Request By:
Mr. Fred H. Porterfield
Department of Housing and Urban Development
539 River City Mall
P.O. Box 1044
Louisville, Kentucky 40201Ms. Irene Deaton
Mayor, City of Newport
4th and York Streets
Newport, Kentucky 41071
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letters concerning the appointment and status of members of a municipal housing authority in general and the appointment and status of members of the Newport Housing Authority in particular.
Mr. Porterfield's first letter pointed out that for a number of years the Bobbs-Merrill Edition of the Kentucky Revised Statutes incorrectly set forth the provisions of KRS 80.030 dealing with the appointment of the members of a municipal housing authority. The statute should have read that a city housing authority in cities of the first five classes shall consist of the mayor, ex officio, and four persons appointed by him with the approval of the city legislative body. The statute, however, was printed to read that the appointments were to be made by the mayor without the approval of the city legislative body.
Although the 1980 Cumulative Supplement to Volume 4 of the Bobbs-Merrill Edition of the Kentucky Revised Statutes correctly sets forth the provisions of KRS 80.030, some municipal housing authorities were created during that time period when the incorrect version of the statute was contained in the Bobbs-Merrill Edition of the Kentucky Revised Statutes. Since some members of the municipal housing authorities were not properly appointed, Mr. Porterfield is concerned about the validity of the actions taken by those housing authorities. He specifically requests an opinion concerning the legality of the actions taken by municipal housing authorities whose members were improperly appointed because of the error in the Bobbs-Merrill Edition of the statutes relative to KRS 80.030.
Ms. Deaton's letter concerns the appointment of persons to the Newport Housing Authority pursuant to KRS 80.030. As mayor she appointed four persons to the Housing Authority but they were never approved by the city legislative body. Although the city council would not act on the mayor's appointments, those persons assumed positions on the Housing Authority and acted as members of a municipal housing authority. The Department of Housing and Urban Development has raised questions as to whether the Housing Authority is legally constituted. Ms. Deaton has asked whether the members of the Newport Housing Authority which she appointed are de facto officers.
Mr. Porterfield's second letter dealt specifically with the appointment of the four members of the Newport Housing Authority by the mayor. The mayor removed four members of the Housing Authority (those members have filed appeals in circuit court concerning their removal) and she appointed four new members. These new appointees of the mayor were neither approved nor disapproved by the city council but they have assumed positions on the Housing Authority and are functioning as a municipal housing authority. Mr. Porterfield has asked whether the persons appointed by the mayor to a municipal housing authority may serve in that capacity pending their approval or disapproval by the city legislative body.
The basic question is whether the persons appointed as members of a municipal housing authority by the Mayor of Newport and the mayors of other cities of the first five classes may be considered de facto officers. They obviously are not de jure officers (those who have legal title to their offices) if they have not been appointed pursuant to the statutory requirements of KRS 80.030.
In
Fidelity & Deposit Company of Maryland v. Combs, 176 F.Supp. 756 (E.D.Ky.1959), the Court defined a de facto officer by quoting from an earlier decision of the United States Supreme Court:
"'* * * A de facto officer may be defined as one whose title is not good in law, but who is in fact in the unobstructed possession of an office and discharging its duties in full view of the public, in such manner and under such circumstances as not to present the appearance of being an intruder or usurper. When a person is found thus openly in the occupation of a public office, and discharging its duties, third persons having occasion to deal with him in his capacity as such officer are not required to investigate his title, but may safely act upon the assumption that he is a rightful officer.'"
The Court, in Coquillard Wagon Works v. Melton, 137 Ky. 189, 125 S.W. 291 (1910), described a de facto officer as one who is actually in possession of the office, exercising its functions in that cause and acting under color of title. Color of title is the apparent right to the office, a pretense under semblance of authority, though the authority is lacking and its pretended exercise void. At page 293 of its opinion, the Court said:
". . . The essential to the creation of an officer de facto is that his incumbancy should not be legal, but that it would be exercised by virtue of some election or appointment attempted as a legal right, but invalid for want of power in the appointing body, or because of the defect in the election. . . ."
A long, detailed definition of a de facto officer is also set forth in
Wendt v. Berry, 154 Ky. 586, 157 S.W. 1115, 1118-1119 (1913). A de facto officer is one whose acts, though not of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons where the duties of the office were exercised. One of the situations discussed is an appointment which is not valid because of a lack of power in the appointing authority.
In 63 Am.Jur.2d Public Officers and Employees, Sect. 504, the following appears:
"One of the important classes of de facto officers consists of those who enter into possession of an office and exercise its functions by reason of an appointment which is informal or defective. As already seen, the defective appointment constitutes color of title of appointment. Therefore, the general rule is that when an official person or body has apparent authority to appoint to public office, and apparently exercises such authority, and the person so appointed enters on such office, and performs its duties, he will be an officer de facto, notwithstanding that there was want of power to appoint in the body or person who professed to do so, or although the power was exercised in an irregular manner."
One who has never had title to an office in the first place can act as a de facto officer,
Commonwealth Ex Rel. Breckinridge v. Winstead, Ky., 430 S.W.2d 647 (1968). Furthermore, in regard to the exercise of authority by a de facto officer, we direct your attention to
Schaffield v. Hebel, 301 Ky. 358, 192 S.W.2d 84, 87 (1946), where the Court said in part as follows:
". . . This is in accordance with the general rule that the exercise by an officer de facto of authority which lawfully pertains to the office of which he has possession is as valid and binding as if exercised by an officer de jure, and an act by the one has the same force and effect as anact of the other so far as it is for the interest of the public or of third persons. . . ."
Thus, in conclusion, it is our opinion that those persons improperly appointed as members of municipal housing authorities, because of an error contained in the Bobbs-Merrill Edition of the Kentucky Revised Statutes (KRS 80.030) and who are functioning as members of such housing authorities, are de facto officers whose acts are valid as to members of the public and third parties dealing with them so long as the acts undertaken are those capable of being legally exercised by a municipal housing authority. Now that the statute has been reprinted in its correct form, those cities whose housing authority members were not legally appointed should go back and reappoint the members pursuant to the terms and provisions of KRS 80.030.
In our opinion the members of the Newport Housing Authority, who were appointed by the mayor but whose appointments were not acted upon by the city legislative body and who assumed positions as members of the city's housing authority and acted in that capacity, are de facto officers. Until these persons resign, are removed from office or are appointed as lawful members pursuant to KRS 80.030, they are de facto officers and their actions are valid as to members of the public and third parties dealing with them so long as the acts undertaken are capable of being legally exercised by a legally appointed municipal housing authority.