Request By:
The Honorable Bremer Ehrler
Secretary of State
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
Your letter asks whether a Notary Public must take the required oath of office within thirty days after he receives his notice of appointment and whether failure to do so means that he is ineligible for that office for two years.
KRS 423.010, dealing with the appointment and qualifications of a Notary Public, provides in part as follows:
. . . Before a notary acts, he shall take an oath before any person authorized to administer an oath as set forth in KRS 62.020 that he will honestly and diligently discharge the duties of his office . . . .
KRS 62.020 deals with the official oath of any officer and who may administer that oath. As noted in OAG 85-36, copy enclosed, at page two, the courts have recognized that a Notary Public is an officer.
KRS 62.010(3), pertaining to the oath of office, states, "Each person appointed to an office shall take the oath of office within thirty (30) days after he receives notice of his appointment. "
KRS 62.990(2) provides:
If any person violates subsection (2) or (3) of KRS 62.010, or subsection (2) or (3) of KRS 62.050, his office shall be considered vacant and he shall not be eligible for the same office for two (2) years.
In 66 C.J.S., Notaries, § 3, the following appears:
The appointment of notaries is regulated by constitution or statute, and an appointment which is not in the mode so prescribed is inoperative. Where a commission is required to be signed by the appointing power, the issuance of a commission is essential to the completeness of the appointment. Where the statute requires appointees to qualify within a specified time, failure to do so within the period limited nullifies the appointment.
While KRS 62.010 appears to set forth specific time frames during which the oath of office must be taken, the case law, at least where municipal officers are concerned, offers more flexibility. In OAG 78-707, copy enclosed, at page two, this office said:
In response to your second question concerning the appointed councilman who failed to execute the oath within thirty (30) days, our answer would be that if the oath has been executed within a reasonable time thereafter as pointed out in the Ft. Mitchell case [
Lewin v. Town of Ft. Mitchell , 148 Ky. 816, 147 S.W. 922 (1912)], it would be in compliance with the requirements of KRS 62.010(3). What is a reasonable time is a question for the courts to decide. On the other hand, of course, if he has never executed the oath of office, then he obviously would not be a legally qualified member of the city council and subject to prosecution under the penalty section which includes forfeiture of office. See KRS 62.990.
While a Notary Public should make every effort to take the required oath of office within thirty days after he receives notice of his appointment, the Lewin case, supra , would apparently allow the oath of office to be taken within a reasonable time thereafter provided there is a reasonable excuse for the delay. Failure to take the required oath within a reasonable time after the time period set forth in the statute would subject the Notary Public to the penalty provisions of KRS 62.990. If it is deemed advisable to make any exceptions for a Notary Public then the matter should be presented to the General Assembly as the present provisions afford no greater flexibility or leniency to notaries than to other officers relative to the required oath of office.