Request By:
Mr. Paul R. Tice
Planning Director
City of Elizabethtown
P.O. Box 550
Elizabethtown, Kentucky 42701
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of August 7 in which you raise the following questions:
"(1) Can a Planning Commissioner who has heard all testimony at the public hearing vote by proxy on a zoning issue at the Planning Commission meeting? In our situation, we hold public hearings on zoning changes and vote on said changes approximately two (2) weeks later during our Planning Commission meetings.
"(2) Our Planning Commission normally operates as a nine (9) member body. However, currently we have two vacancies resulting in our temporarily operating as a seven (7) member body. In light of this situation what constitutes a voting quorum as dictated under K.R.S. 100.171 (1), while we are in this seven (7) member state?"
Our response to your initial question would be in the negative on the grounds that no specific statutory authority exists granting members of the planning commission the right to vote by proxy. See KRS 100.171.
Referring to Roberts Rules of Order, § 44, regarding voting procedure, we quote the following:
"It is a fundamental principle of parliamentary law that the right to vote is limited to the members of an organization who are actually present at the time the vote is taken in a legal meeting. . . ."
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". . . Proxy voting is not permitted in ordinary deliberative assemblies unless the laws of the state in which the society is incorporated require it, . . . Ordinarily it should neither be allowed nor required, because proxy voting is incompatible with the essential characteristics of a deliberative assembly in which membership is individual, personal, and nontransferable. . . ."
Next referring to McQuillin, Mun. Corps., Vol. 4, § 13.30, dealing with municipal bodies, commissions, and committees, we find the following:
". . . if the act is one which requires the exercise of discretion and judgment, in which case it is usually termed a judicial act, unless provision is otherwise made by law, the persons to whom the authority is given must meet and confer and be present when the act is performed, . . ."
See also C.J.S., States, § 33, and the case of
State ex rel Grant v. Eaton, 133 P. 2d 588, 114 Mont. 199, holding that proxy voting is not authorized under American parlimentary practice.
In response to your second question, we again refer you to KRS 100.171 which contains the following provision:
"A simple majority of the total membership of a planning commission as established by regulation or agreement shall constitute a quorum. . . ." (Emphasis added).
The fact that two (2) vacancies exist on the nine (9) member body would have no effect in determining the necessary quorum since the statute clearly says that such is determined by a simple majority of the total membership, which in this case is nine (9). As a consequence, a majority necessary to constitute a quorum would be five (5) out of the seven (7) remaining members of the commission.