Request By:
Honorable Eugene Doss
House of Representatives
15th District
P.O. Box 521
Central City, Kentucky 42330
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request our opinion as to whether appointments made by the present county judge to boards and commissions can be nullified such that the county judge/executive in 1978 would make new appointments therefor. The answer is "no".
The office of "county judge/executive", created by S.B. 18 [1976 Extraordinary Session], will come into existence on January 2, 1978. As of that date the office of county judge will expire. See S.B. 183 [Ch. 84, 1974 Acts], Section 2, paragraph 5. Section 6 of S.B. 18 provides that wherever the words "county judge" appear in previously existing statutes, the language shall be changed by the Revisor of Statutes to read "county judge/executive". (Emphasis added).
The latter provisions are such as to clearly indicate a legislative intent to impose upon the new "county judge/executive" the nonjudicial duties and powers formerly required of and held by the "county judge" in previously existing statutes. This would be an economy in statutory amendment.
Let us take a specific board as an example, i.e., a local air board created under KRS 183.132. If the air board is established by a county, such members shall be appointed by the county judge. Thus if the appointment is validly made in conformity with the statute by the then county judge, it will be valid for the duration of the member's term. If a term should expire or a vacancy should arise in 1978 as to a member previously appointed by the "county judge", then the vacancy or the membership for a new term would be filled by the "county judge/executive" pursuant to Section 6, S.B. 18.
The answer to your question is that where the term of an officer appointed to a board by the county judge extends beyond January 2, 1978, the appointment is not nullified because of the fact that the appointing authority went out of office or because the office of the appointing authority was abolished. As we said above, the validity of such appointment rests purely on the matter of whether the county judge, prior to January 2, 1978, makes the appointment in conformity with the statute. The significant point as to the appointment of people to boards is that such appointments must be made at the time in conformity with the statute, regardless of who is designated by statute, at the time, to be the appointing authority. See 63 Am.Jur.2d, Public Officers and Employees, § 99, p.p. 692-693. Also in 63 Am.Jur.2d, Public Officers and Employees, § 109, we find this important statement:
"Offices in which the executive power of appointment is vested are generally regarded as continuous offices, the power of the successor with respect to matters arising in the previous administration being considered as exactly the same as that of his predecessor. It would seem then that an appointment to office which has become complete and irrevocable will continue so as against any attempt by the successor in office of the appointing power to reconsider and revoke it."
Thus the successor in appointing power has no authority to nullify an appointment made by his predecessor and which appointment became complete and irrevocable.