Request By:
Honorable Phelps L. Lambert
City Prosecutor
City of Henderson
Ohio Valley National Bank Bldg.
Henderson, Kentucky 42420
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 15 in which you state that you are serving as city prosecutor for an unexpired term, which, according to KRS 69.510, ends on December 5, 1977, being the first Monday in December. You also relate that the office of city prosecutor [established pursuant to KRS 87.110] has been abolished as of January 3, 1978, thereby leaving an approximate four-week period during which there will be no city prosecutor unless there is an election this November 8 for this short period of time. It is your contention that such an election should occur and that you should be on the ballot for the office in question.
When the legislature abolished the office of city prosecutor in cities of the third class, effective January 1, 1978 (or technically January 3 because of the intervening Sunday and Holiday), it obviously failed to take into consideration that the regular term for city prosecutor under KRS 69.510 ends on the first Monday in December of this year rather than the normal first Monday in January. However, we do not believe that there can be a short term election to fill this position for the period of time between December 5 and January 1, the effective date for abolishing said office pursuant to Acts 1976 (Extraordinary Session), Chapter 17, § 52. In the first place, KRS 69.510 contemplates an election for full four-year terms and not partial terms. Also, the Court of Appeals has indicated that there can be no short term elections to fill vacancies under § 152 of the Constitution. See
Hester v. Robbins, 292 Ky. 12, 165 S.W.2d 817 (1942).
On the other hand, we believe there are two possible solutions in absence of any case in point. First, KRS 69.510 provides that the city prosecutor shall hold office until his successor is elected and qualified, and it could be argued that the incumbent attorney could continue to hold office until January 1, 1978, when the office is abolished, except for the fact that there is no successor. The second possible solution, which we believe to be the more feasible, is that as of December 5, the end of the regular term prescribed by KRS 69.510, a vacancy would automatically exist to be filled by the authority authorized to fill vacancies in city offices for the remaining period of time that the office is in existence. The authority to fill such vacancy would, we believe, be vested in the city commission since the city is operating under the city manager form of government. The statutes governing the city manager form of government make no specific provision for filling vacancies in this particular office. Therefore, according to
Herringer v. Rolf, Ky., 287 S.W.2d 149 (1956), we must look to the charter for cities of the third class under the councilmanic form of government. The third class city charter, particularly KRS 85.310, authorizes the city council to fill all vacancies in elective offices, which means, in the case of city manager form of government, that the city commission would have such authority.
Under the circumstances and as indicated above, we do not believe that there can be an election for the office of city prosecutor at the coming November election for the short period of time between December 5 and January, 1978. On the other hand, we do believe that a vacancy will exist on December 5 in the office in question that can be filled by the city commission for the period in question.