Affirmative vote of majority of members present with multiple abstentions

[Guest Stephen B. Johnson]

 

A home rule municipality in Colorado operates as a general assembly and has adopted Robert's Rules of Order. It held a public hearing on an application to rezone property.

The vote on the motion to deny the application was as follows:

·         10 votes in favor of the motion

·         9 votes against the motion

·         8 abstentions

 Section 6 of the Home Rule Charter states in relevant part:

Except as otherwise provided for in this Charter, every ordinance, resolution or motion shall require the affirmative vote of a majority of the members of the General Assembly present.

 (Emphasis added.)

 

The proponent of the application argues: By my math, 27 GA members were present, yet only 10 members voted in favor of the denial resolution.  That was not a majority “of the members of the General Assembly present.”  Because “shall” is mandatory, the 10 votes did not meet the number required for the motion to pass and the denial was ineffective.  Because the denial was ineffective, the GA has not yet taken final action on the Amendment, and it must be returned to the GA for the GA to take action in accordance with the Charter’s voting requirements.

 

The abstentions were primarily based on personal conflicts of interest. The Charter prohibits members from voting when they have a personal conflict of interest.

 

Query - Does an abstention or refusal to vote make a General Assembly member not present at the time of the vote because of "refusal to participate" or Charter-based preclusion of the right to vote? Is an abstention vote the same as leaving the room? Does the common law or case law or local custom and practice require or allow an interpretation of a majority of members present, as members present and voting? Can abstaining members may be counted to determine a quorum, but not be "present" for the vote due to refusal to participate?

Here are some authorities I picked up from the abstention topic. This is a new topic because there is no issue as to a quorum being met or as to a majority of a quorum.

Robert's Rules 

6. Do abstention votes count?

The phrase “abstention votes” is an oxymoron, an abstention being a refusal to vote. To abstain means to refrain from voting, and, as a consequence, there can be no such thing as an “abstention vote.”

In the usual situation, where the rules require either a “majority vote” or a “two-thirds vote,” abstentions have absolutely no effect on the outcome of the vote since what is required is either a majority or two thirds of the votes cast. On the other hand, if the rules explicitly require a majority or two thirds of the members present, or a majority or two thirds of the entire membership, an abstention will have the same effect as a “no” vote. Even in such a case, however, an abstention is not a vote and is not counted as a vote. [RONR (12^th ed.) 44:1, 44:3, 44:9(a); see also p. 66 of RONR In Brief.]

[Remainder of post removed by moderator.]

Edited February 12, 2023 at 12:05 AM by Shmuel Gerber
Extraneous references

[Gary Novosielski]

The default threshold in RONR for adopting a motion is a majority vote, which is defined as approval by more than half of those present and voting.  In that case, a 10-9 vote would qualify.

But it appears from your rule that what is required is a majority of those members present, whether voting or not (i.e., abstaining).  In that case, 10 out of 27 present is not a majority, and the motion would fail.

Abstentions have nothing to do with quorum.  To satisfy the quorum, all that is necessary is that the requisite number of members are physically present, whether they vote or not.

Abstentions are not votes, and do not count as votes, so they do not affect the results of a normal majority vote.  But if the vote threshold is a majority of members present, then abstentions, although they still do not count as votes, have the same effect as a No vote when calculating whether a motion is adopted or not.

 

[Josh Martin]

I would first note that because this question relates to the interpretation of a home rule municipality's charter, and likely also relates to applicable state law, this is ultimately a legal question which should be directed to an attorney. To the extent that Robert's Rules of Order and this forum may be of assistance, however, I would answer as follows.

On 2/10/2023 at 3:59 PM, Guest Stephen B. Johnson said:

Does an abstention or refusal to vote make a General Assembly member not present at the time of the vote because of "refusal to participate" or Charter-based preclusion of the right to vote?

No. In parliamentary law, the word "present" has an ordinary, straightforward meaning, particularly in the context of an in-person meeting. A person who is physically located in the meeting room is present, and a person who is not physically located in the meeting room is not present. In order for persons to not be present, they would have to leave the room.

I think there is certainly no doubt that persons who abstain because of "refusal to participate" are counted for purposes of determining whether "a majority of members present" have voted in the affirmative, at least as a parliamentary matter.

In the event that there is a "Charter-based preclusion of the right to vote," I think that is a more interesting question. Such persons are certainly still present (unless they leave the room), but it may be the case that such persons are not members for the purposes of the vote in question.

"A member of an assembly, in the parliamentary sense, as mentioned above, is a person entitled to full participation in its proceedings, that is, as explained in 3 and 4, the right to attend meetings, to make motions, to speak in debate, and to vote." RONR (12th ed.) 1:4

So if the charter in fact deprives certain persons of the right to vote on a particular question, then those persons are not "members" in the parliamentary sense for the purposes of that vote, and therefore do not count in determining "a majority of members present."

On 2/10/2023 at 3:59 PM, Guest Stephen B. Johnson said:

Is an abstention vote the same as leaving the room?

No.

On 2/10/2023 at 3:59 PM, Guest Stephen B. Johnson said:

Does the common law or case law or local custom and practice require or allow an interpretation of a majority of members present, as members present and voting?

I am not an attorney and cannot speak to what common law, case law, or local custom and practice require or allow. Such questions should be directed to an attorney.

So far as Robert's Rules of Order and the common parliamentary law is concerned, however, "members present" and "members present and voting" are two different things, and it is not reasonable to interpret "members present" as "members present and voting." See RONR (12th ed.) 44:1, 44:8-9.

On 2/10/2023 at 3:59 PM, Guest Stephen B. Johnson said:

Can abstaining members may be counted to determine a quorum, but not be "present" for the vote due to refusal to participate?

No. There is no circumstance in RONR or the common parliamentary law in which a person is considered to be simultaneously present and not present.

Once again, I would advise consulting an attorney on this matter. Public bodies quite frequently have rules which a.) require a proportion of the members present (or of the entire membership) for the adoption of certain actions and b.) prohibit members from voting in certain cases. Obviously, the interaction of these rules can occasionally create problems. Legislators will sometimes foresee these issues and create rules for how to handle such issues. It may well be there is a solution to this matter in state law or case law, but that question is beyond the scope of RONR and this forum.

Edited February 12, 2023 at 01:10 PM by Josh Martin