Request By:
Mr. Robert Armstrong
Council Member
City of Central City
124 West 3rd & Peters Streets
Central City, Kentucky 42330
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of July 25 in which you present the following facts and question:
"Please refer to KRS 86.070 and KRS 83A.060 pertaining to the above organization of government in a city of the 4th class. These two rulings seem to differ.
"Please advise in relation to the City of Central City Council which has 8 members if 3 members out of a quorum of 7 present can pass a resolution or an ordinance with 4 of the 7 abstaining?"
In response to your question and subsequent phone conversation, we initially call your attention to the fact that KRS 86.070 to which you refer as being in conflict with KRS 83A.060 was repealed by the 1980 Municipal Code, and is therefore no longer in effect. On the other hand, in KRS 83A.060, it is provided that the majority of the legislative body shall constitute a quorum and a vote by a majority of the quorum shall be sufficient to take action. You will note under this statute and KRS 83A.030(1) that the mayor is neither a member of the legislative body nor is he given the authority to vote as such, in order to create a quorum as was the case under KRS 86.070. Under the present Code, the mayor is authorized to vote only in case of a tie as provided in KRS 83A.130(5).
In response to your basic question, where the council is composed of eight members and seven are present, a quorum of course exists. Where three members vote in favor of the resolution or ordinance and four abstain, the four abstentions must be counted as having voted with the majority which was three thereby creating a unanimous vote in favor of the resolution or ordinance. In this respect we are enclosing a copy of OAG 70-668 involving a vote question where five members of a six-man council were present, two voted for the amendment and three abstained. In concluding that the amendment was legally enacted, we initially cited the case of
Napier v. Gay, 264 Ky. 359, 94 S.W.2d 682 (1936) where five members of the council were present and two voted for adoption of the amendment and two passed, the court declared that the two members who passed voted affirmatively. Here there was no record of what one of the councilmen did when the vote was taken which accounted for the fifth member present. A later case really spells out the rule and that is
Payne v. Petrie, Ky., 419 S.W.2d 761 (1967) which is quoted in the referred to opinion and declares that the word majority as used in the rule does not mean numerical majority of the entire board but simply means a majority of those present and voting.
A more recent case is
Bd. of Ed. of McCreary County v. Nevels, Ky. App., 551 S.W.2d 15 (1977) from which we quote the following pertinent provision:
"At the December 5, 1975 meeting, four members were present other than Vina Brown. When the motion was made to appoint Nevels to a new four year term as superintendent commencing July 1, 1976, board members Harmon and Davis voted 'yea' and board member Perry voted 'nay.' Board member Neal did not vote although the minutes of the meeting state: "Chairman Harmon asked Member Neal three times for his vote, but he did not vote." The appellees contend that Neal should be counted as voting in favor of the appointment of Nevels as school superintendent. We agree.
"[10] The applicable rule was stated in
Payne v. Petrie, Ky., 419 S.W.2d 761, 763 (1967):
'In
Pierson-Trapp Co. v. Knippenberg, Ky., 387 S.W.2d 587, 588, it was written: "The rule is that when a quorum of a governing body is present those members who are present and do not vote will be considered as acquiescing with the majority." We adhere to that rule, but amplify it to point out that the word "majority" as used in the rule does not mean a numerical majority of the entire elected membership board, but means a majority of those present and voting. '
"In this case, Perry, Davis, Harmon and Neal constituted a quorum of the board. Of those who voted (Perry, Davis and Harmon) the 'yea' votes cast by Davis and Harmon constituted a majority. Consequently, Neal must be considered as having voted 'yea' with Davis and Harmon. Thus, disregarding the vote of Vina Brown, Nevels was still appointed school superintendent for the new term by a three to one vote."
Under the circumstances and as previously indicated, the resolution or ordinance to which you refer was in our opinion legally enacted by unanimous vote.