Request By:
Honorable Laurence J. Zielke
Attorney at Law
Zielke, Davidson, Taft & Risch
Suite 2100, First National Tower
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of November 16 in which you present the following questions concerning the filling of a possible vacancy on the Jefferson County Fiscal Court operating under the county commission form of government.
"1. Who appoints a replacement on a Fiscal Court when a County Commissioner resigns?
"2. When must the replacement be named by the appointing authority?
"3. Assuming that a replacement is made in 1977 does the replacement hold office for two years, which is the remainder of the unexpired term or must the replacement run for election in a special election in 1978?
"4. Who determines whether a special election is to be called or not?
"5. Must the person selected to fulfill the unexpired term meet all eligibility requirements of his predecessor?"
In response to your initial question, any vacancy occurring on the county commission must be filled by the Governor pursuant to KRS 63.190 as there is no other statutory provision for filling said vacancy.
In response to your second question, there is no specific time within which the Governor must act to fill a vacancy in the office of commissioner. Of course, the resignation must be presented to the Governor, in writing, and accepted by him pursuant to KRS 63.010. Such action must be taken before the resignation becomes effective.
In response to your third and fourth questions, § 152 of the Constitution controls the time when an election must be held to fill the vacancy in question for the unexpired term. Under this section there must be a regular election embracing the area in which the vacancy has occurred in order for said vacancy to be filled. See Smith v. Ruth, 308 Ky. 60, 212 S.W.2d 532 (1948); and Brumleve v. Ruth, 302 Ky. 513, 195 S.W.2d 777 (1946). Of course, county commissioners are elected by the voters of the county at large though they run from districts [KRS 67.060]. As a consequence, in order for the vacancy to be filled at the November election in 1978 there would have to be a regular election embracing the entire county of Jefferson and such is not the case. As you know, there are school board elections in '78; however, they do not embrace the entire county. Also, there are elections for the U.S. House and Senate; however, these are federal elections and do no qualify as pointed out in the previously cited cases. As a consequence, whoever is appointed to fill the vacancy would serve through the remainder of the term according to your related facts; the next regular election being in 1979.
Our response to your fifth question would be in the affirmative. The residential requirement for eligibility for election as set out in KRS 67.060 (4) would, we believe, be equally required of any person appointed to the office in question. Though this statute requires a one-year residence immediately preceding the election of the commissioner, we believe that the one-year residency would be required at the time of his appointment and he must continue to reside within the district throughout the duration of the term of his office. The rule is that a residential requirement means residence at the time or date of the election or appointment. McQuillin, Municipal Corporations, Vol. 3, § 12.59.