Too many abstentions

[Guest Karl Mork]

We have a "2/3 of those present" vote to make and there is thought that several people might want to claim a conflict of interest and vote abstention.  If we have a quorum and 8 people are in attendance and 3 vote abstention (out of conflict of interest) then as I understand it it would not be possible for the vote to pass, correct (need 6 yes votes)? If this correct is there a way that those three members could be discounted?  Could they leave the room and we recall for quorum leaving us with 5 people "present"  (9 person board). I don't think it is the intent of those board members to tank the vote,  but they may feel uncomfortable given their personal position.  Thanks!

[Tom Coronite]

Would leaving the room solely so the motion would pass, making their action singularly responsible for adopting the motion, really make them feel better than simply voting yes? It may very well be possible their fear of a "conflict of interest" is unfounded, unless they for some reason have a pecuniary interest not held in common with other members. Is that really the case?

 

[Dan Honemann]

"2/3 of those present" means what it says. It's as simple as that.

Whether or not a quorum is present is an entirely different question.

 

[Guest Karl]

I am unaware of any financial benefit that they would personally receive as a result of the vote, but they may worry about it compromising their impartiality in a separate legal proceeding.  The vote may not pass even without their abstentions, but as I think this vote is structured,  their abstentions would make it so a vote is impossible to pass in the example above.

[Dan Honemann]

10 minutes ago, Guest Karl said:

I am unaware of any financial benefit that they would personally receive as a result of the vote, but they may worry about it compromising their impartiality in a separate legal proceeding.  The vote may not pass even without their abstentions, but as I think this vote is structured,  their abstentions would make it so a vote is impossible to pass in the example above.

If 8 members are present, a minimum of 6 affirmative votes are required for adoption. If only 5 members are present (a quorum for a 9 person board), only 4 affirmative votes are needed.

It's as simple as that.

[SaintCad]

I would ask the OP if you are sure it is 2/3 of those present or 2/3 of those voting.

[Guest Karl]

19 minutes ago, SaintCad said:

I would ask the OP if you are sure it is 2/3 of those present or 2/3 of those voting.

2/3 of those present.

 

36 minutes ago, Daniel H. Honemann said:

If 8 members are present, a minimum of 6 affirmative votes are required for adoption. If only 5 members are present (a quorum for a 9 person board), only 4 affirmative votes are needed.

It's as simple as that.

My question is maybe then what defines being "present?"  Does being listed on the minutes as attending the meeting mean "present" or does being available (I.e. In the room) to cast a ballot at the time of the vote mean "present"?

So if 8 people attend the meeting the minutes would reflect those 8 ppl present and 1 person absent.  Then when it came to the vote,  if the three people stepped out would we restate in the minutes that only 5 were present for the vote (and list the names of those who were there?)?

Thank you.

[J. J.]

1 hour ago, Tom Coronite said:

Would leaving the room solely so the motion would pass, making their action singularly responsible for adopting the motion, really make them feel better than simply voting yes? It may very well be possible their fear of a "conflict of interest" is unfounded, unless they for some reason have a pecuniary interest not held in common with other members. Is that really the case?

 

There is no guarantee that if they leave the motion will be adopted.  It would be for the sole reason of adopting the motion.

[J. J.]

24 minutes ago, Guest Karl said:

2/3 of those present.

 

My question is maybe then what defines being "present?"  Does being listed on the minutes as attending the meeting mean "present" or does being available (I.e. In the room) to cast a ballot at the time of the vote mean "present"?

So if 8 people attend the meeting the minutes would reflect those 8 ppl present and 1 person absent.  Then when it came to the vote,  if the three people stepped out would we restate in the minutes that only 5 were present for the vote (and list the names of those who were there?)?

Thank you.

Present in defined being there.  If a member leaves the room, he is not present at that moment.  The majority could order a roll call, which would include listing what members are absent.  Normally, a motion for a roll call would be dilatory, but, in this case, I think there would be a legitimate reason for doing it.

[Guest Karl]

19 minutes ago, J. J. said:

Present in defined being there.  If a member leaves the room, he is not present at that moment.  The majority could order a roll call, which would include listing what members are absent.  Normally, a motion for a roll call would be dilatory, but, in this case, I think there would be a legitimate reason for doing it.

Thank you.  This is a great clarification.  I just spoke to a local attorney and he thought that if they do have a legitimate conflict of interest That they should not be counted as present nor vote (not sure if robert's rules recognizes this).  Also, he thought that an abstention in a vote of those "present" counts as acquiescence (yes)--- this seems directly in conflict with what I'm reading elsewhere.  Thoughts on his two points?  I'm thinking that his two options wont work with robert's rules.

[Dan Honemann]

1 hour ago, Guest Karl said:

My question is maybe then what defines being "present?"  Does being listed on the minutes as attending the meeting mean "present" or does being available (I.e. In the room) to cast a ballot at the time of the vote mean "present"?

So if 8 people attend the meeting the minutes would reflect those 8 ppl present and 1 person absent.  Then when it came to the vote,  if the three people stepped out would we restate in the minutes that only 5 were present for the vote (and list the names of those who were there?)?

Thank you.

The minutes ordinarily do not reflect the number of members present.

As noted on page 403 in RONR (11th ed.), when the voting requirement is based on the number of members present, the chair must count those present immediately after the affirmative vote is taken, before any change can take place in attendance. In other words, what counts is the number of members physically present at the time the vote is taken.

 

 

[Guest Who's Coming to Dinner]

Robert's says that members should refrain from voting on questions in which they have a personal or pecuniary interest. But in the same paragraph, it also says that no member may be compelled to abstain. There is nothing in RONR which says a member with a personal interest in a question must be counted as "absent" when that matter is considered. As to the second point, an abstention counts as no vote at all; it is never counted as "yes."

RONR (11th ed.), p.407

[Dan Honemann]

36 minutes ago, Guest Karl said:

  I just spoke to a local attorney and he thought that if they do have a legitimate conflict of interest That they should not be counted as present nor vote (not sure if robert's rules recognizes this).  

As far as RONR is concerned, a member of an assembly is a person entitled to full participation in its proceedings, including the right to vote. If some applicable law prohibits a member from voting on a particular motion, then, as far as RONR is concerned, that person is not a member of the assembly at the time when the vote is taken on that motion. Nothing in RONR prohibits a member from voting on any particular motion because of a conflict of interest.

 

44 minutes ago, Guest Karl said:

Also, he thought that an abstention in a vote of those "present" counts as acquiescence (yes)--- this seems directly in conflict with what I'm reading elsewhere.  

This is just flat-out wrong as far as the rules in RONR are concerned. But if some applicable law says it's so, than that law takes precedence over the rules in RONR.

[SaintCad]

1 hour ago, Guest Karl said:

Also, he thought that an abstention in a vote of those "present" counts as acquiescence (yes)--- this seems directly in conflict with what I'm reading elsewhere. 

If a vote requires a majority or percentage of all members, then abstaining is effectively a "no" vote without voting no.

[Richard Brown]

Guest Karl, an abstention does not count as a yes vote or as a no vote. It is not a vote at all.

In a vote based on the number of people voting, it might have the effect of acquiescence or of going along with the majority, but it is not a vote .

In a vote such as the one you are inquiring about, where the vote is based on the number of members present, it has the effect of a no vote but it is still not a vote.

Also, if a member is present, he is present regardless of whether he has a conflict or chooses to abstain. He must physically leave the meeting room in order to not be present.

RONR does not require a member to ever abstain. It says a member should abstain in certain circumstances, but cannot be compelled to abstain.  Some other superior rule would have to require that.

[Shmuel Gerber]

On 8/8/2017 at 4:59 PM, Daniel H. Honemann said:

As far as RONR is concerned, a member of an assembly is a person entitled to full participation in its proceedings, including the right to vote. If some applicable law prohibits a member from voting on a particular motion, then, as far as RONR is concerned, that person is not a member of the assembly at the time when the vote is taken on that motion.

That's an interesting assertion, but wouldn't that also mean that the quorum at a given time (in an assembly subject to such a law) depends on what motion is pending? The idea of a membership that fluctuates based on what the pending question is isn't very amenable to me. And I don't see enough support for it in RONR to necessarily agree that it is correct, especially since the authors keep tinkering around with the definition of "quorum" from edition to edition. ☺️

 

[Dan Honemann]

23 hours ago, Shmuel Gerber said:

That's an interesting assertion, but wouldn't that also mean that the quorum at a given time (in an assembly subject to such a law) depends on what motion is pending? The idea of a membership that fluctuates based on what the pending question is isn't very amenable to me. And I don't see enough support for it in RONR to necessarily agree that it is correct, especially since the authors keep tinkering around with the definition of "quorum" from edition to edition. ☺️

 

Perhaps such a law may have an effect on the quorum requirement, but I really don't know. It depends upon exactly what the law says.

For example, I believe that Maryland law solves the problem by specifically providing that motions may be approved by the affirmative vote of a majority of disinterested directors even if the disinterested directors constitute less than a quorum, and also that directors or stockholders who may be prohibited from voting because of their interest in a matter may be counted in determining the presence of a quorum.

In any event, no such problem arises because of anything found in RONR.