Request By:
Mr. Bev Holiday
Union Board of Trustees
City of Union
Union, Kentucky
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of November 11 in which you relate that a person recently elected to the board of trustees may not possess the necessary residential qualifications for holding office. You also state that the individual in question purchased a condominium located outside of the city in November or December of 1978. Prior to said purchase the individual had resided in the city of Union with his parents. In April, 1979 the candidate sold his condominium and purchased a home in the city of Union. He feels that he is qualified under the one (1) year residency requirement because he never changed his mailing address while he lived outside of the city. There were six (6) candidates running for the five (5) offices, and the candidate in question came in fifth. Under the circumstances, you raise the following questions.
". . . If in your opinion Mr. Stephens does not qualify for the one year residency requirement, would that automatically make the sixth candidate a winner, or would an appointment be necessary for the fifth Trustee position?"
KRS 88.170 requires a person elected to any office in the city to have resided in the city one (1) year next preceding the date of his election. The problem in the instant situation is determining whether or not the candidate in question became disqualified by purchasing the condominium outside of the city. However, this is difficult to determine in many cases because legal residence is based on two main factors: (1) The intent of the individual and (2) factual evidence relating to what he claims to be his legal residence. The courts have in numerous instances held that a person's residence is not lost by temporarily departing with the intention of returning. Also, if, for example, the candidate retained his voting registration within the city, such would be prima facie evidence of his remaining a legal resident of the city. As a consequence, we cannot answer this basic question upon the bare evidence submitted. We are however enclosing a copy of OAG 77-118 which sets forth a number of cases pertaining to the question of legal residence and registration.
Regardless of whether or not the candidate in question possesses the necessary qualifications prescribed in KRS 88.170, the individual who came in sixth would not be entitled to assume the fifth position on the board even if the fifth place candidate was in fact disqualified. The end result would be that a vacancy would be declared to be filled by the board, subject to an election under § 152 of the Constitution. Referring to the case of Bogie v. Hill, 286 Ky. 732, 151 S.W.2d 765 (1941); and Morgan v. Adams, 250 Ky. 441, 63 S.W.2d 479 (1933), from which we quote as follows
". . . It is a well-settled rule that one receiving less than a plurality of legal votes cannot be declared elected, and the only exception to this rule is where a successful candidate has violated the Corrupt Practice Act (Ky. Stats. § 1565b 1 et seq.) in a primary election. This exception cannot be applied in a peneral election. The candidate for an office who has not received a plurality of the legal votes cast is not entitled to the office, although the candidate who received a plurality of the legal votes is, for any reason, ineligible. . . ."
See also Wood v. Mills, Ky., 503 S.W.2d 706 (1974).
We might also add that until such time as the candidate in question is declared by a court judgment to be ineligible, his acts up until the time he is removed would be valid and he would be considered a de facto officer. See Commonwealth v. Winstead, 430 S.W.2d 647 (1968).