Request By:
Mr. W. C. Flannery
Rowan County Judge/Executive
Courthouse
Morehead, Kentucky
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have requested the opinion of this office on two questions concerning the Rowan County Air Board.
Question No. 1:
"What can I do or what remedies can I take concerning the Rowan County Air Board consisting of six (6) members who are equally divided three to three and deadlocked in securing a quorum on either side relating to conducting Air Board business."
KRS 183.132(9) provides that a quorum for this body shall consist of four (4) members. In the case of tie voting by the board, the issue shall be deemed to have failed passage. We assume that you really mean that the board is repeatedly voting 3 to 3 on various issues, and thus nothing is accomplished.
The air board is a public body corporate and is engaged in the performance of a public duty. KRS 183.132. See KRS 183.133, as to its duties.
Where the air board repeatedly, and as a definite pattern, and over a substantial period of time holds meetings resulting in a tie vote, thus resulting in a failure to carry out its statutory duties, the fiscal court may file a mandamus action in circuit court against the board, seeking a judgment compelling the members to perform merely ministerial duties or to direct that its discretionary duties be performed, though not to direct the particular manner of the performance of a discretionary duty.
McFarland v. Withers, 274 Ky. 65, 118 S.W.2d 156 (1938) 157; and
Evans v. Thomas, Ky., 372 S.W.2d 798 (1963) 800.
Where the fiscal court, under such factual circumstances, is requested by taxpayers to bring such suit, and the fiscal court refuses or fails to bring such suit, a taxpayers' suit could be filed in circuit court against the board seeking the remedies mentioned above.
Question No. 2:
"Can the Air Board be dissolved and the property returned to the original land donors?"
Under KRS 183.132(10), a member of the board may be replaced by the appointing authority upon a showing to such authority of misconduct, inter alia, as a board member. In this kind of situation, however, it would be perhaps impossible to single out particular members or treat the whole board as having engaged in misconduct under the peculiar factual circumstances you have outlined.
Although an air board is a public corporation, it does not have to file articles of incorporation. It does not, therefore, operate under a charter issued by the Secretary of State.
We can find no statutes authorizing the dissolution or discontinuance of such a public corporation. It is our opinion that, in the absence of legislative guidelines of the General Assembly, such an air board cannot be dissolved or discontinued. Cf. KRS 262.791, which expressly provides for the discontinuance of a watershed conservancy district.