Request By:
Mr. Ed Burtner
City Advisor
The City of Harlan
P.O. Box 783
Harlan, Kentucky 40831
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of August 23 in which you raise a number of questions involving parlimentary procedure on the part of the city council in appointing members of the Municipal Waterworks Commission created by ordinance. You relate the following facts:
"At the meeting in question an individual was selected from the list of three names by motion and second. Six members of the Council were present; we have seven council members. The vote was two for the appointment, one against and three abstentions. The questions are: Did the motion to appoint the individual carry? The second question is: What limitations are there upon the casting of an abstention vote? In other words may a council member abstain any time at will for no expressed or accepted (by the Council) reason?"
Since there were six members of the city council present out of a total of seven, an obvious quorum was present. The vote cast on behalf of the individual was two "for", one "against", and three "abstentions. " In our opinion, the motion to appoint the individual in question legally passed. The basis of this conclusion is the fact that where a quorum is present, those members who abstain from voting are counted with the majority vote, either "for" or "against" a measure. In this case there were two votes in favor of the appointment and one against. This constitutes a majority in favor of the appointment which means, in turn, that the three abstentions must be counted as "yes" votes, making a total of five in "favor' and one "against." The basis of this 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 . . ."
Your second related question concerns whether or not a council member may abstain from voting for no express or accepted [by the council] reason. The answer is that he can if he so wishes as there is no legal requirement that he express a reason for "abstaining" or "passing" as the case may be.
Your third related question, concerning the action of the council in assuming that the initial vote was insufficient to appoint the first appointee and proceeding to appoint someone else, must be considered a nullity since the initial appointment was valid and filled the vacancy in question.
Your next question is as follows:
"Also, the City Ordinances prescribing the appointment procedure states that an appointment may be a resident of the City, a businessman in town or a taxpayer but the person does not necessarily have to be a city resident. Is this legal?"
The answer to your question depends upon the terms of the statute pursuant to which the municipal waterworks was established. Since this information is not available, we will assume that it was established pursuant to KRS 96.335 which authorizes the legislative bodies of the second to the sixth class to provide the city with the waterworks system. Under this statute there is no provision for the creation of a commission to operate the utility system, however, the Court of Appeals has held in the case of
Keathley v. Town of Martin, Ky., 246 S.W.2d 152 (1952), that the city legislative body may, under its general power, establish by ordinance a utility commission to operate the system. Since there is no statute governing the commission, the city is at liberty to prescribe reasonable qualifications for membership, particularly in the absence of a general statute under the charter of fourth class cities requiring all city officers to reside in the city. It could therefore authorize, by ordinance, the appointment of qualified individuals regardless of residence as it did in this case.
Section 234 of the Constitution, which requires all municipal officers to reside within their respective municipalities, applies only to those officers named in the Constitution as held in the case of