Was a four-government Kentucky airport board valid if it began with ten members instead of six?

Plain-English summary

In 1997, Kentucky's Attorney General concluded that a joint airport board created by Cumberland and Clinton Counties and the cities of Burkesville and Albany had not been legally constituted. The governments began with a ten-member board. The AG read KRS 183.132(1) to require this combination of governments to form a six-member board first, with possible later expansion by joint action. Some participants also lacked a recorded order or ordinance joining the arrangement.

The opinion gave narrower answers to two follow-up questions. A later city or county ordinance might sometimes operate retroactively if it did not impair vested or substantive rights, but the AG lacked facts to say whether it could validate this board's past acts. As to condemnation, the courts had not resolved whether a board formed by multiple governments could proceed on its own; the AG said that question should be resolved by a court before the board attempted it.

Currency note

This opinion was issued in 1997. 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.

Historical summary

The four participating governments

The AG said a joint board involving these cities and counties should initially have had six members under KRS 183.132(1). The ten-member arrangement did not satisfy that formation rule. The opinion also emphasized that a government joins through a recorded ordinance, resolution, or order, rather than an officer's individual understanding or later recognition alone.

Existing board and property owners

The board had operated since 1984, but the AG relied on Bernard v. Russell County Air Board to reject the idea that operation alone could substitute for mandatory formation steps. That case involved a county board attempting to take private property. The opinion did not approve the joint board's proposed condemnation.

Retroactive approval and condemnation

The AG said retroactive local legislation was not automatically forbidden, especially where vested and substantive rights were unaffected. It could not decide the effect of a later ordinance without knowing the board's past acts, and observed that ratification might be academic if no board had been legally formed. A prior AG opinion had allowed a joint board to condemn on its own, but Bernard raised a different concern; the AG urged court resolution. If KRS 416.560 applied, the governing bodies, rather than a mayor alone, would institute condemnation.

Common questions

Could the four governments start their air board with ten members?

The AG said no. Under its reading of KRS 183.132(1), their joint board had to start with six members; possible expansion came later through joint action.

Did years of operation make the board legally valid?

No. The AG concluded it was not legally constituted despite having functioned since 1984.

Could a later ordinance approve everything the board had already done?

The AG did not give a categorical answer. Retroactive legislation might be permissible in some circumstances, but the opinion lacked the facts needed to assess past actions and questioned whether there was a legally formed board to ratify.

Could the joint board condemn land without each government acting?

The AG said courts had not resolved that question for a board created by multiple governments. It recommended a court ruling before the board tried to condemn on its own and explained the governing-body procedure that would apply if KRS 416.560 controlled.

Background and statutory framework

The four governments had created a ten-member board in 1984. The AG compared that arrangement with KRS 183.132's formation provisions and Bernard, which rejected an improperly formed county air board's asserted authority. It then considered whether missing formal approvals could be supplied retroactively, citing KRS 83A.060 for city ordinances. For condemnation, it distinguished a prior AG opinion on a joint board from later case law and discussed KRS 416.560.

Citations and references

• KRS 183.132(1) and KRS 183.132(5): initial board composition and later ten-member provisions discussed in the opinion.
• KRS 83A.060: enactment of a municipal ordinance.
• KRS 416.560: procedure for local agencies exercising condemnation powers.
• Bernard v. Russell County Air Board, Ky., 718 S.W.2d 123 (1986).
• Inco, Ltd. v. Lexington-Fayette Urban County Airport Board, Ky.App., 705 S.W.2d 933 (1986).

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG97-017.htm

Original opinion text

OAG 97-17

May 30, 1997

Subject: Local Air Board - Organization and Establishment - Condemnation - Retroactive Approval

Written by: Thomas R. Emerson, Assistant Attorney General

Requested by: Pamela C. Bratcher

Syllabus: The air board is not legally constituted as the parties have not complied with the requirements of KRS 183.132(1) relative to the organization and formation of such a board.

Retroactive legislation by a city or county is not necessarily prohibited, particularly if no vested or substantive rights are infringed, but the matter of retroactive legislation may be academic if there is no legally established air board.

In view of the court's holding that a county air board is subordinate to the governmental entity that created it and cannot engage in condemnation, an air board established by two or more governmental entities should have the courts resolve whether that kind of board can condemn on its own.

OAGs cited: OAG 78-526(R)

Statutes construed KRS 183.132; KRS 83A.060; KRS 183.133(3), (4); KRS

or mentioned: 416.560

Opinion of the Attorney General

This opinion addresses questions concerning a local air board.

In August of 1984, the Cumberland County Fiscal Court, the Clinton County Fiscal Court, and the cities of Burkesville and Albany agreed to establish a joint airport board. A ten member air board was created representing the four governmental entities. The mayor of Burkesville "was authorized to negotiate whatever agreements might be necessary." Apparently the city of Albany and Clinton County did not pass orders relative to their participation in the joint air board even though they later recognized the air board as an entity and authorized funding for the air board. The air board's directors have been meeting and functioning since 1984.

One of the board's primary concerns is whether it has been legally established pursuant to the case of Bernard v. Russell County Air Board, Ky., 718 S.W.2d 123 (1986). Of the four specific questions presented, one pertains to the legal number of board members and is as follows:

Secondly, is the Clinton-Cumberland Counties Airport Board, Inc. governed by KRS 183.132(4)(d), which provides "if a combination of cities and/or counties establishes a joint air board, the mayors and/or county judge-executives involved shall jointly choose six (6) members and shall jointly choose successors," or governed by K.R.S. 183.132(5), which provides "the members of an airport board composed of ten (10) members shall be appointed as follows: (a) five (5) members shall be appointed by the mayor of the city, without approval of the legislative body; (b) five (5) members shall be appointed by the county judge-executive without approval of the other members of the fiscal court"?

The court, in the case of Bernard v. Russell County Air Board, Ky., 718 S.W.2d 123 (1986), concluded in part that the air board was not a legally constituted air board as the parties involved did not comply with the provisions of KRS 183.132. The court rejected the argument that although there may not have been strict compliance with KRS 183.132, the air board had a de facto existence which was later ratified. The court said in part:

The concept of de facto existence applies only to corporations, municipal or otherwise. The Russell County Air Board had not achieved corporate status, for it had not fulfilled the numerous procedural steps designed to safeguard the public from organizations which have been created in haste, without due consideration and careful inquiry. Without clear evidence the Airport Board was properly established in accordance with the statute's mandatory language, the Russell County Air Board had no authority to deprive private citizens of their property.

718 S.W.2d at 125.

KRS 183.132(1) provides in part that any city or county, or city and county acting jointly, or any combination of two or more cities or counties may establish a nonpartisan air board composed of six members. That section concludes with a provision that any existing six member board, except a board established in an urban county government, may be expanded to ten members by joint action of the county and city.

Since the air board with which we are concerned does not involve an urban county government, but it does involve a combination of city and county governments, it should have initially been organized as a six member board. The air board could, apparently, by joint action of the counties and cities, subsequently be expanded to a ten person board although the subsection (KRS 183.132(5)) dealing with a ten member board not involving a city of the first class and an urban county government only concerns appointments to such a board by one mayor and one county judge/executive. The air board is not legally constituted as the parties have not complied with the requirements of KRS 183.132(1).

Another question asks:

The inquiry is whether Clinton County's oversight in passing an Order is fatal or can it be corrected by an Order approving the creation of and all activities since 1984? At the time of the establishment, the Clinton Fiscal Court did not, in writing, affirm the individual appointments by the County Judge-Executive of the Airport Board. May Clinton County now state that they approve and ratify the past actions of the Airport Board?

In order to participate in the joint air board pursuant to KRS 183.132 the county would have had to take some specific action to manifest such intent. A governing body acts in its official capacity only when it passes an ordinance, a resolution, or an order. See 5 McQuillin Mun. Corp. (3rd Ed.), 15.03. When a governing body so acts there is a permanent record of what it has done. A city or county can only speak by and through its records and not through the opinions of individual officers. 5 McQuillin Mun. Corp. (3rd Ed.), 14.05.

As there is no record that the county elected to participate in the formation of the joint cities and counties air board the question arises as to whether the county by the enactment of a retroactive ordinance can at this time validate what has been done since 1984.

Although the validity of retroactive legislation is recognized in some instances it is always carefully scrutinized and is viewed with disfavor. 6 McQuillin Mun. Corp. (3rd Ed.), 20.70. The commentator states:

The enactment of retrospective municipal legislation may be constitutionally prohibited, but in the absence of such prohibition, there is no rule against retroactive municipal legislation unless it interferes with contract or vested rights. Accordingly, retroactive effect sometimes is given to an ordinance where no constitutional rights are thereby infringed. Municipal legislation is not void because of its retroactive effect, where it merely governs procedure in a contest or issue arising before its passage and does not impair in any way the substantive rights of the parties to the proceeding.

Id.

Thus, retroactive legislation by the county is not necessarily prohibited, particularly if no vested or substantive rights are infringed. Since we do not know what the air board has been doing for the last 13 years we cannot be any more specific. Also, as far as this particular situation is concerned, the matter of retroactive legislation may be academic if there is no legally established air board, because of the failure to organize the air board under the proper statutory subsection, and thus no air board to belatedly join and whose prior acts can be subsequently approved.

Another question asks:

Also, may the City of Burkesville and the City of Albany, by a municipal ordinance, take action to approve the Airport Board, and, in the future to condemn the land, or is a formal reading of an ordinance required? The joint Airport Board municipal order, properly procured by the City of Burkesville on August 16, 1994, stated that the Mayor is authorized to negotiate whatever agreements might be necessary with the other units of government concerned.

Subsequent information received indicates that the city of Burkesville, by ordinance, approved the formation of the air board. It is also stated that in regard to condemnation the approval of the cities of Burkesville and Albany is not required because the land to be condemned is outside the boundaries of those cities. So, apparently, the question now to be resolved is whether the city of Albany can take action at this time by ordinance to approve the organization of the air board and the city's involvement with that board.

The response to the question relative to the city of Albany would be the same as that given concerning the county in the preceding question as the same concepts concerning the necessity of the adoption of an ordinance and retroactive action apply to a city as well as to a county. Note the provisions of KRS 83A.060 pertaining to the enactment of a municipal ordinance.

The last question asks:

Finally, is an Order required to be passed by each of the four governing entities to proceed with condemnation? In the case of Burkesville, does the authority granted to the Mayor allow him to approve the condemnation? Is the Airport Board a quasi-municipal, body politic that has the power of condemnation?

In Bernard v. Russell County Air Board, Ky., 718 S.W.2d 123 (1986), the court dealt with a single county air board. Although citing the statute (now codified as KRS 183.132(3)) designating the air board as a body politic and corporate with the usual corporate attributes, the court concluded that the air board is subordinate to the county government and it must comply with the condemnation procedures set out in KRS 416.560. The latter statute provides in part that a department, instrumentality or agency of a city, county or urban-county government, having a right of eminent domain under other statutes (such as KRS 183.133(4)), shall exercise such right only by requesting the governing body of the city, county or urban county to institute condemnation proceedings on its behalf. While not involving a condemnation proceeding note that the court, in Inco, Ltd. v. Lexington-Fayette Urban County Airport Board, Ky.App., 705 S.W.2d 933 (1986), concluded in part, in effect, that the Urban County Airport Board is a unit of the urban county government.

This office, in OAG 78-526, concluded that a joint city-county air board could by itself proceed with a condemnation proceeding as it is not a department, instrumentality or agency of a local government. The courts have not yet ruled on whether an air board organized by two or more governmental entities can instigate condemnation proceedings on its own. However, in view of the court's holding in Bernard v. Russell County Air Board, Ky., 718 S.W.2d 123 (1986), that a county air board is subordinate to the governmental entity that created it, an air board organized by two or more governmental entities should have the courts resolve this matter before it attempts to initiate condemnation proceedings on its own. If KRS 416.560 is applicable, only the governing bodies of the local governments can institute condemnation proceedings as opposed to a mayor acting unilaterally.

ALBERT B. CHANDLER III

ATTORNEY GENERAL

Thomas R. Emerson

Assistant Attorney General