Request By:
Mr. George G. Barry
Chairman, Board of Trustees
Town of New Haven
New Haven, Kentucky 40051
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of January 19 in which you relate the following facts and question:
"On Jan. 1, 1978 Jean Marie Wimpsett was hired by our Board of Trustees as Town Clerk. She lives in the town limits of New Haven as we understand the law requires. Mrs. Wimpsett has sold her property in the New Haven and will build a house outside of the New Haven town limits.
"Our question is can she still serve as town clerk and not reside in the town limits?"
The answer to your question would be in the negative. The position of city clerk of a sixth class city is considered a municipal office as so stated in KRS 88.180 relating to the election and appointment of city officers. Said statute provides that the city clerk shall be appointed by the board of trustees for a term of two (2) years, subject to removal at the pleasure of the board. KRS 88.210 requires the clerk to execute bond to the city prior to entering upon the duties of the office and, of course, he is required to execute the oath of office as provided in the Constitution. Consequently, the position of city clerk of a sixth class city is undoubtedly a municipal office.
KRS 88.170 provides, in effect, that no person shall be eligible to hold any office in the city unless he is a resident and an elector in the city and has resided in the city one (1) year next preceding the date of his election or appointment.
Thus, the fact that the present clerk has sold her residence within the city of New Haven and presumedly moved to a new residence outside of the city, would disqualify her from continuing to serve as city clerk. Legal residence is based on fact and intention, however, the factual evidence indicates that she will no longer legally reside within the city, at which point and time she will become disqualified.