Request By:
Mr. Kenneth E. Dillingham
Todd County Attorney
McReynolds Drive/Allen Street
P.O. Box 816
Elkton, Kentucky 42220-0816
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
As Todd County Attorney you write concerning Lester Gibbs, the elected jailer. He tendered his resignation, effective April 1, 1982. At midnight on March 31, 1982, Mr. Gibbs removed his personal belongings and turned over the prisoners then in jail and all jail keys to the county judge executive and you; and he left the premises.
The county judge executive, pursuant to KRS 63.220 and § 152 of the Kentucky Constitution, appointed Tom Shanklin as jailer until an election in November of 1983.
However, on April 6, 1982, Lester Gibbs, the exjailer, wrote a letter attempting to withdraw his resignation and indicating that he intended to reassume the duties of Todd County Jailer.
Your question is whether the Gibbs letter of March 1, 1982, and his subsequent actions effectively constituted a resignation, and whether Tom Shanklin is now in fact the Todd County Jailer, subject to the November election of 1983.
KRS 63.010 provides that all resignations of office shall be tendered in writing to the court or officer required to fill the vacancy, and received and recorded by the court or office in its or his records.
Since the county judge executive is the appointing authority under KRS 63.220, if the letter, which contained an explicit resignation effective April 1, 1982, was tendered to the county judge executive, then the resignation was effective. We say this, regardless of the later letter in which Gibbs attempted to withdraw his resignation. Moreover the statutes do not require any communication from the appointing authority that the resignation was accepted. See
Sparks v. Adams, 304 Ky. 212, 200 S.W.2d 307 (1947). As was said in
Commonwealth ex rel. Wooton v. Berninger, 255 Ky. 451, 74 S.W.2d 932 (1934), the resignation of a public officer does not become effective until accepted by the proper authority, or by equivalent action, such as the appointment of a successor. Here, prior to Gibbs' letter wishing to reassume his duties as jailer, the appointing authority appointed another to fill Gibbs' vacancy.
The court, in Commonwealth v. Berninger, above, also held that the requirement (KRS 63.010) that a resignation be received and recorded by the appointing authority is not a condition precedent for an effective resignation. The basis for the rule of effective resignation, the court wrote, is that the "right of the incumbent is subordinate to the right of the people to the maintenance of an orderly government." (Emphasis added). Thus an elected official cannot throw off his responsibilities of government at his own pleasure, as Gibbs' last letter would suggest. See
Edward v. United States, 103 U.S. 471, 26 L. Ed. 314.
Thus while the county judge executive communicated no acceptance of the resignation to Gibbs, he did the equivalent of appointing a successor.
We conclude that under the facts given the resignation became effective, and that Tom Shanklin is the legal jailer, subject to the election of November 1983, for the remainder of the four-year term.