 1959, provides tha t in the case of a vacancy i n any office which is not elective, the mayor shall appoint a suitable person to discharge the duties of such office until the first regular meeting of the board of aldermen therea£ter, at which ti me such vacancy shall be permanently filled. We note also that Section 79. 230, RSMo 1959, provides that the mayor with the consent and approval of the majority of the members of the board of aldermen shall have t:;he power to appoint a city attorney. In our Opinion No. 236, Meyer, 9/9/63, copy enclosed, we held that the mayor can appoint a temporary official to act until the first regular meeting of the board and that the mayor may appoint a temporary official who has been rejected by the board although he may not submit the nomination of any person as a per- manent appointee who has previously been rejected. In our view, the conclusion reached in that opinion i s correct and the mayor in this instance may continue t o appoint a temporary appointee to the office o~ city attorney even though such appointee has not been approved by the city council as a permanent appointee. Honorable John J. Johnson Under Section 79.230, RSMo 1959, the mayor and the board of aldermen may, by ordinance, employ special counsel to represent the city, either in case of a vacancy in the office of city attor- ney or to assist the city attorney. As we have stated, examination of the ordinance employing special counsel shows that the special counsel was employed to act as city attorney and to discharge duties peculiar to the office of city attorney. We do not believe that there is any necessary conflict be- tween the statutes authorizing the appointment of city attorney and the statute authorizing the appointment of special counsel. That is , the mayor has plenary authority to appoint the temporary city attorney and, as we have stated, may appoint as temporary city attorney a person who has been rejected as a permanent appoin- tee. The temporary appointee under Section 79.280 is to "dis- charge the duties of such office" whereas the appointment of special counsel under the ordinance was to fill a vacancy 1n the office of city attorney. In our view, the appointment of a temporary city attorney by the mayor fills the vacancy of the office since the office necessarily is occupied by the appointed temporary city attorney. Since there is then no vacancy in the office within the meaning of Section 79 . 230, the appointment of special counsel to fill the vacancy in such office therefore terminates at such time as the temporary appointee is appointed or re-appointed. We note that t he additional question has been raised as to whether or not the city attorney of a fourth class city must be a resident of such city and whether special counsel need be a resi- dent. Senate Bill No . 15 of the 75th General Assembly removed the residency requirements of previous Section 79.250 as it pertains to the office of city attorney, and the city attorney of a fourth class city need no longer be a resident of such city . Special counsel employed by the city is not an officer of the city and does not have to be a resident. Yours very truly, JOHN C. DANFORTH Attorney General Enc: Opinion No. 236, Meyer, 919163 - 2 -