Request By:
Robert D. Kuhnle, Esq.
Area Counsel
U.S. Department of Housing
and Urban Development
P.O. Box 1044
Louisville, Kentucky 40201
Opinion
Opinion By: Steven L. Beshear, Attorney General; Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising a question about the validity of a proceeding undertaken by the Lawrence County Housing Authority, an organization which was presumably organized pursuant to the provisions of KRS 80.310 to 80.610. Ms. Pauletta G. McNabb, the Executive Director of the Lawrence County Housing Authority, has submitted some additional materials and has raised essentially the same question as you have.
The Lawrence County Housing Authority met in a regularly scheduled meeting on May 24, 1983. At that time the board authorized the chairman or vice chairman to sign, upon receipt, a HUD document titled "Declaration of Trust" which would encumber the title and dedicate a recently acquired piece of real estate to be used for public housing. From the materials submitted it appears that the board had previously approved the development of 50 units of public housing to which the "Declaration of Trust" related.
On June 11, 1983 the appointing authority (the fiscal court) accepted the resignation of the chairman of the board of the housing authority and named a replacement. On June 13, 1983 the unexecuted "Declaration of Trust" was received by the housing authority from HUD. The chairman having resigned and that office being vacant, the vice chairman was approached to sign the document. Citing what he believed to be a conflict of interest due to his involvement with real estate options and being opposed to the site selection, the vice chairman declined to sign. The treasurer of the housing authority subsequently signed the document, apparently under the impression that he had the authority to do so.
On the evening of June 13, 1983 two new members of the board of the housing authority were sworn into office by the county judge/executive. Since a notary public was not present at that time these two members were resworn before a notary public on June 28, 1983, at the next scheduled board meeting. [Note, however, the provisions of KRS 62.020: "The official oath of any officer may be administered by any judge, county judge/executive, notary public, clerk of a court, or justice of the peace, within his district or county."]
At the June 28, 1983 meeting of the board of the housing authority the minutes of the meeting of May 24, 1983 were approved. Later during the meeting a question was raised as to the treasurer signing the "Declaration of Trust." At some point, presumably at the meeting of June 28, 1983, the board adopted a resolution ratifying, approving and reaffirming its actions taken at the May meeting and the execution of the "Declaration of Trust" on June 13, 1983.
The question you have presented, which is very similar to the question presented by Ms. McNabb, is whether or not the "Declaration of Trust" was lawfully executed, having been signed by the treasurer who was, and is, a member of the board in good standing and who signed on behalf of the board's chairman and vice chairman.
At its May meeting the board of the housing authority specifically authorized the chairman or the vice chairman to sign the "Declaration of Trust" to be submitted by HUD. It appears that the board had previously approved the development of 50 units of public housing to which the "Declaration of Trust" related so, perhaps, it was just a formality as to which board member executed the document on the board's behalf. We have not been furnished with copies of the resolution adopted at the May meeting, the "Declaration of Trust" itself or other documents relating to the housing development with which the "Declaration of Trust" was concerned.
Regardless of which board member signed the document or should have signed, it seems clear the board intended that the document be signed and executed and that the board by its subsequent actions, at its meeting on June 28, 1983, ratified the actions taken earlier relative to the actual execution of the document. In McQuillin Mun. Corp. (3rd Ed.), Vol. 4, § 13.47 the following appears:
"Generally, a governmental body may effectively ratify what it could theretofore have lawfully authorized. Ratification after the act is said to be as potent as authority before the act. Irregular and void acts may be ratified or confirmed at a subsequent meeting. Thus, where the action in allowing a claim is invalid because of a lack of a majority vote as required by law, it may be ratified at a subsequent meeting by resolution confirming such previous action. But ratification must be made with the same formalities required for the original exercise of power."
Thus, in our opinion, the "Declaration of Trust" was lawfully executed because any doubts as to the validity of the action taken by the board's treasurer in signing and executing the document on the board's behalf on June 13, 1983 were resolved by the board's ratification of those actions at its subsequent meeting of June 28, 1983.