Request By:
Mr. Larry J. Crigler
Assistant County Attorney
123 Constance Road
P.O. Box 18
Hebron, Kentucky 41018
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of October 17 in which you relate that on September 30 (38 days prior to the general election) an elected member of the Boone County Board of Education was ousted from his position by judgment of the Boone Circuit Court. Based on these facts, the question is raised as to whether or not the vacancy thus created should be filled at the coming November election pursuant to KRS 160.190 (2) which reads as follows:
"Any vacancy having an unexpired term of one year or more at the next regular November election after the vacancy occurs shall be filled for the unexpired term by an election to be held at the next regular November election after the vacancy occurs. The elected member shall succeed the member chosen by the board of education or the state board of education to fill the vacancy. "
Our response to your question would be in the negative, as we said in OAG's 74-613 and 77-588, copies of which we are attaching. As pointed out in these opinions, we believe that the 55-day filing deadline established pursuant to KRS 118.365 would be controlling and a vacancy on the school board occurring after said deadline could not be filled until the general election the following year. At the same time we do not believe that Section 152 of the Constitution would be controlling with respect to school vacancies because of the constitutional exception found under Section 155 and the holding in the case of Shields v. Wilkins, Ky., 449 S.W.2d 220 (1969).
Thus, as indicated above, the vacancy occurring on the Boone County Board of Education on September 30 cannot be filled at the coming November election and as a consequence no one can file for this vacancy and no write-in votes can be cast for the office. This means that it will have to be filled in the November, 1978 election and in the meantime the appointment procedure outlined in subsection (1) of KRS 160.190 must be followed.