Request from a member to have their name recorded in the minutes with their vote

[Guest ToBo]

We had a meeting yesterday and our secretary was out so I had to take minutes.  We had a member who objected strongly to something and voted "no" against the tide.

When he voted "no" he said "I vote 'no' and I want it recorded in the minutes how I voted".

I heard no objections from the body.

Normally we would just record "motion adopted" and we wouldn't list any names, unless it was a roll call vote, which is rare.

What is the correct way to record this vote in the minutes?

Jim

[Richard Brown]

I am fairly confident others may disagree with me here, but I am very firm in my position on this.

First, however, I must ask whether this was a general membership meeting or was it a board meeting? If it was a general membership meeting, then I agree that normally the statement that the member voted no would not be included in the minutes. However, when the minutes are up for approval, any member can move to “Correct“ the minutes to reflect that member Smith voted no. A motion to reflect how the member voted can also be adopted by means of a majority vote.

On the other hand,  If this was the meeting of the board of directors or the executive committee, I feel strongly that the member’s  request should be granted almost as a matter of routine, especially if this organization is incorporated. This is because the corporation laws and other laws of many states, perhaps most states, provide that a member of a board (and perhaps of an organization) who votes against a motion cannot be held personally liable for damages if the adoption of that motion later results in a lawsuit being filed and damages being awarded against the organization if his vote in opposition to  the action is reflected in the minutes. In my opinion, it is far better to simply add the notation that the member voted no and move on. Doing also goes a long way toward maintaining harmony within the organization.

Another reason for my position is that when it comes to board members who are generally elected by the membership, the membership has a right to know how various board members voted on controversial issues. I do not think this information should be withheld from them.

Edited November 13, 2022 at 05:08 PM by Richard Brown
Typographical correction and added last paragraph

[Josh Martin]

On 11/13/2022 at 10:46 AM, Guest ToBo said:

We had a meeting yesterday and our secretary was out so I had to take minutes.  We had a member who objected strongly to something and voted "no" against the tide.

When he voted "no" he said "I vote 'no' and I want it recorded in the minutes how I voted".

I heard no objections from the body.

Normally we would just record "motion adopted" and we wouldn't list any names, unless it was a roll call vote, which is rare.

What is the correct way to record this vote in the minutes?

RONR has no clear answer to this question. I would suggest something like the following:

Mr. XXX moved “that [text of motion].” The motion was adopted after debate. Mr. YYY voted no.

On 11/13/2022 at 11:03 AM, Richard Brown said:

I am fairly confident others may disagree with me here, but I am very firm in my position on this.

First, however, I must ask whether this was a general membership meeting or was it a board meeting? If it was a general membership meeting, then I agree that normally the statement that the member voted no would not be included in the minutes. However, when the minutes are up for approval, any member can move to “Correct“ the minutes to reflect that member Smith voted no. A motion to reflect how the member voted can also be adopted by means of a majority vote.

On the other hand,  If this was the meeting of the board of directors or the executive committee, I feel strongly that the member’s  request should be granted almost as a matter of routine, especially if this organization is incorporated. This is because the corporation laws and other laws of many states, perhaps most states, provide that a member of a board (and perhaps of an organization) who votes against a motion cannot be held personally liable for damages if the adoption of that motion later results in a lawsuit being filed and damages being awarded against the organization if his vote in opposition to  the action is reflected in the minutes. In my opinion, it is far better to simply add the notation that the member voted no and move on. Doing also goes a long way toward maintaining harmony within the organization.

Another reason for my position is that when it comes to board members who are generally elected by the membership, the membership has a right to know how various board members voted on controversial issues. I do not think this information should be withheld from them.

The OP's question wasn't whether the request should be granted, but how it should be recorded in the minutes.

[Richard Brown]

On 11/13/2022 at 11:21 AM, Josh Martin said:

RONR has no clear answer to this question. I would suggest something like the following:

Mr. XXX moved “that [text of motion].” The motion was adopted after debate. Mr. YYY voted no.

I agree.

On 11/13/2022 at 11:21 AM, Josh Martin said:

The OP's question wasn't whether the request should be granted, but how it should be recorded in the minutes.

 

On 11/13/2022 at 10:46 AM, Guest ToBo said:

Normally we would just record "motion adopted" and we wouldn't list any names, unless it was a roll call vote, which is rare.

What is the correct way to record this vote in the minutes?

I interpreted the question as wanting to know whether any mention should be made of the one member wanting the minutes to reflect that the member voted no as opposed to the minutes simply stating that the "motion was adopted".   I agree with your suggested answer.

[Guest ToBo]

Thanks.  Both responses were helpful because I wasn't 100% sure that I was considering all the ramifications.

 

[Gary Novosielski]

On 11/13/2022 at 11:46 AM, Guest ToBo said:

We had a meeting yesterday and our secretary was out so I had to take minutes.  We had a member who objected strongly to something and voted "no" against the tide.

When he voted "no" he said "I vote 'no' and I want it recorded in the minutes how I voted".

I heard no objections from the body.

Normally we would just record "motion adopted" and we wouldn't list any names, unless it was a roll call vote, which is rare.

What is the correct way to record this vote in the minutes?

Jim

As things stand, there isn't one.  

You say you heard no objections.  Are we to assume that you were presiding at the time?  If so, what happened next?   Did you say "Is  there objection?  <pause> Hearing none, the vote will be recorded."?

Unless there was a clear opportunity to object, and you directed the resulting action, you did not have valid unanimous consent.  

Ordinarily, if a recorded vote is ordered by a rule or an adopted motion, everyone's vote, by roll-call, is recorded in the minutes.  A single member typically does not have the right to demand a recording of their single vote unless approved by the assembly by an adopted motion (or unanimous consent request).

But there are situations, depending on the type of organization, where government regulations provide that members dissenting from a majority decision to do something that is legally questionable have the right to demand that their dissent be recorded, which would afford some sort of protection from culpability, should anything untoward hit the fan.  I am not a lawyer, and you'd need to consult one to see if that applies to your organization.

 

 

[Guest ToBo]

On 11/14/2022 at 8:06 AM, Gary Novosielski said:

You say you heard no objections.  Are we to assume that you were presiding at the time?  If so, what happened next?   Did you say "Is  there objection?  <pause> Hearing none, the vote will be recorded."?

I was presiding, yes.  What happened next is I said I wasn't sure if that was something we could do.  The Executive Director then turned to me and said "yes, that's fine".  I then moved on.

My initial reaction was that if I had wanted a roll call vote I would have asked for one.  After the Executive Director commented I let it go.  But that evening I thought about how I could have treated this as a motion, just as you said.

 

[Gary Novosielski]

On 11/14/2022 at 9:21 PM, Guest ToBo said:

I was presiding, yes.  What happened next is I said I wasn't sure if that was something we could do.  The Executive Director then turned to me and said "yes, that's fine".  I then moved on.

My initial reaction was that if I had wanted a roll call vote I would have asked for one.  After the Executive Director commented I let it go.  But that evening I thought about how I could have treated this as a motion, just as you said.

 

That's right.  The assembly has the right to include extraneous material in its minutes.  The Executive Director does not.

[Rob Elsman]

As I have opined in other similar posts, the member's request to have his vote recorded in the minutes is really an improperly formed motion, Motions Relating to Methods of Voting and the Polls, RONR (12th ed.), §30. The request is out of order for two reasons: a) The request was an interruption while a vote was in progress, RONR (12th ed.) 45:6, and b) The request was an improperly formed motion which was not admissible as it was framed.

Contrary to the opinion of some on this forum, I opine that the authors did not intend that what is said in RONR (12th ed.) 48:3 be construed to apply to methods of voting, for which there is an incidental motion, which is the proper way to have a recorded vote--thus, "I move that the vote on the present question be taken by roll call", or, "I move the yeas and nays".

[Richard Brown]

 

Mr. Elsaman, Section 48:3, which is new to the 12th edition, is very clear that the assembly, by a majority vote, can add whatever it wants to in the minutes, without limitation.  The pertinent part reads as follows: " . . .a majority vote may direct the inclusion of specific additional information in the minutes of a particular meeting".  That provision is clear and unambiguous and contains no limitation.  As I recall from many prior discussions in this forum, that has been considered the unwrriten "rule" and understanding all along, but it was "codified" in the 12th edition.  However, even without this "new" rule in 48:3, the rules could be suspended by a two thirds vote to have the minutes of a particular meeting include whatever the assembly wants to have included.

As a practical matter, having the vote (especially the "no" vote) of a particular board member recorded in the minutes of a board meeting is very common and is due in large part to the corporation laws of many states which provide that a member whose no vote is recorded in the minutes is relieved of personal liability from damages that the organization might incur by virtue of the adoption of a motion which the member voted against.  A roll call vote is NOT the only way to have such a member's vote recorded and nothing in RONR  suggests that to be the case.  It is simply ONE way in which it can be done.  Having the minutes reflect that how a particular member voted on a particular motion is another way which to me is clearly covered by 48:3.

 

 

[Rob Elsman]

We will have to agree to disagree, Mr. Brown.

[Atul Kapur]

Mr. Elsman's opinion is not, as I recall from other threads, shared by many. I'll count myself among those who see a difference between one member requesting that their own vote be recorded and moving that everyone's vote is recorded in a roll call vote.

In short, I agree with Mr. Brown and disagree with Mr. Elsman .

[Gary Novosielski]

On 11/16/2022 at 12:15 PM, Rob Elsman said:

We will have to agree to disagree, Mr. Brown.

I don't think you necessarily disagree with each other.

I agree with Mr. Elsman that in the example as the OP phrased it, this amounts to a motion during voting, which is prohibited. 

And I agree with Mr. Brown in that there are good reasons, sometimes legal ones, that a single member should, when appropriate, be allowed to have his dissent recorded in the minutes.

It seems to me that they way to handle this which violates no rule, is for the member to simply vote or abstain without further comment.  If it should turn out that the member is actually in the minority, only then does the recording of his vote become relevant. And it is at that point that he can request (or in some cases demand) that the minutes reflect his No vote.

Edited November 18, 2022 at 07:39 PM by Gary Novosielski
strike words

[Rob Elsman]

Mr. Novosielski, I think what Mr. Brown and I are disagreeing about is whether what is said in RONR (12th ed.) 48:3 provides a procedure for an individual member to request that his vote be entered on the minutes when the assembly has not ordered a recorded vote.  Mr. Brown seems to think so; I do not.

[Richard Brown]

On 11/18/2022 at 1:38 PM, Gary Novosielski said:

I don't think you necessarily disagree with each other.

Unfortunately, I believe that Mr. Elsman and I do still strongly disagree. I am very firmly of the opinion that it is entirely appropriate for a member,  especially a member of a board, to have the minutes reflect that he voted against a certain motion. I believe the vast majority of our colleagues and the authorship team agree. Mr. Elsman believes equally strongly that it is not appropriate for the minutes to reflect how a  member voted other than in a roll call vote and that section 48:3 was never intended to permit the minutes to reflect how an individual member voted. We disagree pretty strongly on that point.

Mr. Elsman might have a point regarding the manner in which the member requested that his vote be recorded, but I believe he is of the opinion that such a request or motion is not in order regardless of when or how it is made.   

We have disagreed on this point in several previous threads. I believe the vast majority of our colleagues and also the authorship team are of the opinion that section 48:3 does permit the minutes to reflect how a particular member voted. Mr. Elsman does not, as evidenced by his comments in this thread and other threads on this issue. 


 

 

[Gary Novosielski]

I see.

Well, I know of several cases involving public bodies and corporations where the right was guaranteed by state regulations; when a member dissented from adoption of a question, he could demand that his No vote be reflected in the minutes and thereby avoid liability for the action of the majority.

This right is harder for me to locate in the text of RONR, but I think a request [33:22] would certainly be in order, and if I were a member, I'd be disinclined to object and, if it came to that, would vote Yes on such a motion, unless the practice became dilatory.  I'm on the no-harm-no-foul side of the issue.

Edited November 19, 2022 at 02:23 AM by Gary Novosielski