Request By:
Mr. David L. Keller
Executive Director
Kentucky School Boards Association
Route #3, Box 96A
Englewood Office Park
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Robert L. Chenoweth, Assistant Deputy Attorney General and Chief Counsel
As the Executive Director of the Kentucky School Boards Association you have asked the Office of the Attorney General for advice relative to the legal ramifications of House Bill 372, enacted by the 1982 General Assembly, which amended KRS 160.270(1) as follows as emphasized by underlining:
"A majority of the Board shall constitute a quorum for the transaction of business, but a concurring vote by a majority of the board, the number of board members in the quorum notwithstanding, shall be necessary to take any particular action unless otherwise specified by statute. "
The practical affect of this new amendment is that, for a typical five member school board, three board members must agree for action before the board to pass. The question you raise is prompted by the effect under the new KRS 160.270 of a member of a board of education who abstains rather than voting. You ask, for example, "If a quorum of board members exists, and if two members vote 'yes' on a motion and one member votes 'no' on the motion, and two members abstain, would the motion pass or fail?"
It is the formal opinion of this office that the amendment to KRS 160.270 must be read in light of the case law in Kentucky as to abstention votes. That case law is set out in Payne v. Petrie, Ky., 419 S.W.2d 761 (1967) in which the Court of Appeals said at page 763 as follows:
In Pierson-Trapp 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. "
Thus, it is our belief that under KRS 160.270(1) as amended in 1982, board members who abstain will be considered to have acquiesced with the majority of those present and voting. Applying this position to the example you offered - two members voting "yes" and one member voting "no" and two members abstaining - we believe the net legal effect is four votes "yes" and one "no". The two abstention votes are to be counted with the two majority votes of those voting. This same result obtained before the 1982 amendment. See OAG 74-545, copy attached.
Other examples of possible votes with a five member school board may prove helpful. If five members are present, two voting "yes" and two voting "no" and one abstaining, the action would not carry. There is no majority in this situation for the abstention to be counted with. If there were only four board members present, two voting "yes" and one voting "no" with one abstaining, the motion would pass effectively three to one. Another example would be if three members were present and two members vote "yes" and one abstains. The motion would pass and the abstention vote would become a concurring vote with the other two so as to make up a majority of the board. Lastly, if three members were present and the vote on a motion was simply two "yes" and one "no", the effect of the 1982 amendment comes into full play and the motion would die for failure to have a concurring vote of a majority of the board of education.
We trust the above will be of assistance to the members of the Kentucky School Boards Association.