Request By:
Mr. Kenneth D. Catron
Mayor, City of Monticello
P.O. Box 518
Monticello, Kentucky 42633
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising questions concerning membership on the city's Electric Plant Board. The electric plant is being operated pursuant to the provisions of KRS 96.550 to 96.900, the Kentucky "T.V.A. Act."
Mr. Lewis Tate has been a member of the city's Electric Plant Board but his term of office expired on July 7, 1982. You ask whether he or any other member of the board may continue to hold his seat on the board until an appointment is made. The city's legal advisor has concluded that Mr. Tate's term has expired and that he is no longer a member of the Electric Plant Board.
KRS 96.760 deals in part with the terms of office of members of the city's Electric Plant Board. Subsection (1) of that statute provides in part as follows:
"The original appointees shall serve for one (1), two (2), three (3) and four (4) years respectively, from the date of appointment, as the said mayor or chief executive officer shall designate. Successors to retiring members so appointed shall be appointed for a term of four (4) years in the same manner, prior to the expiration of the term of office of the retiring members. . . ."
Basically you are asking whether a person has the authority to "hold over," that is, to remain as a member of the Electric Plant Board until his successor is nominated by the mayor and confirmed by the city council, when the four-year term to which he had been appointed has expired.
In OAG 71-14, a copy of which is enclosed, we briefly discussed KRS 96.760 and the status of a person who attempts to remain on the board after his term of appointment has expired. The statute provides that members shall serve four-year staggered terms but there is no provision for a person to serve until his successor is appointed following the expiration of his particular term. A person who attempts to continue as a board member beyond his term would technically have no legal status as a member but would probably be considered a de facto officer until he is replaced.
Note also that if the provisions of KRS 96.760 are followed there is no need for a person to "hold over" and there will be no periods of time when the board is left without legally appointed members following the expiration of their terms of office. The statute provides that successors to retiring members shall be appointed for four-year terms prior to the expiration of the terms of office of the retiring members. Thus, immediately after the expiration of a member's term of office his successor can take office.
In OAG 78-801, copy enclosed, we dealt with the provisions of KRS 96.172(8), which are similar to those found in KRS 96.760(1), concerning the terms of office of members of a municipal electric plant board and the "hold over" concept. We concluded that neither the Kentucky Constitution nor the statutes provide that a member of an electric and water plant board may hold over after his term expires. Such a person cannot remain as a member of the board, until his successor is appointed after the four-year term to which he had been appointed has expired.
Therefore, in response to your specific question, it is our opinion that a person whose term of office with the city's Electric Plant Board [KRS 96.760(1)] has expired may not "hold over" or continue to hold his seat on the board until his successor is appointed.
Your second question asks whether a person who is married to the mayor's wife's sister may serve as a member of the city's Electric Plant Board.
KRS 96.740(2) provides as follows:
"No person shall be appointed a member of the board who has, within the last two (2) years next before his appointment, held any public office, or who is related within the third degree to the mayor or any member of the governing body of the municipality."
We have been unable to find any specific definition of relatives to the third degree in the reported Kentucky cases. However, in 23 Am.Jur.2d, Descent and Distribution, § 48, the following appears:
". . . The civil-law method of computing degrees of kinship has been adopted in most jurisdictions by statute or by court decision. Under this method the degree of kinship is determined by counting upward from the intestate to the nearest common ancestor, then downward to the claimant, each generation representing one degree. Computing by the rule of the civil law, parents and children of a deceased are related to him in the first degree; and grandparents, grandchildren, brothers, and sisters of the deceased are related to him in the second degree. Uncles aunts, nephews, nieces, and great-grandparents of the deceased are related to him in the third degree. The fourth degree of relationship includes first cousins, great-uncles and great-aunts and great-great-grandparents. . . ."
Thus, KRS 96.740(2) does not preclude the husband of the mayor's wife's sister from being appointed as a member of the city's Electric Plant Board.