Request By:
Honorable Norris B. Vincent
Attorney at Law
202 Kitchen Building
Ashland, Kentucky 41101
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In 1972, pursuant to KRS 31.170, the Boyd Fiscal Court passed an ordinance providing for the office of public defender and a specific term of 4 years for such office. The ordinance also provided that the public defender could not be removed during term except for neglect of office or unprofessional conduct. Mr. John Simpson was appointed to that office around July 1972 for the 4 year term. He was reappointed by fiscal court in 1976 for another 4 year term. Mr. Simpson has resigned effective December 20, 1977.
On December 6, 1977, the fiscal court voted on a motion to fill the vacancy [to occur on December 20, 1977], which vote resulted in a tie. The motion was to appoint the assistant public defender as the public defender. However, we understand that the county judge, under the tie-breaking authority of KRS 67.040(4), will, on or after December 21, 1977, break the tie by appointing the said assistant public defender as public defender.
Your question is whether the appointment to fill the vacancy in the office of public defender will mean that the appointee's tenure will extend only to January 2, 1978, or whether it will extend through the remainder of the current 4 year term. If it extends to only January 2, 1978, then the new fiscal court can appoint somebody else if a majority vote can be obtained.
We note in passing that the tie vote taken on December 6, 1977, was prospective, since the vacancy will actually occur on December 20, 1977. However, the court has held that appointments to office may be made a reasonable time in advance of the time a vacancy is to arise. Prospective appointments to office soon to become vacant are generally deemed valid. Board of Education of Boyle County v. McChesney, 235 Ky. 692, 32 S.W.2d 26 (1930) 27. In view of the authority just cited and in view of the fact that the present county judge will break the tie after December 20, 1977, by naming the assistant public defender as public defender, we see no legal problem with that aspect of the matter.
Now, since the vacancy will actually occur on December 20, 1977, while the incumbent members of fiscal court are still in office, it is our opinion that the present fiscal court, by its tie action, and finally the present county judge, by his break-tie action, can validly fill the vacancy in the office of public defender. Clearly a vacancy in office can be filled by the incumbent officials who are expressly authorized by statute to fill such vacancy. The law abhors vacancies in offices, and the presumption is against a legislative intent to create or allow a condition which may result in an executive or administrative office remaining unoccupied. Board of Trustees v. Kercheval, 242 Ky. 1, 45 S.W.2d 846 (1931) 847. There is nothing in the statutes suggesting that the filling of the vacancy must be delayed simply to accomodate the new fiscal court.
Since the incumbent fiscal court can fill the vacancy while they are still in office, it follows that the appointee of the county judge [under the tie-breaking provision] will serve out the remainder of Simpson's 4 year term. You see the statutory term period will have to be observed. KRS 31.170(1)(b).