Request By:
Honorable Stephen D. Gray
Attorney at Law
Suite 300
Ohio Valley National Bank Bldg.
Henderson, Kentucky 42420
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 7 in which you relate that the councilmen of the city of Corydon [a city of the fifth class] elected in November, 1977 were sworn in at their first meeting on January 3, 1978, being the first Tuesday of this year. Subsequently, one of the councilment resigned and another citizen was nominated and appointed to fill the vacancy, however, this councilman was not sworn in within thirty (30) days of notice to him that he was appointed to the council. He has, however, continued to act as councilman. Recently the mayor resigned and a councilman was appointed to replace him thereby creating another vacancy on the council. At a meeting to fill this last vacancy two persons were nominated and each received two (2) votes, one (1) vote being that of the councilman who was not properly given the oath as previously mentioned. The mayor broke the tie and the person in question was appointed to fill the vacancy. You further relate that there is some indication that the person appointed to fill the initial vacancy may not have been given the oath of office and, as a consequence, the two members of the council who were in the minority in the vote to fill the second vacancy now claim that their candidate should be on the council. Under the circumstances, you raise the following questions:
"a) Does the fact that the councilmen were sworn in originally on January 3, 1978, the first Tuesday in January, 1978, violate KRS 62.010 or any other statute?
"b) Is the requirement that an appointed councilman be given the oath of office within thirty days of notice to him of his appointment strictly construed and adhered to?
"c) Assuming that the first councilman to be appointed is not legally in office, what effect does that have on the appointment of X?
"d) Where may the oath of office be administered? "
The answer to your initial question would be in the negative as held in OAG 78-50, copy enclosed. In this opinion we point out that though 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 begins, the courts have nevertheless held that a person may execute the oath within a reasonable time after said date and still be qualified to serve. See
Lewin v. Ft. Mitchell, 148 Ky. 816, 147 S.W. 922 (1912). As a consequence, the fact that members of the city council did not execute the oath on or before the first Monday in January [the beginning of the term pursuant to KRS 87.170] but did so on January 3, the following day, would not disqualify these officers as far as the execution of the oath is concerned.
In response to your second question concerning the appointed councilman who failed to execute the oath within thirty (30) days, our answer would be that if the oath has been executed within a reasonable time thereafter as pointed out in the Ft. Mitchell case, it would be in compliance with the requirements of KRS 62.010(3). What is a reasonable time is a question for the courts to decide. On the other hand, of course, if he has never executed the oath of office, then he obviously would not be a legally qualified member of the city council and subject to prosecution under the penalty section which includes the forfeiture of office. See KRS 62.990.
In answer to your third question, and assuming that based on the foregoing circumstances, the councilman has either not executed the oath at all or did not do so within 30 days following appointment, we nevertheless believe that his acts would be valid as that of a de factor officer until he is either removed or his prosecution under the penalty section sustained by court judgment, thereby creating a forfeiture of office.
Reference Commonwealth v. Winstead, 430 S.W.2d 647 (1968).
In response to your fourth question concerning where the oath of office may be administered, our answer would be anywhere, as long as the oath is administered by one who is legally authorized to do so under the terms of KRS 62.020.