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Judge: No Election to Fill Vacated Covington School Board Seat

UPDATE (3:14PM) Mark Young has issued this statement:

We are very disappointed that Judge Sheehan has decided to allow the Ky. Dept. of Education's arbitrary inaction to harm the interests of Covington voters, and to leave Ms. Varney in a precarious legal position, through no fault or action of her own. This is yet another blow to the long suffering tax payers and students of Covington, in a year when it is critically important for responsible and competent leadership to be restored to Covington's School Board. We will be appealing this ruling.

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ORIGINAL POST:
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Kenton County Judge Martin Sheehan has ruled that there will be no election to fill the seat on the Covington School Board vacated by Denise Varney whose resignation triggered a chain of events that at one time had one candidate's name on the ballot only to be removed days later and then prompted a legal battle in court which is now decided. Varney submitted her resignation electronically on August 2 to her fellow school board members, Superintendent Lynda Jackson, Kentucky Commissioner of Education Terry Holliday, and the Kentucky School Board Association. She also moved out of the district two days later. All of those points are irrelevant to the actual vacancy according to Sheehan because the resignation was not accepted by Holliday until August 21.
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The nineteen days between Varney's submission of her resignation and Holliday's acceptance of it was the main catalyst for the legal battle. State statute indicates that if a school board member resigns with more than one year left on his or her term that an appointment can be made by the state commissioner of education but that appointment will only last until the next regularly scheduled election upon which time the seat would be placed on the ballot. Varney submitted her resignation two weeks before the filing deadline of August 14 and on that date Mark Young filed to run for her seat. He was initially denied because Kenton County Clerk Gabrielle Summe had not been made aware of a vacancy on the school board. The following day, Summe agreed to place Young's name on the ballot after conducting some research into the issue during the time the law allows her to do so. However, shortly after it was decided that there was no vacancy declared and that Young was not a valid candidate because Varney's resignation had not been accepted in Frankfort by Holliday. 
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Young and his attorney Brandon Voelker sued the County Clerk's office to have his name placed on the ballot. At the hearing last week, Kerry Holleran, a candidate for the school board's regularly scheduled election (three seats are up for election in November whereas Varney was not up for reelection until 2014) and also an applicant to be appointed to the vacancy, asked through her attorney that Young's case be dismissed. All the parties involved agreed not to have a full blown trial and instead presented their facts directly to the Judge who issued his ruling on Wednesday (a copy of the ruling was obtained by The River City News Friday). 
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Sheehan writes:

Kentucky has long subscribed to the general rule that the resignation of a public officer, unless a statute speaks otherwise, does not become effective until accepted by the proper authority or by equivalent action such as the appointment of a successor. ... This rule is premised on the notion that the rights of the officeholder are subordinate to the rights of the people to maintain an orderly government. ... Kentucky has no statute that speaks otherwise. Thus, application of the accepted common law rule leads to the conclusion that effective date of Varney's resignation from office was August 21, 2012.

Sheehan also determined that neither Varney's move from the district nor the district's advertisement announcing a vacancy was sufficient in creating a vacancy since the resignation had not been accepted by Commissioner Holliday. The judge also defends Holliday from allegations by Young that perhaps the commissioner voluntarily delayed the acceptance of Varney's resignation:

Certainly the Kentucky Education Commissioner must have myriad vital issues competing for his attention daily. The notion that the commissioner should remain in his office at all times, anxiously awaiting resignation by one of the many school board members throughout this state to cross his desk so that he can immediately spring into action is, in a word, chimerical. Not to minimize the importance of filling vacancies on local school boards, but can there be any doubt that the Education Commissioner of the Commonwealth of Kentucky, on any given day, has larger fish to fry.

Sheehan explains that some delay in the process is necessary and inevitable so that the Commissioner can verify the authenticity of a resignation. He argues that Varney submitted her resignation via an unsigned email. Sheehan goes on to cite that some of the delay may have been caused by what has been reported as a lengthy vacation by Holliday's subordinate, a part-time employee named John Thompson who acts as the commissioner's designee for local school board appointments. Sheehan also dismisses Mark Young's claim that the voters of Covington are being disenfranchised by the decision to leave his name off the ballot:

This is not true. Such voters will still be afforded an opportunity to to vote for an individual to fill the Varney vacancy; that opportunity will simply not come up in November 2012, but in a later election. Finally, let us not forget that Young has chosen not to make Holliday a party to this action and has vigorously defended this choice in his responses to the motions to dismiss filed herein. Simultaneously, he seeks a court order which would characterize Holliday's actions as arbitrary and capricious. Far be it from this Court to require Holliday to suffer the indignation of possibly being labeled arbitrary and capricious in the manner in which he has handled his legal duties without first being afforded an opportunity to defend himself against such allegations. ... Young's ability to seek election to the vacant seat has not been abolished, only delayed. ...The law does not recognize as a fundamental constitutional right, the right to candidacy. 

In conclusion, Judge Sheehan states that Varney's seat was not vacant until August 21 and that the Kenton County Clerk's decision not to place the vacancy on the ballot was correct "and need not be disturbed by this Court."
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PHOTO: Denise Varney

Comments

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So what impact does this decision have on filling the vacany through an appointment by the State?  The advertisement was made before the vacancy was officially accepted.

"Such voters will still be afforded an opportunity to to vote for an individual to fill the Varney vacancy; that opportunity will simply not come up in November 2012, but in a later election. "

"Such voters will still be afforded an opportunity to to vote for an individual to fill the Varney vacancy; that opportunity will simply not come up in November 2012, but in a later election. "