Abstentions

[Marcia Rogish]

On a volunteer Board of ten people, a motion was made to fill a vacancy.  The board normally has 11 people, there was then one resignation.  The motion to fill the seat had 5 Yays, 3 nays and 2 abstentions.  Is the required majority a majority of the ten members present?  Or is it a majority of the 8 people voting?  
thank you!

[Bruce Lages]

If you are going by the rules in RONR, it is a majority of the members present and voting. But you should check your board's rules to see if they require something different.

[Marcia Rogish]

Our Board bylaws say”the Board May fill vacancies by majority vote”

it goes on to say in another section called manner of acting, “Majority vote.  Except as otherwise required by law, in these Bylaws , the act of the majority of the directors present at the meeting at which a quorum is present shall be the act of the Board.”

our bylaws also state that “The conduct of all meetings of the membership shall be in accordance with Roberts Rules of Order.”

since it doesn’t directly address the issue of abstentions, would we default to RR of O and assume it’s a majority of those actually voting?

[Bruce Lages]

What you have quoted from your bylaws says that you have a different definition of 'majority vote' than the RONR definition. Your requirement is a majority of " the directors present at the meeting...", so in the example you gave in your first post that motion would not have been adopted - it obtained 5 votes in favor with 10 members present, and 5 is not a majority of 10 (as an aside, the definition of a majority is 'more than half').

It is true, as you say, that what you quoted from your bylaws doesn't directly address the issue of abstentions, but it does involve abstentions indirectly. Whenever the vote necessary for adoption of a motion is based on the number of members present, as opposed to the number of members present and voting, an abstention will have the same effect as a 'no' vote, even though an abstention is, by definition, not a vote. Each abstention reduces the potential number of votes in favor, but doesn't reduce the number of members present.

You would not default to the RONR definition of a majority vote because your bylaws specify a different definition and the rules in your bylaws outrank those in RONR.

[Josh Martin]

On 1/5/2023 at 1:03 PM, Marcia Rogish said:

Our Board bylaws say”the Board May fill vacancies by majority vote”

it goes on to say in another section called manner of acting, “Majority vote.  Except as otherwise required by law, in these Bylaws , the act of the majority of the directors present at the meeting at which a quorum is present shall be the act of the Board.”

Based on these two rules, taken together, my interpretation would be that a majority of the members present is required to fill a vacancy. So that would be six votes if ten members are present.

[Richard Brown]

I tend to agree with my colleagues, but have a nagging question:  Do your bylaws actually say that ”the Board May fill vacancies by majority vote”?  Or do they only say what you quoted later. to-wit: “Majority vote.  Except as otherwise required by law, in these Bylaws , the act of the majority of the directors present at the meeting at which a quorum is present shall be the act of the Board.”

If they actually say the Board may fill vacancies by majority vote, there creates an ambiguity or conflict which can reasonably be interpreted to mean that an ordinary majority vote as defined in RONR shall be used for filling vacancies.

Regardless, since your bylaws also say that “The conduct of all meetings of the membership shall be in accordance with Roberts Rules of Order.”, I suggest you consider amending the bylaws to remove the provision which says “Majority vote.  Except as otherwise required by law, in these Bylaws , the act of the majority of the directors present at the meeting at which a quorum is present shall be the act of the Board.”   That provision conflicts with the provisions of RONR and isn't necessary because RONR defines the vote threshold for various actions and also defines what a majority vote is. 

[Atul Kapur]

On 1/5/2023 at 10:23 PM, Richard Brown said:

If they actually say the Board may fill vacancies by majority vote, there creates an ambiguity or conflict which can reasonably be interpreted to mean that an ordinary majority vote as defined in RONR shall be used for filling vacancies.

I disagree. Principle of Interpretation 2 (56:68(2)) says that the true meaning is the interpretation that does not place two provisions of the bylaws in conflict. 

The interpretation that resolves any potential conflict is the one where the definition of majority vote in 

”the Board May fill vacancies by majority vote”

is the definition provided in the "section called manner of acting"

“Majority vote.  Except as otherwise required by law, in these Bylaws , the act of the majority of the directors present at the meeting at which a quorum is present shall be the act of the Board.”

Saying that "majority vote" in the former provision is as per RONR unnecessarily creates a conflict, so that interpretation is rejected.

There is no conflict with the provision adopting RONR because RONR itself recognizes that it yields to the bylaws in cases where there would otherwise be a conflict.

Edited January 6, 2023 at 07:20 AM by Atul Kapur