Request By:
Mr. Glen Shepherd
Mayor-Elect
City of Cumberland
Cumberland, Kentucky
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of December 15 in which you raise the following question:
"Cumberland is a city of the fourth class. An appointment was made in March of 1974 for a four year appointment to the Municipal Housing Commission. This four year term ends March of 1978. The mayor who takes office January 1, 1978 or the one just leaving office Dec. 31, 1977 has to make the new appointment. Which one legally has that authority?"
Prospective appointments to fill a vacancy certain to occur may be made but only by the appointing authority in office at the time of their occurrence. Referring to McQuillin, Mun. Corps., Vol. 3, § 12.283, we quote the following:
". . . It has been held that the official board or body of a municipality which is or will be in office at the time an appointee takeshis office can alone make an appointment to such office, unless there be express legislative authority otherwise. . . ."
Next referring to the case of
Board of Education of Boyle County v. McChesney, 235 Ky. 692, 32 S.W.2d 26 (1930), we find the court declaring the following:
". . . 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. 46 C.J. 952.
People v. Fitzgerald, 180 N.Y. 269, 73 N.E. 55;
Towne v. Porter, 128 App.Div. 717, 113 N.Y.S. 758;
State of Ohio ex rel. v. Sullivan, 81 Ohio St. 79, 90 N.E. 146, 26 L.R.A. (N.S.) 515, 18 Ann.Cas. 139;
Whitney v. Van Buskirk, 40 N.J. Law, 643;
State ex rel. v. O'Leary, 64 Minn. 207, 64 N.W. 264. The one limitation on the principle is that the appointment must be made by the same authority that is authorized to act when the vacancy actually occurs.
Harrod v. Hoover, 209 Ky. 162, 272 S.W. 400;
Terry v. Cornett, 136 Ky. 628, 124 S.W. 870;
Dixon v. Caudill, 143 Ky. 623, 136 S.W. 1043;
Shepherd v. Gambill, 75 S.W. 223, 25 Ky.Law Rep. 333;
Seller v. O'Maley, 190 Ky. 190, 227 S.W. 141;
Walker v. Fox, 216 Ky. 33, 287 S.W. 228. . . ." (Emphasis added).
Pursuant to KRS 80.040, you will also note that the statute states that upon the expiration of the term as appointee, his successor shall be appointed for a term of four (4) years. Though a literal interpretation of this statute might indicate that appointments cannot be made before the occurrence of the vacancy, we nevertheless believe they can but only by the mayor who will be in office when the term of the member actually expires. This means, of course, that the mayor in office at the present time, whose term expires on the first Monday in January of 1978, cannot make a new appointment for a term that does not expire until March of 1978.