voting scenario

[Guest Robert]

Scenario-

A seven member board. Six members are present. 

A vote is taken:

3 members vote yes

2 members vote no

1 member abstains

 

The bylaw on voting reads- Any Board member's decision to abstain shall be recorded and be deemed to acquiesce in the action taken by the majority. In situations in which there is a tie vote and the abstention represents the deciding vote, the motion shall fail for lack of a majority.

does the motion pass or fail?

[Joshua Katz]

It passes, because 3 is greater than 2, making it a majority. 

On 4/24/2024 at 9:14 AM, Guest Robert said:

Any Board member's decision to abstain shall be recorded and be deemed to acquiesce in the action taken by the majority.

I guess this means that this vote should be recorded as 4-2, although I have no idea what is accomplished by this.

On 4/24/2024 at 9:14 AM, Guest Robert said:

In situations in which there is a tie vote and the abstention represents the deciding vote, the motion shall fail for lack of a majority.

This would be the case without this bylaw, too. 

In short, the bylaw you cite only operates if there is a majority to attach it to. And all it does is widen that majority.

[Richard Brown]

Guest Robert, you have a Strange by law provision, and it is ultimately up to your organization to interpret it. We cannot interpret your bylaws for you.

On 4/24/2024 at 8:19 AM, Joshua Katz said:

It passes, because 3 is greater than 2, making it a majority. 

I agree.  The abstention does not count and should be ignored.

On 4/24/2024 at 8:19 AM, Joshua Katz said:

guess this means that this vote should be recorded as 4-2, although I have no idea what is accomplished by this.

I do not think that the vote should be recorded as a 4 to 2 vote. In my opinion, it is still a 3 to 2 vote. The bylaw provision at issue does not say that abstension shall be counted as a vote with the majority, but rather that the person who abstains shall be deemed to acquiesce with the majority.  That is indeed the effect of an abstention in RONR. I do not believe the quoted bylaw provision changes that. So, I would still record the vote as a 3 to 2 vote.

Edited April 24, 2024 at 01:41 PM by Richard Brown
Minor edit

[Guest Robert]

Does this change the scenario?

Another by law states- The Board may adopt, amend, or repeal rules of order for its own operation by simple resolution of the Board passed by a majority of those present and voting.

[Gary Novosielski]

This is just a cumbersome restatement of the rules already in RONR regarding a majority vote.  Under such a rule all that is required for adoption of a motion is  that the Yes votes outnumber the No votes (which is clearly not true in the case of a tie vote).

The only exception is that this rule requires abstentions to be recorded.  Presumably this only applies to recorded votes (i.e., roll-call votes) where each member's vote is recorded.  There is no way to determine with certainty who abstained on a voice vote, for instance, even if abstentions are called for—presumably: Those in favor say Aye; those opposed say No; those abstaining remain silent.)

Abstentions should be recorded as Abstain or Present, not as Yes or No votes.  The language does not support changing an abstention to a Yes (or No).  It only says that the person is "deemed" to "acquiesce" with the outcome, i.e. to be considered to assent with the outcome without protest.

 

[Gary Novosielski]

On 4/24/2024 at 8:56 AM, Guest Robert said:

Does this change the scenario?

Another by law states- The Board may adopt, amend, or repeal rules of order for its own operation by simple resolution of the Board passed by a majority of those present and voting.

No. That's the same thing.

[Richard Brown]

On 4/24/2024 at 8:56 AM, Guest Robert said:

Does this change the scenario?

Another by law states- The Board may adopt, amend, or repeal rules of order for its own operation by simple resolution of the Board passed by a majority of those present and voting.

I agree with Mr. Novosielski . It does not change anything.

[Josh Martin]

On 4/24/2024 at 8:14 AM, Guest Robert said:

Scenario-

A seven member board. Six members are present. 

A vote is taken:

3 members vote yes

2 members vote no

1 member abstains

The bylaw on voting reads- Any Board member's decision to abstain shall be recorded and be deemed to acquiesce in the action taken by the majority. In situations in which there is a tie vote and the abstention represents the deciding vote, the motion shall fail for lack of a majority.

does the motion pass or fail?

The motion passes by a vote of 3-2.

I would also probably suggest the board strike the rule in question from its bylaws, since I don't think it changes anything or adds anything meaningful. All it seems to accomplish is to cause confusion.

"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 (12th ed.) 44:1, 44:3, 44:9(a); see also p. 66 of RONR In Brief.]" FAQ #6, emphasis added

On 4/24/2024 at 8:19 AM, Joshua Katz said:

I guess this means that this vote should be recorded as 4-2, although I have no idea what is accomplished by this.

I don't agree with this. As I understand it, this statement (albeit poorly worded) is simply noting that a member who abstains is, essentially, letting the other members decide the issue. I do not believe the statement has the intent or effect of providing that an abstention should be counted or recorded as a vote.

On 4/24/2024 at 8:40 AM, Richard Brown said:

Guest Robert, you have a Strange by law provision, and it is ultimately up to your organization to interpret it. We cannot interpret your bylaws for you.

My personal view is that the bylaws provision in question doesn't mean much of anything, and simply (poorly) reiterates existing principles.

On 4/24/2024 at 8:56 AM, Guest Robert said:

Does this change the scenario?

Another by law states- The Board may adopt, amend, or repeal rules of order for its own operation by simple resolution of the Board passed by a majority of those present and voting.

No, this changes nothing.

For starters, this rule only relates to adopting, amending, or repealing rules of order, and it's not clear that's the type of motion the board was voting on.

But even assuming this rule was applicable, it still changes nothing, because the number of members present and voting in the original scenario is five, and three is a majority of five. An abstention is not a vote, so the member who abstained is not voting.

Edited April 25, 2024 at 07:41 PM by Josh Martin

[Joshua Katz]

On 4/25/2024 at 12:40 PM, Josh Martin said:

I don't agree with this. As I understand it, this statement (albeit poorly worded) is simply noting that a member who abstains is, essentially, letting the other members decide the issue. I do not believe the statement has the intent or effect of providing that an abstention should be counted or recorded as a vote.

On 4/24/2024 at 6:40 AM, Richard Brown said:

Well, I'm by far outnumbered on this, but I wonder - under the interpretation everyone but me advances, what does the "acquiesce" language do? If it does nothing, it seems to me, it is preferable to interpret it in a way that it is not surplusage.

[Richard Brown]

On 4/25/2024 at 4:47 PM, Joshua Katz said:

Well, I'm by far outnumbered on this, but I wonder - under the interpretation everyone but me advances, what does the "acquiesce" language do? If it does nothing, it seems to me, it is preferable to interpret it in a way that it is not surplusage.

It means: that you have agreed to go along with whatever the majority wants. You have acquiesced. You have not affirmatively voted either yes or no.  You have simply not participated. You have acquiesced. There are times, such as when a vote is based on the number of members present rather than the number of members voting, that an abstention might have the EFFECT of a no vote, but it is most definitely not a vote at all and should not be counted as such. 

[Joshua Katz]

A person has acquiesced in allowing the majority to decide whenever they abstain. On that, we agree. So why do I need a bylaw to say so? I don't. The bylaw, so read, changes nothing from how it would work absent the bylaw. So it's surplusage. At least, that's my argument.

[Richard Brown]

On 4/25/2024 at 5:50 PM, Joshua Katz said:

A person has acquiesced in allowing the majority to decide whenever they abstain. On that, we agree. So why do I need a bylaw to say so? I don't. The bylaw, so read, changes nothing from how it would work absent the bylaw. So it's surplusage. At least, that's my argument.

So if the bylaw language is just surplusage and changes nothing, why would you count an abstention as a no vote?

[Joshua Katz]

On 4/25/2024 at 4:00 PM, Richard Brown said:

So if the bylaw language is just surplusage and changes nothing, why would you count an abstention as a no vote?

Because I would interpet it in such a way as to not make it superfluous, whereas the interpretation that it means the same thing as RONR says about abstaining makes it surplusage.

On 4/24/2024 at 6:14 AM, Guest Robert said:

Any Board member's decision to abstain shall be recorded and be deemed to acquiesce in the action taken by the majority.

(Side note: This doesn't say the board member is deemed to acquiesce. It says his decision so abstain is deemed to acquiesce.)

 

[Gary Novosielski]

On 4/25/2024 at 5:50 PM, Joshua Katz said:

A person has acquiesced in allowing the majority to decide whenever they abstain. On that, we agree. So why do I need a bylaw to say so? I don't. The bylaw, so read, changes nothing from how it would work absent the bylaw. So it's surplusage. At least, that's my argument.

We do not need a bylaw to say so.  But we have one.  I understand that when something is included in the bylaws there is an assumption that it was placed there for a reason.  However, it is my view that in this particular case there is insufficient evidence to support the validity of that assumption.  This entire rule seems to be nothing but a restatement of rules in RONR that were stated (better) in the original.  This happens with sufficient frequency that the purposefulness assumption is not one that can be unquestionably relied upon.

[Josh Martin]

On 4/25/2024 at 4:47 PM, Joshua Katz said:

Well, I'm by far outnumbered on this, but I wonder - under the interpretation everyone but me advances, what does the "acquiesce" language do?

Nothing.

On 4/25/2024 at 4:47 PM, Joshua Katz said:

If it does nothing, it seems to me, it is preferable to interpret it in a way that it is not surplusage.

I would ordinarily agree, but I'm finding a difficult time interpreting it in a way that is not surplusage.

While I am well aware that RONR says "There is a presumption that nothing has been placed in the bylaws without some reason for it," actual experience with organizations has led me to believe that this presumption is not absolute.

Or to put it another way, sometimes the "reason" is "the drafters didn't know what they're doing."

My guess is that the drafters were under the mistaken belief that a majority of the members present was required, and all of this additional language was necessary in order to ensure that if there were abstentions, there was still a majority of the members present on one side or the other (by including the abstaining members with those voting in the majority), and were unaware none of this was necessary.

Edited April 26, 2024 at 01:26 PM by Josh Martin