Voting when Chairperson required to create a quorum; small Board

[Guest Jacki]

I have a situation involving a small Board (7 voting members), where 4 members present is a quorum.  The By-Laws provide: (1) Chair can only vote to break a tie; and (2) any action taken by a simple majority of a quorum of board members shall constitute official action of the Board.  Only 4 members were present at the last meeting, of which one was the Chairman. 

 

A motion was made. 2 voted in favor, 1 voted against and the Chair voted against, thereby creating a tie which caused the motion to fail (no majority).  I incorrectly believed (until after the meeting) that the By-Laws provided (as does Roberts Rules) that the Chair can vote to break or to make a tie.  However the By-Laws only allow Chair to vote to break a tie.

 

Since the By-Laws provide the Chair can only vote to break a tie, then the Chair should not have voted.  Without a vote from the Chair however, it is impossible to satisfy the By-Laws requirement that there be a simple majority of a quorum (in this case 3 votes) to create an official Board action.

 

In consideration of the above, my questions are:

 

(A)  Does the motion carry by a vote of 2 to 1, notwithstanding fact that we did not have a simple majority of the quorum present (3 votes)? OR

(  Does the motion still fail because we did not have a simple majority of the quorum present (3 votes)?

 

I realize the By-Laws will need to be amended to eliminate this this scenario in the future, but I have to render an opinion about the validity of the vote taken at the last meeting as to whether it carried or failed. 

 

Thank you.

[Guest Jacki]

I apologize---when I posted my question a smiley face icon appeared for some reason---that smiley fact was intended to be "(B)" of my 2 questions.  Not sure how that happened.  Thank you.

[Josh Martin]

I have a situation involving a small Board (7 voting members), where 4 members present is a quorum.  The By-Laws provide: (1) Chair can only vote to break a tie; and (2) any action taken by a simple majority of a quorum of board members shall constitute official action of the Board.  Only 4 members were present at the last meeting, of which one was the Chairman. 

 

A motion was made. 2 voted in favor, 1 voted against and the Chair voted against, thereby creating a tie which caused the motion to fail (no majority).  I incorrectly believed (until after the meeting) that the By-Laws provided (as does Roberts Rules) that the Chair can vote to break or to make a tie.  However the By-Laws only allow Chair to vote to break a tie.

 

Since the By-Laws provide the Chair can only vote to break a tie, then the Chair should not have voted.  Without a vote from the Chair however, it is impossible to satisfy the By-Laws requirement that there be a simple majority of a quorum (in this case 3 votes) to create an official Board action.

 

In consideration of the above, my questions are:

 

(A)  Does the motion carry by a vote of 2 to 1, notwithstanding fact that we did not have a simple majority of the quorum present (3 votes)? OR

(   Does the motion still fail because we did not have a simple majority of the quorum present (3 votes)?

 

I realize the By-Laws will need to be amended to eliminate this this scenario in the future, but I have to render an opinion about the validity of the vote taken at the last meeting as to whether it carried or failed. 

 

This will ultimately come down to a question of bylaws interpretation, since this problem exists because of the provisions in your bylaws. It's up to your organization to interpret its own bylaws. See RONR, 11th ed., pgs. 588-591 for some Principles of Interpretation.

 

It seems to me that the question mainly hinges on whether the chair is considered to be a "member" of the board, notwithstanding the fact that he can only vote to break a tie. In my opinion, the chair is not a "member" of the board in the sense the term is used in RONR. If the organization concludes that the chair is not truly a "member" of the board, then the chair does not count toward the quorum and the board did not have a quorum at the time, and if a member can provide clear and convincing proof of this fact, the motion is null and void.

 

On the other hand, if the organization concludes that the chair is truly a "member" of the board, then the board had a quorum and the motion was adopted by a vote of 2-1. A quorum is the number of members who must be present. It has nothing to do with how many members vote on a given question.

 

I also assume that you really mean to ask about the fact that a quorum (four members) may or may not have been present, not to ask whether a majority of the quorum (three members) was present. There were obviously at least three members present. It's the fourth "member" (the chair) who is the questionable one.

[Dan Honemann]

On the other hand, if the organization concludes that the chair is truly a "member" of the board, then the board had a quorum and the motion was adopted by a vote of 2-1. A quorum is the number of members who must be present. It has nothing to do with how many members vote on a given question.

 

 

Well, perhaps it does if the bylaws provide (as we are told they do) that "any action taken by a simple majority of a quorum of board members shall constitute official action of the Board." This organization is also going to have to interpret for itself what this means.

 

In any event, since the motion was declared to be lost, it's too late to raise a point of order about this now. It's lost.

[Josh Martin]

In any event, since the motion was declared to be lost, it's too late to raise a point of order about this now. It's lost.

 

A Point of Order can't be raised regarding the fact that a person who was not eligible to vote (the chair) cast a vote, and his vote affected the result?

[Dan Honemann]

A Point of Order can't be raised regarding the fact that a person who was not eligible to vote (the chair) cast a vote, and his vote affected the result?

 

If we forget all about the chair having voted, the motion was declared lost when the vote was 2 in favor and 1 opposed, which could have been based upon the assumption that it required at least 3 affirmative votes for its adoption (a majority of the quorum). I think it is too late to complain about that now.

[Sean Hunt]

In my view, the rule that the chair cannot vote except to break a tie is a rule in the nature of a rule of order, and therefore suspendable. It does not offend the BPPL that only those eligible to vote may vote, so there is no continuing breach.

[David A Foulkes]

Guest_Jacki -- We had a similar discussion here not long ago, which may provide additional insights.

[Guest Edgar]

The idea that the chair could count towards the quorum in some instances (e.g. when the vote is tied) but not in others (e.g. when the vote isn't) seems, on its face, absurd (and impractical). Mr. Martin's position is that, if the chair doesn't have the right to vote in all instances, then he's not a member (in the RONR sense of the word) and, therefore, never counts towards the quorum. I tend to think that, even if his right to vote is restricted in some instances, the chair is a member (if only in the common-sense meaning of the word) and should, therefore, count towards the quorum. I think either position is defensible. And either is better than the "floating quorum" interpretation.

 

As is often the case, of course, the solution is to fix the bylaws, not try to make a silk purse out of a sow's ear.

[Guest Jacki]

Hello---thank you for all of your inputs.  In our case, I believe (but welcome your comments) the Chair is, in fact, a member, as the Commission's enabling legislation, which would over-ride any by-laws provision, indicates that the Commission Board shall be made of "seven (7) voting members......"  And further provides that the Board shall "elect one of its members as Chairman....."

 

That said, it seems the Chairman would be counted for purposes of establishing a quorum.  So it seems we had a quorum of 4 members.  There is no question, based on the by-laws in their current form, that the Chair should not have voted as he can only vote to break a tie.

 

Counting the Chair's invalid vote, we had a tie (2-2) and the motion was deemed to fail.  If you do not count the Chair's invalid vote, the motion would carry (2 in favor - 1 opposed).

 

So, in consideration of all of your inputs, it further seems the questions are:

 

1. Can the motion carry when our by-laws specifically require that a simple majority of a quorum (in this case 3 votes) shall constitute an official action of the Board?

2. Can a point of order still be raised? (seems so to me, given that Roberts Rules provides Point of Order can be made at any time if the action taken violates the By-Laws, as may be the case here, that a Point of Order can still be raised)

3.  What is the appropriate action to be taken, and by whom, to correct the prior action taken, the prior motion should have carried ?  Do I do something as counsel to the Board or must I request that a member raise of Point of Order and proceed accordingly?

 

Thank you for your input.

 

 

 

[Gary Novosielski]

Well, if statute says there are seven voting members (one of them elected chairman), then the chair is a voting member, regardless of what your bylaws provide.

[Guest Jacki]

Yes---but the By-Laws can still place restrictions on WHEN the Chair can vote, which is the case here.  Do you agree?

[Guest Dan Honemann]

Yes---but the By-Laws can still place restrictions on WHEN the Chair can vote, which is the case here.  Do you agree?

 

No.

[Gary Novosielski]

Yes---but the By-Laws can still place restrictions on WHEN the Chair can vote, which is the case here.  Do you agree?

If the chair has the right to vote, then that is an unrestricted right.  Even RONR, which is quite clear that the chair of a large(ish) assembly should not vote except when his single vote would make a difference, still notes that although he should not vote, no rule prohibits him from voting.

 

The rule in RONR is clear:  Members Vote.   If the higher ranking statute makes him a voting member, the bylaws can't restrict that.

 

And even if there were a rule that the chair could NEVER vote except when his vote would make a difference, that's largely a symbolic restriction.  After all, if his vote would NOT have made a difference, what harm did he suffer by not voting?  So a rule restricting the chair in that manner could never be used to argue that his vote improperly affected the outcome.

[Josh Martin]

In my view, the rule that the chair cannot vote except to break a tie is a rule in the nature of a rule of order, and therefore suspendable. It does not offend the BPPL that only those eligible to vote may vote, so there is no continuing breach.

 

I disagree. If the chair only has the right to vote to break a tie, the rules cannot be suspended to give the chair the right to vote in other cases, any more than the rules could be suspended to give a non-member the right to vote.

 

1. Can the motion carry when our by-laws specifically require that a simple majority of a quorum (in this case 3 votes) shall constitute an official action of the Board?

 

Maybe. As Mr. Honemann noted, this depends on what exactly the provision in your bylaws means. If it indeed means that a majority of the quorum must vote in favor of a motion for it to be adopted, then the motion clearly failed in any event.

 

2. Can a point of order still be raised? (seems so to me, given that Roberts Rules provides Point of Order can be made at any time if the action taken violates the By-Laws, as may be the case here, that a Point of Order can still be raised)

 

RONR does not say that a "Point of Order can be made at any time if the action taken violates the By-Laws." What it actually says is that a Point of Order can be raised at any time if an adopted main motion conflicts with the bylaws, which is not the case here. RONR does provide that a Point of Order can be raised at any time if someone voted who was not eligible to vote and his vote could have affected the result... but it seems that the chair's vote may not have affected the result, and it seems questionable whether it is accurate that the chair could not vote.

 

3.  What is the appropriate action to be taken, and by whom, to correct the prior action taken, the prior motion should have carried ?  Do I do something as counsel to the Board or must I request that a member raise of Point of Order and proceed accordingly?

 

Based upon the additional facts which have been provided, I'm inclined to agree with Mr. Honemann in Post #4 that it's too late to do anything about this. Even if you could, it seems like more trouble than it's worth. Someone can just make the motion again at another meeting.

 

Yes---but the By-Laws can still place restrictions on WHEN the Chair can vote, which is the case here.  Do you agree?

 

Well, ultimately, you'll need to talk to a lawyer for questions about legislation. Based on the facts provided, however... no, I don't agree. If the legislation specifically provides that the chair is a voting member, then the assembly cannot adopt rules that make the chair a voting member only in very limited circumstances, unless the legislation permits this.