Request By:
Honorable Damon R. Talley
Attorney at Law
Professional Arts Building
207 E. Main Street
Horse Cave, Kentucky 42749
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of April 30 in which you on behalf of the city of Horse Cave and the municipal housing commission established pursuant to KRS 80.020, request an opinion concerning the residential qualifications of the chairman of the housing authority. You relate the following facts and questions:
"George Wilson is the current Chairman of the Housing Authority of Horse Cave and has served on the Authority since the mid 1960s. According to the information furnished to us, he was a bona fide resident of the City of Horse Cave and met all the other qualifications as required by KRS 80.040 at the time of his appointment. Since then, however, he has moved outside of the city limits of Horse Cave and is a non-resident at the present time. He has been subsequently reappointed to the Authority by the Mayor with the approval of the City Council as required by KRS 80.030.
"Two (2) questions are presented by this fact situation:
1. Is George Wilson still qualified to serve as a member and Chairman of the Authority?
2. If not, what legal effect does his disqualification have with respect to any prior official actions taken by the Authority?"
KRS 80.040 contains the following provisions:
"Each person appointed to a city housing authority shall be . . . a bona fide resident of the city for which he was appointed for at least one (1) year preceding the appointment. . . ."
The general rule is that where residency is made a condition of eligibility it should exist throughout the tenure of the person holding the position. See
Hirschfeld v. Commonwealth, 256 Ky. 374, 76 S.W.2d 47 (1934). In 42 Am.Jur. 2d, Mun. Corps., § 248, it is declared that the fact an individual is qualified at the time of his election is not sufficient to entitle him to hold the office, if during the continuance of the term, he ceases to be qualified. More specifically this subsection states that:
"Eligibility to public office is of a continued nature, and must subsist at the commencement of the term and during the occupancy of the office."
Next referring to 42 Am.Jur., Public Officers, § 48, the rule is reiterated as follows:
"Where residency is made a condition of eligibility to office it should exist at the time and for the period required by law. . . ."
See also McQuillin, Mun. Corps., Vol. 3, Sections 12.65 and 12.100.
Under the circumstances, the chairman of the housing authority who was a resident of the city at the time of his appointment but who later moved outside of the city limits, became disqualified at that point in time from serving on the housing authority or being reappointed after his term expired.
However, the fact that he became disqualified by virtue of moving out of the city, would not affect the validity of his acts while serving as a member of the housing authority. In this respect we refer you to the case of