Request By:
Mr. James W. Craft
Polly, Craft, Asher & Smallwood
104-B North Webb Avenue
Whitesburg, Kentucky 41858
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
A vacancy in the Office of Commonwealth's Attorney for Letcher County, the 47th Judicial District, was created as of the end of April, 1985. You were appointed to fill the vacancy until the next general election.
You have an active criminal case load involving representing persons charged with crime.
KRS 15.740 reads:
"The commonwealth's attorney and county attorney shall not act as defense counsel in any criminal prosecution in any state or federal court in this commonwealth, except in cases in which he is a party."
KRS 15.725(1) provides in part that "The commonwealth's attorney shall attend each circuit court held in his judicial circuit. He shall, except as provided in KRS 15.715, have the duty to prosecute all violations of the criminal and penal laws which are to be tried in the circuit court in his judicial circuit. " (Emphasis added.) KRS 15.715 provides for intervention in criminal prosecutions by the Attorney General under certain situations described therein. However, we see nothing in KRS 15.715 that would make an exception to the absolute prohibition (except where the Commonwealth's Attorney is a party in a criminal case) , against a Commonwealth's Attorney acting as defense counsel in a criminal case. See In Re Kenton County Bar Ass'n., 314 Ky. 664, 236 S.W.2d 906 (1951), citing KRS 69.020 (later repealed), which prohibited a Commonwealth's Attorney from acting as defense counsel in any criminal prosecution.
Your question:
"If a person is appointed by the Governor to fill a vacant Commonwealth's Attorney's position on May 1, 1985, and that person is not administered the oath of office until May 27, 1985, does a conflict arise as to his defending clients upon the date of appointment or upon the date of the taking of the oath of office? "
KRS 62.010 reads:
"(1) No officer shall enter upon the duties of his office until he takes the oath required of him by law.
"(2) Each person elected to an office shall take the oath of office on or before the day the term of office to which he has been elected begins.
"(3) Each person appointed to an office shall take the oath of office within thirty (30) days after he receives notice of his appointment. "
However, KRS 62.010 applies only to offices which are to be filled for the constitutional or statutory full term, and not to appointments to fill vacancies. See Jones v. Sizemore, 117 Ky. 810, 79 S.W. 229 (1904). In that case, the court observed that "There seems to be nothing in either the Constitution or statutes of this state fixing the time at which one elected or appointed to fill a vacancy in office shall assume the duties of such office." The court said that "Whether elected or appointed to such vacancy, the one so elected or appointed has the right to qualify and enter upon the performance of the duties of the office at once." Thus the court held in effect that the officer elected or appointed to fill a vacancy must qualify within a reasonable time after receiving the certificate of election or appointment, as the case may be. See Brown v. Rose, 233 Ky. 549, 26 S.W.2d 503 (1930) 505, in which the court reiterated that general rule.
CONCLUSIONS
It is our opinion as follows:
(1) Since you were appointed to fill the vacancy until the next general election, you cannot occupy that office or enter the duties thereof until you formally accept the office by taking the constitutional oath of office, pursuant to §§ 228 and 232. "Where the Constitution or statute makes the oath indispensable, the officer cannot be considered as qualified until he takes it." 63A Am. Jur. 2d Public Officers and Employees, § 131, page 763. See Taylor v. Todd, 241 Ky. 605, 44 S.W.2d 606 (1932), in which the court in effect ruled that an officer is not qualified to take office until he has taken the oath required by §§ 228 and 232 of the Kentucky Constitution. Thus under the express wording of § 228, Constitution, the taking of that oath is a condition precedent to an officer's entering upon the execution of the duties of his office. See also Morgan v. Vance, 67 Ky. 323, 4 Bush 323 (1868). The constitutional qualification is critical in assuming office; and it cannot be changed by the General Assembly.
(2) You have a reasonable time within which to qualify by taking the oath. What is a reasonable time may vary with the circumstances. However thirty (30) days was considered a reasonable time by the General Assembly when dealing with officers appointed for a full term under KRS 62.010. See Brown v. Rose, supra. In any event, only the courts can determine in this situation whether a reasonable time was taken.
(3) The prohibition of KRS 15.740 would not apply where you have not accepted the office by taking the oath. Once you take the oath of office, KRS 15.740 applies.
As to any ethical question about your delaying your acceptance of the office for the purpose of avoiding the application of KRS 15.740, you might wish to present that question to the Board of Governors of the Kentucky Bar Association under SCR 3.530.