Kentucky Advisory Opinions April 21, 1993: OAG 93-015 (April 21, 1993)

OAG 93-015.

You have described the following situation:

KRS 132.380(1) says, "Before any person's name shall appear before the voters on election day as a candidate for the office of property valuation administrator in any primary or general election . . . he shall hold a certificate issued by the Revenue Cabinet, showing that he has been examined by it and that he is qualified for the office. All certificates shall expire one (1) year from the date of issuance." Johnny Howerton and Michael Faulkner took the exam in 1991 so they could run in a special election held in 1992 to fill a vacancy. The certificates expired December 5, 1992. Howerton and Faulkner did not take the exam given in October 1992 to prospective candidates for the 1993 regular election. Instead, shortly before their old certificates expired, Howerton and Faulkner filed for the 1993 regular election on the theory that their candidacy would be legitimate because their certificates were valid on the day they filed.

These facts prompt you to ask whether Howerton and Faulkner are valid candidates and whether you have any duties to remove them from candidacy.

The first question we must address is whether the candidates could file for the 1993 election using certificates that expired in 1992. In analyzing this question it is helpful to keep in mind the sequence of events leading up to an election for PVA. Here are the relevant items for the regular 1993 election:

October 1992 Revenue Cabinet gives PVA exam November 1992 Regular election; candidates for most offices may begin filing December 1992 Revenue Cabinet issues certificates to those who passed the exam; PVA candidates begin filing January 1993 Filing deadline for primary March/April 1993 Primary ballots are printed May 1993 Primary August 1993 Filing deadline for independent candidates September 1993 Election ballots are printed November 1993 Regular election

In the usual sequence of events, the Revenue Cabinet issues the certificates several weeks before the filing deadline for the primary. The certificates are valid for one year, which means that they are valid throughout the ensuing election cycle. In the unusual situation that you describe, two candidates held certificates that expired during the election cycle. While the certificates were valid at the time of filing, they are not valid when all of the remaining steps occur. We must therefore determine the point or points during the election cycle on which a candidate's certificate must be valid.

We conclude that the certificate must be valid on the date of the primary for candidates running in the primary, and on the day of the regular election for all candidates. This conclusion is compelled by the plain language of KRS 132.380(1), which refers to "the person's name [appearing] before the voters on election day . . . in any primary or general election[.]" The statute states that the candidate's name may not appear before the voters on either primary or regular election day unless he holds a valid certificate. Nothing in the statute suggests that the candidate need only hold a certificate that is valid on the day he filed, as Howerton and Faulkner contend. Because the candidates in question will not hold a valid certificate at the time of the primary or the regular election, their names may not appear before the voters.

The next question is whether the county clerk and county attorney have any duties to insure that the names of these candidates will not appear on the ballots.

As a general rule, the county clerk has no duty to determine the qualifications of candidates. OAG 85-67. The normal procedure is for a registered voter or opposing candidate to challenge the candidate's qualifications in circuit court under KRS 118.176. If no one files such a challenge, it is possible for an otherwise ineligible candidate to assume office. Noble v. Meagher , Ky., 686 S.W.2d 458 (1985). PVA races are somewhat different, however, because of the specific command in KRS 132.380(1) forbidding the placement before the voters of the names of candidates who do not hold a valid certificate. Because the county clerk is responsible for the printing of the ballots for PVA races, we conclude that it is the clerk's responsibility, before he authorizes the printing of the ballots, to ascertain whether each PVA candidate holds a valid certificate. If a candidate does not hold a certificate that will be valid on the date of the primary or regular election, the clerk may not authorize the candidate's name to be printed on the ballots.

We are aware of no similar or concurrent duty on the part of the county attorney. You indicate that one PVA candidate who holds a valid certificate has requested the county attorney to file a challenge under KRS 118.176. As we mentioned in the preceding paragraph, that statute authorizes challenges by a registered voter or opposing candidate only; it does not authorize challenges by the county attorney or any other entity.

Sincerely,

Chris Gorman

Attorney General

Ross T. Carter

Assistant Attorney General