Request By:
Robert Ziegler
Opinion
Opinion By: JACK CONWAY, ATTORNEY GENERAL; Matt James, Assistant Attorney General
Statutes construed: KRS 62.010(2), KRS 62.990(2)
OAGs cited: OAG 78-75, OAG 78-707, OAG 90-139
Opinion of the Attorney General
Robert Ziegler, attorney for the City of Fort Mitchell, has requested an opinion of this office on whether a city councilmember who did not take the oath of office on January 1 due to illness is disqualified from office. We advise that a city councilmember who takes the oath of office within a reasonable time after January 1 is not disqualified from office.
Mr. Ziegler informs us that a councilmember of the City of Fort Mitchell was elected to a term beginning on January 1, 2013. In December of 2012, the councilmember became severely ill and required surgery. The City Clerk inquired on December 28 whether the councilmember had taken the oath of office yet, but the councilmember was in the hospital at the time and did not respond until January 2, 2013. When the City Clerk received the councilmember's response on January 3, the Mayor directed that the City Clerk proceed to the councilmember's home and swear her in, which was done on January 3. At issue is whether the councilmember is disqualified from office because she did not take the oath of office on or before January 1.
KRS 62.010(2) provides that "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," with exceptions for when the first Monday falls on January 1. KRS 62.990(2)(b) provides that "if any person violates KRS 62.010(2) or (3) on or after January 1, 2010, his office shall be considered vacant, and he shall not be eligible for the same office for two (2) years." Taken literally, KRS 62.010(2) and KRS 62.990(2)(b) provide if an elected official does not take the oath of office before January 1, the official's office is vacated, and the official is not eligible for the same office for two years.
However, case law and this office's prior opinions are consistent that KRS 62.010(2) and KRS 62.990(2)(b) are not to be taken strictly literally, and that as long as the official takes the oath within a reasonable time and does not willfully refuse to take the oath, the official's assumption of the office is valid. In Lewin v. Town of Ft. Mitchell, 147 S.W.922 (Ky. 1912), the Board of Trustees of the town did not take the oath of office until January 3. Regarding the requirement to take the oath on January 1, the court held that:
The Legislature certainly never intended that this should be mandatory; no reason or necessity can be given for it so being . . . And we are of the opinion that a mere delay of one day ought not to be considered as sufficient to cause a vacancy of their offices to which they had been elected. It is our opinion that, when a person is duly elected to office and a bond for the faithful performance of his duties is not required, he should be permitted to qualify within a reasonable time after the day fixed for taking the oath provided he has a reasonable excuse for the delay.
Id. at 924. The court found that the requirement to take the oath on January 1 is not mandatory, and an elected officer may qualify for the office by taking the oath within a reasonable time, provided there is a reasonable excuse.
Our prior opinions have followed Lewin. In OAG 78-75, an officer did not take the oath of office on January 1 due to illness. Under Lewin , we advised that "in view of the related facts which indicate illness on the part of the individual in question, we believe that the oath could still be executed and the individual would be legally qualified." Id. Similarly, in OAG 78-707, we advised that "the fact that members of the city council did not execute the oath on or before the first Monday in January . . . but did so on January 3, the following day, would not disqualify these officers as far as the execution of the oath is concerned." See also OAG 90-139. Our opinions have consistently held that a justifiable excuse for not taking the oath of office on January 1 does not disqualify the officer from taking the office, as long as the oath is taken within a reasonable time thereafter.
In sum, we advise that a city councilmember who does not take the oath of office on January 1 is not disqualified from holding office, provided the councilmember takes the oath at a reasonable time thereafter. In this case, the councilmember had a valid excuse of illness for not taking the oath, and took it two days later on January 3, which case law and our prior opinions have indicated is a reasonable time thereafter. Accordingly, the city councilmember's assumption of office should be valid.