Kentucky Advisory Opinions February 19, 1997: OAG 97-002 (February 19, 1997)

OAG 97-002.

This letter addresses a question concerning legislation enacted in 1996 relative to fire protection districts organized under KRS Chapter 75.

KRS 75.031(2) formerly provided in part that the elective offices of members of the board of trustees shall be filled by an election to be held once each year on a date to be determined by the fire department. The 1996 Regular Session of the General Assembly amended that particular subsection to provide that, "The elective offices of members of the board of trustees shall be filled by an election to be held once each year on the fourth Saturday of June between the hours of 11:00 a.m. and 2:00 p.m." The effective date of the 1996 amendment is July 15, 1996.

The question presented to this office, as set forth in the request letter, is as follows:

Can a fire protection district who previously had an election scheduled between September of 1996 and June of 1997 hold that election or should the current elective officer continue in that position until the fourth Sunday in June 1997 when the next election pursuant to the statute is to take place?

The statute, as amended, contains no transition provisions relative to the change involving the date of the elections of four members of the board of trustees of the fire protection district. Apparently the question of what to do about the persons elected pursuant to provisions in place before the amended legislation, those to be elected on the fourth Saturday of June each year under the amended legislation, and any gaps resulting because of the expiration of terms under one system and the commencement of terms under another system was brought up during the legislative session but not resolved. Ultimately this issue may have to be decided in the courts.

While fire districts formerly had discretion as to when their annual elections would be held, the 1996 amendment removed that discretion by mandating that the elections be held on the fourth Saturday of June. Since the 1996 amendment took effect on July 15, 1996, the earliest date on which the elections could be held is the fourth Saturday of June in 1997. Although the elections mandated by the amendment cannot take place until June of 1997, that amendment, with its effective date of July 15, 1996, ended at that time the discretion of fire districts to hold their annual elections on dates of their choice.

As stated in OAG 78-409, copy enclosed, at page three, the elections mentioned in KRS 75.031(2) are purely local in character. They are to be carried out as the statute requires and do not come under the regular or general election laws.

If the local fire districts cannot hold any elections, after the effective date of the statutory amendment (July 15, 1996), until the fourth Saturday of June in 1997, vacancies may arise on the board of trustees, depending, of course, on the date when the local elections occurred. There are at least three possibilities relative to handling those vacancies occurring on or after July 15, 1996.

The first would be to let the person whose term of office expired hold over until the fourth Saturday of June in 1997 when the election required by the statute takes place. The second would be to leave the position vacant as, since the terms of office of the elected members are staggered, only one expires each year and the board would still have a quorum and could legally transact business. The third possibility would be to fill the vacancy, if practicable, pursuant to the statutory provisions relative to a vacancy, with the appointed person to serve until the required election in June.

Some of the constitutional and statutory provisions dealing with terms of office of various state, county, and city officers provide that such officers may hold over after their fixed terms have expired and until their successors are elected and qualified. KRS 75.031(1)(a), dealing in part with the terms of office of the elected members of the fire district's board of trustees, does not provide that an elected member of the board of trustees may hold over after his or her term of office expires. We, therefore, are of the opinion that members of the fire district's board of trustees whose terms of office expire prior to the mandated election on the fourth Saturday of June cannot hold over until that required June election.

We believe that in most situations the public interest is best served if public offices are filled at all times. Thus, we do not believe that a vacancy should be permitted to exist, particularly if many weeks or months will pass form the expiration of an elected member's term of office and the mandated election on the fourth Saturday of June.

We suggest that, if practicable, a vacancy in the office of an elected member of the board of trustees of the fire district be filled pursuant to the statutory provisions pertaining to the filling of vacancies. A person selected to fill such a vacancy would, of course, serve until the mandated election takes place on the fourth Saturday of June. KRS 75.031(1)(a), while not specifically addressing this somewhat unique situation of a vacancy in office during the change in procedure from elections at the discretion of the fire district to elections at a time mandated by the General Assembly, does authorize the county judge/executive, with the approval of the fiscal court, to appoint a person to fill a vacancy in the term of an appointed or elected trustee of the fire district.

A. B. CHANDLER III

ATTORNEY GENERAL

Thomas R. Emerson

Assistant Attorney General