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Abstentions


Guest Brenda Parson

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We have six directors. Our bylaws require a majority of the board to be present in order to constitute a quorum for the transaction of business and further states that a vote of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board. If four of our board members must abstain from a vote, does that mean we can proceed with a majority of those remaining, which is less than a majority of the board?

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We have six directors. Our bylaws require a majority of the board to be present in order to constitute a quorum for the transaction of business and further states that a vote of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board. If four of our board members must abstain from a vote, does that mean we can proceed with a majority of those remaining, which is less than a majority of the board?

Abstention is a voluntary act, so no one must abstain.

But if your bylaws require the vote of a majority of the directors present, then that's what's required.

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Abstention is a voluntary act, so no one must abstain.

But if your bylaws require the vote of a majority of the directors present, then that's what's required.

The abstentions would be due to conflict of interest. When a director abstains from a vote, in our case, leaving less than a majority, can the vote occur. If our bylaws referenced "qualified" directors, does the abstention disqualify a director?

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If our bylaws referenced "qualified" directors, does the abstention disqualify a director?

That's a good question, but one that your membership will have to answer.

If your rules require the vote of majority of the directors present, and a majority of the directors present abstain, you won't get the required vote.

If your rules require the vote of majority of the "qualified" directors present, and the directors who abstain are "disqualified", you may have a different situation. But that would seem to be an end-run around the voting requirement. In any case, RONR won't help you.

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We have six directors. Our bylaws require a majority of the board to be present in order to constitute a quorum for the transaction of business and further states that a vote of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board. If four of our board members must abstain from a vote, does that mean we can proceed with a majority of those remaining, which is less than a majority of the board?

If they must abstain from a vote (why?) they are still present for the purposes of a quorum. But if you have quoted the bylaws accurately (and you appear to have paraphrased them instead) then you need four affirmative votes to pass anything, if all six show up (four is a majority of six).

If only four show up, you have a quorum, but you still would need three votes (a majority of the four) to pass anything.

Your bylaws are not doing you any favors. You apparently cannot act at all. This is a common problem when people write voting requirements that sound nice into the bylaws without thinking, instead of just using RONR's default of a "majority vote" for all normal business.

See if you can revise your bylaws to strike "of the directors present", if those are actually the words used.

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The abstentions would be due to conflict of interest. When a director abstains from a vote, in our case, leaving less than a majority, can the vote occur. If our bylaws referenced "qualified" directors, does the abstention disqualify a director?

The vote can occur, it's just that it will always fail. The abstention does not "disqualify" anyone. It simply means they do not vote. But they are still "present". And your unfortunate bylaws language (if you're quoting it accurately) means that an abstention is equivalent to a No vote. But that's based on your paraphrase of what you believe the bylaws say.

Since you have seen your bylaws and we have not, you're going to have to read them in their entirety and decide what they mean.

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The abstentions would be due to conflict of interest. When a director abstains from a vote, in our case, leaving less than a majority, can the vote occur. If our bylaws referenced "qualified" directors, does the abstention disqualify a director?

Sometimes organizations, boards, officers interpret "conflict of interest" too rigidly. You may want to get another opinion or interpretation. It is one thing to classify awarding a large contract to a board member's construction company, while a very different matter to increase dues for one class of member (which the board member is in) by a few dollars a month, or to increase the price of the Prime Rib Dinner in the dining room and some board members eat there every Sunday afternoon.

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If they must abstain from a vote (why?) they are still present for the purposes of a quorum.

There may be a hiccup in this, being how are these members forced to abstain? Even in situations of personal or pecuniary interest (p. 394) no member may be compelled to abstain. So, if their right to vote is in fact curtailed due to some other circumstance (being "disqualified" perhaps, whatever that means), it isn't so much that they "must" abstain, but that they cannot vote in the first place. And in that case, they would not be counted towards a quorum as defined on page 334. And then we're left with what the organization determines to be a "conflict of interest", and what a "disqualified" director means, and whether that removes the member's right to vote. It may turn out that the vote may never be taken at all, since as soon as that phase of handling the motion is reached, the meeting becomes inquorate.

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