Abstentions when Unanimous Vote Required

[Guest jberg70]

The bylaws state: "Any decision by any board or committee made without a meeting must be unanimous." This was adopted to discourage executive board decisions by email.

A vote was requested of the board by email from the president. The results were 16 Yes and 4 Abstentions. Those abstaining included the president and the maker of the motion. The president may be thinking that he votes only to break a tie. It is unclear whether or not the attentions were the result of the board member choosing not to vote or not reading the email requesting the vote. (I don't like voting by email for obvious reasons.)

While normally an abstention does not affect the vote, this appears to be a case in which any abstention constitutes a No vote. Am I correct that the motion fails?

[Guest Edgar]

Am I correct that the motion fails?

Firstly, voting by e-mail is prohibited unless your bylaws specifically authorize it. So it's not a case of "discouraging" it. It's either permitted or it isn't.

Secondly, a "unanimous vote" is one in which all who vote vote the same way. Thus a vote of 1-0, with all other present members abstaining, is a "unanimous vote".

Finally, it's up to your organization to determine what your bylaws mean by a "unanimous decision". Once you do, you should amend those bylaws to remove the ambiguity.

[Tim Wynn]

The bylaws state: "Any decision by any board or committee made without a meeting must be unanimous." This was adopted to discourage executive board decisions by email.

The language has the opposite effect, since without it, such decisions BY THE BOARD, are prohibited by RONR.

[Guest jberg70]

When bylaws required a decision made without a meeting to have a unanimous vote, did not the bylaws authorize action without meeting by providing conditions for it?

The bylaw was inspsired by the following state statute (which does not apply to the unincorporated society in question):

Any action required by this chapter to be taken at a meeting of the members or directors of a corporation,

or any action which may be taken at a meeting of the members or directors, may be taken without a meeting if a consent in the form of a record, setting forth the action so taken, shall be executed by

all of the members entitled to vote

with respect to the subject matter thereof, or all of the directors, as the case may be.

Such consent shall have the same force and effect as a unanimous vote, and may be stated as such in any articles or record filed with the secretary of state under this chapter.

Would this unanimous requirement be similar to a super majority "of the entire membership", with that super majority being 100%. I'm looking at RONR (10th ed), p. 390. It also says, line 16, that in such cases an abstention had the effect of a negative vote.

[Guest Edgar]

When bylaws required a decision made without a meeting to have a unanimous vote, did not the bylaws authorize action without meeting by providing conditions for it?

One could make that argument. I'm not sure I would.

Would this unanimous requirement be similar to a super majority "of the entire membership", with that super majority being 100%.

You'll have to determine whether your "unanimous decision" is equivalent to "unanimous vote". If so, as mentioned, a vote of 1-0 would suffice.

[Trina]

When bylaws required a decision made without a meeting to have a unanimous vote, did not the bylaws authorize action without meeting by providing conditions for it?

The bylaw was inspsired by the following state statute (which does not apply to the unincorporated society in question):

Any action required by this chapter to be taken at a meeting of the members or directors of a corporation, or any action which may be taken at a meeting of the members or directors, may be taken without a meeting if a consent in the form of a record, setting forth the action so taken, shall be executed by

all of the members entitled to vote

with respect to the subject matter thereof, or all of the directors, as the case may be.

Such consent shall have the same force and effect as a unanimous vote, and may be stated as such in any articles or record filed with the secretary of state under this chapter.

...

I'll point out that the two underlined passages above do not mean the same thing, even though you say the bylaw was 'inspired' by the language of the statute. As others have explained, a 'unanimous' vote just means that all of the people who chose to vote voted the same way. This is not the same thing as requiring 'all of the members entitled to vote' to vote the same way. It may have been the intention of the writers of the bylaws to emulate the statute, but, did they succeed?

[Guest jberg70]

Perhaps it would clarify the matter to revise the bylaw to read:

"The board may make a decision without a meeting, provided that, in each instance, every member of the board agrees to the consideration of the issue without a meeting."

This would allow for abstentions on the final decision while still assuring that every board member had an opportunity to consider the issue and consents to the matter being handled without the open debate that would occur in a meeting.

[Guest Edgar]

Perhaps it would clarify the matter to revise the bylaw to read:

"The board may make a decision without a meeting, provided that, in each instance, every member of the board agrees to the consideration of the issue without a meeting."

This would allow for abstentions on the final decision while still assuring that every board member had an opportunity to consider the issue and consents to the matter being handled without the open debate that would occur in a meeting.

Well, "consideration of the issue" suggests some sort of debate, no?

If you want to authorize some action outside of the context of a meeting, it's best to vest that authority in one person. Thus the president may have considerably leeway to act on his own. As would the treasurer (e.g. pay bills). Otherwise you provide for special meetings of the board so it can get together on relatively short notice.

[Gary Novosielski]

When bylaws required a decision made without a meeting to have a unanimous vote, did not the bylaws authorize action without meeting by providing conditions for it?

The bylaw was inspsired by the following state statute (which does not apply to the unincorporated society in question):

Any action required by this chapter to be taken at a meeting of the members or directors of a corporation,

or any action which may be taken at a meeting of the members or directors, may be taken without a meeting if a consent in the form of a record, setting forth the action so taken, shall be executed by

all of the members entitled to vote

with respect to the subject matter thereof, or all of the directors, as the case may be.

Such consent shall have the same force and effect as a unanimous vote, and may be stated as such in any articles or record filed with the secretary of state under this chapter.

Would this unanimous requirement be similar to a super majority "of the entire membership", with that super majority being 100%. I'm looking at RONR (10th ed), p. 390. It also says, line 16, that in such cases an abstention had the effect of a negative vote.

It may have been "inspired" by the statute, but it says something very different.

The statute says that decision "may be taken without a meeting" whereas the bylaws neglect to say so. Unless they do, such decisions would not be allowed by RONR.

Also the statute says every member entitled to vote must assent (which would be equivalent to a 100% vote of the entire membership) whereas the bylaws only say that the decision must be unanimous (i.e, without dissent) which could be a 1-0 vote. It is true that a 100% can be referred to as unanimous, because it is. But in general, a unanimous vote does not need to be a vote of 100% of the membership. Besides, since the statute does not apply to this organization, it is difficult to see why it should be regarded as persuasive.

In any case, interpreting bylaws (which we don't do here) requires paying attention to what they actually say, rather than what they may have been inspired by.

[Josh Martin]

Would this unanimous requirement be similar to a super majority "of the entire membership", with that super majority being 100%.

If that was the intent, you should have used the wording "a unanimous vote of the entire membership of the board." Without the "entire membership" language, the default would seem to be that the basis is a proportion of the members voting, just as is the case for a majority or 2/3 vote (obviously the "present" part of "present and voting" is inapplicable in this case).

Perhaps it would clarify the matter to revise the bylaw to read:

"The board may make a decision without a meeting, provided that, in each instance, every member of the board agrees to the consideration of the issue without a meeting."

This would allow for abstentions on the final decision while still assuring that every board member had an opportunity to consider the issue and consents to the matter being handled without the open debate that would occur in a meeting.

It seems it would clarify it, yes. It will be up to the society to determine if that's what it wants.

In any case, interpreting bylaws (which we don't do here) requires paying attention to what they actually say, rather than what they may have been inspired by.

Well, while the Society should, first and foremost, pay attention to what the Bylaws actually say, what the Bylaws may have been inspired by could be useful in interpreting the Society's intent when a rule is ambiguous. (RONR, 11th ed., pg. 588, lines 31-33)

[Gary Novosielski]

Well, while the Society should, first and foremost, pay attention to what the Bylaws actually say, what the Bylaws may have been inspired by could be useful in interpreting the Society's intent when a rule is ambiguous. (RONR, 11th ed., pg. 588, lines 31-33)

Certainly. My point was directed more at situations where there is not any real ambiguity, but rather a growing feeling of remorse (or irritation with those responsible) for not having done a better job of drafting the bylaws in the first place, seeing to it that the document that inspired them was accurately reflected in the result.

I think "first and foremost" is a fair way to put it. Absent any real ambiguity, the bylaws mean what they actually say, not what we in perfect hindsight wish they said.