Request By:
Mr. Earl M. Deaton
Perry County Court Clerk
P.O. Box 150
Hazard, Kentucky 41701
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of August 29 in which you present the following facts and questions:
"The Hazard City School System will be electing two (2) city school board members from the city at large on November 7, 1978.
"The City of Hazard lost a city commissioner due to death during the last year, and has filled that position by appointment. Since election of the school board members will embrace the entire Hazard area, will it be necessary, and/or mandatory to hold an election to fill the unexpired term of the deceased commissioner? Since all voters are involved, would this be considered a general election? "
In addition to the above facts, you have also indicated that the commissioner in question died on April 30, 1978, in which case, if it is determined that an election can be held this November, it would activiate subsection (12) of KRS 89.440 authorizing the filing of nonpartisan petitions where a vacancy occurs beyond the filing deadline for the regular city primary on May 23.
Section 152 of the Constitution requires, as you know, that all vacancies in elective offices must be filled at the next regular election embracing the area in which the vacancies have occurred. The only qualifying election in Perry County that is to take place this November would be your school board elections which embrace only parts of the county. However, as you have indicated, there will be a school election that will embrace the entire city of Hazard. Thus, this school election would require the vacancy on the city commission to be filled at that time for the unexpired term pursuant to the terms of § 152 of the Constitution and as held in the cases of 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).
Whoever is elected at the coming November election to fill the vacancy in question would assume the office immediately after the election or as soon thereafter as he receives his certificate of election and is able to qualify. Jones v. Sizemore, 117 Ky. 810, 79 S.W. 229 (1904).