Kentucky Advisory Opinions July 29, 1993: OAG 93-056 (July 29, 1993)

OAG 93-056.

You have requested our opinion regarding the upcoming election for PVA in Trigg County. Apparently one or more persons are running as write-in candidates although they have not passed the examination required of PVA candidates, resulting in some confusion about whether a victor in the election may serve as PVA.

KRS 132.380 sets up a licensing requirement for PVAs. Before a candidate's name may be placed on the ballot, the candidate must hold a certificate from the Revenue Cabinet stating that he passed the examination given in October of the year preceding the election year. Incumbents seeking re-election need not hold the certificate of examination. If, after the examination has been given, there is only one person in the county eligible to run, the Revenue Cabinet may give a second examination. Presumably the Revenue Cabinet would also give another examination if, after the first one is given, there are no eligible candidates in the county. The second examination must be given "before the filing date," with the filing date in question apparently being the deadline for filing for the primary, which is the last Tuesday in January.

In Trigg County, one person passed the examination given in October 1992. That person and the incumbent, who was eligible for re-election, made two eligible candidates, so the Revenue Cabinet did not and could not give another examination. The problem arises because neither of the eligible persons filed to run for PVA. Thus there is no one in the county who is eligible to have his name printed on the ballot.

Were KRS 132.380 the only statute on point, the write-in candidates would appear to have found a way to be elected to the office without passing the test, since KRS 132.380 merely prohibits them from having their names placed before the voters and write-in candidates of course do not have their names printed on the ballots. Complicating the situation, however, is KRS 132.370(2), which says that PVAs shall possess the qualifications set out in KRS 132.380.

The situation could be resolved if the Revenue Cabinet were to give another examination to the persons now running as write-in candidates. If one or more of them passed the examination, then there would clearly be a person eligible to be elected. The cabinet has not scheduled such an examination, however, because KRS 132.380 does not authorize the Revenue Cabinet to give another examination unless "there is a vacancy in the office of property valuation administrator to be filled by appointment or by election." Currently there is no vacancy nor is it certain that there will be one, for either the incumbent or the person who passed the examination last October could decide to run as a write-in candidate and that person would be eligible to hold office if elected.

This situation leads to your questions: Can the Revenue Cabinet require a non-qualified PVA-elect to successfully complete the qualifying examination subsequent to the election? If the PVA-elect fails the examination, can the Revenue Cabinet declare the office vacant and initiate proceedings to fill the office under KRS 132.375?

It is our opinion that the answer to both your questions is yes. Clearly the Revenue Cabinet can do nothing until after the election, for the possibility remains open that a qualified candidate will win the election. If an unqualified candidate wins the election, then there will be "a vacancy in the office of property valuation administrator to be filled by appointment or by election" and the Revenue Cabinet may give the examination. If the PVA-elect passes the examination, then he will be eligible to assume office. If he fails, then the Revenue Cabinet is obligated by KRS 132.375 to seek his ouster.

Our opinion is based on two principles. First, election statutes are construed liberally in favor of the citizens' right to choose their public officers. Queenan v. Mimms , Ky., 255 S.W.2d 380 (1955). Second, it is the clear intent of KRS 132.370 to .380 that persons elected to the office of PVA have demonstrated their fitness to hold office by passing an examination before they assume the duties of the position. Both principles are satisfied by the giving of an examination to the successful write-in candidate before he takes the oath of office.

We do not believe it necessary for the Revenue Cabinet to wait until the expiration of the current term to give the examination. If an unqualified candidate wins the election, then there is absolutely no question that a vacancy in office will occur. In such circumstances a delay in the giving of the examination would serve only to delay the filling of the office for no reason.

Sincerely,

Chris Gorman

Attorney General

Ross T. Carter

Assistant Attorney General