Request By:
Mr. Gary D. Wainscott
Scott County Sheriff
Georgetown, Kentucky 40324
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Section 150 of the Kentucky Constitution, as you point out, provides that "All persons shall be excluded from office who have been, or shall hereafter be, convicted of a felony, . . . . but such disability may be removed by pardon of the governor."
The Court of Appeals, in City of Pineville v. Collett, 294 Ky. 853, 172 S.W.2d 640 (1943), held that such office, affected by such disability, does not become vacant unless and until the appellate court affirms the felony conviction. Thus an appeal to the Kentucky Appellate Court suspends the judgment of conviction; and it will not become final until the appeal is finally acted upon.
You have written that the Scott County Jailer was convicted of a felony in Georgia on April 1, 1960. You also have written that he was sentenced to two years in the penitentiary; and that there is no executive pardon on record in Georgia or Kentucky. The Secretary of State of Kentucky certifies that no record of an executive order of the Governor of Kentucky containing a pardon for such person can be found. A letter from an officer of the Georgia State Board of Pardons and Paroles indicates that there is no evidence that the subject jailer has applied for or was granted a restoration of civil and political rights. The difficulty is, as you put it, that no one admits copy of documents identifying the present jailer and the original conviction, etc.
Your question is: Whose responsibility is it to remove the convicted felon who is presently in the office of jailer in Scott County, Kentucky?
KRS 415.040 reads:
"It shall be the duty of the several commonwealth attorneys to institute the actions mentioned in this chapter against usurpers of county offices or franchises, if no other person be entitled thereto, or if the person entitled fail to institute the same during three (3) months after the usurpation. "
Under the literal wording of the statute, KRS 415.040, it is our opinion that the responsibility for removing a convicted felon from a county office is the commonwealth's attorney of your county. The removal becomes necessary where such officer has received no pardon in terms of § 150, Kentucky Constitution.
Thus if a former felon is elected to public office without having his civil rights restored, such person may be removed as a usurper pursuant to KRS 415.040. Since the jailer is a county office, the burden of instituting an ouster suit squarely falls on the commonwealth's attorney, pursuant to KRS 415.040.
Finally, the rule is well settled that a public officer may not be ousted from office, except as the result of an action brought by a person who claims the office or, in the case of a county officer, an ouster action brought by the commonwealth's attorney. See
McCloud v. City of Cadiz, Ky.App., 548 S.W.2d 158 (1977) 161. Also see
Williamson v. Hughes, 303 Ky. 735, 199 S.W.2d 125 (1947) 126, citing § 484 of the old Civil Code of Practice, which has been superseded by KRS 415.040. Section 484 of the Civil Code contained the language now found in KRS 415.040. See
Griffey v. Board of Education of Washington County, Ky., 385 S.W.2d 319 (1965) 320.
Where there is no other person entitled to the office in question, or if the person entitled to the office fails to institute the same during three months after the usurpation, it shall be the duty of the commonwealth's attorney to bring the ouster action pursuant to KRS 415.040.