Request By:
Ms. Irene Deaton
City Commissioner
City of Newport
18 Biehl Street
Newport, Kentucky 41071
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your recent letter in which you request an opinion concerning the following voting procedure on a matter before the board of commissioners:
If there was only one person left on an eligibility list for a promotion and the vote was two votes for him and two against and my vote was an abstain vote, would the abstain vote go as a yes vote or a no vote, or would it stay as is.
The city of Newport operates under the city commission form of government and, pursuant to KRS 89.500, the board of commissioners is composed of the mayor and four (4) commissioners. See also KRS 89.430. From your statement of facts, it is apparent that all five (5) board members were present; two voting for the person eligible for promotion, two voting against him, and one abstention. In this situation, the motion fails because you do not have a majority vote as required by KRS 89.540. The rule is that an abstaining vote is to be counted with the majority vote. However, in this instance, there is simply a tie vote. For your information we quote the following excerpt from the case of
Payne v. Petrie, Ky., 419 S.W.2d 761 (1967), where the term "majority vote" was defined:
"In
Pierson-Trapp Co. v. Knippenberg, Ky., 387 S.W.2d 587, it was written:
'The rule is that when a quorum of a governing body is present those members who are present and do not vote will be considered as acquiescing with the majority.'
"We adhere to that tule, but amplify it to point out that the word 'majority' as used in the rule does not mean a numerical majority of the entire elected membership of the board, but means a majority of those present and voting. . . ."
As indicated above, the motion to promote the individual in question fails for lack of a majority vote and, as a consequence, your abstaining vote could not be counted either for or against the motion.