Request By:
Mr. William L. Owen
Route 2, Box 12
Morganfield, Kentucky 42437
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to a letter signed by you and other interested citizens of Morganfield, Kentucky, under date of September 27, 1979. You specifically desire an opinion as to whether or not it is legal for the mayor to count an abstaining vote by a member of the city council as a "yes" vote, thereby enabling the mayor to cast the tie breaking vote in the way he sees fit.
The answer to your question would be in the affirmative, assuming that the abstaining vote was counted with the majority vote on the matter before the council. The case of Payne v. Petrie, Ky., 419 S.W.2d 761 (1967), clarified the law on the question wherein it cited the rule to the effect that when a quorum of a governing body was present, those members who are present and do not vote will be considered as acquiescing with the majority. The court went on to declare that the word "majority" as used in the law does not mean a numerical majority of the entire elected membership of the board but means a majority of those present and voting.
You also refer to the fact that a special meeting was called on another matter, following the failure of the council to act on the abstaining vote question, and the same issue was brought up with the result that the abstaining vote was counted presumedly with the majority vote. However, there was no public notice prior to the special meeting. You question this procedure.
KRS 86.070 provides that the mayor may call a special session by reasonable notice whenever he considers it necessary, and shall call a special session when requested in writing by four (4) members of the council in cities of the fourth class. There is no requirement under this statute that the agenda of the special session be publicized prior to the special meeting. Notice also must be given under the Open Meetings Act with respect to the holding of special meetings pursuant to KRS 61.825. This statute is more specific with respect to requiring the delivery personally or by mail written notice to each member of the council as well as to each local newspaper of general circulation within the area, each news service, and each local radio and television station which has on file with the public agency a written request to be notified of special meetings. Such a notice must be delivered personally or by mail at least twenty-four (24) hours prior to the time of the meeting as specified in the notice. However, if time does not permit the giving of the 24-hour notice, then notice that is reasonable under the existing circumstances and is calculated to inform the people of the open meeting, shall be given to the news media and the public. There are certain emergency exceptions to the notice requirement that we will not go into. There is however also the provision, with exception of an emergency situation, that no special meeting shall be held except in full compliance with the notice requirement found in the referred to statute.