Request By:
Mr. Gene Stinchcomb
State Local Finance Officer
Department of Local Government
Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Nathan Goldman, Assistant Attorney General
In your letter to the Attorney General you state that a fiscal court comprised of seven members took the following action on the proposed budget for the coming fiscal year: three members voted yes to adopt, and four members abstained. You ask whether the motion to adopt the budget passes.
In 59 Am.Jur.2d, Parliamentary Law § 8, it is stated:
"In the absence of an express regulation to the contrary, when a quorum is present a proposition is carried by a majority of the votes cast, and it is not necessary that at least a quorum cast votes, since the exercise of law-making power is not stopped by the mere silence and inaction of some who are present. If members present desire to defeat a measure they must vote against it, for inaction of some who are present. If members present desire to defeat a measure they must vote against it, for inaction will not accomplish their purpose. Their silence is acquiescence, rather than opposition."
In
Morgan v. Champion, 150 Ky. 396, 150 S.W. 517, 518 (1912), the court stated the rule in Kentucky:
". . . . when an election is held at which a subject-matter is to be determined by a majority of the voters entitled to cast ballots thereat, those absenting themselves, and those who, being present, abstain from voting, are considered as acquiescing in the result declared by a majority of those actually voting. "
However, when there is evidence that those not voting where not acquiescing with the majority, that is, when there is a positive indication that their silence cannot be construed as consent, then the rule will not be applied.
Johnson v. Elliott County Board of Education, 245 Ky. 834, 54 S.W.2d 382 (1932).
Absent such circumstances in your situation, it would be our opinion that the four abstentions are counted with the majority voting, that is, the three voting yes. Therefore, the motion would pass.
In OAG 78-616 we made the following statement. "Of course, this means that there must be at least a majority of the quorum voting on the proposition before the vote of the abstaining member is considered." We do not believe that this statement is supported by the applicable case law. Consequently, we hereby modify OAG 78-616 accordingly.