Request By:
Mr. Harold D. Reynolds
City Clerk-Treasurer
City of Owingsville
P.O. Box 603
Owingsville, Kentucky 40360
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to a recent letter concerning a member of the city council of the city of Owingsville who was elected at the regular November '79 election but who has purchased property outside of the city limits and moved there this past July though he continues to attend meetings and participates in the business of the city council. Under the circumstances, you raise the following questions:
(1) Is the councilman who has moved outside the city limits eligible to continue to serve on the council?
(2) In the event that he is not eligible to continue to serve on the council, what is the liability of the council and the city treasurer if he is allowed to continue to serve?
(3) In the event he is not eligible to serve on the council would the council be allowed to pay him for his services for the period since he moved outside of the city limits?
In response to your initial question, we must caution that legal residence is sometimes difficult to determine since it is based on intent and factual evidence relating thereto and is therefore a question that only the courts can determine. The person may move to a new location temporarily with the intention of returning and not lose his legal residence. Be that as it may, if, in fact, a member of the city council has moved his legal residence outside of the city, he is no longer eligible to serve as a member of the council. KRS 83A.040 (3) provides that a member of the city legislative body shall be a qualified voter in the city and shall reside in the city throughout his term of office.
On the other hand, a member of the city council who may no longer possess the qualifications to hold office but who continues to do so, is considered a de facto officer which means that his acts are valid until he is ousted from office by the judgment of the court. In this respect, we refer you to Commonwealth v. Winstead, Ky., 430 S.W.2d 647 (1968), which reads in part as follows:
"Since it is clearly settled that one who never has had title to an office in the first place can act as a de faco officer, it is bound to be equally evident that one who becomes ineligible after he takes the office acts as a de facto officer until he is ousted.
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". . . We think that in the absence of extraordinary circumstances an officer should not be enjoined from the performance of the public's business pending the outcome of an ouster proceeding. . . ."
Next concerning the question of whether or not the councilman in question would be entitled to compensation, the general rule has been expressed that a de facto officer is not entitled to compensation for his services rendered though they are valid. See Brown v. Shannon, 280 Ky. 88, 132 S.W.2d 525 (1939). However, in the later case of McKenna v. Nicholas, 295 Ky. 778, 175 S.W.2d 121 (1943), which involved a taxpayer's suit to recover the salary paid a deputy county clerk who was not legally appointed, the court modified the compensation question by saying that though the de facto officer is not entitled to force the receipt of compensation, it is nevertheless the rule in the absence of a statute to the contrary that where such officer acts in good faith and actually renders service, the salary received by him cannot be recovered by public authorities. In the case of Walters v. City of Paducah, 123 S.W. 287 (1909), the court declared that a city which before judgment of ouster against a de facto officer, pays him the salary of the office due at the time of payment, is protected against any liability to the de jure officer for such salary. See also McQuillin, Vol. 4, Mun. Corps., § 12.182.
It would thus appear that even though the councilman in question may have become disqualified, nevertheless he can legally continue to hold the office as a de facto officer until removed by a judgment of the court. Further, that during such time that he performs the services required of a councilman, he could receive the established compensation for such services though he could not compel such receipt if the city desired to refuse to authorize such payment. Further, if payment is made for services rendered, it cannot be recovered by public authorities. Consequently, there would appear to be no liability on the part of the council or the city treasurer where he continues to serve and receive compensation for such services.