Voting procedure

[Village Trustee]

We are a small Chartered Village, Our Board is made up of 5 Trustees and 1 Mayor. The Mayors only role is to break a tie and not a voting member of the board. We lost a Trustee do to a sudden death and lost a second Trustee to a resignation. We are now a 3 member Board with 2 open seats. When we vote we need a majority vote to pass. Here's the question:  Is the majority 3 "yes" votes or 2 "yes" votes. Does the rule state a majority is 3 of the 5 or 2 of the remaining 3?...

[Guest Puzzling]

As long as your bylaws or state laws do not say otherwise 

A majority vote more than half of the votes cast so

One vote for nill against

2 for 0 against

2 for 1 against 

Are all majority votes

[Village Trustee]

Chapter 63

 

 

 

 

RULES OF ORDER

 

 

 

 

[HISTORY: Adopted by the Board of Trustees of the Village of  3-26-1880; amended in its entirety at time of adoption of Code; see Ch. 1, General Provisions, Art. I. Subsequent amendments noted where applicable.]

 

~ 63-1. Rules of order enumerated.

 

 

  A.        In accordance with the Charter of the Village of , the Mayor shall preside at all meetings of the Board of Trustees, and in his absence, the Board of Trustees shall appoint one (1) of its members to preside at said meeting.

 

    

 

C.        A majority of the Board of Trustees shall constitute a quorum for the transaction of business, but a lesser number may adjourn and compel the attendance of absent members as provided by the Village Law of the State of New York.

 

 

   D.        The Board of Trustees may determine the rules of its procedure for the conduct of its meetings.

Edited January 14, 2021 at 01:57 PM by Village Trustee

[Josh Martin]

1 hour ago, Village Trustee said:

We are now a 3 member Board with 2 open seats. When we vote we need a majority vote to pass. Here's the question:  Is the majority 3 "yes" votes or 2 "yes" votes. Does the rule state a majority is 3 of the 5 or 2 of the remaining 3?

Since this is a public body, it is very possible the board's rules or applicable law say something on this matter.

So far as RONR is concerned, however, a majority vote is a majority of the members present and voting. If all members were present and all voted, a majority would be two, as this is a majority of the three votes cast. The number of votes cast on a particular question could be less, if some members were absent or abstained.

36 minutes ago, Village Trustee said:

~ 63-1. Rules of order enumerated.

Nothing in the rules provided would change my answer.

Edited January 14, 2021 at 02:33 PM by Josh Martin

[Village Trustee]

4 hours ago, Josh Martin said:

Since this is a public body, it is very possible the board's rules or applicable law say something on this matter.

So far as RONR is concerned, however, a majority vote is a majority of the members present and voting. If all members were present and all voted, a majority would be two, as this is a majority of the three votes cast. The number of votes cast on a particular question could be less, if some members were absent or abstained.

Nothing in the rules provided would change my answer.

Thanks Josh, This is some information I received from NYCOM. ( New York Conference of Mayors) 

 

 General Construction Law Section 41, a copy of which is attached and provides as follows:

Whenever three or more public officers are given any power or authority, or three or more persons are charged with any public duty to be performed or exercised by them jointly or as a board or similar body, a majority of the whole number of such persons or officers, gathered together in the presence of each other or through the use of videoconferencing, at a meeting duly held at a time fixed by law, or by any by-law duly adopted by such board or body, or at any duly adjourned meeting of such meeting, or at any meeting duly held upon reasonable notice to all of them, shall constitute a quorum and not less than a majority of the whole number may perform and exercise such power, authority or duty. For the purpose of this provision the words “whole number” shall be construed to mean the total number which the board, commission, body or other group of persons or officers would have were there no vacancies and were none of the persons or officers disqualified from acting.

 

 

Absent additional language in your Charter or Village code, in my opinion, General Construction Law Section 41 controls, requiring at least three yes votes for your Board of Trustees to take action.

 

[Josh Martin]

7 minutes ago, Village Trustee said:

Thanks Josh, This is some information I received from NYCOM. ( New York Conference of Mayors) 

 General Construction Law Section 41, a copy of which is attached and provides as follows:

Whenever three or more public officers are given any power or authority, or three or more persons are charged with any public duty to be performed or exercised by them jointly or as a board or similar body, a majority of the whole number of such persons or officers, gathered together in the presence of each other or through the use of videoconferencing, at a meeting duly held at a time fixed by law, or by any by-law duly adopted by such board or body, or at any duly adjourned meeting of such meeting, or at any meeting duly held upon reasonable notice to all of them, shall constitute a quorum and not less than a majority of the whole number may perform and exercise such power, authority or duty. For the purpose of this provision the words “whole number” shall be construed to mean the total number which the board, commission, body or other group of persons or officers would have were there no vacancies and were none of the persons or officers disqualified from acting.

 

 

Absent additional language in your Charter or Village code, in my opinion, General Construction Law Section 41 controls, requiring at least three yes votes for your Board of Trustees to take action.

I'm glad I made sure to include the "check the law" caveat.

While this is ultimately a legal question and is therefore beyond the scope of RONR and this forum, based upon the facts provided, I am inclined to agree with the advice you received from the New York Conference of Mayors, given that the rule quite clearly states "For the purpose of this provision the words “whole number” shall be construed to mean the total number which the board, commission, body or other group of persons or officers would have were there no vacancies and were none of the persons or officers disqualified from acting."

Edited January 14, 2021 at 04:39 PM by Josh Martin

[Dan Honemann]

What you have quoted from General Construction Law Section 41 appears to relate only to the number of members whose presence is needed in order to constitute a quorum, and not to the votes required for the adoption of a motion, but that's just my view of it which counts for nothing.

[Village Trustee]

3 hours ago, Josh Martin said:

I'm glad I made sure to include the "check the law" caveat.

While this is ultimately a legal question and is therefore beyond the scope of RONR and this forum, based upon the facts provided, I am inclined to agree with the advice you received from the New York Conference of Mayors, given that the rule quite clearly states "For the purpose of this provision the words “whole number” shall be construed to mean the total number which the board, commission, body or other group of persons or officers would have were there no vacancies and were none of the persons or officers disqualified from acting."

Hmm. Thanks again.. I'm not sure what to do next. Constitutional attorney? judge?  At this point we are at a Mexican standoff. No business will be conducted until the next election.. Nov.2021. Stay safe. 

[Josh Martin]

1 minute ago, Village Trustee said:

Hmm. Thanks again.. I'm not sure what to do next. Constitutional attorney? judge?  At this point we are at a Mexican standoff. No business will be conducted until the next election.. Nov.2021. Stay safe. 

The assembly could seek additional legal advice on what the provision in question means.

Failing that, is there no provision for filling vacancies?

[Gary Novosielski]

18 hours ago, Village Trustee said:

We are a small Chartered Village, Our Board is made up of 5 Trustees and 1 Mayor. The Mayors only role is to break a tie and not a voting member of the board. We lost a Trustee do to a sudden death and lost a second Trustee to a resignation. We are now a 3 member Board with 2 open seats. When we vote we need a majority vote to pass. Here's the question:  Is the majority 3 "yes" votes or 2 "yes" votes. Does the rule state a majority is 3 of the 5 or 2 of the remaining 3?...

The quote you posted had to do with quorum, which is a majority of the members.  Since you have only three members, a quorum would be two.  But this only determines how many must be present for the conduct of substantive business.

As for votes, a majority vote is any vote where the number of affirmative votes is strictly greater than the number of negative votes, if any.

If all three members vote, 2 ayes is a majority.

If only two members are present, and both vote, they must agree, since 1 is not greater than 1.

If one member votes and the other(s) abstain(s), that is a majority, since 1 is greater than 0.

 

[Dan Honemann]

I agree, as I stated above, that what has been quoted from General Construction Law Section 41 appears to relate only to the number of members whose presence is needed in order to constitute a quorum, and not to the votes required for the adoption of a motion, but someone more familiar with the matter has apparently indicated otherwise.

In any event, this provision does appear to require the presence of 3 members in order to constitute a quorum.

[Village Trustee]

20 hours ago, Josh Martin said:

The assembly could seek additional legal advice on what the provision in question means.

Failing that, is there no provision for filling vacancies?

Our Charter speaks: Trustees can appoint to fill empty seats.

20 hours ago, Josh Martin said:

The assembly could seek additional legal advice on what the provision in question means.

Failing that, is there no provision for filling vacancies?

 

[Josh Martin]

2 minutes ago, Village Trustee said:

Our Charter speaks: Trustees can appoint to fill empty seats.

I see. And I suppose they can't agree on who to appoint either?

Well, best of luck with all that.

Edited January 15, 2021 at 01:30 PM by Josh Martin

[Village Trustee]

2 hours ago, Daniel H. Honemann said:

I agree, as I stated above, that what has been quoted from General Construction Law Section 41 appears to relate only to the number of members whose presence is needed in order to constitute a quorum, and not to the votes required for the adoption of a motion, but someone more familiar with the matter has apparently indicated otherwise.

In any event, this provision does appear to require the presence of 3 members in order to constitute a quorum.

To fill any vacancy in any office, except that of Trustee and Village Justice, by appointing a suitable person therein, who shall hold the office for the residue of the term unless sooner removed, and to fill any vacancy in the office of Trustee or Village Justice by the appointment of a suitable person, who shall hold office for the extent and for the period of time set forth herein: [L.L. No. 1-1987; L.L. No. 3-2016] 

A majority of the Board of Trustees shall constitute a quorum for the transaction of business, but a lesser number may adjourn and compel the attendance of absent members as provided by the Village Law of the State of New York.

Our Board is 5, 3 seated. 2 empty.

 

[Village Trustee]

5 minutes ago, Josh Martin said:

I see. And I suppose they can't agree on who to appoint either?

Well, best of luck with all that.

lol.. yes. Mexican stand off.

[Dan Honemann]

2 minutes ago, Village Trustee said:

To fill any vacancy in any office, except that of Trustee and Village Justice, by appointing a suitable person therein, who shall hold the office for the residue of the term unless sooner removed, and to fill any vacancy in the office of Trustee or Village Justice by the appointment of a suitable person, who shall hold office for the extent and for the period of time set forth herein: [L.L. No. 1-1987; L.L. No. 3-2016] 

A majority of the Board of Trustees shall constitute a quorum for the transaction of business, but a lesser number may adjourn and compel the attendance of absent members as provided by the Village Law of the State of New York.

 

 

Our Board is 5, 3 seated. 2 empty.

 

None of this additional information is relevant to the opinion which I have expressed.

[Richard Brown]

On 1/14/2021 at 10:31 AM, Village Trustee said:

not less than a majority of the whole number may perform and exercise such power, authority or duty. For the purpose of this provision the words “whole number” shall be construed to mean the total number which the board, commission, body or other group of persons or officers would have were there no vacancies and were none of the persons or officers disqualified from acting.

I think perhaps I might disagree somewhat with the opinion of Mr. Honemann and some of the others who have posted in this thread.

While I agree that the quoted provision initially appears to be a quorum provision,  I believe the highlighted provision above CAN BE INTERPRETED as being equivalent to a statement that “no action shall be effective unless adopted by the vote of a majority of the entire authorized membership of the board”

Since this board has an authorized membership of five members, it is my opinion that the provision can also be interpreted to mean that no action can become law unless adopted by the vote of at least three members, regardless of how many vacancies there might be and regardless of how many members are present.

Such a provision is quite common in the law regarding elected bodies involving city councils, county governing councils and boards, and even sometimes state legislatures.

I believe that the quoted provision is poorly written and a bit ambiguous in regard to the number of votes required to adopt legislation and that ultimately this is a question of law and of interpreting the relevant provision of state law and is beyond the scope of this forum.
 

 

[J. J.]

Based on what is posted, I agree with Mr. Honemann, especially the part that his opinion counts for nothing.   

(Only joking about the part after the comma, I agree with him.)

I would be concerned, however, that there is something else in the charter (or applicable statute), that requires a majority of the entire membership to make these appointments.  I have seen things like that in statute from another state.

It would be advisable to ask an attorney licensed to practice law in NY, preferably one with experience in local government, this question. 

[Shmuel Gerber]

On 1/14/2021 at 11:31 AM, Village Trustee said:

Thanks Josh, This is some information I received from NYCOM. ( New York Conference of Mayors) 

 

 General Construction Law Section 41, a copy of which is attached and provides as follows:

Whenever three or more public officers are given any power or authority, or three or more persons are charged with any public duty to be performed or exercised by them jointly or as a board or similar body, a majority of the whole number of such persons or officers, gathered together in the presence of each other or through the use of videoconferencing, at a meeting duly held at a time fixed by law, or by any by-law duly adopted by such board or body, or at any duly adjourned meeting of such meeting, or at any meeting duly held upon reasonable notice to all of them, shall constitute a quorum and not less than a majority of the whole number may perform and exercise such power, authority or duty. For the purpose of this provision the words “whole number” shall be construed to mean the total number which the board, commission, body or other group of persons or officers would have were there no vacancies and were none of the persons or officers disqualified from acting.

 

 

Absent additional language in your Charter or Village code, in my opinion, General Construction Law Section 41 controls, requiring at least three yes votes for your Board of Trustees to take action.

 

 

On 1/14/2021 at 11:44 AM, Daniel H. Honemann said:

What you have quoted from General Construction Law Section 41 appears to relate only to the number of members whose presence is needed in order to constitute a quorum, and not to the votes required for the adoption of a motion, but that's just my view of it which counts for nothing.

 

On 1/15/2021 at 5:41 AM, Daniel H. Honemann said:

I agree, as I stated above, that what has been quoted from General Construction Law Section 41 appears to relate only to the number of members whose presence is needed in order to constitute a quorum, and not to the votes required for the adoption of a motion, but someone more familiar with the matter has apparently indicated otherwise.

In any event, this provision does appear to require the presence of 3 members in order to constitute a quorum.

 

On 1/15/2021 at 12:10 PM, Richard Brown said:

I think perhaps I might disagree somewhat with the opinion of Mr. Honemann and some of the others who have posted in this thread.

While I agree that the quoted provision initially appears to be a quorum provision,  I believe the highlighted provision above CAN BE INTERPRETED as being equivalent to a statement that “no action shall be effective unless adopted by the vote of a majority of the entire authorized membership of the board”

Since this board has an authorized membership of five members, it is my opinion that the provision can also be interpreted to mean that no action can become law unless adopted by the vote of at least three members, regardless of how many vacancies there might be and regardless of how many members are present.

Such a provision is quite common in the law regarding elected bodies involving city councils, county governing councils and boards, and even sometimes state legislatures.

I believe that the quoted provision is poorly written and a bit ambiguous in regard to the number of votes required to adopt legislation and that ultimately this is a question of law and of interpreting the relevant provision of state law and is beyond the scope of this forum.

I would note that the title of this section is "Quorum and majority", and in New York the courts, the attorney general, and the Committee on Open Government have all promulgated Mr. Brown's interpretation. I am not a lawyer, but I am fairly confident that that is the current state of the law. I'll quote from one opinion (in my next post), because I think it's interesting in that it acknowledges the ambiguity but also exhibits the same type of general looseness or confusion of terms often found in court opinions related to parliamentary procedure.

[Shmuel Gerber]

Quoted from https://scholar.google.com/scholar_case?case=16823802252198695200 :

… The Board consists of nine members. The order challenged herein was the result of a vote of three in favor of the determination and three dissenting therefrom, with one member absent and two abstaining. The three who voted for the order consisted of two representatives of the real estate industry and CAB's 852*852 impartial chairman. The three who opposed the order were all tenant representatives. However, pursuant to CAB's rules and practices only two of their votes were counted. Therefore, the order was issued by a vote of 3-2.

This procedure offends the law for a number of reasons. CAB is a public body, set up by statute, and is governed by General Construction Law § 41. Said section sets certain guidelines concerning the number of members of a public body whose presence and/or participation is required to make legally effective the action taken by that body. It states, in pertinent part "Whenever * * * three or more persons are charged with any public duty to be performed or exercised by them jointly or as a board or similar body, a majority of the whole number of such persons * * * shall constitute a quorum and not less than a majority of the whole number may perform and exercise such power, authority or duty" (emphasis added). The "whole number" is the total number of members with no vacancies or disqualifications. While the language used is not entirely clear as to whether a majority of the whole number must vote affirmatively or whether a majority of the whole number must merely participate in the voting regardless of their actual vote, the ambiguity has been eliminated by the courts. The statute requires that a majority of the Board's total membership vote in favor of the action to be taken. (See, Matter of Town of Smithtown v Howell, 31 N.Y.2d 365; Matter of Whitman Game Room v Zoning Bd. of Appeals, 54 AD2d 764; Matter of Squicciarini v Planning Bd., 48 AD2d 687, affd 38 N.Y.2d 958; Rockland Woods v Incorporated Vil. of Suffern, 40 AD2d 385; Matter of Temporary State Charter Revision Commn. v Board of Elections, 83 Misc 2d 1029, affd 49 AD2d 845, affd 37 N.Y.2d 859.)

In the instant case, the fact that only six members participated did not invalidate the procedure since only participation of five, a majority of the total, was required for a quorum. (Rockland Woods v Incorporated Vil. of Suffern, supra, at pp 386-387; see also, Matter of Whitman Game Room v Zoning Bd. of Appeals, supra; Matter of Temporary State Charter Revision Commn. v Board of Elections, supra, at p 1031.)

However, the Board's determination was ineffective since less than a majority of all the members voted in support of it. In other words, support of a majority of the total membership (5 out of 9) not merely a majority of those who voted was required. The actual member of affirmative votes was three. …

[Village Trustee]

Thank you all for your help. The information provided has been very helpful.. Stay safe.