Request By:
Mr. H. W. Roberts, Jr.
Hickman County Attorney
Suite 200
Clinton Bank Building
Clinton, Kentucky 42031
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have a problem concerning the Hickman County Fiscal Court. It is composed of three magistrates and the county judge/executive, making a total of four members. You have advised the fiscal court that when a motion is before the fiscal court and a member abstains from voting, then he should be recorded as voting for the motion.
The established Kentucky rule is found in Lawrence County v. Lawrence Fiscal Court, 191 Ky. 45, 229 S.W. 139 (1921). In that situation the Fiscal Court of Lawrence County was composed of seven justices of the peace and the county judge, for a total of eight members. On the day the questioned resolution was passed, all of the members of the fiscal court were present. A roll call of the justices showed four votes for the resolution and three against it. The county judge abstained. Judge Thomas, for the court, in speaking of the established rule, said this at page 141.
"Under these authorities we gather the rule to be that when the requisite number of the body to form a quorum is present and has an opportunity to and does vote upon a proposition, those members who are present and do not vote will be considered as acquiescing with the majority, and their silence construed as they voting with the majority."
In other words, where at least a quorum is present and votes on a proposition, those members who are present and do not vote will be considered as voting with the majority. Of course, this means that there must be at least a majority of the quorum voting on the proposition before the vote of the abstaining member is considered. Thus the vote of the abstaining member is merely added to the majority vote of the quorum. However, there is one final qualification. In order for the vote to be considered controlling in the passing of a resolution or motion, it is necessary that when you add the positive vote of the majority of the quorum to the constructive vote of the member abstaining, the total must constitute a majority of those members actually present. Thus in the Lawrence County case a majority of the quorum, being four, voted for the resolution and three against it, and the county judge abstained. The vote of the four at that point was a majority of the quorum. When the abstaining vote of the judge was added to the four it made a total of five, which constituted a majority of the members present [there were eight members present].
This principle was reiterated in the more recent case of Pierson-Trapp Co. v. Knippenberg, Ky., 387 S.W.2d 587 (1965) 588.
Under KRS 67.078, as enacted in 1978 [H.B. 152, Ch. 118, § 6], a majority of the fiscal court, unless otherwise provided by statute, shall constitute a quorum; and a majority of a quorum shall be sufficient to take action, except that a majority of the fiscal court shall be required to pass an ordinance.