Request By:
Mr. Glycon L. Ovey, Jr.
Attorney at Law
Box 216
Eddyville, Kentucky 42038
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your questions relate to the Lyon County Port Authority, established pursuant to KRS 65.540. We assume this is a joint city-county port authority (two cities and the county). Under KRS 65.540(1)(d) the membership was expanded into eight (8) members. However, at present, because of three vacancies, there are only five active members on the board. One of the vacancies was that of the mayor of Eddyville.
Your specific question is: What constitutes a quorum for the doing of business as relates to the Lyon County Port Authority?
KRS 65.560 reads:
"A quorum for the transacting of the business of the authority shall consist of four (4) members for a six (6) member authority and five (5) members for an eight (8) member authority Meetings of the authority may be called by the chairman or by four (4) members for a six (6) member authority and (5) members for an eight (8) member authority. In case of tie voting by the authority, the issue shall be deemed to have failed passage."
Until such time as the mayors of Eddyville and Kuttawa and the county judge/executive rescind the agreement to augment the board by the two additional appointments, the authority is an eight (8) member board. Under the express language of KRS 65.560, the quorum for an eight (8) member board shall consist of five (5) members. The number of vacancies is not relevant to the answer. Only the number of members of the board is important.
Question No. 2 reads:
"In conjunction with the aforementioned question, when filling the vacancies on the Board to insure a six (6) member board as required by law, could the County Judge Executive and the Mayors of Kuttawa and Eddyville agree to appoint the County Judge Executive, who is already serving on the Board by reason of his office, as a member without regard to his holding of the office of County Judge Executive and then the three officials appoint another person to serve on the Board, making the composition of the Board as six and therefore having no members holding their position on the board by reason of their being an elected official and being allowed to hold their position on the Board even after leaving elective office?"
As we said above, if the mayor of the two cities and the county judge/executive do not rescind the agreement as to the two additional members (the addition to the six members), then the port authority is an eight (8) member board. If they rescind the agreement, then the port authority is a six (6) member board. If it is a six member board, the two mayors and the county judge/executive must jointly fill the two vacancies by choosing two persons who are not a mayor or a member of a city legislative body or the county judge/executive or other member of the fiscal court. The county judge/executive cannot be appointed as one of six members, since he is presently county judge/executive, and he cannot be viewed as two men, i.e., the county judge/executive and as a private person divorced from his office. KRS 65.540(1)(d), because of its literal provisions, permits a mayor or member of a city legislative body and the county judge/executive or other member of fiscal court to make up the "two additional memberships" only. See H. O. Hurley Co. v. Martin, 267 Ky. 182, 101 S.W.2d 657 (1937), stressing that the courts are bound by the plain meaning of language used in the statute. This conclusion is really mandated by the provision in KRS 65.540(3) that "Except as provided in subsection (1)(c) and (d) of this section [additional members to a six member board] no riverport authority member shall hold any official office with the appointing authority." We think that is dispositive of the issue.
Question No. 3 reads:
"Also, in appointing a person to fill a vacancy, is there a requirement that a prospective Board Member reside in the County or the cities which created the authority in that may a person who has a business in the County and City where the Port is situated but who resides in another city and county serve on the Port Authority Board?"
Assuming that you have in mind a six (6) member board, the statutes are silent as to any residential requirement. See KRS 65.540.
Section 234 of the Kentucky Constitution requires that all district, county, city or town officers shall reside within their respective districts, counties, cities or towns. However, that section applies only to those officers directly named and designated in the constitution. City of Newport v. Schindler, Ky., 449 S.W.2d 17 (1970). Members of the port authority (except the mayors and county judge/executive serving as "additional members") are not directly named and designated in the constitution.
Thus we find nothing requiring any of the members of a six (6) member board to be residents of a city in the county or of the county. See OAG 76-560, copy enclosed, of similar import.