Request By:
Honorable Richard H. Nash, Jr.
Attorney at Law
235 South Fifth Street
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of January 6 in which you request an opinion concerning the following:
"I am writing to you on behalf of the Board of Commissioners of the Housing Authority of Louisville and as attorney for the Board. Chapter 80 of the Kentucky Revised Statutes deals with the Housing Authorities of the State of Kentucky, and KRS 80.030 and 80.040 state who shall be on the Board and for what period of time. It is my opinion that a member of the Board of Commissioners should not give a proxy for voting at meetings of the Board of Commissioners, just as it is not allowed to be done in corporations. However, the Mayor of the city has a proxy who regularly attends the meetings. Our question is actually two questions:
"1. May members of the Board of Commissioners of a Housing Authority give proxies to other members of the Board for voting purposes at a meeting of the Board?
"2. May the Mayor of a city in which a Housing Authority is located appoint a proxy to regularly attend meetings of the Board of Commissioners of a Housing Authority and vote for him?"
Our response to both questions would be in the negative. A municipal housing authority established pursuant to Ch. 80 KRS constitutes an independent public corporate body [KRS 80.050] governed by a housing commission created pursuant to KRS 80.030 and 80.040. The commission has the authority to acquire, establish, erect, maintain and operate low cost housing projects and, in carrying out such authority, its duly appointed members must exercise their judgment and discretion. We find nothing under the housing act which authorizes the delegation or surrender of such power to subordinates or to others which we believe would be essential for the legal use of the proxies of members at meetings of the commission. Referring to 73 C.J.S., Public Administrative Bodies, § 57, we quote the following:
"In general administrative officers and bodies cannot alienate, surrender, or abridge their powers and duties, and they cannot legally confer on their employees or others authority and functions which under the law may be exercised only by them or by other officers or tribunals. Although mere ministerial functions may be delegated, in the absence of permissive constitutional or statutory provision, administrative officers and agencies cannot delegate to a subordinate or another powers and functions which are discretionary or quasi-judicial in character, or which require the exercise of judgment; and subordinate officials have no power with respect to such duties. . . ."
Next referring to McQuillin, Mun. Corps., Vol. 4, § 13.30, dealing with municipal bodies, commissions, and committees, we find the above rule restated as follows:
". . . if the act is one which requires the exercise of discration 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, . . ."
See also C.J.S., States, $33, and the case of
State exrel Grant v. Eaton, 133 P. 2d 588, 114 Mont. 199, holding that proxy voting is not authorized under American parlimentary practice.
Under the circumstances, we are of the opinion that no member of the housing commission, including the mayor as ex officio member, may appoint a proxy or give his proxy to another member for voting purposes at a commission meeting.