Request By:
Honorable James E. Boyd
Franklin County Attorney
313 West Main Street
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Nathan Goldman, Assistant Attorney General
In your letter to the Attorney General, you ask Attorney General, you ask whether an outgoing sheriff should be paid through January 5, 1986 or December 31, 1985:
Kentucky Constitution § 99 states:
"There shall be elected in each county a judge of the county court, a county court clerk, a county attorney, sheriff, jailer, coroner, surveyor and assessor, and in each justice's district one justice of the peace and one constable, who shall enter upon the discharge of the duties of their offices on the first Monday in January after their election, and who shall hold their offices four years until the election and qualification of their successors. "
The first Monday in January in 1986 is January 6.
In 67 C.J.S. Officers, § 69 it is stated:
"Where, under a constitutional provision, the official year commences and all officers terminate on a day fixed, strictly speaking, outgoing officers do not pass out of office until the close of such day unless their successors qualify at some time during the day. All business which naturally belongs to the first day of the official year is within the jurisdiction of the incoming officials, although there may be some delay during the day in qualifying and assuming official duties."
Based on this principle and Section 99 of the Constitution and assuming that the incoming sheriff is properly elected and qualified and capable of assuming office at the opening of business on January 6, 1986, it is our opinion that the outgoing sheriff's term of office expires at the opening of business on January 6, 1986. Public policy requires that, in the absence of the resignation, suspension, removal, death or other positive act of withdrawal from office by the outgoing sheriff, his term of office continues until the election and qualification of his successor. In Schardein v. Harrison, 230 Ky. 1, 18 S.W.2d 316 (1929) the court held: "'Term' is thus identified and defined as a certain and fixed period of four years. It commences when the [officer] is elected and inducted into office, and ends at the end of the four years for which he was elected. " Cf., Booth v. Board of Education of City of Owensboro, 191 Ky. 147, 229 S.W. 84 (1921) (an officer may hold over after his term has expired until his successor is elected and qualified).
It is further our opinion that the outgoing sheriff is entitled to his compensation up to the end of his term, in this case, January 6. Kentucky Constitution § 161 states, in part: "The compensation of any city, county, town or municipal officer shall not be changed after his election or appointment, or during his term of office . . . ." (Emphasis added.) Kentucky Constitution § 235 likewise states, in part: "The salaries of public officers shall not be changed during the terms for which they were elected. . . ." Implicit in these sections is the presumption that the officer must be paid for the entirety of his term, from the first Monday in January at the beginning of his term until, but not including, the first Monday in January at the end of his term.
To the extent that OAG 66-98 and 74-55 conflict with this opinion they are hereby overruled and withdrawn.