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Right of Abstention


Tim Wynn

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Does everyone think the Right of Abstention (p. 394, l. 6) is a basic right of an individual member, the violation of which would create a continuing breach (p. 244, l. 21)... or am I on an island here? B)

How would this right be violated? If members were told they must vote, or if an abstention was incorrectly counted as a vote, neither of these improper things would create a continuing breach.

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Does everyone think the Right of Abstention (p. 394, l. 6) is a basic right of an individual member, the violation of which would create a continuing breach (p. 244, l. 21)... or am I on an island here? B)

I don't see how violating the right to abstain could be a continuing breach. Enjoying the sun, sand, and solitude Mr. Crusoe? :D

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A special rule of order was created that states no member shall abstain from voting. This means a member without an opinion is forced to make one up or vote without one.

I guess an analogy could be made to a special rule that members must attend meetings, or must speak in debate, or must make motions. Perhaps forcing members to exercise "basic rights" is not a violation of those rights, but it seems dangerous. It would seem to blur the line between "basic right" and rule.

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A special rule of order was created that states no member shall abstain from voting. This means a member without an opinion is forced to make one up or vote without one.

I guess an analogy could be made to a special rule that members must attend meetings, or must speak in debate, or must make motions. Perhaps forcing members to exercise "basic rights" is not a violation of those rights, but it seems dangerous. It would seem to blur the line between "basic right" and rule.

'...the rules may not be suspended so as to deny any particular member the right to attend meetings, make motions, speak in debate, and vote...' (RONR p. 255 ll. 25-28, emphasis added)

A special rule that 'no member' may abstain isn't the same as a rule targeting a 'particular member' -- perhaps the latter would come closer to violating a basic right of an individual member in the manner described in p. 244(e). I'm not sure how you force a particular member not to abstain, but perhaps that's just showing a failure of imagination on my part...

I'm not sure if the list on p. 255 (attending meetings, making motions, speaking in debate, voting) is meant to be an exhaustive list of the basic rights of the individual member.

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Does everyone think the Right of Abstention is a basic right of an individual member, the violation of which would create a continuing breach?

"Basic"? - No.

"Create a continuing breach"? - Yes, under RONR. But not under bylaws or superior rules which alter the default case.

It is a popular (governmental and corporate) requirement that decisions of certain boards be

(a.) a majority of the membership (note the lack of a qualifier!), or

(b.) a majority of members present. (not "... present and voting," as RONR would have it).

That means, REGARDLESS of abstentions.

Thus, all abstentions turn into negative "votes" in effect, since the calculation is based on

(a.) the number of affirmative votes; vs.

(b.) the balance of all non-affirmative-voting members of that body.

Anyone not voting will have his (non-opinion, non-action) "presence" or "membership" (depending on the rule being based on "being present" vs. absolute membership of the body) grouped together with the negative vote when doing the calculation.

***

Beware of the homeowner associations whom we see post problems often about their board including instructions on their mail ballots which say, "Any ballot not returned will be counted as an affirmative vote." :o

Now, THAT is a continuing breach waiting to happen!

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How would this right be violated? If members were told they must vote, or if an abstention was incorrectly counted as a vote, neither of these improper things would create a continuing breach.

Maybe Kim has the key to Tim's question. If not submitting a ballot is counted as an affirmative vote, doesn't that violate the right to abstain, as well as muck up the tally (p. 402 - 3, &c)? ~~~~

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A special rule of order was created that states no member shall abstain from voting.

The rule is null and void. (RONR, 10th ed., pg. 394, lines 6-9; pg. 244, lines 4-8, 21-26) Such a rule would need to be in the Bylaws to be enforceable. This is quite unusual. We usually see assemblies try to prevent members from voting.

As Mr. Goldsworthy notes, however, a special rule of order requiring a proportion of the members present is in order, and in such a case, an abstention has the same effect as a no vote.

I guess an analogy could be made to a special rule that members must attend meetings, or must speak in debate, or must make motions.

Such rules would need to be in the Bylaws.

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The rule is null and void. (RONR, 10th ed., pg. 394, lines 6-9; pg. 244, lines 4-8, 21-26) Such a rule would need to be in the Bylaws to be enforceable. This is quite unusual. We usually see assemblies try to prevent members from voting.

As Mr. Goldsworthy notes, however, a special rule of order requiring a proportion of the members present is in order, and in such a case, an abstention has the same effect as a no vote.

Such rules would need to be in the Bylaws.

I agree. If RONR is the society's parliamentary authority, the main motion to adopt the rule is an improper main motion, RONR (10th ed.), p. 106, ll. 20-25, and its adoption is null and void, p. 244, ll. 10-11, since it breaches a basic right of an individual member embodied by reference in the bylaws.

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The rule is null and void. (RONR, 10th ed., pg. 394, lines 6-9; pg. 244, lines 4-8, 21-26) Such a rule would need to be in the Bylaws to be enforceable. This is quite unusual. We usually see assemblies try to prevent members from voting.

As Mr. Goldsworthy notes, however, a special rule of order requiring a proportion of the members present is in order, and in such a case, an abstention has the same effect as a no vote.

Such rules would need to be in the Bylaws.

Please point to the citation in RONR that says "Any member may abstatain, unless the bylaws say otherwise?"

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Does everyone think the Right of Abstention (p. 394, l. 6) is a basic right of an individual member, the violation of which would create a continuing breach (p. 244, l. 21)... or am I on an island here? B)

I believe that the right to abstain could not be suspended "in the face of a negative vote as large as the protected by the rule (p. 253, l. 9-10)." That would be a minority of one.

That said, a special rule could remove that right.

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That said, a special rule could remove that right.

I agree with Mr. Elsman that the right to vote carries with it the right to abstain. RONR also states that "Occasionally the bylaws of a society may impose specific duties on members beyond the mere payment of dues." (RONR, 10th ed., pg. 277, lines 27-28) It seems important that the word "bylaws" is used specifically rather than a more general term like "rules."

In an ordinary voluntary membership society, how would a member who really didn't want to vote be made to do so?

I don't think there is a method to truly force someone to vote, since it involves expressing an opinion. (RONR, 10th ed., pg. 2, lines 4-5) Such a rule would likely be enforced by taking disciplinary action against those who violated it.

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I agree with Mr. Elsman that the right to vote carries with it the right to abstain. RONR also states that "Occasionally the bylaws of a society may impose specific duties on members beyond the mere payment of dues." (RONR, 10th ed., pg. 277, lines 27-28) It seems important that the word "bylaws" is used specifically rather than a more general term like "rules."

I don't, especially since the right to vote is expressed separately from the right to abstain.

As for enforcement, there could be disciplinary actions, or there could be a rule treating an abstention as a yes or a no vote. Such a rule need not be in the bylaws.

Discussion of such a rule appeared in the Q and A section of NP, 1st Quarter, 2003, pp. 6-7. Mr. Balche was among the authors.

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@ Kim Goldsworthy:

Regarding your point, if it is the default rule under RONR that, absent some contrary rule, a majority is calculated based upon "members present AND voting" rather than simply members present, can you tell me what is the basis for the popular requirement you mention whereby some boards define a majority differently?

I am involved in a situation where the by-laws and condo governance document are silent on this issue, but a recent vote on a special assessment counted abstentions essentially as "no" votes in exactly the way you described.

Would this method of counting votes have to be the result of some statute, by-law, or adopted board rule, or could there be another source for this interpretation?

Thanks.

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Regarding your point, if it is the default rule under RONR that, absent some contrary rule, a majority is calculated based upon "members present AND voting" rather than simply members present, can you tell me what is the basis for the popular requirement you mention whereby some boards define a majority differently?

Most likely, people saw other organizations which followed that requirement by rule or law and mistakenly thought that was how it works for all organizations.

Would this method of counting votes have to be the result of some statute, by-law, or adopted board rule, or could there be another source for this interpretation?

A rule which requires a proportion of members present would need to be in some applicable law, the Bylaws, or a special rule of order, which the board may not have the authority to adopt. (RONR, 10th ed., pg. 465, lines 26-30) There is no other legitimate source for this interpretation if RONR is the organization's parliamentary authority. (RONR, 10th ed., pg. 16, lines 14-16; pg. 17, lines 4-15)

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... if it is the default rule under RONR that, absent some contrary rule, a majority is calculated based upon "members present AND voting" rather than simply members present, can you tell me what is the basis for the popular requirement you mention whereby some boards define a majority differently?

"Basis"?

I don't know.

Ask a lawyer why it is a popular practice among many (but not all) of the states in the U.S. that the states' corporations codes prefer their corporations to render decision based on (a.) warm bodies who happen to be present, instead of (b.) the RONR rule which is based on votes actually cast by voting members, who have opinions on the pending question, and who are physically present.

Would this method of counting votes have to be the result of some statute, by-law, or adopted board rule, or could there be another source for this interpretation?

• Yes, statute.

• Yes, bylaws

• No, not by adopted BOARD rule. (The general membership may compel its board to render its votes so, and yet choose to not impose that same rule upon themselves, i.e., the general membership. Boards, by default, cannot recreate parliamentary rules for itself.)

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