Did a Kentucky city councilmember lose her office by taking the oath two days after her term began because she was ill?

Plain-English summary

Kentucky's Attorney General concluded in 2013 that a Fort Mitchell councilmember did not lose her seat because illness delayed her oath until January 3. Her term began January 1. She had been hospitalized after surgery, answered the city clerk on January 2, and took the oath at home on January 3. The AG treated the illness as a valid excuse and the two-day delay as reasonable.

The statutes quoted in the opinion called for an elected official to take the oath by the start of the term and described a vacancy consequence for violating that requirement. The AG read those provisions alongside Lewin v. Town of Ft. Mitchell and prior AG opinions, which allowed an elected official with a reasonable excuse to qualify within a reasonable time afterward. The conclusion turned on the particular excuse and timing; the opinion did not say an official could postpone the oath at will.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did illness automatically disqualify the Fort Mitchell councilmember when she missed the January 1 oath date?

No. The AG concluded that her illness provided a valid excuse and that taking the oath on January 3 was within a reasonable time. On those facts, it said her assumption of office should be valid.

Did the oath statutes literally call for the office to become vacant?

The opinion said their literal wording pointed that way. It then relied on Lewin and earlier AG opinions to conclude that a reasonable excuse and a reasonably prompt oath prevented disqualification in this case.

Could any elected official delay the oath for two days?

The opinion did not announce an automatic two-day allowance. It relied on the councilmember's serious illness and the prompt oath after she was able to respond.

Background and statutory framework

The Fort Mitchell city attorney asked about a councilmember elected to a term beginning January 1, 2013. KRS 62.010(2) required an oath on or before the term's start; KRS 62.990(2)(b) described a vacancy and ineligibility consequence. The opinion quoted Lewin v. Town of Ft. Mitchell for the rule that a duly elected officer could qualify within a reasonable time when there was a reasonable excuse for delay. It also cited earlier AG opinions involving illness and oaths administered shortly after January 1.

Citations and references

Statutes: KRS 62.010(2); KRS 62.990(2)(b).

Case: Lewin v. Town of Ft. Mitchell, 147 S.W.922 (Ky. 1912).

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Pages/Opinions.aspx
• Original Word document: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG13-003.doc

Original opinion text

OAG 13-003

March 8, 2013

Subject: Whether a city councilmember who did not take the oath of office on January 1 due to illness is disqualified from office.

Requested by: Robert Ziegler

Written by: Matt James

Syllabus: A city councilmember who takes the oath of office within a reasonable time after January 1 is not disqualified from office.

Statutes construed: KRS 62.010(2), KRS 62.990(2)

OAGs cited: OAG 78-75, OAG 78-707, OAG 90-139

Opinion of the Attorney General

Robert Ziegler, attorney for the City of Fort Mitchell, has requested an opinion of this office on whether a city councilmember who did not take the oath of office on January 1 due to illness is disqualified from office. We advise that a city councilmember who takes the oath of office within a reasonable time after January 1 is not disqualified from office.

Mr. Ziegler informs us that a councilmember of the City of Fort Mitchell was elected to a term beginning on January 1, 2013. In December of 2012, the councilmember became severely ill and required surgery. The City Clerk inquired on December 28 whether the councilmember had taken the oath of office yet, but the councilmember was in the hospital at the time and did not respond until January 2, 2013. When the City Clerk received the councilmember’s response on January 3, the Mayor directed that the City Clerk proceed to the councilmember’s home and swear her in, which was done on January 3. At issue is whether the councilmember is disqualified from office because she did not take the oath of office on or before January 1.

KRS 62.010(2) provides that “each person elected to an office shall take the oath of office on or before the day the term of office to which he has been elected begins,” with exceptions for when the first Monday falls on January 1. KRS 62.990(2)(b) provides that “if any person violates KRS 62.010(2) or (3) on or after January 1, 2010, his office shall be considered vacant, and he shall not be eligible for the same office for two (2) years.” Taken literally, KRS 62.010(2) and KRS 62.990(2)(b) provide if an elected official does not take the oath of office before January 1, the official’s office is vacated, and the official is not eligible for the same office for two years.

However, case law and this office’s prior opinions are consistent that KRS 62.010(2) and KRS 62.990(2)(b) are not to be taken strictly literally, and that as long as the official takes the oath within a reasonable time and does not willfully refuse to take the oath, the official’s assumption of the office is valid. In Lewin v. Town of Ft. Mitchell, 147 S.W.922 (Ky. 1912), the Board of Trustees of the town did not take the oath of office until January 3. Regarding the requirement to take the oath on January 1, the court held that:

The Legislature certainly never intended that this should be mandatory; no reason or necessity can be given for it so being . . . And we are of the opinion that a mere delay of one day ought not to be considered as sufficient to cause a vacancy of their offices to which they had been elected. It is our opinion that, when a person is duly elected to office and a bond for the faithful performance of his duties is not required, he should be permitted to qualify within a reasonable time after the day fixed for taking the oath provided he has a reasonable excuse for the delay.

Id. at 924. The court found that the requirement to take the oath on January 1 is not mandatory, and an elected officer may qualify for the office by taking the oath within a reasonable time, provided there is a reasonable excuse.

Our prior opinions have followed Lewin. In OAG 78-75, an officer did not take the oath of office on January 1 due to illness. Under Lewin, we advised that “in view of the related facts which indicate illness on the part of the individual in question, we believe that the oath could still be executed and the individual would be legally qualified.” Id. Similarly, in OAG 78-707, we advised that “the fact that members of the city council did not execute the oath on or before the first Monday in January . . . but did so on January 3, the following day, would not disqualify these officers as far as the execution of the oath is concerned.” See also OAG 90-139. Our opinions have consistently held that a justifiable excuse for not taking the oath of office on January 1 does not disqualify the officer from taking the office, as long as the oath is taken within a reasonable time thereafter.

In sum, we advise that a city councilmember who does not take the oath of office on January 1 is not disqualified from holding office, provided the councilmember takes the oath at a reasonable time thereafter. In this case, the councilmember had a valid excuse of illness for not taking the oath, and took it two days later on January 3, which case law and our prior opinions have indicated is a reasonable time thereafter. Accordingly, the city councilmember’s assumption of office should be valid.

JACK CONWAY

ATTORNEY GENERAL

Matt James

Assistant Attorney General