Kansas Attorney General Opinion 1992-041

ROBERT T. STEPHAN
ATTORNEY GENERAL
March 23, 1992
ATTORNEY GENERAL OPINION NO. 92- 41
Vernon Jarboe
City Attorney
215 E. 7th Street
Topeka, Kansas 66603-3979
Elsbeth D. Schafer
Assistant City Attorney
215 E. 7th Street
Topeka, Kansas 66603-3979
Re: Cities and Municipalities--Planning and Zoning;
Planning, Zoning and Subdivision Regulations in
Cities and Counties--Protest Petitions; Mayor in
Mayor-Council Form of Government Not a Voting Member
Synopsis: A mayor in a mayor-council form of municipal
government may not vote on any matters before the
council pursuant to K.S.A. 12-10a02. Therefore,
only the votes of the council should be considered
in determining the 3/4 vote of all of the members
of the governing body which is required to override
a protest petition, pursuant to K.S.A. 12-757(e).
Cited herein: K.S.A. 12-742; 12-757; 12-10a01;
12-10a02.
Dear Mr. Jarboe and Ms. Schafer:
As attorneys for the city of Topeka, you have requested our
opinion regarding K.S.A. 12-757(e). Specifically, you ask
whether the language in K.S.A. 12-757(e) grants a vote to the
mayor in a mayor-council form of municipal government.

Pursuant to K.S.A. 12-757(e), "a 3/4 vote of all of the
members of the governing body" is required to adopt a zoning
amendment when a protest petition has been filed against it.
A governing body is defined under this act as "the governing
body of a city in the case of cities. . . ." K.S.A. 12-742.
When a city operates under a mayor-council form of government,
it is governed by the provisions of K.S.A. 12-10a01 et
seq. See K.S.A. 12-10a01. Pursuant to K.S.A. 12-10a02,
the governing body is defined as follows:
"The governing body shall consist of a
mayor and three (3) members of the council
elected at large and four (4) members of
the council elected by districts.
• • •
"Any action taken by the city council
shall be by a majority vote of the members
of the council serving on the council
unless a greater number of votes are
specifically required by another provision
of law. The mayor may submit proposals
for the consideration of the council, but
may not vote on any matter before the
council. (Emphasis added).
Thus, while K.S.A. 12-757(e) requires a 3/4 vote by "all of
the members of the governing body," K.S.A. 12-10a02
specifically forbids the mayor from voting on any matters
before the council. K.S.A. 12-757 does not specifically
preempt K.S.A. 12-10a01, so the two statutes must be read to
give effect to both if possible. Kansas Racing Management,
Inc., v. Kansas Racing Commission, 244 Kan. 343, 353
(1989). In our opinion K.S.A. 12-757(e) can be read to
require 3/4 vote of only the council members in a
mayor-council form of city government. Therefore, the mayor
should not be included in the 3/4 vote.
In conclusion, K.S.A. 12-10a02 governs that a mayor in a
mayor-council form of municipal government may not vote on any
matters before the council. Therefore, K.S.A. 12-757(e) does
not grant a mayor voting; power only the council members will

constitute the 3/4 vote required to adopt a zoning amendment
when a protest petition has been filed.
Very truly yours,
ROBERT T. STEPHAN
Attorney General of Kansas
Julene L. Miller
Deputy Attorney General
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