QUALIFICATIONS REQUIRED TO FILL VACANT COUNTY ATTORNEY POSITION

Due to the recent untimely and unfortunate death of John Fendley, the position of Oldham County Attorney has become vacant, thereby making it necessary to fill the vacancy. Therefore, I thought this might be an appropriate time for discussion on the eligibility requirements for the person selected to fill the vacancy.

In the situation at hand, two separate selections must be made. First, someone must be selected to finish the unexpired term of John Fendley. The term expires at the end of 2010. This selection is made by the County Judge-Executive Duane Murner. Then, someone must be selected to replace John Fendley on the November ballot as the Republican nominee. This selection is made by the executive committee of the Oldham County Republican Party and must be made by 4:00 PM July 13, 2010.

Now what are the qualifications to be the County Attorney? §100 of the Kentucky constitution states as follows:

No person shall be eligible to the offices mentioned in Sections 97 and 99 who is not at the time of his election twenty-four years of age (except Clerks of County and Circuit Courts, who shall be twenty-one years of age), a citizen of Kentucky, and who has not resided in the State two years, and one year next preceding his election in the county and district in which he is a candidate. No person shall be eligible to the office of Commonwealth's Attorney unless he shall have been a licensed practicing lawyer four years. No person shall be eligible to the office of County Attorney unless he shall have been a licensed practicing lawyer two years. No person shall be eligible to the office of Clerk unless he shall have procured from a Judge of the Court of Appeals, or a Judge of a Circuit Court, a certificate that he has been examined by the Clerk of his Court under his supervision, and that he is qualified for the office for which he is a candidate (Emphasis added)

The language in the constitution is pretty clear cut and leaves little room for doubt. However, it does use the term “election” which might make some people believe that the qualifications might be different for someone appointed, rather than elected, to the position.

The question that arises is, do these same qualifications apply to a person appointed to the position of County Attorney? Common sense would say that the qualifications would be the same. After all, can you imagine having a County Attorney who was not of legal age or one who was not an attorney? Thus, if one of the requirements is necessary, it would follow that all of the requirements must be satisfied by the appointee. I was unable to find anything in the Kentucky constitution, the Kentucky Revised Statutes, or the Kentucky Administrative Regulations that addressed the qualifications of an appointee. However, I did find an opinion of the Kentucky Attorney General, OAG 67-223, that states that A person appointed to fill a vacancy in the office of County Attorney must possess the qualifications at time of appointment.

Obviously the name of Galen Clark has been mentioned as the possible appointee to the position as he has sought the position on two prior occasions and narrowly lost to Fendley in the May 18, 2010 primary. Assuming that he is qualified for the position pursuant to the constitution, which I believe that he is, I will focus on other segments of Kentucky law.

§ 118.345 of the Kentucky Revised Statutes states as follows:
• No candidate who has been defeated for the nomination for any office in a primary election shall have his name placed on voting machines in the succeeding regular election as a candidate for the same office for the nomination to which he was a candidate in the primary election, except that if a vacancy occurs in the party nomination for which he was a candidate in the primary election his name may be placed on voting machines for the regular election as a candidate of that party if he has been duly made such party nominee after the vacancy occurs as provided in KRS 118.105 (Emphasis added)

§ KRS 118.105 (3) states:
• If a vacancy occurs in the nomination of an unopposed candidate or in a nomination made by the primary before the certification of candidates for the regular election made under KRS 118.215, because of death, disqualification to hold the office sought, or severe disabling condition which arose after the nomination, the governing authority of the party may provide for filling the vacancy, but only following certification to the governing authority, by the Secretary of State, that a vacancy exists for a reason specified in this subsection. When such a nomination has been made, the certificate of nomination shall be signed by the chairman and secretary of the governing authority of the party making it, and shall be filed in the same manner as certificates of nomination at a primary election. (Emphasis added)

In view of this, I believe that Galen Clark would be eligible to be the nominee of the Republican Party on the November ballot notwithstanding his defeat in the May primary.

Now, if you are wondering who the next County Attorney will be, just think of the attorneys that you know who reside in Oldham County, who meet all of the requirements, and would be interested in serving in such a position.