Request By:
Mr. Irvin T. Callery
103 E. 32nd Street
Latonia, Kentucky 41015
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of April 4 in which you raise the question concerning the voting procedure of the Covington City Commission at a meeting on March 30, during which an initial tie vote was created consisting of two votes for and two votes against with one member abstaining. The specific question is whether or not the abstaining member can be counted as voting for or against the issue before the commission, thereby breaking the tie vote.
Our response to your question would be in the negative. The Board of Commissioners of the city of Convington is composed of five (5) members, four (4) commissioners and the mayor, as provided by KRS 89.500. A majority of the members of the commission constitutes a quorum pursuant to KRS 89.540. Under your set of facts it is apparent that all members were present, two voting "for" the measure and two "against" with one "abstaining" or "passing". This being the case, the measure failed for lack of a majority vote since the member who "abstained" or "passed" can only be counted with the majority voting on a measure where a quorum exists. The basis of the above conclusion is found in the case of
Napier v. Gay, 264 Ky. 359, 94 S.W.2d 682 (1936). Here, the mayor and five councilmen were present. Two members voted for the adoption of a motion and two passed and the court declared that the two members who passed voted affirmatively. Next referring to the case of
Payne v. Petrie, Ky., 419 S.W.2d 761 (1967) the terms "majority vote" and "pass" were defined. The court in this case stated:
"In
Pierson-Tapp 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 of the board, but means a majority of those present and voting . . ."
Under the circumstances where the vote consisted of a tie vote, the abstention could not be counted either for or against the measure, which therefore failed for lack of a majority vote.