In an opinion written by Marc Manley, Assistant Attorney General for Kentucky, and released Friday, D.T. Froedge is still a member of the Glasgow Electric Plant Board because “An electric plant board member’s resignation has no legal effect until it is accepted by the mayor or a replacement is appointed.”
Glasgow Mayor Harold M.D. Armstrong refused to accept Froedge’s resignation from the board in May 2019.
The opinion of the Attorney General’s office is as follows:
“Is D.T. Froedge still a member of the Glasgow Electric Plant 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.
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.
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.”