Request By:
Ms. Barbara D. Locher
Secretary
Turnpike Authority of Kentucky
Room 249, Capitol Annex
Frankfort, Kentucky
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
As Secretary of the Turnpike Authority, you request our opinion as to what members of the Turnpike Authority may lawfully send a proxy, with voting power, to meetings of the Turnpike Authority.
Since the Turnpike Authority is authorized by statute to engage in discretionary or quasi-judicial acts in carrying out its duties, it is pertient to point out that there is no authority to delegate acts discretionary or quasi-judicial in nature in the absence of a statute permitting it. In 73 C.J.S., Public Administrative Bodies and Procedure, Section 57, p.p. 381-382, we find this:
"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 quasijudicial in character, or which require the exercise of judgment; and subordinate officials have no power with respect to such duties."
See also State Tax Commission of Utah v. Kalsis, Utah, 62 P.2d 120 (1936) 122, relating to the above principle of delegated authority under a statute. We must keep in mind, as relates to subordinates or assistants of authority membership, that powers of officers are limited to those conferred expressly by statute or which exist by necessary and fair implication. Blue Boar Cafeteria Co. v. Hackett, 312 Ky. 288, 227 S.W.2d 199 (1950) 201. Further, there is a rule that a person dealing with public officials must take notice of the extent of the officials' authority to act under given circumstances. Mike Little Gas Co. v. Public Serv. Com., Ky., App., 574 S.W.2d 926 (1978) 927.
Thus a voting proxy requires statutory authority. In that connection, KRS 175.430 [Turnpike Authority membership] contains no provision authorizing a proxy for any of the members. We will have to look at other statutory sections to determine the existence of any such authority.
Under KRS 11.040, the "governor may appoint such persons as he deems necessary for the proper operation of his office to perform such duties as the governor may require of them." (Emphasis added).
We construe that section in its clear literalism to authorize the governor of Kentucky to appoint a person or persons to perform any statutory power or duty vested in and imposed on the governor. That statute is unambiguous and should be given effect according to its literal language. Barrett v. Stephany, Ky., 510 S.W.2d 524 (1974). It is therefore our opinion that the governor, by way of a written proxy, can authorize an appointee under KRS 11.040 to attend meetings of the Turnpike Authority with full voting power.
As relates to the Attorney General, KRS 15.100(1) expressly provides that any assistant attorney general shall perform such duties of the Attorney General's Office as he may designate. We construe that to be a direct statutory authority for the Attorney General's appointing in writing one of his assistants as proxy, with full voting power, to attend meetings of the Turnpike Authority.
By Executive Order No. 80-190, pursuant to KRS 12.025(1), the Secretary of Development has been added as a member of the Kentucky Turnpike Authority, enlarging the membership to six, with four members constituting a quorum. The Executive Order states in part: "The following agencies (including the Turnpike Authority) are hereby expanded to include the Secretary of Development, "or his designee" , who shall serve in an exofficio capacity with full voting and other authority. . . ." (Emphasis added). We interpret that as authorizing the Secretary of Development to send a proxy to subject meetings with full voting authority.
The Secretary of Transportation was added to the Turnpike Authority membership by Executive Order 80-500, but no authority to designate a proxy was given. However, the Executive Order 80-500 could be amended to include the language "or his designee" .
As relates to the Lieutenant Governor, the Secretary of Transportation, the Commissioner of Highways, and the State Highway Engineer, we are not aware of any statutory authority for those officers to designate a proxy.