Could Louisville’s sewer district agree to a supermajority vote before rejecting an employee grievance arbitrator’s recommendation?

Plain-English summary

The Kentucky Attorney General concluded in 2015 that Louisville’s Metropolitan Sewer District Board could agree to a contract requiring a supermajority vote to reject a third-party arbitrator’s employee-grievance recommendation. The opinion treated the decision as a contractual matter rather than a power specifically assigned to the board by statute.

The AG read the sewer district statute’s three affirmative votes as a minimum for adopting a board action, not a ceiling on voting requirements. It distinguished a board’s contractual choice about grievance recommendations from an attempt to change the voting rule for a statutorily delegated power.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did the sewer board statute require exactly three votes for every decision?

The AG said it required at least three affirmative votes for a motion, measure, or resolution. It did not read that number as forbidding a higher contractual threshold for the grievance decision.

Why could the board agree to a higher vote threshold here?

The opinion said accepting or rejecting an arbitrator’s grievance recommendation was a contract term, while the board had statutory authority to make contracts. It found no explicit statutory voting requirement for that term.

Did the opinion let the board rewrite the vote rule for a power directly assigned by statute?

No. Its syllabus limited the conclusion to matters not specifically delegated to the board by statute, and the analysis distinguished contrary authority involving such a delegated power.

Background and statutory framework

A state representative and Louisville’s mayor asked about a proposed employee-grievance contract. The AG cited KRS 76.050(2) for quorum and minimum affirmative votes, KRS 76.080(8) for contract authority, and KRS 446.050 for a general majority rule. It distinguished Heyker v. Herbst, 50 S.W. 859 (Ky. 1899), because that case involved a statutory power.

Citations and references

Statutes: KRS 76.050(2); KRS 76.080(8); KRS 446.050.

Case cited: Heyker v. Herbst, 50 S.W. 859 (Ky. 1899).

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Pages/Opinions.aspx
• Original Word document: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG15-001.doc

Original opinion text

OAG 15-001

January 16, 2015

Subject: Whether a Metropolitan Sewer District may assent to a contract which requires a “supermajority” vote of the Board to reject the recommendation of a third-party arbitrator

Requested by: Representative Reginald Meeks, Kentucky House of Representatives, and Louisville Mayor Greg Fischer

Written by: Jacob C. Walbourn

Syllabus: A Metropolitan Sewer District Board may assent to a contract term requiring a “supermajority” vote for certain matters, provided that the matter is not one delegated to the Board specifically by statute

Statutes construed: KRS §76.050, §76.080, §446.050

Opinion of the Attorney General

Representative Reginald Meeks and the Mayor of Louisville, the Honorable Greg Fischer, have both requested an opinion of this office regarding the powers of the Louisville Metropolitan Sewer District (hereinafter “the Louisville MSD”). Specifically, they have inquired whether the Louisville MSD Board may assent to a contract requiring a “supermajority” vote of members in order to take certain actions, including whether to accept or reject the recommendations of a third-party arbitrator in employee-grievance related matters. As discussed below, there appears to be no legal impediment to the Louisville MSD Board assenting to such a contractual provision.

Kentucky law permits local sewer districts to be created by local ordinance. KRS 76.020. The Louisville Metropolitan Government created the Louisville MSD to serve the Louisville and Jefferson County community. Lou. Metro. Am. Ord. No. 42-2003. Pursuant to KRS 76.030(7), the Board Members of the Louisville MSD are appointed by the Mayor to three year terms. The Louisville MSD Board has eight (8) appointed members. KRS 76.030(1). The board meets monthly. KRS 76.050(1).

Typically, in order for any board or agency to take action, a quorum must be present. Quorum is the “minimum number of members (usu. a majority of all the members) who must be present for a deliberative assembly to legally transact business.” Black’s Law Dictionary (9th ed. 2009). Pursuant to KRS 76.050(2), “a majority of members of the board shall constitute a quorum, and the vote of at least three (3) members of the board shall be necessary for the adoption of any motion, measure, or resolution.” Thus, as constituted by statute, the Louisville MSD must have five (5) members present to constitute a quorum. The powers of the Louisville MSD Board are granted by statute, and include the power “to make by-laws and agreements for management and regulation of its affairs…”. KRS 76.080(7). The Board may also “make contracts and execute all instruments necessary or convenient in the premises.” KRS 76.080(8).

The central inquiry here is whether the Louisville MSD Board may assent to a contractual term which requires something more than simple majority of board members to take action. In Louisville & Jefferson County Planning & Zoning Com’n v. Ogden, 210 S.W.2d 771 (Ky. 1948), the Kentucky Court of Appeals unambiguously held that neither a public nor a private body is empowered to adopt a by-law that is inconsistent with statutory law. See also Heyker v. Herbst, 50 S.W. 859 (Ky. 1899) (noting that a board created by statute may not, by its own acts, exceed the power granted to it by statute). However, in interpreting a statute, “no rule requires us to utterly ignore the plain … meaning of words in a statute.” Revenue Cabinet v. O’Daniel, 153 S.W.3d 815, 819 (Ky. 2005). Further, “statutes should be construed in such a way that they do not become ineffectual or meaningless.” Lewis v. Jackson Energy Co-Op. Corp., 189 S.W.3d 87, 91 (Ky. 2005). A plain reading of KRS 76.050(2) indicates that the minimum number of votes required in order for the adoption of any motion, measure, or resolution is three (3), provided a quorum is constituted. Such a plain reading does not provide any prohibition against requiring more than this minimum number of votes.

In Heyker v. Herbst, the Kentucky Court of Appeals held that a Board of Education was not empowered to require a two-thirds vote in order to elect officers. That case interpreted what is now codified as KRS 446.050, which states, simply, “words giving authority to three (3) or more public officers or other persons shall be construed as giving such authority to a majority of such officers or other persons.” That statue, however, “does not apply where by express words or clear implication a contrary intention is indicated with respect to a particular body.” Childers v. Hackney’s Creek Coal Co., 337 S.W.2d 680, 682 (Ky. 1960), citing Traylor v. Cummins, 1 S.W. 2d 530 (Ky. 1927). Further, “the [enabling statute] gives all authority to a quorum … that it gives to a full board. If [a quorum] is present, they might lawfully do all that the whole number might have done. [KRS 446.050] then gives to a majority of a quorum as ample power as the quorum had. Therefore, if [a quorum] only were present, [a majority of the quorum] concurring … could adopt any order or resolution that the [majority of the body] could have adopted.” Ray v. Armstrong, 131 S.W. 1039 (Ky. 1910) (emphasis supplied). In other words, KRS 446.050 only provides that the majority of members present, provided a quorum is constituted, may adopt any motion, measure, or resolution.

However, the clear implication of KRS 76.050(2) is that KRS 446.050 is actually inapplicable. This is clearly demonstrated by a simple illustration. Municipal Sewer Districts in counties not containing a consolidated government have boards of only seven (7) members. In such a case, four (4) members would constitute a quorum. In a situation where two (2) members voted to adopt a resolution, one (1) member opposed, and one (1) member did not vote, Ray would indicate that the resolution would be passed. Thus, by requiring that three (3) members affirmatively vote for a motion, measure, or resolution, KRS 76.050(2) explicitly overrides the traditional requirement of “majority rules.” In order to pass any motion, measure, or resolution, three (3) affirmative votes must be cast, even if the measure could otherwise be passed by only two (2) members. Thus, the clear implication of KRS 76.050(2) is that it is not merely a majority that is required to pass a motion, measure, or resolution, but that such a majority must consist of at least three (3) votes.

The law of our sister jurisdictions, on balance, suggests that when enabling legislation is silent on the number of votes required to take action, the legislature must have intended that only a simple majority be required to conduct such action. See, e.g. Matawan Regional Teachers Association v. Matawan-Aberdeen Regional School District Board of Education, 538 A.2d 1331 (N.J. Super. Ct. App. 1988); Southern Nevada Homebuilders Association v. Clark County, 117 P.3d 171 (Nev. 2005). As a threshold matter, the Kentucky legislature was not silent on this issue, as a minimum of three (3) votes is required to sustain any action by the board. See KRS 76.050(2). However, and perhaps more importantly, the action which will purportedly require a “supermajority” vote is merely one of contractual execution, not of statutory authority.

The only item contemplated to require a “supermajority” vote of the board is when the Board is voting “to reject the recommendation from [a] third-party arbitrator” in the employee grievance process. Accepting or rejecting the recommendation of a third-party arbitrator is not one of the powers contemplated by statute. See KRS 76.080. The Board is, however, empowered to “make contracts” pursuant to KRS 76.080(8). It is in this regard that the matter at issue can be distinguished from the situation in the Heyker decision, cited supra. That decision involved the Board of Education carrying out a power specifically delegated to it by statute. Here, the board, to the extent it assents to a contractual term requiring a “supermajority” vote regarding employee grievances, is merely determining the terms of a contract. Entering a contract is within the power granted to the Board. There are, however, no explicit requirements imposed by statute on what the contract may or may not require. Accordingly, KRS 446.050 would not apply to an individual contract term, as accepting or rejecting the recommendation of a third-party arbitrator is beyond the powers contemplated by KRS 76.080.

In sum, it is beyond dispute that a majority of the Board constitutes a quorum. However, a quorum is merely the number of present members required for the Board to conduct business. By its own terms, KRS 76.050(2) only defines what constitutes a quorum, but further provides that “the affirmative vote of at least three (3) members of the board shall be necessary for the adoption of any motion, measure, or resolution” (emphasis supplied). As such, it prescribes the minimum number of votes required in order to take action, three (3), and provides nothing further. Additionally, as the proposal at issue deals with a contractual term, rather than powers necessarily contemplated by statute, KRS 446.050 is inapplicable. There is, accordingly, no explicit prohibition from requiring more than three (3) members of the Louisville MSD Board to take certain action. In other words, KRS 76.050(2) prescribes only the minimums required for the Louisville MSD Board to take action, not maximums. It is therefore permissible to adopt a contractual provision that requires a “supermajority” vote of the Board to reject the decision of a third-party arbitrator.

Jack Conway

Attorney General

Jacob C. Walbourn

Assistant Attorney General

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