Request By:
Honorable Gary B. Hunley
Mayor
City of Catlettsburg
P.O. Box 533
Catlettsburg, Kentucky 41129
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of November 16 in which you present the following questions:
"1.) Does a newly elected councilman take the place of an appointed councilman before the term is over that the appointed councilman is filling? All the other councilmen will be sworn in on January 10, 1984.
2.) Does a councilman have to live within the city limits of the city which he is serving? What procedures must be followed to remove a councilman that now lives out of town if he refuses to resign?"
In response to your initial question, all newly elected councilmen at the November 1983 election must take office on January 10, 1984. Any vacancy that has previously occurred during the year and filled by appointment would not be filled at said election since the appointee serves out the remainder of the term as authorized under Section 152 of the Constitution.
On the other hand, if the term did not end this year, as for example with respect to the office of mayor, the person elected to fill this vacancy at the November election for the remaining two years of the term would be entitled to take office immediately after the election or as soon as he receives his certificate of election and qualifies. See Sizemore v. Jones, 117 Ky. 810, 79 S.W. 229 (1904).
In response to your second question, KRS 83A.040(3) requires all members of the city legislative body as well as the mayor to reside within the city and be a qualified voter therein. As we have often pointed out, however, it is sometimes difficult to determine one's legal residence as it is based on the intent of the individual and factual evidence to back up such intent. The procedure for removing a person, who in fact no longer lives in the city and thus becomes a usurper, is for a request to be filed with the Attorney General. See KRS 415.050. Under this statute and case law, documented evidence must be presented to the Attorney General for consideration and he has discretion in authorizing an ouster proceeding to be brought in his name by an attorney designated by the requesting party or parties.