Request By:
Mr. Ernest C. Slusher, Principal
Lone Jack High School
Four Mile, Kentucky 40939
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of September 19 in which you refer to the fact that one of the members of your school board filed for the office of county judge as an independent before the filing deadline for the May 24 primary. In our phone conversation, we indicated such filing violated the qualifications section of KRS 160.180 (2) which disqualifies any board member from holding said office when he becomes a candidate for any other public office. At the same time, we pointed out though he is disqualified at the time of filing, he nevertheless does not vacate the office unless he either resigns or is removed by court action. In other words, though he is disqualified, he continues to serve as a de facto officer whose acts are valid until removed. See
Commonwealth v. Winstead, 430 S.W.2d 647 (1968).
You refer in your letter to the 55-day deadline prior to the General Election and raise the following question:
"If Mr. Redmon turns in a written resignation, after the fifty-five day deadline, but pre-dates it before this deadline, can it be legally declared that there was a vacancy on the board, at the pre-dated date, even though the Board of Education did not receive or act upon it before the last week of September?"
To begin with, there is no vacancy until the board member in question either resigns or is removed by the judgment of a court. If the board member in question did not resign before the 55-day deadline for filing prior to the November election [which would be the deadline with respect to filing by candidates to fill vacancies in school board elections] , it would be too late for an election to be held pursuant to KRS 160.190 governing the filling of vacancies on school boards by an election for an unexpired term. See OAG 74-613, a copy of which we are attaching, governing this subject.
No officer can resign and have such resignation take effect at a prior date. A resignation can be postdated or, in other words, to become effective in the future but one cannot be made effective retroactive to a date in the past. All resignations are governed by the terms of KRS 63.010, which require them to be in writing and presented to the board or officer having the power to fill the vacancy and accepted by such board or individual.
Under the circumstances, it is too late for anyone to file for the office in question since the deadline for filing has past, and even if there was an attempt to file prior to the deadline, it was a nullity because no vacancy legally exists since the incumbent board member has not as yet resigned and, thus, continues to serve in a de facto capacity, subject of course to being removed on the grounds that he is disqualified from holding the office.