Request By:
Hon. Drexell R. Davis
Secretary of State
Capitol
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of May 31 in which you refer to the recent LRC v. Brown decision effective March 2, 1984 from which you quote the following language applicable to certain members of the present State Board of Elections:
"In those statutes where the General Assembly established boards, commissions, etc., and further provided that a member(s) of the General Assembly could actually make the appointment (s) thereto, we declare such appointive powers to be invalid. Therefore, any person(s) so appointed may not properly serve. However, since the General Assembly has properly created the boards and commissions in these situations, the governor should fill such vacancies. "
In addition you relate the following facts and question.
"Acting in good faith, in light of the above language and upon the advice of various individuals, I notified the former State Board of Elections members who were appointed by General Assembly leadership that as of March 1, 1984, they could not properly serve. Accordingly, they were removed from the payroll.
"After a detailed examination of case law, it now appears that the former board members in question have served and continue to serve as de facto State Board of Elections members until the Governor legally appoints four new members. Our question is this: 'Are the four legislatively appointed board members entitled to compensation for the time that they serve as de facto members?'" (Emphasis added.)
The fact that the Brown decision, particularly that portion quoted above, declaring the appointments made by the General Assembly to be invalid did not in our opinion have the effect of automatically removing such appointees from office and thereby creating vacancies. Thus we believe their continuation to serve as members of the Board and to perform the duties assigned to them, would be valid and they would be considered de facto officers until such time as they either resign or are actually removed from office by a court judgment. As illustrative of this position we first cite the case of
Commonwealth v. Winstead, Ky., 430 S.W.2d 647 (1968) wherein the court declared that a school board member against whom ouster pro- ceedings were commenced based on the ground that the member was no longer qualified, was nevertheless a de facto officer until ousted by judgment of the court. See also
Trimble Co. v. Trimble Co. Bd. of Health, Ky. App., 587 S.W.2d 276 (1979) and
Burkhart v. Blanton, Ky. App., 635 S.W.2d 328 (1982).
On the other hand, the great weight of authority in this and other states is that although a de facto officer's acts are valid, he is not entitled to compensation and cannot maintain an action to recover the compensation attached to the office. See
Brown v. Shannon, 280 Ky. 88, 132 S.W.2d 525 (1939),
Eubank v. Montgomery County, 127 Ky. 261, 105 S.W. 418 (1939), and
Flanary v. Barrett, 146 Ky. 712, 143 S.W. 38 (1912).
Also referring to the case of
Cottongim v. Stewart, 283 Ky. 615, 142 S.W.2d 171 (1940) we quote the following:
"But while the acts of the de facto officer are thus valid as to third persons, he cannot himself acquire rights based upon his defective title.
It is well settled, therefore, that he cannot maintain an action to recover the salary, fees or other compensation attached to the office.
It is the settled doctrine in this State, says the court in New York, that the right to the salary and emoluments of a public office attach to the true and not to the mere colorable title, and in an action brought by a person claiming to be a public officer, for the fees or compensation given by law, his title to the office is in issue, and if that is defective and another has the real right, although not in possession, the plaintiff cannot recover. Actual incumbency merely gives no right to the salary or compensation."
See also 56 Am. Jur. 2d, Mun. Corps., Sec. 269.
In conclusion and in response to your specific question, we are of the opinion that those members of the State Board of Elections who were appointed by members of the General Assembly continue to serve as de facto officers until they either resign or are removed individually or collectively. However, they are not entitled to receive any compensation for duties imposed upon and performed by them by virtue of the office, nor can they forcibly require the payment of such compensation.