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JohnP9
(North Carolina)

Posts:16

05/23/2008 11:04 AM
Our HOA has 9 members on the Board of Directors. We recently voted on a motion that had 4 in favor of the motion, 3 against and 2 members abstained. My question is this, Since 2 members abstained, I feel their votes are considered blank and the remaining votes are counted. In this case the motion should have passed. 4 - 3. Correct? We have a member who claims we must have 5 vote in favor to pass a motion since we have 9 board members. Your thoughts. Thanks in advance. John

RogerB
(Colorado)

Posts:3693

05/23/2008 11:37 AM
John, you are correct. The votes counted are 4 to 3 in favor so the motion passed.

Roger Borcherding Official HOATalk.com Sponsor DARCO Property Management (Colorado) (303) 925-0150 *See legal notice below (end of page) or go to www.hoatalk.com/legal

JohnK3
(Pennsylvania)

Posts:437

05/23/2008 11:42 AM
Our ByLaws say that if a quorum of Board members is present, the majority vote is the final decision of the Board.

DonnaS
(Tennessee)

Posts:2791

05/23/2008 12:05 PM
John, In my opinion, it passed. You had a quorum and the vote was 4 to 3 in favor. Majority voted to pass.

AnnJ1
(Florida)

Posts:32

05/23/2008 12:27 PM
John, According to Roberts Rules of Order: "When a quorum is present, a majority vote, that is a majority of the votes cast, ignoring blanks, is sufficient for the adoption of any motion that is in order, except those which require a two-thirds vote." HTH Ann

BruceF1
(Connecticut)

Posts:525

05/23/2008 2:48 PM
According to accepted parliamentary practice, the default rule is a majority of the votes cast. Abstentions are not counted. Thus, if 7 votes are cast and 2 members abstain, 4 votes is a majority. I concur with others who have said the same thing. I might add, members who abstain in situations such as this are doing a disservice to those whom they represent by letting less than a majority of the board make the decisions. Only if the bylaws are worded "a majority of the board members present" would the result be counted differently. In this case, if nine members were present and only four voted yes, the motion would have failed.

DonnaS
(Tennessee)

Posts:2791

05/23/2008 3:18 PM
Abstaining is not one of my favorite moves by Board members. If you are directly involved and could create a conflict of interest, then yes, it is fine to recuse yourself. But I have known of too many circumstances where Board members don't have the gutts to take a stand or to voice their opinion for fear of stepping on someones toes or disfavoring someone. Then IMHO, get yourself off of your Board because failure to perform your fudituary duty just hinders your association's workings.

SusanW1
(Michigan)

Posts:2116

05/23/2008 3:26 PM
And John needs to confirm whether the bylaws say motions pass when approved by a majority of the Board, or a majority of the Board members present and voting.

JohnP9
(North Carolina)

Posts:16

05/23/2008 3:42 PM
Thanks everyone. Our by-laws state: "The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the BOD". I feel the abstentions should be considered blanks and the remaining 7 votes counted with the majority prevailing.

BruceF1
(Connecticut)

Posts:525

05/23/2008 8:22 PM
John, Nope. That changes everything. "The act of the majority of the directors present at a meeting ..." How many directors were present? Nine? What is a majority of 9? It is five. Read the last paragraph of my previous post. There were only 4 "yes" votes. Four is not a majority of the directors present. Note that abstentions are still not counted. That is, you do not record them as "no" votes, even though their effect in this case is the same as a no vote. See Robert's Rules, 10th ed. pp 389-390 for another example of this situation.

JerryR
(Missouri)

Posts:1

05/24/2008 9:17 AM
Under that rule abstaining is effectively a "NO" vote, and a clever way of avoiding responsibility for the vote. Abstainers have the power of more than one vote in that situation as they effectively voted "NO" and they diluted the remaining votes just by being present at the meeting. Two or three members agreeing to abstain together could easily control a board and never cast a vote.

DonnaS
(Tennessee)

Posts:2791

05/24/2008 9:42 AM
Jerry--Yes, that is another possibility but the original post asks specifics on what happened. We all agree that the vote was legal with 4 yes, and 3 no votes with 2 abstensions. The 9 member Board was present , therefore a quorum was reached which made for a legal vote of the "majority of votes cast (7)

JohnK3
(Pennsylvania)

Posts:437

05/24/2008 10:03 AM
I have to agree with Bruce. 9 members were present, so a majority of those members would be 5. 4, ayes, 3 nays, 2 abstentions. The motion fails.

BruceF1
(Connecticut)

Posts:525

05/24/2008 10:12 AM
Sorry Donna, can't agree with you. The question is a simple one of logical deduction from the bylaws as they are written. Read the quote that the poster of the original question posted further down in the thread. It says, the majority of the directors PRESENT. It does NOT say the number of directors present and voting. How many directors were PRESENT at the meeting? There were nine. What is a majority of the nine members that were present? A majority is more than half. More that half of nine (the number of members present according to the bylaws) is five. Again, see Robert's Rules, 10th ed., pp 389-390 for a complete answer. Check any parliamentary authority. Ask any parliamentarian. Ask any lawyer. Ask any judge. This is a perfect example of what I have said in this forum many times. Although some may say that Robert's Rules doesn't apply, you do need a rule book to turn to when you can't agree on what something like this means. What do you think an arbitrator or a judge is going to do? He'll turn to a rule book, and Robert's Rules is most likely the one he'll turn to. The exact page to find the answer is above. You can't put words into the bylaws that aren't written there.

BruceF1
(Connecticut)

Posts:525

05/24/2008 10:25 AM
P.S. And it doesn't mean that whoever wrote the bylaws forgot to include the words "and voting". A voting requirement that requires a vote of the members present (or even all of the membership, whether present or not), is not an unusual requirement, and bylaws are often worded this way intentionally. That is why books on parliamentary procedure, such as Robert's Rules, define how the vote is determined for each case. And it does not, as Jerry said, mean that someone has two votes. An abstention is not a vote and is never counted as one. If, as it turns out in this case, that an abstention has the same effect as a no vote, then that's the way the mop flops. The director is not making two choices here, there is only one choice being made - to not cast a vote.

MaryA1
(Arizona)

Posts:2156

05/24/2008 12:41 PM
Bruce, I agree with you (for what it's worth!). My CCRs state: "Every act or decision done or made by a majority of the directors present at a duly held meeting at which a quorum is present shall be regarded as the act of the Board." As in John's case, this means a majority of 9 board members or 5 to carry the vote. IMO, the vote failed. I also agree that by abstaining the board members do a disservice to the members of the assn. In fact, IMO, it just shows their inability to make a decision or perhaps they are afraid to let their feelings be known on a particular issue. Whatever the case, they shouldn't be on the board if they cannot voice their opinion on the actions brought before them. Hope the members are taking notes on this!!

DonnaS
(Tennessee)

Posts:2791

05/24/2008 12:51 PM
I just spent some time, looking up abstaining votes and because Johns ByLaws say, the" majority of the Directors present" and that was 9, I believe Bruce, John and Mary had this one called right. Roberts Rules and Wikipedia both say that abstention votes are not counted as any vote, BUT Johns ByLaws do count every Board member present as for member count and the ByLaws says the majority of Board members present to pass a vote. I give!!

MaryA1
(Arizona)

Posts:2156

05/24/2008 7:52 PM
Donna, You're my kinda gal! It takes a big person (I don't mean size-wise! LOL) to admit to being wrong. :-)

BruceF1
(Connecticut)

Posts:525

05/25/2008 4:01 AM
And I admire the fact that Donna took the extra time and and checked things out for herself from other sources. I want her on my board!

JohnP9
(North Carolina)

Posts:16

05/27/2008 4:35 AM
This is from our By-Laws. Presumption of Assent. A director of the Association who is present at a meeting of the Board of Directors at which action on any matter is taken shall be presumed to have assented to the action taken unless his contrary vote is recorded or dissent is otherwise entered in the minutes of the meeting or unless he shall file his written dissent to such action with the person acting as Secretary of the meeting before the adjournment thereof or shall forward such dissent by registered mail to the Secretary of the Association immediately after the adjournment of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action. Clearly states a director who is present shall be presumed to have assented to the action if his/her dissent is not recorded. Based on this does Motion Pass?

MaryA1
(Arizona)

Posts:2156

05/27/2008 8:44 AM
John, Yep, based on that provision of the bylaws, the motion passed. But, I must say, I think it's a terrible provision. It gives the board members the ability to just sit back and not vote on anything. IMO, all board members should vote on all issues, even the Pres. Some Pres. only vote to break a tie. I regard that as a cop out for not wanting others to know their true feelings on a particular issue.

BruceF1
(Connecticut)

Posts:525

05/27/2008 10:08 AM
Posted By JohnP9 on 05/27/2008 4:35 AM This is from our By-Laws. Presumption of Assent. A director of the Association who is present at a meeting of the Board of Directors at which action on any matter is taken shall be presumed to have assented to the action taken unless his contrary vote is recorded or dissent is otherwise entered in the minutes of the meeting or unless he shall file his written dissent to such action with the person acting as Secretary of the meeting before the adjournment thereof or shall forward such dissent by registered mail to the Secretary of the Association immediately after the adjournment of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action. Clearly states a director who is present shall be presumed to have assented to the action if his/her dissent is not recorded. Based on this does Motion Pass? Hold on Mary, don't be too quick here. I thought so too, at first, until I thought more about it. I've seen this statement before. There's always a new wrinkle or twist. John, at first, it would seem so, but that provision definitely contradicts what you quoted earlier. I'd say no, it doesn't change anything, and here's why. I think the problem is, sections of the bylaws are being quoted out of context. One has to see the entire bylaws to determine the proper context for each provision contained therein. When sections are quoted out of context, it's often possible to find a statement that supports a particular point of view and one can arrive at opposite conclusions. My interpretation is that the action of the board occurs once the vote has been taken, not before or during the vote. Until the vote has been taken, there is no "action" by the board. Thus, there can be no presumption of assent to any action prior to the vote, because no action yet exists. I think what is intended here is to insure the protection of individual members from liability. For example, suppose an action is taken by the board that results in the board being sued. A person can sue the association (the board) and each board member individually (that's why you carry D&O insurance). However, if a judge is able to determine from the minutes how an individual member voted (or abstained), then he may decide to dismiss the suit against those board members who either voted no or abstained. If the judge is not able to determine how each individual voted, because all that was recorded was the number of votes, then all members are presumed to have assented to the action, since there is no way to determine otherwise. (SO, SECRETARIES, TAKE NOTE!). Let's take your example: Vote 4-3, 2 members abstaining. In this case, the motion fails because the required majority of all members present did not happen. So, the "assent" clause you quoted above does not even come into play. Suppose, instead, that the vote had been 5-2, with 2 members abstaining. In that case, the motion would have passed because 5 would be a majority of the 9 members present. In this case, the "assent" clause DOES come into play. Basically, if all the secretary records is the result of the vote (no names, just the count), then, if the association is later sued because of the action, all nine members of the board that were present when the vote was taken are presumed to have voted for it (the "assent" rule) since there is no formal record indicating who voted for it, or who voted against it, or who abstained. It is up to the members who voted against the measure, and up to those who abstanied, to insure that their objection has been entered into the record for their own protection. This is the meaning I have seen given to the "presumption of assent" clause in the past. It is not used to determine the outcome of a vote. Thus, the two clauses do not contradict each other. IMO, the answer is the same. The motion failed.

JohnK3
(Pennsylvania)

Posts:437

05/27/2008 10:20 AM
This would make for a good bar exam question, now that the new language has revealed itself. So let's see.... Are the two provisions conflicting? Depends on what side one wants to argue. I don't have the answer. But I'll shill that the motion still fails for sake of continuing the debate. Here's why: I would ask "What action was taken?" and then answer that the action taken was that under the initial voting language, five votes were not garnered for the required majority. End of story. The action taken was the motion failed. All the language about filing a dissent is irrelevant to this particular issue. But again, the contrary stance does have its merits. Whoever wrote these ByLaws, however, ought not to have had. Carry on!

JohnK3
(Pennsylvania)

Posts:437

05/27/2008 10:26 AM
Bruce, You must have posted while I was writing. Good, detailed reasoning. JohnK3, J, concurs in this opionion!

BruceF1
(Connecticut)

Posts:525

05/27/2008 10:27 AM
JohnK3, In short, that's what I said. Not enough votes. No action taken, ergo, no need to record a dissent. (I always take the long way around).

JohnP9
(North Carolina)

Posts:16

05/27/2008 12:12 PM
Thanks Bruce and John. This will be an interesting next meeting discussing this subject. I agree with you, in that abstentions are a cop-out and I understand the presumption of assent clause. The majority of directors present means 5 and only 4 affirmative votes were cast, so motion failed. Thanks again. John

RogerB
(Colorado)

Posts:3693

05/27/2008 12:41 PM
John, there can be good reasons to abstain during voting. The problem is your By-laws need to be amended to read "a motion passes when a majority of those voting are in favor when a quorum is present."

Roger Borcherding Official HOATalk.com Sponsor DARCO Property Management (Colorado) (303) 925-0150 *See legal notice below (end of page) or go to www.hoatalk.com/legal

BruceF1
(Connecticut)

Posts:525

05/27/2008 1:33 PM
Roger, I agree, but the problem comes about when state law dictates otherwise. Our state law covering nonstock corporations (which applies to our HOA) regarding votes of the board is worded in a similar way; a vote of the majority of directors that are presnt. It also contains, in the next paragraph, a similar provision for a "presumption of assent." That's why it all looked so familiar to me. Chapter 602, Section 33-1100, parts (c) and (d) read: "(c) If a quorum is present when a vote is taken, the affirmative vote of a majority of directors present is the act of the board of directors unless sections 33-1000 to 33-1290, inclusive, the certificate of incorporation or bylaws require the vote of a greater number of directors. (d) A director who is present at a meeting of the board of directors or a committee of the board of directors when corporate action is taken is deemed to have assented to the action taken unless: (1) He objects at the beginning of the meeting, or promptly upon his arrival, to holding it or transacting business at the meeting; (2) his dissent or abstention from the action taken is entered in the minutes of the meeting; or (3) he delivers written notice of his dissent or abstention to the presiding officer of the meeting before its adjournment or to the corporation immediately after adjournment of the meeting. The right of dissent or abstention is not available to a director who votes in favor of the action taken. The last sentence of (d) clearly distinguishes the preseumption of assent from the vote. Note also, that although the bylaws can be worded differently, they can only require a number that is greater than a majority. I'm not saying this applies to John's case, but it looks like a "word lift" to me. Our attorney's office has advised all client boards, in it's semiannual newsletter, that CT courts have ruled that the votes of ALL directors, BY NAME, are to be made a part of the minutes.

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