Request By:
Mr. Clyde E. Greenwood
Trimble County Judge/Executive
Bedford, Kentucky 40006
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You raise two questions relating to county government, Question No. 1:
"The first involves a vacancy on a tax board of supervisors, and the point of interest is whether a member may be appointed to replace a member encumbered by illness so that a full board shall hear tax appeals, or whether replacement can only be made in the event of written resignation, or after the death of a member."
The members of the County Board of Assessment Appeals are appointed, of course, by the county judge/executive for four year terms. KRS 133.020. The board shall consist of three members appointed from the county at large. Additional members may be appointed to serve as temporary panels, provided the number of appeals filed with board exceed 100. We assume you refer to the permanent board.
KRS 133.020 provides in part that "The county judge/executive shall appoint a person having the qualifications required of the original appointee to the board to fill a vacancy resulting from any cause. . . ." (Emphasis added).
A public office may become vacant by abandonment and nonuser. 63 Am.Jur.2d, Public Officers and Employees, § 168.
Since there is nothing in the statutes indicating an automatic vacancy or forfeiture of office in this situation, the elements of abandonment, as set forth in 63 Am.Jur.2d, Public Officers and Employees, § 169, are significant:
"In order to constitute an abandonment of office, the abandonment must be total, and under such circumstances as clearly to indicate an absolute relinquishment. Moreover, the officer should manifest a clear intention to abandon the office and its duties, and such intention may be inferred from conduct. If the acts and statements are such as clearly indicate absolute relinquishment, a vacancy is thereby created without the necessity of a judicial determination."
If, under the test for abandonment above, you determine that there has been no abandonment of the member's office, then there is no vacancy. If there is no vacancy, you have no right to attempt to replace him. If the member is ill for an extended period and the factual situation meets the test as outlined above, then you can consider this office vacant, and fill the vacancy. Of course there would clearly be a vacancy if he resigns in writing to you or if he should die. See also
Stacy v. Wagers, Ky., 264 S.W.2d 299, 302 (1954). There the court ruled that the courts should be slow to decree an abandonment unless there is fairly conclusive evidence of the intent to abandon, or the inference is inescapable that there was an abandonment.
Question No. 2:
"Another matter has to do with Commissioners appointed to perfect reapportionment. During the course of their 60 days alloted for reapportioning, what happens in the event one of the members becomes incapacitated to perform the duties of the assignment? Would the entire process have to be restarted by advertising, reapportionment, etc.?"
Under KRS 67.045 the county judge/executive must appoint three commissioners to reapportion the county into justices' districts. They [the commissioners] must reside in different justices' districts.
As concerns this temporary office, if the commissioner becomes so incapacitated that the commissioners cannot perform their duty under the time sequence set out in the statute, it is our opinion that you have the authority to replace that commissioner with a person who, with the other two, can do the job required by the statute. Since the commissioners have no basic term of office, it is our opinion that any of the commissioners could be replaced for a valid reason. See § 2, Kentucky Constitution, prohibiting arbitrary action.