Request By:
Honorable Tebbs S. Moore
City Attorney
127 Short Street
Harrodsburg, Kentuckey 40330
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Rosemary F. Center, Assistant Attorney General
This is in response to your letter in which you relate a fact situation involving appoinments of members to the Greater Mercer-Harrodsburg Planning and Zoning Commission (herein referred to as "Commission"). In particular, the problem as related in your letter concerns the appointment or re-appointment by the City of Harrodsburg of its representatives to the Commission. It is our understanding that two of the city's appointees have been rejected by the Commission based upon the fact that the vacancy had existed for longer than sixty (60) days and therefore the appointment power has passed to the Commission. For purposes of this letter, we are assuming that the fact that more than sixty (60) days has elasped since the terms of appointment have expired is not disputed by the city. However, the city contends that the appointments were made in a timely manner after notification by the Commission.
In your letter you ask the following questions on behalf of the City of Harrodsburg:
1. If the four (4) year terms of Members of a Planning and Zoning Board expire and members continue to act as a member:
A. Are the actions taken by the Board prior to this date legal and enforceable? Defacto?
B. Is there a vacancy on the Planning and Zoning Board if no notification of a vacancy is transmitted to the Legislative Body and the subject member continues to act as a member of the Board?
2. If it is determined in 1(B) that a vacancy does exist and the 60 days expired but the Planning and Zoning Board has taken no offical action to make an appointment as a replacement, will an appointment by the Legislative Body be proper and legally binding on the Planning and Zoning Board?
The controlling statute, KRS 100.147, in pertinent part, provides that "[V]acancies on the planning commission shall be filled within sixty (60) days by the appropriate appointing authority. If the authority fails to act within that time, the planning commission shall fill the vacancy. " Although the city would contend that it could only fill a vacancy upon notice, we can find no authority in the statutes to support that contention. The city having made the initial appointment and established the term of office should have records to indicate when the term will end. Ideally, the Commission should notify the city in a timely manner when a vacancy occurs.
In response to your questions, we will first discuss section (1)(b) dealing with whether a vacancy exists and then discuss the remainder of the issues.
"Vacancy" is not defined in Chapter 100; therefore, it is necessary to refer to Kentucky case law. The Kentucky Court of Appeals in the case of Kash v. Day, Ky., 239 S.W.2d 959, 960 (1951), quoting an earlier Kentucky decision, Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122, held that "[A]n office is vacant in contemplation of law whenever it is not held by one who is legally qualified to do so, and who has a right to continue therein." The court in Kash v. Day, supra, at 976, further quoted 42 Am.Jur., Public Officers, § 131:
Accordingly, an office is not vacant so long as it is supplied in the manner provided by the Constitution or law with an incumbent who is lagally qualified to exercise the powers and perform the duties which pertain to it; and conversely it is vacant in the eye of the law whenever it is unoccupied by a legally qualified incumbent who has a lawful right to continue therein until the happening of some future event.
Based upon the facts as you related in your letter, we beleive that a legal vacancy exists on the Commission. It would also appear that more than sixty days has elapsed since the terms expired. In this event the power of appointment has passed from the city to the Commission by virtue of KRS 100.147. We do not believe in this circumstance that the appointment power returns to the city because of failure by the commission to make an appointment. KRS 65.008(2) as cited in your letter is not applicable in this instance because the statute refers only to "districts". A "district" as defined by KRS 65.060 includes only boards commisions or special districts which are set forth in the statute. KRS Chapter 100 is not one of those listed statutes for purposes of KRS 65.008. Furthermore, the provisions of KRS 65.008(2) would be in conflict with the language of KRS 100.147.
After concluding that a vacancy exists on the Commission, the remaining question is whether the actions of persons currently serving on the Commission after the date of expiration of their terms are legal and enforceable. Although many enabling statutes such as KRS 65.060 have "hold-over" provisions which permit officers to remain in office until a successor is appointed and qualified, Chapter 100, governing Planning and Zoning Boards, does not. We have also been unable to find Kentucky case law which addresses the status of officals and vacancies in offices in the absence of a "hold-over provision in the statute. Therefore, we look to the case law of a foreign jurisdiction. A South Carolina case, Bradford v. Bynes, 221, S.C. 255, 70 S.E.2d 228, 231 (1952) held that:
[I]n the absence of pertinent statutory or constitutional provision, public officers hold over defacto until their successors are appointed or elected and qualify. Vacancy nevertheless exists in the sense that successors may be appointed or elected as may be provided by law, qualify and take the offices; but meanwhile the "hold-overs" are entitled to retain the office.
That court further cited 67 C.J.S. Officers § 141, p. 444 stating that:
One who holds over after the expiration of his legal term, where no provision is made by law for his holding over, is generally regarded as a defacto officer, but on the office being filled by appointment or election, as may be provided by statute for the filling of the office, and the qualification of the appointee or electee, the defacto status terminates.
The reason given by the court for recognizing "hold-overs as defacto officials was to insure continuity in governmental service and protection of the public.
Public policy in Kentucky appears to be consistent with Bradford, supra, in Board of Trustees v. Kercheval, 242 Ky. 1, 45 S.W.2d 846 (1931), in which the court states [T]he law abhors vacancies in office, and the presumption is against a legislative intent to create or to allow a condition which may result in an executive or administrative office remaining unoccupied. " At p. 847.
Based upon the foregoing we believe that the current city appointees are acting as defacto officers until such time as their successors may be appointed by the Commission pursuant to KRS 100.147.