Effect on quorum of recusing

[Guest Stephen B. Johnson]

A Town Manager recused himself from voting on an ordinance that re-appointed him as Town Manager and approved his contract.This small home-rule municipality operates by General Assembly and as a resident of the Town he was entitled to veto except for this disqualifying conflict of interest. Charter provides that an affirmative vote of an extraordinary majority vote of "members present" was required to approve the contract. 16 GA members were present, one abstained, the Manager recused (did not vote). The vote was 9 in favor, 5 opposed. Challengers insist that 10 votes were required for approval (Majority of 16 is 9 plus 1 = 10).

My question is whether as a matter of law a recused member of an assembly is "present" for purposes of of the "members present" requirement. The Charter has no provisions addressing effect of a recusal on quorum or members present. The Town has adopted Robert's Rules.

Thoughts?

[Shmuel Gerber]

18 hours ago, Guest Stephen B. Johnson said:

A Town Manager recused himself from voting on an ordinance that re-appointed him as Town Manager and approved his contract.This small home-rule municipality operates by General Assembly and as a resident of the Town he was entitled to veto except for this disqualifying conflict of interest. Charter provides that an affirmative vote of an extraordinary majority vote of "members present" was required to approve the contract. 16 GA members were present, one abstained, the Manager recused (did not vote). The vote was 9 in favor, 5 opposed. Challengers insist that 10 votes were required for approval (Majority of 16 is 9 plus 1 = 10).

My question is whether as a matter of law a recused member of an assembly is "present" for purposes of of the "members present" requirement. The Charter has no provisions addressing effect of a recusal on quorum or members present. The Town has adopted Robert's Rules.

Thoughts?

9 is a majority of 16, since it is more than 8. See FAQ 4.

[Greg Goodwiller, PRP]

I think perhaps you should restate the Town Manager's action. If an individual is "recused" from a meeting, it means that they are not in attendance - and therefore their absence does, indeed, affect the presence of a quorum.

But if the Town Manager was present and the meeting and chose not to vote (even if asking that it be recorded in the minutes), that is not a recusal, but rather an abstention. Abstentions, unlike recusals, do not affect the quorum. Those who abstain from voting are exercising a right of membership. They are not in any way being derelict in their duties.

[Joshua Katz]

23 hours ago, Guest Stephen B. Johnson said:

Charter provides that an affirmative vote of an extraordinary majority vote of "members present" was required to approve the contract.

I do not know what is meant by "extraordinary majority."  However, if there were 16 present, then, assuming this means a majority of those present (and assuming the city manager is included in that 16), a majority is 9, not 10, as Mr. Gerber mentioned above.  

That said, a person who is there, but not voting, is certainly present.  That's the point of something requiring a majority of those present (or, I assume that's the point).  

[Kim Goldsworthy]

On 1/19/2017 at 4:07 PM, Guest Stephen B. Johnson said:

My question is

whether as a matter of law

a recused member of an assembly is "present" for purposes of of the "members present" requirement?

The Charter has no provisions addressing effect of a recusal on quorum or members present.

The Town has adopted Robert's Rules.

According to Robert's Rules of Order (not law):

A member who would count toward the quorum at the top of the meeting will continue to count toward the quorum, no matter how many times that member recuses himself.

The member does not lose the right to vote just because he declared a self-recusal on this agenda item, that agenda item, and so on.

A member who is empowered to vote in general will count toward the quorum, no matter how conflicted he may be, per a given agenda item.

***

So, now, to answer your question:

• Your recused member is present, as far as Robert's Rules is concerned. -- An act of self-recusal does not make a member suddenly "absent".

***
In fact, under Robert's Rules, conflicted members can vote, even though the conflicted member ought not vote. -- Robert's Rules does not, and cannot, take away a fundamental right of membership, like voting, merely based on a perceived conflict-of-interest.

[Richard Brown]

19 hours ago, Kim Goldsworthy said:

According to Robert's Rules of Order (not law):

A member who would count toward the quorum at the top of the meeting will continue to count toward the quorum, no matter how many times that member recuses himself. . . .

Is that supposed to be a quote or citation from RONR?  If so, please provide it.  A word search using my CD-ROM version does not show the word "recuse", "recused" or "recusal" used even once. 

It might also be worth noting that some state laws, particularly those dealing with public bodies, require that certain officials "recuse" themselves from participating in or voting in certain circumstances regarding possible conflicts. I am of the personal opinion that even if a member has "recused" himself from participating in the consideration of a certain matter, he is nonetheless still present (unless he has physically left the room) and should be considered present for quorum and vote requirement purposes.  However, I am not at all certain that the courts would agree.  I have never researched that particular question.  I'm not 100 percent convinced that recusal and abstention mean exactly the same thing in all cases.

BTW, I don't know that a recusal (or abstention) based on a statute REQUIRING such recusal or abstention is a "self recusal".

I believe the answer to guest Stephen's question is not as cut and dried as it might appear at first blush.  In fact, I don't know that we can answer it because the answer likely depends on statutory law or rules outside of RONR.

Comments, anyone?