Request By:
Mr. Ed Burtner
City Manager
The City of Harlan
P.O. Box 783
Harlan, Kentucky 40831
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of September 12 in which you refer to a recent opinion written by the undersigned [OAG 78-619] concerning the appointment procedure for filling a vacancy on the municipal water commission. You now relate that the facts presented in your first letter were prior to the approval of the minutes of the previous meeting at which the vote was taken. In connection with the subsequent meeting, you relate the following facts:
"At a recent regular meeting of the Harlan City Council, the Council considered the approval of minutes from the previous council meeting. On a vote to appoint a member to the Municipal Water Commission the city clerk had recorded two votes yes, one vote no, and three abstentions. In considering the approval of those minutes, the three members who were recorded as casting abstention votes indicated that the minutes were in error and that their votes should have been recorded as no votes. The vote to correct the minutes passed by a majority vote with a quorum present. The minutes were then approved as corrected by a majority vote with a quorum present. Let me also point out that at the meeting at which the appointment action was taken, a quorum was present then as well."
In connection with the above related facts, you raise a number of questions which basically amount to determining whether or not the council members could legally change their vote prior to the approval of the minutes, thereby making the initial vote sufficient to appoint the first appointee to the water commission. Our response to your question would be in the affirmative.
The charter of a fourth class city does not detail the parlimentary procedure to be followed by the city council in conducting its business. Thus, in the absence of such procedure, the municipal body may adopt and change its own rules of parlimentary procedure. Reference, McQuillin, Mun. Corps., Vol. 4, § 13.42. Also, of note is the principle that, in the absence of proof to the contrary, any action taken by the city legislative body will be presumed to be in conformity with its own rules of procedure, and where a parlimentary question has been determined by the council, ordinarily the courts will not reverse said ruling. Also, the mere failure to conform to parlimentary usage will not invalidate the action of the legislative body when the required number of members have agreed to the particular measure. See § 13.42(a) of McQuillin.
We also point out that under Roberts Rules of Order, § 44, it is provided, in effect, that a member of the governing body has the right to change his vote up to the time the results are announced, and after that, he can make the change only by the permission of the body, which can be given by general consent (that is, if no member objects), or by the adoption of a motion to grant permission, which is undebatable. In addition, we might mention that under § 36 of Roberts Rules provision is made that a motion to reconsider a vote can be made and taken up regardless of the time that has elapsed since the vote was taken and, of course, in approving the minutes of the prior meeting corrections can be made. Section 47 of Roberts Rules.
As a consequence, if the minutes of the meeting at which the original vote was taken reflect a change in the vote mentioned in the latest related factual situation, the initial appointee is entitled, we believe, to serve as a member of the municipal water works commission.