Duty to Vote
. Unless there is good reason not to vote, all directors (including the president
) should vote on all motions.
[I]t is the duty of every member who has an opinion on a question to express it by his vote... (Robert's Rules, 11th ed., p 407.)
There is a strong public policy “that members of public legislative bodies take a position, and vote, on issues brought before them. This policy has been expressed as ‘the duty of members of a city council to vote and that they ought not “by inaction prevent action by the board. (Kunec v. Brea Redevelopment Agency (1997) 55 Cal.App.4th 511, 520.)
The duty to vote is present if the member is present. (Dry Creek Valley Assn., Inc. v. Bd. of Supervisors (1997) 67 Cal.App.3d 839, 844.)
Silent Acquiescence. It is common practice that when someone is silent when a vote is taken, their vote is counted with the majority. For example, if a voice vote is called for in a board meeting and some directors say “aye” and other are silent; the president then asks if there are any “nays” and no one responds. The president then announces the vote to be unanimous and again no one objects. Under those circumstances, the vote is properly deemed as unanimous in favor of the motion.
This interpretation of silent acquiescence is supported by California's Attorney General (Opinion No. 10-901, December 208, 2011).
[Silence] “acts as an acquiescence in the action taken by the majority of voting members, whether the majority was affirmative or negative.” (p. 10, para. 1.)
...board members’ refusal to vote is, in effect, a declaration that they consent that the majority of the quorum may act for the body of which they are members…Such acquiescence cannot, of course, bestow a power on a body that is beyond its legal authority; hence, any action taken by a body must still be supported by the votes of a least a majority of the body’s quorum. (p. 10, para. 2.)
...the abstaining member [through silence] may accurately be said to have “acquiesced in” or “consented to” any resolution reached by the body, as long as the number of members voting was at least a majority of the quorum. (p. 13, para. 2.)
We likewise disapprove any suggestion that a body may validly take action without the support of concurring votes from at least a majority of that body’s quorum. (AG Opinion, p. 14, para. 1.)
Abstentions. If someone states, “I abstain,” their vote cannot be counted as a “yes” vote or a “no” vote. It is a non-vote. "To 'abstain' means not to vote at all." (Robert's Rules, 11th ed., p 45.) A director might abstain because he believes there was insufficient information for him to make a decision. An abstention may, however, have the practical effect of a "no" vote since a motion may fail for lack of sufficient "yes" votes. For example:
1. If five directors are present (out of five) and there is a motion to close the pool each day at 8:00 p.m. (from the current 10:00 p.m.) and two directors vote "yes," two directors vote "no," and one abstains, the motion fails. The vote needed a majority of three "yes" votes to pass and it received only two. ["...an act or decision done or made by a majority of the directors present at a meeting duly held at which a quorum is present is the act of the board." (Corp. Code §7211(a)(8).)
Since a five directors were present, a majority is three was needed to pass the resolution.]
2. Similarly, if a 5-member board were to vote on a motion where two directors vote “yes” and three vote “I abstain,” the vote fails. [As noted by the Attorney General in their example: "The votes of the
three abstaining members cannot be considered as votes in favor of the
motion..." (p. 11, fn 37.]
SUMMARY: The Corporations Code requires that all action be adopted by a total of ‘yes’ votes equal to or greater than the majority of the quorum
. A motion can fail if abstentions reduce the required number of ‘yes’ votes.
Effect of Recusal. Whenever a director believes he has a conflict of interest, the director must recuse himself and leave the room until the motion has been discussed and voted on by the remaining directors. This impacts the approval requirements.
A meeting at which a quorum is initially present may continue to transact business notwithstanding the withdrawal of directors, if any action taken is approved by at least a majority of the required quorum for that meeting... (Corp. Code §7211(a)(8).)
When a director abstains because he does not believe he has sufficient information, the approval requirement is a majority of all directors present, i.e., three out of five (assuming all five are present). A recusal changes the approval from a majority of directors to a majority of a quorum. If, for example, two directors have a conflict of interest and leave the room, the approval requirement is now two out of the remaining three instead of three out of five.
Changing a Vote
. Under limited circumstances, a director may change his vote or the matter may be reconsidered
at a later date. Also see tie votes
. See impact of blank ballots on membership votes
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