Quorum questions

[Guest Linda B]

I am city clerk for a very small town.  Our council consists of 4 city council members and the mayor.  We have an issue that needs voted on but two of our council members can't vote due to nepotism.  That leaves only 2 council members.  Does this constitute a quorum?  Does our mayor vote to create a quorum?    There is nothing in our bylaws that address this issue.  Any advice is appreciated.  

Thanks 

[Rob Elsman]

Whether or not the mayor is legally a voting member of the council, the quorum is three, not two.

If the mayor is legally a member of the council, he can be counted as one of the three; if the mayor is not legally a member of the council, he cannot be counted as one of the three.

Edited June 15, 2021 at 03:55 PM by Rob Elsman

[Dan Honemann]

8 minutes ago, Guest Linda B said:

I am city clerk for a very small town.  Our council consists of 4 city council members and the mayor.  We have an issue that needs voted on but two of our council members can't vote due to nepotism.  That leaves only 2 council members.  Does this constitute a quorum?  Does our mayor vote to create a quorum?    There is nothing in our bylaws that address this issue.  Any advice is appreciated.  

Thanks 

Do your governing documents actually prohibit these two members from voting? Nothing in Roberts Rules of Order does.

[George Mervosh]

"As indicated in 3:3, a quorum in an assembly is the number of members (see definition, 1:4) who must be present in order that business can be validly transacted. The quorum refers to the number of members present, not to the number actually voting on a particular question. "  RONR (12th ed.), 40:1

If the members in question are present, even though they may not be voting on this particular motion, they count toward a quorum as far as RONR is concerned.

You should check with the town's attorney to see if there are applicable rules in statute governing this matter as they will take precedence of the rules in RONR.

[Dan Honemann]

3 minutes ago, George Mervosh said:

If the members in question are present, even though they may not be voting on this particular motion, they count toward a quorum as far as RONR is concerned.

Is this true even if the governing documents actually deprive these members of the right to vote on the pending question? 

[George Mervosh]

10 minutes ago, Daniel H. Honemann said:

Is this true even if the governing documents actually deprive these members of the right to vote on the pending question? 

In my opinion, no.  Which is why your earlier question is spot on and why Guest Linda B should check with the town's attorney to answer it.  My response was only in the general sense that the members were voluntarily abstaining.  I should have been more clear.

Edited June 15, 2021 at 04:16 PM by George Mervosh

[Rob Elsman]

Since someone needs to stick his neck out and get it chopped off, I would venture that the citation that Mr. Mervosh so kindly offered emphasizes the presence of the member, who, after all, remains a member of the assembly, even if he is prohibited (say, by statute) from voting on a particular pending motion.  Thus, a disqualified city councilor does not stop being a (voting) member of the city council just because he is prohibited from voting on a particular motion.  If he is present when the motion is considered, he counts toward the quorum.  That's my opinion, anyway. 

[George Mervosh]

2 minutes ago, Rob Elsman said:

Since someone needs to stick his neck out and get it chopped off, I would venture that the citation that Mr. Mervosh so kindly offered emphasizes the presence of the member, who, after all, remains a member of the assembly, even if he is prohibited (say, by statute) from voting on a particular pending motion.  Thus, a disqualified city councilor does not stop being a (voting) member of the city council just because he is prohibited from voting on a particular motion.  If he is present when the motion is considered, he counts toward the quorum.  That's my opinion, anyway. 

I think if the governing documents or applicable statute take away a member's right to vote on a particular question, they are not, in fact, a voting member as defined in 1:4 for this particular matter.  So I respectfully disagree.

[Rob Elsman]

So, Mr. Mervosh, the disqualified member is prohibited from speaking in debate or applying subsidiary motions to the pending main motion?

[Guest Puzzling]

8 minutes ago, Rob Elsman said:

Since someone needs to stick his neck out and get it chopped off, I would venture that the citation that Mr. Mervosh so kindly offered emphasizes the presence of the member, who, after all, remains a member of the assembly, even if he is prohibited (say, by statute) from voting on a particular pending motion.  Thus, a disqualified city councilor does not stop being a (voting) member of the city council just because he is prohibited from voting on a particular motion.  If he is present when the motion is considered, he counts toward the quorum.  That's my opinion, anyway. 

I was just thinking to write something similar  just to show in the minutes that at the time of voting a quorum was present.

Maybe a better idea: Do the voting by roll call, then (following RONR) you need to add names of members present but not voting to establish a quorum. 

[George Mervosh]

5 minutes ago, Rob Elsman said:

So, Mr. Mervosh, the disqualified member is prohibited from speaking in debate or applying subsidiary motions to the pending main motion?

I don't know but if the governing documents or statute prohibit them from voting, they are not entitled to "full participation in its proceedings" and would not fit the definition of a member as described in 1:4 and therefore would not count toward a quorum on this particular matter, in my opinion.

Edited June 15, 2021 at 04:28 PM by George Mervosh

[Tim Wynn]

38 minutes ago, Daniel H. Honemann said:

Does our mayor vote to create a quorum?

A vote has no effect on satisfying a quorum requirement. A quorum is the number of members who must be present in order that business can be validly transacted.  

To better understand the comments between Mr. Mervosh and Mr. Honemann, see the following passages from RONR:

"As indicated in 3:3, a quorum in an assembly is the number of members (see definition, 1:4) who must be present in order that business can be validly transacted." - RONR (12th ed.) 40:1

"Whenever the term member is used in this book, it refers to full participating membership in the assembly unless otherwise specified. Such members are also described as “voting members” when it is necessary to make a distinction." - RONR (12th ed.) 1:4 

[Guest Thanks]

Thanks for the swift replies!  So its my understanding that having a quorum is not a problem since all of them are present.  With 2 council members not voting that leaves 2 council members left to vote.  So, if they vote the same the motion passes.  If they vote differently the mayor would then need to vote as tie breaker?  (He doesn't normally vote).   Does that break any rules that you know of?  Again, no bylaws that pertain to this situation. 

Thanks again!

[Tim Wynn]

22 minutes ago, Guest Thanks said:

So, if they vote the same the motion passes.

If they vote both vote in favor, yes. Of course, if they both vote against the motion, it fails.

23 minutes ago, Guest Thanks said:

If they vote differently the mayor would then need to vote as tie breaker?  (He doesn't normally vote).

No, that's not how it works. When a motion requires a majority vote for adoption, a tie simply means that the necessary majority was not achieved, and the motion is lost. In a case where the presiding officer is required to maintain impartiality, he only votes when his vote would affect the outcome. In the case of a tie, he would only vote if he wishes to vote in the affirmative, since adding a negative vote to a motion that is already lost would not affect the outcome. There is no need to "break" the tie. The motion will simply be lost. However, whether this rule (the rules against the chair voting unless his vote would affect the outcome) applies to your mayor is another question.

[Guest Puzzling]

33 minutes ago, Guest Thanks said:

Thanks for the swift replies!  So its my understanding that having a quorum is not a problem since all of them are present.  With 2 council members not voting that leaves 2 council members left to vote.  So, if they vote the same the motion passes.  If they vote differently the mayor would then need to vote as tie breaker?  (He doesn't normally vote).   Does that break any rules that you know of?  Again, no bylaws that pertain to this situation. 

Thanks again!

If no bylaws pertain and also no laws direct to other rules .

If one votes and this other votes against there is no majority in favor and the motion is not adopted. 

If both votes in favour there is unanimity and also a 2/3 vote.

 

[Atul Kapur]

7 hours ago, Guest Linda B said:

We have an issue that needs voted on but two of our council members can't vote due to nepotism.  That leaves only 2 council members.  Does this constitute a quorum?

I want to reinforce a point touched on in the previous replies: Because this is government body, you need to carefully check (or have your legal counsel carefully check) whatever statute or regulation or other governing document it is that says these two members are prohibited from voting because of nepotism. First, to see if they actually are prohibited from voting. Second, to see if that document addresses the question of whether they count for quorum.

For example, in my province, the act that governs municipalities gives a detailed definition of conflict of interest, describes in detail what a member who has a conflict of interest must do and must not do, makes it explicit that they do not count towards quorum for the affected issue (quorum is set at a majority of the total number of positions on the council), and describes what to do if quorum is not met because a number of members are "conflicted."

[Gary Novosielski]

10 hours ago, Daniel H. Honemann said:

Is this true even if the governing documents actually deprive these members of the right to vote on the pending question? 

I think not.  But then would they count toward the quorum requirement?  Perhaps if two of the four are disqualified, the quorum becomes a majority of the remaining two, i.e. two.

[Rob Elsman]

I think several of my  colleagues are confusing the existence of a basic right of an individual member to vote with a possible prohibition against exercising that right in certain circumstances.

[Guest Zev]

I fail to understand why this hot potato is not tossed to the city attorney and let him worry about it.

[Atul Kapur]

1 hour ago, Rob Elsman said:

I think several of my  colleagues are confusing the existence of a basic right of an individual member to vote with a possible prohibition against exercising that right in certain circumstances.

Please explain the difference between

• having a basic right that you are prohibited from exercising 
  and
• not having that right

[Shmuel Gerber]

1 hour ago, Atul Kapur said:

Please explain the difference between

• having a basic right that you are prohibited from exercising 
  and
• not having that right

Isn't it obvious? In the first case the member is counted in the quorum, and in the latter case he is not. 😉

[Dan Honemann]

5 hours ago, Atul Kapur said:

Please explain the difference between

• having a basic right that you are prohibited from exercising 
  and
• not having that right

 

4 hours ago, Shmuel Gerber said:

Isn't it obvious? In the first case the member is counted in the quorum, and in the latter case he is not. 😉

A nuance found only, of course, in the super-deluxe editions.  🙂

[Richard Brown]

On 6/15/2021 at 11:19 PM, Atul Kapur said:

Please explain the difference between

• having a basic right that you are prohibited from exercising 
  and
• not having that right

 

On 6/16/2021 at 12:52 AM, Shmuel Gerber said:

Isn't it obvious? In the first case the member is counted in the quorum, and in the latter case he is not. 😉

 

On 6/16/2021 at 5:21 AM, Daniel H. Honemann said:

 

A nuance found only, of course, in the super-deluxe editions.  🙂

Ahh, then I must have the "super-deluxe" edition.  That's the way I read it in mine.  I knew there must have been a reason for having to pay more for it pre-release!  There's more in it. 

[Richard Brown]

On 6/15/2021 at 6:02 PM, Atul Kapur said:

I want to reinforce a point touched on in the previous replies: Because this is government body, you need to carefully check (or have your legal counsel carefully check) whatever statute or regulation or other governing document it is that says these two members are prohibited from voting because of nepotism. First, to see if they actually are prohibited from voting. Second, to see if that document addresses the question of whether they count for quorum.

I agree with the comments by Dr. Kapur and urge Guest Linda B to carefully check for controlling state and local law on the subject.  It is sometimes covered in a state's ethics laws.  Regardless of where in the law it is found, it is usually there somewhere, but it may not address the quorum issue.  Hopefully, it does.  I will also add that those laws often, probably more often than not, speak in terms of an official being required to "recuse" himself from participating in certain proceedings.  That is different from merely abstaining on a vote.  In parliamentary terms, to abstain means simply to not vote.  But to recuse oneself from considering a matter in a public body often means full recusal and that the member shall not even participate in debate.  The law on that varies from state to state and from one local governing body to another.

[Gary Novosielski]

On 6/16/2021 at 1:52 AM, Shmuel Gerber said:

Isn't it obvious? In the first case the member is counted in the quorum, and in the latter case he is not. 😉

Oh, great.  🥴