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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