Request By:
Mr. R. H. Chandler
Vice Chairman
Johnson County Housing Authority
P.O. Box 1102
Paintsville, Kentucky 41240
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising several questions concerning the Johnson County Housing Authority. The Housing Authority was authorized by an order of the fiscal court on April 20, 1976, and five persons were selected as members of the authority's governing body pursuant to KRS 80.420. The members were sworn in on May 24, 1976. The members were not notified of their appointments until May of 1976.
Your first question concerns the effective date of the appointment of members of the Housing Authority. You ask whether the date in question is April 20, 1976 (date of appointment) or May 24, 1976 (date of taking of the oath of office) . Of particular concern is the three-year term of office. You state that if the term began April 20, 1976, the person serving cannot serve three full years. You maintain that the statutes are clear as to the number of years but somewhat confusing by referring to the appointment date which could occur many days prior to the taking of the oath of office.
The Johnson County Housing Authority was apparently created pursuant to KRS 80.310 to 80.610. The members of the Housing Authority were appointed to serve terms set forth in KRS 80.420 which states:
"If a housing authority is created for a county, the governing body of that county shall appoint five (5) persons as members of the housing authority. Three (3) of the five (5) members who are first appointed shall be designated to serve for terms of one (1), two (2) or three (3) years and two (2) of such members for terms of four (4) years, respectively, from the date of their appointments, but thereafter members of the housing authority shall be appointed as aforesaid for a term of office of four (4) years except that all vacancies shall be filled by the governing body for the unexpired terms." (Emphasis supplied.)
Perhaps at the outset it would be useful to point out that the phrase "term of office" is generally used to mean the fixed period of time for which the office may be held; the period designated as the time during which the office may be held rather than the time an individual holds the office. "Term" and "tenure" are not synonymous words and the tenure of an officer appointed for a fixed term is not permanent although the office may be. Tenure generally refers to the right to hold an office subject to its termination by some contingency such as resignation, death, removal, etc. See 67 C.J.S. Officers § 66; Kratzer v. Commonwealth, 228 Ky. 684, 15 S.W.2d 473 (1929); Cawood v. Hensley, Ky., 247 S.W.2d 27 (1952).
In 67 C.J.S. Officers § 68, it is stated that the term of office begins from the time, if any, fixed by law. The general rule is that where no time is fixed by the constitution or statute, the term begins, in the case of elective offices, on the day of election, and, in the case of appointive offices, on the date of appointment. See also 63 Am.Jur. 2d Public Officers and Employees § 151. However, in the case of members of a county housing authority, KRS 80.420 specifically provides that the terms of office of such members begin from the date of their appointments. Since the term of office commences when the person is appointed, it is important that the appointing body immediately notify the appointees in order that they may take the required steps to enable them to hold those offices to which they have been appointed. Note also that KRS 80.440(2) provides in part that a member shall hold office until his successor has been appointed and has qualified (a so-called holding over provision).
Your second question concerns the expiration date of the first appointment and the effective date of a new appointee's appointment.
A person appointed for a three-year term beginning April 20, 1976, would conclude his appointment and would end his term on April 19, 1979. However, since a term begins when the person is appointed we cannot say when the next term begins as we do not know when the new appointee will be named. The appointing body, however, cannot lengthen or shorten the term of office where its duration is fixed by statute. Note again the holding over provision in KRS 80.440(2). In addition, in 67 C.J.S. Officers § 69, the following appears:
"Where the term of office is fixed by law simply as for a period of time and no particular date is established for the beginning or ending of the term, each incumbent takes a term running from the date of his appointment equal in duration to the period of time fixed; and a new term does not commence on the determination of the preceding term until the appointment of a new incumbent, or the appointment of the person in office to a new term. "
Your last question concerns legal representation for the county housing authority. You ask whether the county attorney may serve as paid legal counsel to the housing authority.
KRS 80.450 provides in part as follows:
". . . For such legal services as it may require, an authority may call upon the chief law officer of the city or county for which it is created, or may employ its own counsel and legal staff. . . ."
Thus, a county housing authority may call upon the county attorney of the county for which it is created for needed legal services. However, there is no authorization for the housing authority to expend funds to pay the county attorney or to employ the county attorney in his private capacity. Since the housing authority may call upon the county attorney in his official capacity, he may not receive extra compensation for services rendered in his capacity as county attorney. See OAG 76-172, copy enclosed, concerning a county attorney rendering his services to a water district.