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Subject: When should an abstain be a no, and a no be an abstain?
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JanineR
(Tennessee)

Posts:219


11/22/2021 12:18 PM  

In our last directors' meeting 3 of the 5 directors said Aye to a motion, and the 4th director that was in the meeting abstained. Motion passed.

It got me thinking more about the difference between abstain and no, and which one is the correct to use at different times. Maybe the director that "abstained" should have said "no". She disagreed with the motion, but used abstain instead?

Cut to this week, there is a vote tomorrow over email (allowed in Tennessee).
I don't feel comfortable saying yes or no without more discussion and info. So probably have to abstain.


Even if the vote count is the same, what is the general threshold between voting "no" and "abstaining"?




MelissaP1
(Alabama)

Posts:10584


11/22/2021 12:30 PM  
No counts as a vote. Abstaining is the absence of a vote. It is neither a no or a yes. It is more or less one less vote taken. So instead of 5 voters it counts as 4 with one abstaining to vote. Which in cases of a tie may force a vote or President breaks it. Depending on how vote ties are done in your HOA.

Former HOA President
SheliaH
(Indiana)

Posts:4284


11/22/2021 12:35 PM  
Did the 4th director say why he or she was abstaining? Usually, this is done if the director has an actual or potential conflict of interest concerning the issue being voted upon - and if that's the case, he or she should leave the room while the issue is being discussed, so there's no possibility he/she could influence the vote or the motion from the other directors.

I know many government legislative bodies like the city council or Congress will announce they're abstaining and in that case, you can't say the person is voting yes or no but simply indicating he or she is present. That contributes to the quorum (number of people needed to have an official meeting or to vote on a board resolution).

For me, I might understand if the person decided to abstain because he/she didn't have enough information to cast an informed decision, but then I'd ask why not? Did you not get the same information at the same time and chose not to read it, or did something happen where you didn't have the time to do so (e.g. personal emergency?) In that case, explain yourself and your reason for abstaining can be noted in the minutes.

So abstaining because of a conflict of interest or being unable to review the information needed to cast an informed vote would be ok - anything else is a cop-out. These days, too many politicians are experts at that and not much else! Board members are supposed to be voting on HOA issues - that's why they're there - and sometimes, those decisions are difficult and people will be pissed one way or another. You may as well take a stand and cast the vote.
TimB4
(Tennessee)

Posts:17841


11/22/2021 12:36 PM  
Basically, it's your choice.


Some info:

Per this article about abstentions:

First, in parliamentary procedure land, an “abstention” is simply a voter’s decision not to vote. It’s when a motion comes up for a vote, and (1) you don’t want anyone to know what you think about that issue, (2) you disagree with the guy next to you but don’t want him to know, (3) you aren’t sure what you think, (4) you lost track of business a while back and don’t know what the vote is about, or (5) you totally miss that a vote is happening because you’re thinking about golf. So you just don’t vote.



Per Roberts Rules of Order faq page:

The phrase “abstention votes” is an oxymoron, an abstention being a refusal to vote. To abstain means to refrain from voting, and, as a consequence, there can be no such thing as an “abstention vote.”

In the usual situation, where the rules require either a “majority vote” or a “two-thirds vote,” abstentions have absolutely no effect on the outcome of the vote since what is required is either a majority or two thirds of the votes cast. On the other hand, if the rules explicitly require a majority or two thirds of the members present, or a majority or two thirds of the entire membership, an abstention will have the same effect as a “no” vote. Even in such a case, however, an abstention is not a vote and is not counted as a vote. [RONR (12th ed.) 44:1, 44:3, 44:9(a); see also p. 66 of RONR In Brief.]


CathyA3
(Ohio)

Posts:2588


11/22/2021 12:48 PM  
It depends how you look at it. An "abstain" is not a "no" or a "yes", it's no vote at all. But - what I think you're asking - is if it changes the number of votes needed to pass a resolution.

In other words, do you base your majority opinion on the number of board members in attendance or on the number voting? Usually bylaws say that a motion must be approved by a majority of directors in attendance, not a majority of those who voted.

Example: you have a 5-person board, 4 directors present so you have a quorum. The board votes and you have 2 in favor, 1 opposed and 1 abstention. Some would say that the majority of voters were in favor, so the motion passed. But problem is that you'd then have a motion that was approved by only 2 directors, clearly a minority of the board - which is nonsensical. And in practice it would mean that a director could use an abstention strategically to affect the outcome of the vote when a simple "no" could not.

Your example was fine since you had three votes in favor and the abstention didn't matter.

However, the other objection to abstentions is that it is the duty of directors to attend board meetings and to vote. They should not be able to pick and choose their duties. Note: abstention is not the same as a recusal when a director has a conflict of interest.

Here's what Davis Stirling says (and they address the same example that I did):

https://www.davis-stirling.com/HOME/V/Voting-Abstention
AugustinD


Posts:1901


11/22/2021 1:45 PM  
Posted By JanineR on 11/22/2021 12:18 PM

In our last directors' meeting 3 of the 5 directors said Aye to a motion, and the 4th director that was in the meeting abstained. Motion passed.

It got me thinking more about the difference between abstain and no, and which one is the correct to use at different times. Maybe the director that "abstained" should have said "no". She disagreed with the motion, but used abstain instead?
Sometimes an abstention is put forward as a political move (IOW, to gain favor with one or more sides). I see nothing wrong with this. If a director abstains every time, I might suspect him or her to be doing so based in some mis-guided belief about one's duty as a director.
Cut to this week, there is a vote tomorrow over email (allowed in Tennessee).
I don't feel comfortable saying yes or no without more discussion and info. So probably have to abstain.
I hope your secretary puts in the Minutes, that record this vote, that you abstained because you needed more information and desired more discussion. Else FWIW, this is a good reason to abstain. You might even motion to table the motion until you have more information and so on.
HenryS6
(Arizona)

Posts:111


11/22/2021 2:10 PM  
Example: you have a 5-person board, 4 directors present so you have a quorum. The board votes and you have 2 in favor, 1 opposed and 1 abstention. Some would say that the majority of voters were in favor, so the motion passed. But problem is that you'd then have a motion that was approved by only 2 directors, clearly a minority of the board - which is nonsensical.




The example you cited makes perfect sense to me. A majority of the directors who voted on the particular issue passed the motion. Even though it's not a majority of the board, one chose to forgo his/her right to vote and the other was not present and thus not able to vote. There is nothing wrong with a 2-1 vote making a decision for a 5 person board if 2 members are choosing not to vote (either by not being present or choosing to abstain).
KerryL1
(California)

Posts:8720


11/22/2021 2:37 PM  
Can you have discussion of the item online, Janine?

As Tim points out, there're lots of reason folks do abstain. I just finished 14 years of board service and probably abstained twice (meetings at least monthly). I don't recall the topics, but in both I really could NOT make up my mind.

It is important to note Cathy's distinction between a recusal and an abstention.

Say, Janine, are you the poster who complained about a fellow director abstaining a lot, or something similar?
AugustinD


Posts:1901


11/22/2021 2:43 PM  
Posted By HenryS6 on 11/22/2021 2:10 PM
I would tread just a tad lightly on this point. On certain topics the Bylaws may require "a majority of the number of directors authorized by the Bylaws... " (or similar wording).
CathyA3
(Ohio)

Posts:2588


11/22/2021 2:49 PM  
Posted By HenryS6 on 11/22/2021 2:10 PM
Example: you have a 5-person board, 4 directors present so you have a quorum. The board votes and you have 2 in favor, 1 opposed and 1 abstention. Some would say that the majority of voters were in favor, so the motion passed. But problem is that you'd then have a motion that was approved by only 2 directors, clearly a minority of the board - which is nonsensical.




The example you cited makes perfect sense to me. A majority of the directors who voted on the particular issue passed the motion. Even though it's not a majority of the board, one chose to forgo his/her right to vote and the other was not present and thus not able to vote. There is nothing wrong with a 2-1 vote making a decision for a 5 person board if 2 members are choosing not to vote (either by not being present or choosing to abstain).



No. What I said was that if your bylaws say that approving a motion requires a "yes" vote from the majority of the directors present (4 in this case), then only 2 "yes" votes means the motion was undecided. Deciding based on a majority of those who voted means that motions can pass with the support of only a minority of directions, which I think is wrong and can produce undesirable results. Abstentions also decrease transparency since they can allow directors to affect the outcome of the vote without going on record. Directors are elected to vote, not to abstain (although I understand there may be good reasons for it occasionally).
CathyA3
(Ohio)

Posts:2588


11/22/2021 2:51 PM  
"Deciding based on a majority of those who voted means that motions can pass with the support of only a minority of directions..."

Directors. Darned auto-correct...
AugustinD


Posts:1901


11/22/2021 3:02 PM  
Posted By CathyA3 on 11/22/2021 2:49 PM
Abstentions also decrease transparency since they can allow directors to affect the outcome of the vote without going on record. Directors are elected to vote, not to abstain (although I understand there may be good reasons for it occasionally).
But the abstention is on record. When a person's abstention results in a motion passing (whereas a no vote would have resulted in the motion not passing), the person abstaining knows it. So does everyone else.

I think an abstention can mean a lot, from a lack of backbone to political maneuvering to being disinterested in the outcome one way or another to thinking the whole topic is silly to more.

Anyway, I for one do not think abstentions decrease transparency.

When used regularly by the same person, and as I noted above, I know there's a loser on the board.
KerryL1
(California)

Posts:8720


11/22/2021 6:08 PM  
We DID have a erector who abstained regularly. He WAS a loser and useless. He lost in his bid for reelection.
As pointed out by others. The job of directors IS to make decisions. The board IS the "decider."
MaxB4
(California)

Posts:1593


11/22/2021 6:29 PM  
What are "erectors" and are they in one's Bylaws?
MaxB4
(California)

Posts:1593


11/22/2021 6:34 PM  
Posted By HenryS6 on 11/22/2021 2:10 PM
Example: you have a 5-person board, 4 directors present so you have a quorum. The board votes and you have 2 in favor, 1 opposed and 1 abstention. Some would say that the majority of voters were in favor, so the motion passed. But problem is that you'd then have a motion that was approved by only 2 directors, clearly a minority of the board - which is nonsensical.




The example you cited makes perfect sense to me. A majority of the directors who voted on the particular issue passed the motion. Even though it's not a majority of the board, one chose to forgo his/her right to vote and the other was not present and thus not able to vote. There is nothing wrong with a 2-1 vote making a decision for a 5 person board if 2 members are choosing not to vote (either by not being present or choosing to abstain).



A majority of the 4 present is 3, so the motion would not pass. An assentation might as well be a no. I have seen many director abstain from voting on the approval of minutes because they were not in attendance for the meeting for which the minutes are being approved from.
BenA2
(Texas)

Posts:1104


11/22/2021 7:04 PM  
Abstaining is reserved for a situation where it is inappropriate for you to cast a vote, e.g. you have a conflict of interest. There are times where you may think a vote will be unpopular or it may be difficult to decide. In those cases you need to make a decision and vote yea or nay.

There is no hard fast rule but it is absolutely inappropriate to abstain simply because you want to remain on the fence.
BenA2
(Texas)

Posts:1104


11/22/2021 7:20 PM  
Posted By CathyA3 on 11/22/2021 12:48 PM
Example: you have a 5-person board, 4 directors present so you have a quorum. The board votes and you have 2 in favor, 1 opposed and 1 abstention. Some would say that the majority of voters were in favor, so the motion passed. But problem is that you'd then have a motion that was approved by only 2 directors, clearly a minority of the board - which is nonsensical. And in practice it would mean that a director could use an abstention strategically to affect the outcome of the vote when a simple "no" could not.



I disagree. Under normal parliamentary procedures a vote carries with a majority of directors present, as long as there is a quorum. In your example, 2/3 of the directors voted yea. The two absent directors are not part of the equation. They don't exist for voting purposes.

KerryL1
(California)

Posts:8720


11/22/2021 7:28 PM  
What is an "assention," Max?

While Max may have attended and even presided over hundreds of meetings where his clients' boards have directors abstain on approving the previous minutes because they were absent for that meeting, that is incorrect according to Robert's Rules of Order. There is no need to abstain. I know most boards do not have to comply with Robert's Rules, but often use them as a default for certain situations.

I missed a meeting once and when the draft minutes were presented, I made an amendment because an expert guest was not listed as present.

I almost always agree with Ben. But the correct conduct, if a director has a conflict of interest is, as pointed out, maybe by Cathy, to recuse oneself and perhaps even leave the meeting room. Abstention is not correct.
MaxB4
(California)

Posts:1593


11/22/2021 7:57 PM  
Posted By KerryL1 on 11/22/2021 7:28 PM
I missed a meeting once and when the draft minutes were presented, I made an amendment because an expert guest was not listed as present.



How does one make an amendment to a meeting for which they didn't attend? Are we now a clairvoyant?
MaxB4
(California)

Posts:1593


11/22/2021 8:36 PM  
Posted By KerryL1 on 11/22/2021 7:28 PM
What is an "assention," Max?

While Max may have attended and even presided over hundreds of meetings where his clients' boards have directors abstain on approving the previous minutes because they were absent for that meeting, that is incorrect according to Robert's Rules of Order. There is no need to abstain. I know most boards do not have to comply with Robert's Rules, but often use them as a default for certain situations.

I missed a meeting once and when the draft minutes were presented, I made an amendment because an expert guest was not listed as present.

I almost always agree with Ben. But the correct conduct, if a director has a conflict of interest is, as pointed out, maybe by Cathy, to recuse oneself and perhaps even leave the meeting room. Abstention is not correct.



I've never voted on minutes in which I was not in attendance. While it may be legal to do so, I have chosen not to.
CathyA3
(Ohio)

Posts:2588


11/23/2021 6:03 AM  
Posted By BenA2 on 11/22/2021 7:20 PM
Posted By CathyA3 on 11/22/2021 12:48 PM
Example: you have a 5-person board, 4 directors present so you have a quorum. The board votes and you have 2 in favor, 1 opposed and 1 abstention. Some would say that the majority of voters were in favor, so the motion passed. But problem is that you'd then have a motion that was approved by only 2 directors, clearly a minority of the board - which is nonsensical. And in practice it would mean that a director could use an abstention strategically to affect the outcome of the vote when a simple "no" could not.



I disagree. Under normal parliamentary procedures a vote carries with a majority of directors present, as long as there is a quorum. In your example, 2/3 of the directors voted yea. The two absent directors are not part of the equation. They don't exist for voting purposes.




Correction: "Under normal parliamentary procedures a vote carries with a majority of directors present, as long as there is a quorum. In your example, 2/3 of the directors (casting votes) voted yea." In my example it was not 2/3 of directors present at the meeting, it was only 1/2, which is why I have a problem with it.

You're getting at what the OP was asking (I think): does the abstention count as a "no" vote, or is it not considered "not present"? This changes the calculation.

What you're saying (I think) is that the abstention counts as "not present" for for purposes of the vote, which strikes me as wrong headed because that person is being counted toward making quorum. In my admittedly simple mind, you're either present at the meeting or you're not. And depending on the numbers involved, if you allow a director to say "pretend I'm not here for this bit of the meeting", you allow them to control the vote by manipulating the numbers. It will become more obvious if two or more directors collude on their abstentions, because in theory you may no longer have a quorum of directors actually voting - and I don't care which system you're using, that's just wrong (in my opinion).

CathyA3
(Ohio)

Posts:2588


11/23/2021 6:23 AM  
Posted By AugustinD on 11/22/2021 3:02 PM
Posted By CathyA3 on 11/22/2021 2:49 PM
Abstentions also decrease transparency since they can allow directors to affect the outcome of the vote without going on record. Directors are elected to vote, not to abstain (although I understand there may be good reasons for it occasionally).
But the abstention is on record. When a person's abstention results in a motion passing (whereas a no vote would have resulted in the motion not passing), the person abstaining knows it. So does everyone else.

I think an abstention can mean a lot, from a lack of backbone to political maneuvering to being disinterested in the outcome one way or another to thinking the whole topic is silly to more.

Anyway, I for one do not think abstentions decrease transparency.

When used regularly by the same person, and as I noted above, I know there's a loser on the board.



I think it's going to depend on your definition of "transparency".

Many homeowners like to know what the directors think about various topics, and this can affect who they vote for. It's why many associations hold Candidate Nights and the candidates publish resumes/platforms.

Abstaining basically says that the director isn't going on record with their opinion about a topic. It's not information, it's an absence of information - that's not transparency IMHO, it's invisibility. :-)

And of course I make an exception for recusals, which an ethical director may have to use and which actually does provide some info to homeowners. A director with a conflict of interest won't even participate in discussions about the topic in addition to not voting. A recusal is doing "doing their job", whereas I view abstentions as not doing their job (for whatever reason).
JohnC46
(South Carolina)

Posts:11659


11/23/2021 9:21 AM  
I say the abstentions are as if the person is not there for the vote.
Say a BOD of 5. Vote held. 2 Yeas, one Nay, 2 abstain. I say the measure passed 2 to one.
Two Yeas, 2 Nays, one abstain, I say the measure did not pass as it was a 2 to 2 tie.
MaxB4
(California)

Posts:1593


11/23/2021 9:29 AM  
Posted By JohnC46 on 11/23/2021 9:21 AM
I say the abstentions are as if the person is not there for the vote.
Say a BOD of 5. Vote held. 2 Yeas, one Nay, 2 abstain. I say the measure passed 2 to one.
Two Yeas, 2 Nays, one abstain, I say the measure did not pass as it was a 2 to 2 tie.



Nope, it is a majority of those present. It takes three. If they recuse, then they could be counted as not there for that vote, but still need a majority. In your little scenario, 2 yes, 1 no, 1 abstain, vote doesn't pass. An abstain actually counts or works like a no, whereas a recusal works like a not present.
MichaelH34
(North Carolina)

Posts:64


11/23/2021 9:35 AM  
You didn't mention it so I'll point out that you need to make sure your CCRs, bylaws and state statutes don't limit remote voting.

You may be required to have a unanimous vote when it's not in-person.

Covid has changed that in some states, but don't assume it's true in yours or for your HOA.
KerryL1
(California)

Posts:8720


11/23/2021 9:38 AM  
In CA, Max, which is where your property management business is, you do know that agendas must be posted 4 days ahead of board meetings. The name & topic of the expert guest was on the agenda. No clairvoyance needed. I also heard a summary of the guest's important (status of a construction defect) report from a board colleague.

Robert's Rules (aka RONR), 11th ed., p. 355 states there's no need to abstain from minutes approval if absent. For several months now, Our Board approves them a different way. Minutes of the previous meeting(s) are on a Consent Calendar (also aka Consent Agenda) with other routine items so are dispatched with quickly if no amendments.

The voting discussion above is really interesting and I need to read the restatement of our Bylaws to see what our Board's policy will be.
MaxB4
(California)

Posts:1593


11/23/2021 10:01 AM  
Posted By KerryL1 on 11/23/2021 9:38 AM
In CA, Max, which is where your property management business is, you do know that agendas must be posted 4 days ahead of board meetings. The name & topic of the expert guest was on the agenda. No clairvoyance needed. I also heard a summary of the guest's important (status of a construction defect) report from a board colleague.



Thanks for the heads up, I had no idea that agendas had to be posted 4 days ahead of the meeting, hell, I didn't even think you needed to inform anyone. To your second sentence, in a court of law, that would be called hearsay evidence. None of the associations I manage, nor the one I lived in were required by the Bylaws to recognize any form of parliamentary procedures for Board meetings. If you want to vote on something you were not a party to, be my guest, I chose not to.
KerryL1
(California)

Posts:8720


11/23/2021 11:03 AM  
As I noted way above, Max, Assn. boards are not usually required to follow Robert's Rules. CT may be an exception. But many do refer to RONR for areas where their bylaws or other policies are silent.

There is no need to take a vote on minutes. The secretary simply may ask: Are their any amendments to the draft minutes of October 26, 2021? Then, "hearing none, the minutes are approved as submitted."

Motions, seconds, etc on the draft minutes while common are not needed and consume meeting time that could actually be used more productively. I certainly have seen some of our boards here and committees too make a big deal about minute approval because they they "know how" to do it. The worthless director I noted above always seconded minutes approval, when we used to do it the old-fashioned way. And he always seemed very proud of himself.
JanineR
(Tennessee)

Posts:219


11/23/2021 1:43 PM  
Posted By KerryL1 on 11/23/2021 9:38 AM
For several months now, Our Board approves them a different way. Minutes of the previous meeting(s) are on a Consent Calendar (also aka Consent Agenda) with other routine items so are dispatched with quickly if no amendments.

The voting discussion above is really interesting and I need to read the restatement of our Bylaws to see what our Board's policy will be.





Interesting that you would say that Kerry!
The vote that the director abstained from in the original post, was for the board to implement consent calendar/consent agenda. Which got me thinking why that would be an abstain not just a plain old no vote?

It looks like I don't have to abstain from my vote coming up today. I got un-bullied, and the info is going to be provided to me to make an informed decision.

CathyA3
(Ohio)

Posts:2588


11/23/2021 2:00 PM  
Posted By MichaelH34 on 11/23/2021 9:35 AM
You didn't mention it so I'll point out that you need to make sure your CCRs, bylaws and state statutes don't limit remote voting.

You may be required to have a unanimous vote when it's not in-person.

Covid has changed that in some states, but don't assume it's true in yours or for your HOA.



Excellent point, and this a common requirement in states that permit action without a meeting. So the whole question may be moot.


MaxB4
(California)

Posts:1593


11/23/2021 2:52 PM  
I'll speak to what our Bylaws said in California, and what the Open Meeting Act states.

Action Without a Meeting
----Any action by the Board of Directors may be taken without a meeting if all members of the Board shall individually or collectively consent in writing to such action.

A meeting in California, as defined §4090,

“Board meeting” means either of the following:

(a) A congregation, at the same time and place, of a sufficient number of directors to establish a quorum of the board, to hear, discuss, or deliberate upon any item of business that is within the authority of the board.

(b) A teleconference, where a sufficient number of directors to establish a quorum of the board, in different locations, are connected by electronic means, through audio or video, or both. A teleconference meeting shall be conducted in a manner that protects the rights of members of the association and otherwise complies with the requirements of this act. Except for a meeting that will be held solely in executive session or conducted under Section 5450, the notice of the teleconference meeting shall identify at least one physical location so that members of the association may attend, and at least one director or a person designated by the board shall be present at that location. Participation by directors in a teleconference meeting constitutes presence at that meeting as long as all directors participating are able to hear one another, as well as members of the association speaking on matters before the board.

Any AWM I have ever conducted has always been by email, and that is not at the same time and place, therefore, unanimous consent is required. A virtual has been considered at same time and place (internet or teleconference).
JanineR
(Tennessee)

Posts:219


11/23/2021 5:15 PM  
Posted By CathyA3 on 11/23/2021 2:00 PM
Posted By MichaelH34 on 11/23/2021 9:35 AM
You didn't mention it so I'll point out that you need to make sure your CCRs, bylaws and state statutes don't limit remote voting.

You may be required to have a unanimous vote when it's not in-person.

Covid has changed that in some states, but don't assume it's true in yours or for your HOA.



Excellent point, and this a common requirement in states that permit action without a meeting. So the whole question may be moot.







Yes you read my mind. That was going to be the next conundrum.

In the first real life scenario, it was a noticed board meeting, a quorum is three of five directors. The person that abstained maybe should have just voted "no" instead of abstaining, but the result ended up being the same.

In the second real life scenario, the vote is over email, which many of our votes are, and we are allowed to do in Tennessee and per our bylaws.
But the quorum is all directors for actions without meeting.
So an abstain can block a majority email vote, whereas a no would allow the vote to pass.
So it needs to be kept in check of when an "abstain" is really an abstain, and not just simply a no.




AugustinD


Posts:1901


11/23/2021 5:43 PM  
Posted By JanineR on 11/23/2021 5:15 PM
Posted By CathyA3 on 11/23/2021 2:00 PM
Posted By MichaelH34 on 11/23/2021 9:35 AM
You didn't mention it so I'll point out that you need to make sure your CCRs, bylaws and state statutes don't limit remote voting.

You may be required to have a unanimous vote when it's not in-person.

Covid has changed that in some states, but don't assume it's true in yours or for your HOA.



Excellent point, and this a common requirement in states that permit action without a meeting. So the whole question may be moot.







Yes you read my mind. That was going to be the next conundrum.

In the first real life scenario, it was a noticed board meeting, a quorum is three of five directors. The person that abstained maybe should have just voted "no" instead of abstaining, but the result ended up being the same.

In the second real life scenario, the vote is over email, which many of our votes are, and we are allowed to do in Tennessee and per our bylaws.
But the quorum is all directors for actions without meeting.
So an abstain can block a majority email vote, whereas a no would allow the vote to pass.
So it needs to be kept in check of when an "abstain" is really an abstain, and not just simply a no.




Pedantry: In Tennessee and per the Tn Nonprofit Corporation Act, an action without a meeting appears to be lawful as long as all directors consent, in writing, to deciding without a meeting. The vote does not have to be unanimous for the motion/action to pass. See section 48-57-104, https://law.justia.com/codes/tennessee/2019/title-48/nonprofit-corporations/chapter-57/part-1/section-48-57-104/ .

The COA's Bylaws may say more on this.
MaxB4
(California)

Posts:1593


11/23/2021 6:30 PM  
Posted By AugustinD on 11/23/2021 5:43 PM
Posted By JanineR on 11/23/2021 5:15 PM
Posted By CathyA3 on 11/23/2021 2:00 PM
Posted By MichaelH34 on 11/23/2021 9:35 AM
You didn't mention it so I'll point out that you need to make sure your CCRs, bylaws and state statutes don't limit remote voting.

You may be required to have a unanimous vote when it's not in-person.

Covid has changed that in some states, but don't assume it's true in yours or for your HOA.



Excellent point, and this a common requirement in states that permit action without a meeting. So the whole question may be moot.







Yes you read my mind. That was going to be the next conundrum.

In the first real life scenario, it was a noticed board meeting, a quorum is three of five directors. The person that abstained maybe should have just voted "no" instead of abstaining, but the result ended up being the same.

In the second real life scenario, the vote is over email, which many of our votes are, and we are allowed to do in Tennessee and per our bylaws.
But the quorum is all directors for actions without meeting.
So an abstain can block a majority email vote, whereas a no would allow the vote to pass.
So it needs to be kept in check of when an "abstain" is really an abstain, and not just simply a no.




Pedantry: In Tennessee and per the Tn Nonprofit Corporation Act, an action without a meeting appears to be lawful as long as all directors consent, in writing, to deciding without a meeting. The vote does not have to be unanimous for the motion/action to pass. See section 48-57-104, https://law.justia.com/codes/tennessee/2019/title-48/nonprofit-corporations/chapter-57/part-1/section-48-57-104/ .

The COA's Bylaws may say more on this.




Your citation references Action Without a Meeting of the Members, not the Board.

I know, your response will be, ASKED AND ANSWERED.
AugustinD


Posts:1901


11/23/2021 6:37 PM  
Posted By AugustinD on 11/23/2021 5:43 PM
Pedantry: In Tennessee and per the Tn Nonprofit Corporation Act, an action without a meeting appears to be lawful as long as all directors consent, in writing, to deciding without a meeting. The vote does not have to be unanimous for the motion/action to pass. See section 48-57-104, https://law.justia.com/codes/tennessee/2019/title-48/nonprofit-corporations/chapter-57/part-1/section-48-57-104/ .

The COA's Bylaws may say more on this.
Post-o. The correct section is 48-58-202. See https://law.justia.com/codes/tennessee/2019/title-48/nonprofit-corporations/chapter-58/part-2/section-48-58-202/ . It says what I say above.
MaxB4
(California)

Posts:1593


11/23/2021 6:46 PM  
Posted By AugustinD on 11/23/2021 6:37 PM
Posted By AugustinD on 11/23/2021 5:43 PM
Pedantry: In Tennessee and per the Tn Nonprofit Corporation Act, an action without a meeting appears to be lawful as long as all directors consent, in writing, to deciding without a meeting. The vote does not have to be unanimous for the motion/action to pass. See section 48-57-104, https://law.justia.com/codes/tennessee/2019/title-48/nonprofit-corporations/chapter-57/part-1/section-48-57-104/ .

The COA's Bylaws may say more on this.
Post-o. The correct section is 48-58-202. See https://law.justia.com/codes/tennessee/2019/title-48/nonprofit-corporations/chapter-58/part-2/section-48-58-202/ . It says what I say above.



There is a difference, maybe huge, as it says UNLESS. So, in this case, Janine's Bylaws would prevail.
AugustinD


Posts:1901


11/23/2021 6:54 PM  
Posted By MaxB4 on 11/23/2021 6:46 PM

There is a difference, maybe huge, as it says UNLESS. So, in this case, Janine's Bylaws would prevail.
JanineR has not posted her Bylaws on this point. Until she does, one cannot deduce whether the statute section is what the COA should follow or the Bylaws are what the COA should follow.
MaxB4
(California)

Posts:1593


11/23/2021 7:04 PM  
Posted By AugustinD on 11/23/2021 6:54 PM
Posted By MaxB4 on 11/23/2021 6:46 PM

There is a difference, maybe huge, as it says UNLESS. So, in this case, Janine's Bylaws would prevail.
JanineR has not posted her Bylaws on this point. Until she does, one cannot deduce whether the statute section is what the COA should follow or the Bylaws are what the COA should follow.



I'm going out on a limb, just based on experience.
AugustinD


Posts:1901


11/23/2021 7:24 PM  
Posted By MaxB4 on 11/23/2021 2:52 PM
I'll speak to what our Bylaws said in California, and what the Open Meeting Act states.

Action Without a Meeting
----Any action by the Board of Directors may be taken without a meeting if all members of the Board shall individually or collectively consent in writing to such action.
First, in California, the above is not so. As of about 2012, only emergencies may be voted on without a meeting. Furthermore apparently there is disagreement about whether votes on emergencies, without a meeting, must be unanimous. More at https://www.davis-stirling.com/HOME/E/Emergency-HOA-Board-Meetings.

Second, Tennessee's nonprofit corporation statute section seems to me to be the exception and not the rule.

Third, so far I found at least one Tennessee COA's Bylaws that allow actions without a meeting to pass by a non-unanimous vote of the board.

If I had to bet, I would bet JanineR's Bylaws either allow non-unanimous votes for actions without a meeting to be authorized, or they are silent on the point.
MaxB4
(California)

Posts:1593


11/23/2021 7:41 PM  
Posted By AugustinD on 11/23/2021 7:24 PM
Posted By MaxB4 on 11/23/2021 2:52 PM
I'll speak to what our Bylaws said in California, and what the Open Meeting Act states.

Action Without a Meeting
----Any action by the Board of Directors may be taken without a meeting if all members of the Board shall individually or collectively consent in writing to such action.
First, in California, the above is not so. As of about 2012, only emergencies may be voted on without a meeting. Furthermore apparently there is disagreement about whether votes on emergencies, without a meeting, must be unanimous. More at https://www.davis-stirling.com/HOME/E/Emergency-HOA-Board-Meetings.

Second, Tennessee's nonprofit corporation statute section seems to me to be the exception and not the rule.

Third, so far I found at least one Tennessee COA's Bylaws that allow actions without a meeting to pass by a non-unanimous vote of the board.

If I had to bet, I would bet JanineR's Bylaws either allow non-unanimous votes for actions without a meeting to be authorized, or they are silent on the point.



Work on your reading comprehension. What I was posting is what a meeting in California is.
MaxB4
(California)

Posts:1593


11/23/2021 7:43 PM  
Posted By AugustinD on 11/23/2021 7:24 PM
Posted By MaxB4 on 11/23/2021 2:52 PM
Furthermore apparently there is disagreement about whether votes on emergencies, without a meeting, must be unanimous. More at https://www.davis-stirling.com/HOME/E/Emergency-HOA-Board-Meetings.


What you failed to post was a work around they suggested.
KerryL1
(California)

Posts:8720


11/24/2021 6:08 PM  
I don't understand what Janine is saying here: "But the quorum is all directors for actions without meeting. So an abstain can block a majority email vote, whereas a no would allow the vote to pass. So it needs to be kept in check of when an "abstain" is really an abstain, and not just simply a no."

It looks to me like she is saying abstain means absent. But that is incorrect. The abstainer certainly is present, so the quorum of all directors in this case is met. And TN doesn't seem to require a unanimous vote of approval.
MaxB4
(California)

Posts:1593


11/24/2021 6:51 PM  
Posted By KerryL1 on 11/24/2021 6:08 PM
And TN doesn't seem to require a unanimous vote of approval.


This is from a HOA in Nashville

Section 5. Action Taken Withou t a Meeting. The directors shall have the right to take any action in the absence of a meeting which they could take at a meeting by obtaining the written approval of all the directors. Any action so approved shall have the same effect as though taken at a meeting of the directors.
JanineR
(Tennessee)

Posts:219


11/27/2021 7:00 PM  
Thank you for all the feedback



The Bylaws are below
---------------------

e) A quorum at Directors' meetings shall consist of a majority of the entire Board of Directors. The acts approved by a majority of those present at a meeting at which a quorum is present shall constitute the acts of the Board of Directors, except where approval by a greater number of Directors is required by the Master Deed, Charter, or these Bylaws. If, at any meeting of the Board of Directors, less than a quorum is present, the majority of those present may adjourn the meeting from time to time until a quorum is present. At any adjourned meeting any business, which might have been transacted at the meeting originally called may be transacted without further notice. The joinder of a Director in the action of a meeting by signing and concurring in the minutes thereof shall constitute the presence of such Director for the purpose of determining a quorum.



h) The Directors may adopt any resolution by an instrument in writing, signed by all of the then qualified and acting Directors, and any such resolution, when so executed, shall have the force and validity of a resolution adopted at any regular or special meeting.
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