Request By:
Honorable Gardner D. Wagers
Clark County Judge/Executive
Clark County Courthouse
P.O. Box 5
Winchester, Kentucky 40391
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of April 18 in which you refer to the fact that there exists a joint city-county planning and zoning board made up of eight (8) members, four (4) of which represent the county, and four (4) the city. Recently, after checking on the terms of the various members, it was found that one (1) member, appointed in 1966 for a one (1) year term, was not reappointed but continues to serve. A second member, appointed to fill a term ending in 1977, was not reappointed but also continues to serve. Both members are of course county members of the joint commission.
Following this disclosure, you presented to the fiscal court the names of two (2) prospective members to be appointed to replace those members whose terms had expired. However, the magistrates rejected your nominations and were told that if they continued to do so for a period of sixty (60) days, the planning and zoning commission could then fill the vacancies. You raise the following question:
"My question is whether the Fiscal Court can reject my nominees or fail to act for a period of sixty days and thus allow the Planning and Zoning Commission or the magistrates to in fact name their own appointments. "
In answer to your question, we initially refer to KRS 100.141 which authorizes the county judge to appoint the county members of the planning commission with the approval of the fiscal court. KRS 100.143 fixes the terms of the members of the commission which begin on a staggered basis at the inception of the joint commission but are basically four-year terms with no provision for a member to continue to serve until his successor is appointed. The absence of this latter provision simply means that the two (2) members in question are serving illegally as their terms have long since expired. Vacancies were thereby created at the end of their respective terms subject to being filled pursuant to KRS 100.147. We might add here, however, that since they have been serving under color of title to the office, their acts would be valid. See
Willis v. Skinner, 211 Ky. 340, 277 S.W. 490 (1925).
Concerning the procedure for filling these vacancies, we next refer you to KRS 100.147, which reads as follows:
"Vacancies on the planning commission, shall be filled within sixty (60) days by the appropriate appointing authority. If the authority fails to act within the time, the planning commission shall fill the vacancy. When a vacancy occurs other than through expiration of the term of office, it shall be filled for the remainder of that term."
You will note from the above quote that all vacancies on the planning commission shall be filled within sixty (60) days by the appropriate appointing authority, and, if such authority fails to act within that time, the planning commission shall fill the vacancies. The term "authority" means of course the joint appointing procedure by the county judge and the fiscal court. Considering the time that the two vacancies were created [at the end of their respective terms] and the fact that no appointments to fill these vacancies were made within the 60-day limitation under KRS 100.147, we are of the opinion that the planning commission now has and has had the authority to fill the two (2) vacancies following the lapse of the 60-day period beginning at the expiration of their original terms.
We might add that though the question is moot at this point, where the magistrates reject the nominations made by the county judge, it is up to the judge to continue to make new nominations until they satisfy the fiscal court. On this point we are enclosing a copy of OAG 78-801.