Request By:
Honorable James S. Wilson
Special Counsel
Bourbon County Joint Planning Commission
226 Main Street
Paris, Kentucky 40361
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of October 31 in which you raise a question concerning the legal procedure of the Bourbon County Joint Planning Commission in voting on the adoption of a new comprehensive plan pursuant to KRS 100.171 which requires a vote of the simple majority of the total membership in order to adopt a comprehensive plan. See also KRS 100.197.
You relate that the Joint Planning Commission is composed of fourteen (14) members, one (1) of whom is selected chairman. As a consequence, a majority of the membership necessary to approve the adoption of a comprehensive plan would be eight (8). Following a hearing concerning the new comprehensive plan, a vote was taken and seven (7) members of the Commission voted for the proposal and five (5) members voted against it. One of the members had to leave the meeting because of illness. However, there were still thirteen (13) of the members left at the meeting, including the chairman. The chairman, without telling how he voted on the matter, announced that the motion carried and the plan was approved. However, at the next meeting of the Commission in September, the chairman announced that since only seven (7) members of the council voted in favor of the plan, it had not been legally adopted. In a letter from J. M. Alverson concerning the same subject, it was related that the chairman did not vote as he did not know that he had the right to vote except where there existed a tie, though the bylaws reflected that he was a voting member. The letter further related that at the subsequent meeting, the chairman ordered the minutes of the previous meeting corrected to reflect the nonadoption of the plan. Under the circumstances, the question is raised as to whether the motion to adopt the comprehensive plan passed or failed.
To begin with, the rule in Kentucky is that a member of any body present at a meeting who either refrains from voting on a matter before the body or abstains or passes, is counted with the majority vote whether it be for or against a particular matter. In this respect, we refer you to the case of
Payne v. Petrie, Ky., 419 S.W.2d 761 (1967), from which we quote the following:
"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, it would appear that regardless of whether the chairman personally knew that he was entitled to vote, the fact remains that he was entitled to vote by law, being a member of the Commission, and his failure to vote one way or the other would have to be considered as a vote with the majority which in this case established an eight (8) to five (5) vote for adoption which the approved minutes should reflect. On the other hand and regardless of how the chairman voted at the initial meeting, the vote on the adoption of the comprehensive plan may be reconsidered and changed at a subsequent meeting prior to the final approval of the minutes, but only providing the change in voting is permitted by the general consent of the Commission members. Concerning this rule of procedure, we refer you to Section 44 of Robert's Rules of Order, wherein it is provided that a member of a body has a right to change his vote up to the time the vote is announced and after that he can make a change only by permission of the body which can be given by general consent and [that is, no member objects] or by the adoption of a motion which is debatable.
However, after reviewing copies of the minutes of the August 16 and September 20 meeting submitted by you under separate cover, it is clear that the chairman must be counted as voting with the majority by virtue of his refusal to vote initially and failure to change it to a negative vote at the September 20 meeting. We find in the minutes where he said, and we quote therefrom: "I am not going to vote on it, I will tell you that. One way or the other." See
Payne v. Petrie, supra.
Under the circumstances, it would appear that the motion to adopt the comprehensive plan did, in fact, pass by virtue of an eight (8) to five (5) vote, which the minutes should be corrected to reflect.