Opinion
Opinion By: Frederic J. Cowan, Attorney General; Nathan Goldman, Assistant Attorney General
In your letter to the Attorney General you ask whether a member of the Personnel Board whose term has expired may continue to serve until they have been reappointed or until someone else is appointed for the remainder of the unexpired term. You have informed us by telephone that the member whose term has expired is one of the appointments made by the governor, specifically the member who replaced the previous member whose term expired January 1, 1985.
KRS 18A.050(3) states:
"Upon the expiration of the terms of office, of the members whose terms expire December 31, 1982, January 1, 1985, and January 1, 1986, the Governor shall appoint citizens at large who are not associated with state government in any manner. Thereafter upon the expiration of these terms, such terms shall be filled in the same manner as provided in this subsection."
Subsection (1) of the statute states, in applicable part: "Subsequent appointments shall be for a term of four (4) years from the date of expiration of the term for which his predecessor was appointed as provided in subsections (2) and (3) of this section . . . ."
In Booth v. Board of Education of the City of Owensboro, 191 Ky. 147, 229 S.W. 84 (1921), the Court held that all state, county, city and town officers, except members of the legislature and of the city councils, may hold over after their fixed terms has expired and until their successors are elected and qualified. In Fullerton v. Mann, 214 Ky. 764, 284 S.W. 113 (1926), the Court held that holding over after the expiration of a term was for convenience and to prevent a hiatus.
In 67 C.J.S. Officers, § 71, the general rule in these cases is stated as follows:
"Since the public interest ordinarily requires that public offices should be filled at all times without interruption, as a general rule, in the absence of an express or implied constitutional or statutory provision to the contrary, an officer is entitled to hold his office until his successor is appointed or chosen and has qualified.
In the absence of a definitive court decision on the particular question you pose, we can only give you our opinion as to what we believe the rule to be. Based on the cases cited above, we believe that a personnel board member may hold over after his term has expired and until a successor has been appointed and qualified.