Request By:
Honorable T. Jack Eversole
Barren River Area
Development District
P.O. Box 2120
Bowling Green, Kentucky 42101
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of June 20 in which you refer to the fact that the Barren River Area Development District is a public agency created pursuant to KRS Ch. 147A. The Area Development District has established the Barren River Subarea Advisory Council and provided for the appointment of council members pursuant to the bylaws, copies of which you have enclosed.
Your basic question concerns the reappointment of two members of the Subarea Advisory Council. One of these members was appointed on September 14, 1976 and the other was appointed on October 21, 1976. Both were appointed for two-year terms pursuant to the bylaws which establishes staggered three-year terms with one-third of the members initially serving for one, two and three years. The bylaws however do not provide for any beginning date for the initial terms.
Beginning on March 15, 1979 and extending through June 12 there apparently existed some controversy over who would be appointed to the two vacancies created by the expiration of the terms of Turner and Clark, and we are not sure from the record submitted who was appointed to fill these vacancies though this is not material, as we see it, to your question, which is as follows:
"When did the terms of Clark and Turner expirs? Can they legally function as SAC members after the expiration of those dates pending proper reappointment? Or have Clark and Turner been reappointed legitimately so that no questions could arise as to Certifcates of Need determined by their vote(s)?"
KRS 147A.090 authorizes the Board of Directors of the Area Development District to establish functional advisory committees. This of course was done by the creation of the Subarea Advisory Council pursuant to the previously referred to bylaws.
The two-year terms however of Turner and Clark, appointed in September and October, 1976 respectively, expired on the same date and month in 1978 pursuant to the legal principle that where no time is fixed by law for the commencement of an officer's term, it begins to run from the date of the initial appointment and of course ends on that date two years hence. In this respect we refer you to 63 Am.Jur., Public Officers and Employees, P 151, from which we quote the following:
". . . Where no time is fixed by law for the commencement of an official term, the general rule is that it begins to run from the date of the appointment, . . ."
"Where the law prescribes the length of the term and designates the person in whom is vested the power to fill a public office by appointment, but no date is fixed for the beginning or ending of the term, it has been held that the appointive power has the right to fix the commencement of the term; and when the same is fixed by the appointment first made, all subsequent terms of office necessarily have reference to such initial period, and each term commences at the end of the preceding term."
See also McQuillin, Mun. Corps., Vol. 3, § 12.99.
It is also noted that the bylaws make no provision for the officers appointed to serve until their successors are appointed; therefore, vacancies were automatically created at the end of both Turner and Clark terms in 1978. See Byrne and Speed Coal Co. v. City of Louisville, 189 Ky. 346, 224 S.W. 883 (1920). As a consequence, both Turner and Clark were not qualified to continue thereafter to serve on the Advisory Council, however, they apparently proceeded to do so and therefore held office under color of title. This being the case, they became de facto officers, though not qualified [holding office under color of title] , and their acts as members of the council in voting, etc., must be considered valid until such time as someone is appointed in their place. In this respect we refer to the case of Commonwealth v. Winstead, Ky., 430 S.W.2d 647 (1968), involving an action to remove a school board member by reason of his being disqualified from continuing to hold office. In this case the court held that though he was ineligible to continue to serve on the school board, he nevertheless had the right to participate in the appointment of a school superintendent pending his ouster trial, vacating his office. In so holding, the court said:
"Since it is clearly settled that one who never has had title to an office in the first place can act as a de facto officer, it is bound to be equally evident that one who becomes ineligible after he takes the office acts as de facto officer until he is ousted."
See also the case of Willis v. Skinner, 211 Ky. 340, 177 S.W. 490 (1925), and McUillin, 177 S.W. 490 (1925), and McQuillin, Mun. Corps., Vol. 3, § 12.103.
We might also add that appointments made this year to fill these vacancies would be midterm appointments involving 3-year terms which would not end until September and October of 1981.