Request By:
Mr. Roger Williams
Jessamine County Clerk
P.O. Box 36
Nicholasville, Kentucky 40356
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of September 16 in which you relate the following facts and question:
"A vacancy in the city commission of Nicholasville (4th class city) was created in 1979 by a resignation. One candidate filed in the spring of 1980 under KRS 89.060 to fill the vacancy. He had no opposition and under KRS 89.060 no primary election was required. KRS 89.060 (4) required the county clerk to place the nominee on the voting machine for the general election.
"KRS 89.060 was repealed by the 1980 legislature. Another candidate has filed for nomination under KRS 118.315 and seeks to have his name placed on the ballot for the vacancy on the city commission. The candidate who filed under KRS 89.060 in the spring of 1980 for nomination did not file for nomination under KRS 118.315. This matter was discussed briefly in OAG 80-267.
"Are both candidates to be placed on the ballot at the regular November 4 election? If not, which candidate does the law require me to put on the ballot? "
In OAG 80-267, to which you refer, we pointed out the effect of the enactment of Senate Bill 26 as it relates to the commission form of government. The special city primary requirement, as we said, was repealed as of July 15 and since this statute was in effect at the time that the special city primary was required to be held to make nominations for the unexpired term, to which you refer, compliance with this statute was obviously necessary though we mentioned that the person nominated in the primary might again have to file an independent petition which he could do fifty-five (55) days before the general election since the general election laws would be applicable to the election of commissioners following the July 15 deadline. The necessity to refile would, however, be for the courts to decide as we stated. At the same time we expressed the opinion that following the July 15 deadline we thought any person could file an independent petition for the vacancy and we hold to this conclusion.
The situation is of course complicated since at the present time you have the primary nominee who did not refile and also a candidate having filed an independent petition for the same office pursuant ot KRS 118.315 which is now in effect insofar as the city election is concerned.
Under the circumstances and in absence of any litigation on this question, we believe that the names of both candidates should be listed on the general election ballot [following a drawing for position] under the heading of "city commissioner", unexpired term. This would appear to be the most reasonable solution to the problem since theoretically both candidates have been legally nominated under two separate laws though one is no longer in effect.