Abstentions and a Quorum

[Guest Joe B]

Our city council currently has a member with health issues, leading to only four members regularly in attendance. My question is this, if we have a vote where the result is 2 ayes, 1 nay, and 1 abstention, does the measure pass? Or does the text of our charter require that three ayes are necessary due to four members being in attendance?  I am unsure if the abstaining member counts in the tally of those present when that member abstains. Here is the relevant text from our charter.

Section 12. Quorum. Be it further enacted, that a majority of the five (5) Councilmen of the City Council shall constitute a quorum for the transaction of business. If less than a quorum is present at a regular or special meeting, no action shall be taken except such number may recess the meeting to a time certain when a quorum may consider any matter which could have been properly considered at the recessed meeting, and such action in recessing the meeting shall be recorded by the recorder.

Section 13. Procedure. Be it further enacted, that at all meetings of the City Council, each of the five (5) Councilmen shall be entitled to a vote on all matters properly presented to the Council, or before the Council for action, and a majority vote of those present shall be necessary for affirmative or negative action by the Council. The Mayor shall be entitled to a voice at all meetings, but no vote, except in case of a tie in the voting of the Councilmen, in which case the Mayor shall be entitled to a vote and cast the deciding vote.

[Josh Martin]

On 2/20/2024 at 1:22 PM, Guest Joe B said:

My question is this, if we have a vote where the result is 2 ayes, 1 nay, and 1 abstention, does the measure pass? Or does the text of our charter require that three ayes are necessary due to four members being in attendance?

That appears to be a matter of interpreting your city’s charter, which is a question for the city’s clerks and attorneys.

As a general matter, a majority vote means a majority of those present and voting, therefore, abstentions will not affect the result. Your charter, however, says “a majority vote of those present.”

See also FAQ #6.

On 2/20/2024 at 1:22 PM, Guest Joe B said:

I am unsure if the abstaining member counts in the tally of those present when that member abstains.

Yes, a member who abstains is still present.

Edited February 20, 2024 at 07:39 PM by Josh Martin

[Guest Joe B]

On 2/20/2024 at 1:38 PM, Josh Martin said:

That appears to be a matter of interpreting your city’s charter, which is a question for the city’s clerks and attorneys.

As a general matter, a majority vote means a majority of those present and voting, therefore, abstentions will not affect the result. Your charter, however, says “a majority vote of those present.”

See also FAQ #6.

Yes, a member who abstains is still present.

Thank you. According to FAQ #6, the abstention has the same effect as a nay vote. Would the mayor then have the right to vote in the event of a 2-1-1 outcome?

[Dan Honemann]

On 2/20/2024 at 2:48 PM, Guest Joe B said:

Thank you. According to FAQ #6, the abstention has the same effect as a nay vote. Would the mayor then have the right to vote in the event of a 2-1-1 outcome?

What the FAQ says is that "if the rules explicitly require a majority or two thirds of the members present .... an abstention will have the same effect as a “no” vote" (emphasis supplied).

You say that your council's rules provide that "a majority vote of those present shall be necessary for affirmative or negative action by the Council."  By my standards, this does not at all explicitly require the vote of a majority of the members present. Instead, it can easily be interpreted to require a majority vote.

As Mr. Martin has indicated, this is a question that should be addressed to your city’s clerks and attorneys.  Presumably this ambiguity has been definitively resolved quite some time ago.  

[Guest Joe B]

On 2/20/2024 at 2:11 PM, Dan Honemann said:

What the FAQ says is that "if the rules explicitly require a majority or two thirds of the members present .... an abstention will have the same effect as a “no” vote" (emphasis supplied).

You say that your council's rules provide that "a majority vote of those present shall be necessary for affirmative or negative action by the Council."  By my standards, this does not at all explicitly require the vote of a majority of the members present. Instead, it can easily be interpreted to require a majority vote.

As Mr. Martin has indicated, this is a question that should be addressed to your city’s clerks and attorneys.  Presumably this ambiguity has been definitively resolved quite some time ago.  

Unfortunately, it is an ambiguity that was introduced two years during a charter revision. The attorney charges $200/hr., so my hope was to be a good steward of the public's resources and see if it is something easily answered here first. I appreciate the responses and will now send it to the attorney. Hopefully it is something he can answer without billing us for hours of research.

[Atul Kapur]

It would likely be cheaper to amend the language to remove the ambiguity.

While you're at it,  I suggest that you remove the reference to "positive or negative action" as it opens the door to paralysis. Under RONR, a motion that doesn't receive a majority is defeated, not that a majority is needed in either direction. 

Similarly, the mayor should be freed to vote whenever their vote would alter the result, not just in case of a tie vote.

[Joshua Katz]

On 2/20/2024 at 7:03 PM, Atul Kapur said:

While you're at it,  I suggest that you remove the reference to "positive or negative action" as it opens the door to paralysis. Under RONR, a motion that doesn't receive a majority is defeated, not that a majority is needed in either direction. 

 

Be careful. Law sometimes requires municipalities to make a negative decision (i.e. it is not enough to not grant a permit, it must be denied) and messing around with some thresholds while keeping others constant could cause trouble.

[Josh Martin]

On 2/20/2024 at 8:03 PM, Atul Kapur said:

It would likely be cheaper to amend the language to remove the ambiguity.

I’m not certain about that. Changing the city charter can be a whole process.