[1993/oagheade.htm]

OAG 93-81

November 24, 1993

Mark D. Guilfoyle

General Counsel

Office of the Governor

State Capitol

Frankfort, Kentucky 40601

Dear Mr. Guilfoyle:

A legislator has tendered a resignation effective December 31 of this year. You have asked if the Governor may call a special election immediately to fill the vacancy (assuming that the Governor accepts the resignation) rather than waiting until after December 31 to call the special election. We conclude that the Governor may call the special election at any time after he accepts the resignation.

General rules applicable to vacancies

Section 152 of the state constitution says, “No person shall ever be appointed a member of the General Assembly, but vacancies therein may be filled at a special election, in such manner as may be provided by law.” The statute implementing this provision is KRS 118.730, which says:

When a vacancy exists in either house of the general assembly during its session, the presiding officer of the house in which the vacancy exists shall issue a writ of election; when the general assembly is not in session, the writ shall be issued by the governor. The writ shall be signed by the officer issuing it, shall designate the day for holding the election, and shall be directed to the proper sheriff or sheriffs.

The writ of election must be tendered to the sheriff of each county in which the election will be held at least thirty-five days before the election. KRS 118.740.

KRS 63.010 says that all resignations must be tendered in writing to the “court or officer required to fill the vacancy.”

A resignation is not effective until it is “accepted by the proper authority, or by equivalent action, such as the appointment of a successor.” Commonwealth v. Berninger, 255 Ky. 451, 74 S.W.2d 932 (1934). Although the Governor or presiding officer of the legislative chamber does not “fill” a legislative vacancy, but rather calls an election to fill the vacancy, the Governor or presiding officer is nevertheless the proper officer to whom a legislator's resignation must be tendered, and the resignation is not effective until accepted by him. OAG 76-267.

Analysis

We begin with the assumption that the act of calling a special election to fill a legislative vacancy is the precise analog of the act of filling a vacancy by appointment. We proceeded on this assumption in OAG 76-267 and it is implicit in the authorities cited earlier. The calling of the special election is an executive action without which no person can accede to the office that is vacant. Meagher v. Howell, 171 Ky. 238, 188 S.W. 373 (1916). Therefore, the general law pertaining to appointments also applies to the calling of special elections; that is to say, if the Governor may make an appointment under certain conditions applicable to an office in which vacancies are filled by appointment, then the Governor may call a special election if those same conditions apply to a legislative vacancy.

In Kentucky, as in most states, a valid appointment may be made even though the office has not yet been vacated (provided, of course, that the appointing officer has authority to make the appointment at the time the vacancy will occur). In Board of Education of McCreary County v. Nevels, Ky.App., 551 S.W.2d 15, 18 (1977), the court said, “It has long been the rule in Kentucky that there can be a valid appointment to an office in advance of the time the vacancy actually occurs.” In Board of Education of Boyle County v. McChesney, 235 Ky. 692, 32 S.W.2d 26, 27 (1930), the court said, “Appointments to office may be made a reasonable time in advance of the time a vacancy is to arise.” It is generally stated that such prospective appointments can be made when the vacancy is “sure to occur.” The rule is stated in 67 C.J.S., Officers & Public Employees �40: “The general rule is that a prospective appointment to fill a vacancy sure to occur in public office, made by an officer who, or a body which is empowered to fill the vacancy when it arises, is a valid appointment, and vests title to the office in the appointee.” Similarly, in 63A AmJur2d, Public Officers and Employees �105, it is stated that “a public officer, or public body, having a power of appointment may validly make a prospective appointment to fill a vacancy sure to occur in a public office . . . .”

A resignation, once accepted, cannot be rescinded. Hogg v. Miller, 298 Ky. 128, 182 S.W.2d 242 (1944). The resignation is final and effective from the moment of acceptance, even though it may not be complete until a later time. 63A AmJur2d, Public Officers And Employees �173. When the appropriate officer accepts a resignation that is to become effective in the future, a vacancy is “sure to occur” and under the rule described in the preceding paragraph the officer may fill the impending vacancy by appointment. OAG 79-42.

Because calling a special election is analogous to making an appointment, we conclude that the Governor (or the presiding officer of the legislative chamber, if the legislature is in session) may call a special session to fill a vacancy in a legislative office at any time after he receives a written resignation from a legislator, even though the resignation may state that it is to become effective at some point in the future.

One might suggest that the foregoing analysis is contradicted by the language of KRS 118.730, which states that a special election may be called “when a vacancy exists.” We do not accept a construction of this phrase that would limit the statute's application to the time when there is an actual and present vacancy, as opposed to an impending definite vacancy. Such a construction would conflict with the following rule of construction set out in Board of Trustees of Salt Lick Graded Common School District v. Kercheval, 242 Ky. 1, 45 S.W.2d 846, 847 (1931):

The law abhors vacancies in offices, 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.

Other authorities agree. In Furste v. Gray, 240 Ky. 604, 42 S.W.2d 889, 891 (1931), the court said, “The framers of the Constitution evidently had in mind that vacancies in the General Assembly should not continue but should be filled immediately in such manner as might be provided by the Legislature . . . .” And in OAG 79-12 we said,

It would thus appear that the speaker has without question, discretion as to when he issues the writ of election, which means that he may do so within a reasonable time based upon the factual situation. If, for example, the session will continue any length of time or another special session may be called at some future time, the writ should be issued for the office to be filled in time for the people in the district to be properly represented during the session.

The current situation

The situation that now confronts the Governor provides a compelling state of facts calling for the immediate issuance of a writ of election. The letter of resignation states that the vacancy is to be effective December 31. The General Assembly will convene in regular session on January 4. Because of the thirty-five day waiting period required by KRS 118.740, and because an election may be held only on a Tuesday (KRS 118.025(5)), the earliest date on which the election could be held, were the Governor to wait until December 31 to issue the writ of election, would be February 8. During that interregnum, the citizens of the affected legislative district would be completely unrepresented in one house of the legislature. On the other hand, were the Governor to issue a writ of election immediately, the election could be held on January 4 and the elected representative could assume office promptly thereafter.

A similar state of affairs motivated a previous Governor to take precisely the action that we approve in this opinion. On October 5, 1987, Governor Martha Layne Collins signed a writ of election to fill a legislative vacancy that was effective November 2. On November 20, 1987, she signed a writ of election to fill a legislative vacancy that was effective December 1.

Conclusion

Because the legislature meets in regular session only sixty days every two years, we find it imperative to construe the statutes in a manner that will provide representation to the affected district as soon as possible after the commencement of the session. We therefore conclude that a special election may be called immediately upon acceptance of a resignation from a legislator, even if the resignation states that it is to be effective at a future date.

Sincerely,

Chris Gorman

Attorney General

Ross T. Carter

Assistant Attorney General