Request By:
Honorable F. R. Weldon
Mayor, City of Warsaw
Warsaw, Kentucky 41095
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of December 28 in which you relate that a "write-in" candidate was elected to the city council of the city of Warsaw, a city of the fifth class; however, to date, he owns no interest in real property which is required by KRS 87.160. Under the circumstances, you raise the following question:
"Should he be sworn into office along with the other elected members and would this have any legal effect on any business conducted by the council?"
Since the individual in question was duly elected to the office of city council, he is entitled to execute the oath of office and serve on the council until removed even though he does not possess the qualifications required by KRS 87.160 which includes ownership of an interest in real property at the time he takes office.
Though the councilman in question, upon assuming office, may not be qualified, his acts are valid as a de facto officer until he is ousted by a judgment of the court as held in Commonwealth v. Winstead, 430 S.W.2d 647 (1968); and Trimble County Piscal Court v. Trimble County Board of Health, Ky. App. 587 2d 276 (1979).
For your information, we are enclosing a letter citing a U.S. Supreme Court case holding unconstitutional the property requirement for membership on a school board which casts considerable doubt on the constitutionality of a similar requirement under KRS 87.160.