Request By:
Mr. C. W. Harris
Graves County Clerk
Mayfield, Kentucky 42066
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of June 30 in which you state that a duly elected city councilman at the November, 1977 election resigned his office in April, 1978, at which time the city council filled the vacancy by appointment for the remainder of the term. You desire to know whether or not an election must be held at the coming November, 1978 election to fill the vacancy for the one year unexpired term.
In connection with your question you relate the following facts:
"We will have a county wide election and we will have an election for school board members in only two of the educational districts. Neither of these educational districts will encompass any area in the city limits. We will also have a school board race for the Mayfield Independent School Board which is voted on only in the City of Mayfield, although all city precincts overlap with county precincts regarding school board members which means that there are people actually living within the boundary of the city limits but can not vote for the city school board members, but would be able to vote if there are candidates within the districts in which they are eligible to vote. Now again may I state that none of these county school board districts will overlap the city precincts. "
Section 152 of the Constitution controls the filling of all vacancies in elective offices and requires such vacancies to be filled at the next regular election for any state or local office that will embrace the area in which such vacancies occur. 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). Other than federal elections which do not qualify as elections to fill vacancies under Section 152, the only regular elections in Graves County in November, 1978 are school board elections; however, they do not embrace the entire county.
On the other hand, if a local school board race this November does, in fact, embrace the entire city, then the vacancy in the office in question would have to be filled at that time for the unexpired term, and whoever is elected will immediately take office following the receipt of his certificate of election and of course his qualification. See Jones v. Sizemore, 117 Ky. 810, 79 S.W. 229 (1905).
From the facts presented it is apparent that none of the school board elections this fall in Graves County will embrace the entire city of Mayfield where you clearly indicate that even the Mayfield Independent School Board race does not embrace all of the city, thereby leaving certain city voters who cannot vote in the independent school board race.
Thus, under the Constitution [§ 152] there can be no election this November to fill the office in question for the unexpired term. As a consequence, the appointee to fill the vacancy on the city council made by the legislative body will serve out the remainder of the unexpired term which will end in January, 1980 since the next regular election for city council will occur at the November, 1979 general election.