Request By:
Mr. H. L. Ammerman
Clerk
City of Falmouth
Falmouth, Kentucky 41040
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your inquiry concerning a city councilman elected in November 1983 who failed to qualify in January 1984. Thereafter in May of 1984 the council declared the office vacant. The question is raised as to whether the council can now fill the vacancy or does the Governor have such power, since the vacancy has existed for over 30 days.
KRS 62.010(2) provides that each person elected to an office must take the oath of office on or before the day the term of office to which he has been elected begins. Since the person elected in 1983 apparently failed to execute the oath of office or otherwise qualify on or before January 10, 1984 and presumably did not attempt to assume the office, an obvious vacancy was thereby created to be filled in accordance with KRS 83A.040(5). This statute provides in effect that the council will fill all vacancies in elective offices including the council, but must do so in 30 days following the vacancy or automatic vacancy, as in this case where the officer failed to execute the oath within a reasonable time. See
Brown v. Rose, 233 Ky. 549, 26 S.W.2d 503 (1930). However, where the council fails to fill the vacancy within the 30-day period, it loses the right to do so and the vacancy can then only be filled by the Governor as KRS 83A.040(5) clearly provides.
It would appear from the facts presented that the vacancy actually occurred on January 10 or within 30 days thereafter, the time frame mentioned in