Request By:
Hon. Edward F. Prichard
Wyatt, Tarrant & Combs
1100 Kincaid Towers
Lexington, Kentucky 40507
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of October 3 in which you relate the following facts and question:
"We are confronted with an emergency concerning the issue of whether a County Clerk's absenting himself from office amounts to abandonment of office, and if so, who should fill the vacancy. The situation is as follows:
"The State Auditor, pursuant to KRS 43.070, attempted to conduct an audit of the accounts of a particular County Clerk, in order to investigate the possibility of fraud involving the county's payroll. The State Auditor issued a subpoena ordering the County Clerk to appear in the State Auditor's office on September 25, 1984, and to bring with him uncashed payroll checks payable to former employees of his office, personnel records of former employees, etc. The County Clerk failed to appear at the Auditor's office pursuant to the subpoena and cannot now be found despite searches by the Kentucky State Police. The State Auditor, fearing malfeasance by the County Clerk, has filed a Complaint and obtained a Restraining Order preventing certain banks in which the County Clerk held accounts in his official capacity from honoring or paying any drafts or checks drawn on those accounts.
"Please advise as to whether the County Clerk has in fact abandoned his office and as to what is the appropriate means of filling the resulting vacancy. "
Based on the facts presented, we do not believe that a vacancy presently exists in the office of the county court clerk to which you refer. Abandonment is not a generally recognized method of vacating a public office and there is no statutory law governing this question. Referring initially to 63 Am. Jur. 2d, Public Officers and Employees, Sec. 137, we quote the following text:
. . . "The law contemplates that an incumbent of a public office shall devote his personal attention to the duties of the office to which he is elected or appointed, but does not contemplate that such officer shall lose his title to the office or that it shall become vacant because he may be absent for a period of time and for that reason, or for some other reason, does not personally give his time and attention to the performance of his duties. While such failure to duty may furnish grounds for removal, it does not ipso facto create a vacancy. "
See also 67 C.J.S., Officers, Sec. 75.
We next refer to McQuillin, Mun. Corps., Vol. 3, Sec. 12.123 which points out that an office may become vacant by abandonment but what acts will constitute abandonment or implied resignation of an official depends on the circumstances of each particular case. The text further states that abandonment is ordinarily a question of intention which may be inferred from acts or conduct of the officer. However, mere absence from an office, as indicated in the text quoted above, must be continued over a long period of time so as to raise the presumption that the abandonment was intended. Consequently, the resignation of an officer cannot be presumed by his failure to perform the duties of the office. In other words, in the absence of affirmative action on the part of the incumbent, the mere neglect of his official duties is not invariably sufficient to constitute abandonment. This brings us to the rather ancient case of Page v. Hardin, 8 B. Monroe 648 (1848) whcih deals with the question of the abandonment of an office in considerable detail. The facts of this case are not relative to the ones presented here. However the court's discussion of the term "abandonment" is and we quote therefrom the following beginning on page 666:
"Conceding, without deciding, that an office may be vacated by abandonment, and that there may be such evidence of it as to authorize the Governor to consider the office vacant, and to fill it by a new appointment, still unless the Governor can, by his own will or judgment, put an end to the rights of the officer or to his continuance in the office, this concession would have no plausible support in reason or law, except upon the ground that there should be unequivocal evidence of the voluntary rejection or resignation of the office. A right may be forfeited or lost by neglect or misconduct, though the party has continually asserted or claimed it. Its vacation by abandonment, implies a voluntary and intentional rejection, disclaimer or surrender of it by the party to whom it pertains. An office may be forfeited by non-user or by official misconduct or misbehavior. A partial neglect to perform certain duties of an office, may amount to misbehavior, and as such, be cause of forfeiture. But no partial neglect or non-user can, in itself, be sufficient evidence of abandonment - which implies a mental renunciation of the office. And if abandonment may be inferred conclusively from non-user or neglect of duties, so as to amount, in itself, to an absolute vacation without express renunciation of the office once lawfully held by the party, it can only be when the non-user or neglect is not only total or complete, but of such continuance, or under circumstances so clearly indicating absolute relinquishment, as to preclude all future question of the facts.
"But we do not find that abandonment is one of the regular and recognized modes of vacating an office, or that it has acquired, either by legal or common usage, any defined signification in reference to that subject. We understand, however, the intention or voluntary relinquishment of the particular object to be essentially involved in the abandonment of that object, and that an office cannot be abandoned without the intention, actual or imputed, of abandoning it."
See also
Horn v. Wells, 253 Ky. 494, 69 S.W.2d 1011 (1934).
As can be seen from the above-cited excerpt of the text law as well as that found in the Page case, there is no fixed time lapse during which an officer is absent and therefore not performing his duties that automatically creates a vacancy by reason of abandonment. In other words, there must be some clear indication that an officeholder does not intend to continue in office by total or complete neglect of his duties over a reasonable period of time or some overt act clearly indicating his intent to relinguish the office. This would in all probability mean that the final determination would be for the courts to determine.
In any event, once a vacancy is created in the clerk's office, the county judge/executive has the sole power to fill such vacancy by appointment pursuant to KRS 63.220, subject, of course, to the provisions of Section 152 of the Constitution.