Request By:
Honorable Roy Allison
Mayor, City of Harlan
P.O. Box 783
Harlan, Kentucky 40831
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of January 15 in which you raise the following questions:
"1. Once a resignation by a Mayor of a fourth class City has been offered by the Mayor to the City Council in writing and voted upon, may the resignation be withdrawn?
"2. If a valid resignation is in force may a replacement for the Mayor of a fourth class City be named by the Council before the last day in office of the resigning Mayor or on the effective date of resignation?
"3. May a replacement for a resigning Mayor of a fourth class City be someone not presently on the Council?
"4. Are there time constraints upon how soon or when the new Mayor is to be sworn in?"
In response to your first two questions, we initially refer to KRS 63.010 dealing with resignations, which states that:
"All resignations of office shall be tendered in writing to the court or officer required to fill the vacancy, and received and recorded by the court or officer in its or his records. Resignations to the governor shall be recorded in the executive journal."
Kentucky has adopted a majority rule to the effect that resignations not only must be tendered in writing to the person authorized to fill the vacancy but must be accepted by the officer, either by some notation or recording of same or by appointment of someone to fill the vacancy. See Hancock v. Queenan, Ky., 294 S.W.2d 92 (1956).
The Court of Appeals has also taken the position that resignations cannot be withdrawn, even though made effective at a future date, after they have been accepted. See Board of Education of Wolfe County v. Rose, 285 Ky. 217, 147 S.W.2d 83, (1940); and Sanders v. O'Bannon, 27 K.L.R. 1166, 87 S.W. 1105 (1905). Also referring to the case of Hogg v. Miller, Com'r. of Finance, 298 Ky. 128, 182 S.W.2d 242 (1944), we again find the majority rule stated to the effect that when a resignation is once made to the appointing authority and accepted, it may not be withdrawn unless his resignation was conditioned so as to make it voidable if the condition was not performed. See also 63 Am.Jur. 2d, Public Officers and Employees, § 166; 82 A.L.R. 2d 752; and McQuillin, Mun. Corps., Vol. 3, § 12.122.
The fact that a resignation was accepted but made effective at a later date would not, we believe, alter the fact that the resignation was accepted when tendered.
Our response to your second question would be in the affirmative. In this respect we refer you to the case of Board of Education of Boyle County v. McChesney, 235 Ky. 692, 32 S.W.2d 26 (1930), in which the court said and we quote:
". . . 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 . . ."
See also C.J.S., Officers, § 30.
From the above it is apparent that the appointing authority may make an appointment in advance of the time that a member's resignation becomes effective, provided, of course, that the appointing authority would be authorized to fill the vacancy when it actually occurs, which would appear to be the case from the facts given.
Our response to your third question would be in the affirmative. The city council may appoint any qualified resident of the city. It may or may not be a member of the city council. If, for example, it is a member of the city council, such appointment would obviously create a vacancy on the council, also to be filled by appointment. Both appointments must be filled by an election for the unexpired term pursuant to § 152 of the Constitution at the coming November election, provided, of course, that such vacancies occur more than three (3) months prior to said election.
In response to your fourth question, we refer you to KRS 62.010 (1) and (3), which read as follows:
"(1) No officer shall enter upon the duties of his office until he takes the oath required of him by law.
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"(3) Each person appointed to an office shall take the oath of office within thirty (30) days after he receives notice of his appointment. "
You will note from the above that the person appointed to an office must execute the oath within thirty (30) days after he receives notice of his appointment.