Request By:
Mr. J. Thomas Soyars
Christian County Attorney
Courthouse
Hopkinsville, Kentucky 42240
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
A current problem has arisen in connection with the joint city-county airport in Christian County. The air board has had a great difficulty in obtaining quorums for its meetings, principally because one board member has persistently been absent.
The air board recently advised fiscal court that it had adopted a resolution removing the offending member, in reliance on a 1977 by-law of the corporation calling for the dismissal of any board member who misses three consecutive meetings without justifiable cause.
Your question is whether a member of the air board can be legally removed for missing three consecutive meetings without any justifiable cause.
KRS 183.132(10) reads:
"(10) A board member may be replaced by the appointing authority upon a showing to such authority of misconduct as a board member or upon conviction of a felony. No board member shall hold any official office with the appointing authority. "
Under subsection (10) an air board member can be replaced by the appointing authority upon a showing to such authority of "misconduct as a board member" or upon conviction of a felony. (Emphasis added). Under KRS 183.132(3)(c) the "appointing authority" is clearly the mayor of Hopkinsville and the county judge/executive of Christian County. In OAG 80-436, copy enclosed, we concluded that the appointing authority is the county judge/executive and the fiscal court, pursuant to KRS 67.710(8). But that situation involved an air board established by a county only under KRS 183.132(3)(b). Here a joint city-county air board is involved. KRS 67.710(8) only envisioned "county" appointments and removals of board members, not joint city-county appointments and removals. Moreover, if the consent of the fiscal court is added to the picture, appointments and removals in many counties would never come off. The courts have said that statutory language should receive a practical construction. Neutzel v. Will, 210 Ky. 453, 276 S.W. 137 (1925) 138.
It is our opinion that the air board, as a public corporation, "with the usual corporate attributes", as mentioned in KRS 183.132(2), had the authority to enact by-laws governing its operations, so long as they are not inconsistent with the statutes. We think the by-law provision concerning three consecutive absences is not in conflict with the statutes, and is a reasonable rule calculated to enforce a discipline to insure the orderly attention to and disposal of air board business. On this basis the members either attend as the statute requires, or else the appointing authority will appoint someone who will attend to the business.
The remaining question concerns the definition of the term "misconduct as a board member. " The chapter (KRS Chapter 183) does not define the term.
We find this in 63 Am.Jur.2d, Public Officers and Employees, § 190, relating to "misconduct" , at page 743:
"Provisions are frequently found which state that public officers may be removed or suspended for malfeasance or misfeasance, or for misconduct or gross misconduct, or for malconduct in office.
"To warrant the removal of an officer, the misconduct, misfeasance, or malfeasance must have direct relation to and be connected with the performance of official duties, and amount either to maladministration or to wilful and intentional neglect and failure to discharge the duties of the office."
See Kentucky State Board of Eduction v. Isenberg, Ky., 421 S.W.2d 81 (1967) 84, citing the above reference in American Jurisprudence as to "misconduct" of a public officer.
In Broadway & Fourth Avenue Realty Co. v. Crabtree, Ky., 365 S.W.2d 313 (1963) 314, it is written, concerning unemployment insurance, that "The rule is that persistent or chronic absenteeism without notice or excuse in the face of continued warnings from the employer constitutes such misconduct as requires a denial of benefits or of the charging of benefits paid to an employer's reserve account." The term "misconduct" was defined in part in Gover v. Stovall, 237 Ky. 172, 35 S.W.2d 24 (1931) 26, as improper or wrong conduct, or "a transgression of some established and definite rule of action . . ." In that case a school teacher was discharged for misconduct. The term "misconduct" was equated with "dereliction of duty" in Jenkins v. Keith, 285 Ky. 240, 147 S.W.2d 397 (1941) 398.
From the above authorities it appears that the term "misconduct" , as applied to a public officer, means essentially a wilful or intentional neglect and failure to discharge the officer's statutory duties.
It is our opinion that the persistent or chronic absenteeism of a board member in connection with air board meetings constitutes "misconduct" under the statute. Implicit in KRS 183.132 is the requirement that board members regularly attend the board meetings, except for justifiable cause, if the board business is to be conducted in a timely and orderly manner.
Thus where a member has been persistently absent from the meetings without excuse, the mayor and county judge/executive may, under KRS 183.132(10), replace such offending member.
It is our opinion that the county judge/executive and mayor, after conducting a hearing on the question of absences, and after determining that the member missed three consecutive meetings without any justifiable cause or excuse, if that is the case, can remove and replace the offending member under the subject by-law and KRS 183.132(10).