Request By:
Mr. Ed Moore
West Point City Councilman
West Point, Kentucky 40177
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of July 11 in which you request an opinion concerning a number of questions and related facts.
Your first question is as follows:
"James M. Miller was elected Mayor of West Point during the election of November, 1977. Mayor Miller resigned in October, 1979 and the City Council moved to appoint Velva Hanson as Mayor of West Point for the remainder of James M. Miller's term, term ending November, 1981.
"Would it be legal for the Office of the Mayor to be on the voting ballot in November, 1980, if someone chose to run?"
Section 152 of the Constitution governs the filling of all vacancies in elective offices, including the office of mayor of the city of West Point. This section requires any vacancy that occurs more than three (3) months prior to the succeeding general election, to be filled at that election, provided there is a regular election to be held at that time embracing the area in which the vacancy has occurred. Since the vacancy in the office of mayor occurred in October '79 [which was too late for the office to be placed on the November '79 ballot] , it must be placed on the November, 1980 ballot, to be filled for the unexpired one (1) year term, irrespective of whether or not anyone files for the office. We are electing presidential electors this November who are statewide officers; thus, this election qualifies as a regular election embracing the city of West Point. See
Smith v. Ruth, 308 Ky. 60, 212 S.W.2d 532 (1948).
Any person desiring to run for the unexpired term of the office of mayor at the coming November election must file a petition in the form prescribed by the state board, copies of which are in the clerk's office, not less than fifty-five (55) days before the November election, which would be not later than September 10.
Your second question is as follows:
"I am presently a member of the West Point City Council and would like to run for Mayor this November, if the office can be on the ballot.
"If I did run for Mayor, would I have to resign from my position as a Councilman prior to running for the office or not?"
The fact that you are a present member of the city council would in no way prohibit you from becoming a candidate for the office of mayor, though, of course, the two positions are incompatible and you could not hold both at the same time under the terms of § 165 of the Constitution and KRS 61.080. The incompatibility between the two offices would not exist until you assumed, in this case, the office of mayor. See KRS 61.090.
Your third question is as follows:
"If the office can be opened and I ran for Mayor and was elected, when would be the soonest date I could take the office?"
If elected this November, you would take office immediately after the election or as soon thereafter as you receive your certificate of election and execute the oath of office.