Is a Kentucky utility board member's resignation effective if the mayor refuses to accept it?

Plain-English summary

A member of the Glasgow Electric Plant Board, D.T. Froedge, tendered his resignation to the Mayor of Glasgow after the board passed a resolution calling for him to resign. The mayor refused to accept the resignation, never appointed a replacement, and Froedge kept attending meetings and voting. A year later the board chairman challenged whether Froedge was still a member, so Froedge asked the Attorney General to settle his status.

The Attorney General concluded Froedge remained a member of the board. The board was created under Kentucky's "Little TVA Act," which provides for appointment and removal of members but not for their resignation. Where no specific statute makes a resignation self-executing, Kentucky's highest court has long held that a public officer's resignation does not become effective until it is accepted by the proper appointing authority or a successor is appointed. The general resignation statute, KRS 63.010, only requires that resignations be in writing and recorded; it does not control when a resignation becomes effective. Because the mayor (the official who appoints electric plant board members under KRS 96.740(1) and KRS 96.760(1)) expressly rejected the resignation and named no successor, the resignation never took effect. The board's own vote was immaterial, the opinion noted, because the board has no power to appoint or remove its own members.

Currency note

This opinion was issued in 2020. 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.

Background and statutory framework

The Glasgow Electric Plant Board is a political unit created under the "Little TVA Act," KRS 96.550 et seq., which addresses appointment and removal of members but not resignation. Kentucky's highest court has held that "in the absence of a statute on the subject, the resignation of a public officer does not become effective until accepted by the proper authority, or by equivalent action, such as the appointment of a successor" (Commonwealth ex rel. Wootton v. Berninger; see also Daniels v. Adams), a rule the office has applied in prior opinions (OAG 61-742; OAG 75-635). KRS 63.010 requires resignations to be tendered in writing to the officer required to fill the vacancy and recorded, but the Berninger court held that statute only requires a written resignation and has no bearing on when a resignation is effective. Under KRS 96.740(1) and KRS 96.760(1), the mayor of the city that creates the utility board appoints its members (Kereiakes v. Graham). Because the mayor expressly rejected Froedge's resignation and appointed no successor, the resignation was not effective and Froedge remained a member; the board's vote was immaterial since the board cannot appoint or remove its own members.

Citations and references

Statutes:

• KRS 96.550 et seq.; KRS 96.740(1); KRS 96.760(1); KRS 63.010

Cases:

• Commonwealth ex rel. Wootton v. Berninger, 74 S.W.2d 932 (Ky. 1934); Daniels v. Adams, 234 S.W.2d 742 (Ky. 1950); Kereiakes v. Graham, 458 S.W.2d 162 (Ky. 1970)

Source

• Landing page: https://www.ag.ky.gov/Opinions/Pages/default.aspx
• Original PDF: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG%2020-09.pdf

Original opinion text

The full opinion as issued by the Office of the Kentucky Attorney General:

Commonwealth of Kentucky
Office of the Attorney General
Daniel Cameron, Attorney General
Capitol Building, Suite 118, 700 Capital Avenue, Frankfort, Kentucky 40601

May 15, 2020

OAG 20-09

Subject: Whether the City of Glasgow Mayor's refusal to accept the resignation of a member of the local electric plant board created pursuant to KRS 96.740 et seq. results in the continued membership of the individual.

Requested by: D.T. Froedge, Glasgow Electric Plant Board

Written by: Marc Manley, Assistant Attorney General

Syllabus: An electric plant board member's resignation has no legal effect until it is accepted by the mayor or a replacement is appointed.

Opinion of the Attorney General

Is D.T. Froedge still a member of the Glasgow Electric Plant Board ("Board")? Absent a specific statute, a public officer's resignation is not effective until accepted by the official responsible for appointing a replacement or a successor is appointed. For the reasons that follow, Froedge remains a member of the Board.

Background. D.T. Froedge was appointed to the Board in early 2018. The Board is a political unit created by the Glasgow City Counsel under Kentucky's "Little TVA Act." KRS 96.550 et seq. The Little TVA Act provides for the appointment and removal of board members, but not their resignation.

During a May 2019 Board meeting, the Board discussed a resolution calling for Froedge to tender his resignation for reasons that are not relevant to this inquiry. The motion carried and Froedge did, in fact, tender his resignation to the Mayor of the City of Glasgow. But the Mayor refused to accept it and Froedge continued to attend Board meetings, vote upon matters, and otherwise participate as a member of the Board. The Mayor never appointed a replacement.

Now, one year after all this occurred, the current Chairman of the Board challenges Froedge's status as a board member. For that reason, Froedge asks this Office to render an opinion on his membership status.

Analysis. Kentucky's highest court has determined on numerous occasions that "in the absence of a statute on the subject, the resignation of a public officer does not become effective until accepted by the proper authority, or by equivalent action, such as the appointment of a successor." Commonwealth ex rel. Wootton v. Berninger, 74 S.W.2d 932, 933 (Ky. 1934); see also Daniels v. Adams, 234 S.W.2d 742, 744 (Ky. 1950). This Office has applied this rule consistently through numerous opinions. See, e.g., OAG 61-742; OAG 75-635.

Under KRS 63.010, Kentucky's general statute on public-office resignations, "[a]ll resignations of office shall be tendered in writing to the court or officer required to fill the vacancy, and received and recorded by the court or officer in its or his records." The Berninger court held that the purpose of this statute is to require a written resignation and that it has no bearing on the effectiveness of a resignation. Id. Unless there is a specific statute that controls the resignation of public utility board members, Froedge remains a member of the Board under KRS 63.010 and common law. There is no such specific statute here.

Under KRS 96.740(1) and KRS 96.760(1), the mayor of the city that elects to create a public utility board is the official charged with appointing the board's members. See Kereiakes v. Graham, 458 S.W.2d 162, 164 (Ky. 1970). There being no specific statute governing the resignation of a board member, a board member's resignation is effective only upon the mayor's acceptance of the resignation or appointment of a successor. Berninger, 74 S.W.2d at 933. This is because the mayor is the official charged with appointing a replacement board member. KRS 96.740(1); KRS 96.760(1).

Because the Board has no authority to appoint or remove its own members, it is immaterial that the Board voted to accept Froedge's resignation. At most, the Board expressed its preference that Froedge resign. The Mayor has expressly rejected his resignation. Thus, it is the opinion of this Office that Froedge remains a member of the Board.

Daniel Cameron
ATTORNEY GENERAL

Marc Manley, Assistant Attorney General