Request By:
Clifford F. Kerby, M.D.
Mayor, City of Berea
P.O. Box 8
Berea, Kentucky 40403
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of November 21 in which you present the following facts and question:
"I have been on the Madison Airport Board for about eight years. This is a board of six people appointed jointly by the two Mayors and the County Judge Executive. I was reappointed to the board while I was still Mayor Pro-Tem of Berea. My term is now expiring. I know I cannot reappoint myself, but I need to know if it is illegal for me to sit on the board if I am appointed by either Mayor Strong or Judge Botner. They both want me to stay on the board if possible."
Initially, it is apparent that the air board is jointly operated by two cities and the county and is composed of six members to be appointed jointly by the mayors of each city and the county judge/executive pursuant to KRS 183.132 (1)(d). However, in order to respond to your question, we must initially deal with the question of incompatible offices under Section 165 of the Constitution and KRS 61.080 which prohibit a municipal officer from holding any other municipal, county or state office at the same time. However, since the air board is a joint board, it is a hybrid agency authorized by statute between the cities and county, and we believe that a municipal officer could be appointed to such board without violating the referred to section of the Constitution and the statutes. We have so ruled in a number of opinions involving similar joint agencies such as joint planning and zoning commissions authorized under Chapter 100 KRS. In this respect, we are enclosing copies of OAG 75-238 and 76-257.
As previously mentioned, KRS 183.132 provides that the board members are appointed jointly by the action of the two mayors and the county judge/executive. This means, of course, they must act jointly and thus an individual member would not have the power to make appointments on his own as you suggest might be possible. Referring to McQuillin, Mun. Corps., Vol. 3, § 12.71 it is provided that if the power to appoint is vested jointly in two or more persons it cannot be exercised by one alone, acting independently, but they must act as a body. Also it is obvious that you cannot vote to appoint yourself as this would be against public policy being of self-interest. See McQuillin, Mun. Corps., Vol. 3, § 12.75,
City of Springfield v. Haydon, 216 Ky. 483, 288 S.W. 337 (1926), OAG 83-220 and 82-94, copies attached.
Where the appointing members are required to act as a body, which is the case here, action can be taken by a vote of a majority which in this case would be two of the three members. See KRS 446.050 and
Traylor v. Cummins, 222 Ky. 438, 1 S.W.2d 530 (1927). Referring also to McQuillin, Mun. Corps., Vol. 4, § 13.30, relating to the procedure that must generally be followed for a majority to act, we quote the following:
". . . However, although the contrary has also been held, if the act is one which requires the exercise of discretion and judgment, in which case it is usually termed a judicial act, unless provision is otherwise made by law, the persons to whom the authority is given must meet and confer and be present when the act is performed, in which case a majority of them, but not less, may perform the act; or, after all of them have been notified to meet, a majority having met will constitute a quorum of sufficient number to perform the act by a majority of the quorum, in the absence of a contrary provision by law. This is the common-law rule."
Next, reference must be made to KRS 183.132(10) which provides that "no board member shall hold any official office with the appointing authority. " In OAG 75-238, copy attached and referred to previously, we took the position that where there was simply a city air board the mayor could appoint a member of the city council who was an elected official and therefore held no official office with the appointing authority. However, in OAG 74-755 the question involved the right of a mayor to select and submit his name for appointment as a member of the joint city-county air board which we answered in the negative based on the self-appointment concept. However, we do not believe this concept is present when the appointing procedure outlined is followed, and involves a joint agency consisting of three or more members thereby permitting the appointment of the mayor by the two other members that represent the appointing authority. It should also be noted as pointed out in OAG 74-455 that KRS 183.390(4), which effectively prohibited an elected official from serving on an air board, was repealed in 1960 thereby eliminating this disqualification.
Under the circumstances, we believe that you could be legally reappointed to the six-man airport board by the mayor of the other city and county judge/executive acting jointly as a majority of the appointing body of which you are a member by virtue of your office. Of course you can neither vote nor be present at the time the vote is taken as your mere presence would be considered an affirmative vote with the majority. See