Request By:
J. Stephen Kirby, Counsel
Kentucky School Boards Association
260 Democrat Drive
Frankfort, Kentucky 40601
Opinion
Opinion By: Chris Gorman, Attorney General; Anne E. Keating, Assistant Attorney General
You have requested an opinion from this office interpreting KRS 160.270(1), which states in part, "[a] majority of the board shall constitute a quorum for the transaction of business, but a concurring vote by a majority of the board, the number of board members in the quorum notwithstanding, shall be necessary to take any particular action unless otherwise specified by statute ." (Emphasis added, to indicate language added by amendment in 1982.) You note in your letter that in OAG 82-374 the Attorney General's Office took the position that three members of a school board must vote to approve a motion before the motion can pass. You ask, in particular, whether two votes in favor of a motion would suffice when two seats on a board are vacant.
It remains the position of this office that, on a board of five members, three members must concur in their votes in order for a motion to pass. The size of a local school board is set by statute to consist of five members , except in a school district which contains a city of the first class, in which case the board consists of seven members. Even prior to the amendment of KRS 160.270 in 1982, the Kentucky Court of Appeals held that the State Board has authority to fill vacancies on a local board which has only one member and lacks a quorum to act. Gearhart v. Kentucky State Board of Education, Ky., 355 S.W.2d 667 (1962).
The court relied on the Glass case which stated:
When a power is delegated to a board or body consisting of several members, it presupposes the presence of a quorum, as a condition to valid action, and the power may not be exerted effectively by a less number.
Glass v. City of Hopkinsville, 225 Ky. 428, 9 S.W.2d 117, 118 (1928) quoted in Gearhart v. Kentucky State Board of Education, Ky., 355 S.W.2d 667, 672 (1962).
Glass, supra, which addressed the question of authority of four board members to appoint board members to fill five vacancies went on to state:
[T]he appellees further argue that the four members remaining in office constituted all of the board of education legally in office, and as such had a right to carry on the business and fill the vacancies. This contention is predicated upon a definition of 'majority elect of said board,' as used in section 3462, Ky. Stats., as meaning a majority of those constituting the actual, as distinguished from the authorized, membership thereof.
The contention is unsound and utterly untenable. In our state the Legislature has sometimes provided that the remaining members of a board were empowered to fill vacancies . . ., and in many other instances has bestowed the power upon a board or body in which only a quorum could act, requiring a quorum to consist of a majority of all the members elect. The plain import of such provision is that a majority of all members that could in any event be elected to the board must be considered in office and counted to comprise a quorum.
When the vacancies result in a reduction of the board below a majority of the entire membership, as authorized by law, it is wholly without power to act as a board or otherwise, even to declare a vacancy.
Glass , supra , at 118.
Based on Glass, supra, the court in Gearhart, supra, concluded that a local board of one member could not transact business, including the making of appointments to complete the membership of the board even where KRS 160.270 provided that "a majority of the board shall constitute a quorum for the transaction of business" (not a "majority elect" ). Gearhart supra , at 672. (Effective July 13, 1990, KRS 160.190 gave the chief state school officer the responsibility to fill local board vacancies. )
The court in Gearhart, supra, questioned the soundness of another earlier case which had held that board members could hold over and act until successors were elected and qualified in order to assure that there would always be a working board. Douglas v. Pittman, Ky., 239 S.W.2d 548, 39 S.W.2d 979 (1931). We are of the opinion that, under Gearhart, supra, and Glass, supra, KRS 160.270(1) requires that a majority of the statutory board be present to constitute a quorum and that the majority must concur in their vote to take action. To conclude that a majority of what is left of the board, after vacancies occur, will always constitute a quorum and allow action on a concurring vote would allow as few as one individual to meet and take action. Kentucky courts have stated, "statutes will not be given a strict or literal reading where to do so would lead to an absurd or unreasonsable conclusion." Wesley v. Board of Education of Nicholas County, Ky., 403 S.W.2d 28, 30 (1966). Therefore, a minimum of three out of five members on a five member board, or four out of seven members on a seven member board, must be present in order to have a quorum present to transact business. When the bare minimum number of board members necessary to transact business are present, all must concur in their vote to take action.