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BOARD VOTING - APPROVAL DEFINED

Approval by the Board. Boards cannot conduct business until a quorum of directors is present. Once a quorum has been established, all actions of the board must be approved by the board and recorded in the minutes. The president should vote on all matters, provided there are no conflicts of interest requiring the president to recuse himself. Abstentions do not count toward the vote but silent acquiescence does. Any decision made by a majority of the directors present at a meeting at which a quorum is present is the act of the board. (Corp. Code § 7211(a)(8).)

Simple Majority. Unless defined differently by an association's governing documents, the word "majority" means more than half. It does not mean 51% nor does it mean 50% + 1. "Majority" means the next highest whole number above 50%. If a board has 11 members, 50% is 5.5 which, when rounded up, produces a majority of 6. (Robert’s Rules, 11th ed., p. 400). NOTE: An exception to approval by a majority of a quorum is when the bylaws call for approval by a majority of the board. Boards need to check their bylaws to see if there are different voting requirements for particular kinds of votes. If it's unclear, the board should seek legal counsel.

One Vote Per Director. A board member who owns multiple units does not get extra votes at board meetings. By statute, “Each director present and voting at a meeting shall have one vote on each matter presented to the board of directors for action at that meeting.” (Corp. Code § 7211(c).)  If a husband and wife are both elected to the board, each has one vote when it comes to board issues even though they might together own only one unit/lot. To avoid potential conflicts of interest of spouses on a board, many associations amend their bylaws to adopt director qualifications that restrict co-owners from serving on the board at the same time.

Vote. A voice vote is the most common type of voting. The chair of the meeting (usually the president) will ask those in favor of a motion to say "aye" and those opposed to say "nay" (directors can answer "yes" or "no"). Or, the chair can ask for a show of hands. He/she then announces the result of the vote.

Roll Call Votes. If a meeting is conducted is entirely virtual, votes must be taken by "roll call." It means each director is called by name and his/her vote is recorded individually.

Duty to Vote. Unless there is good reason not to vote, all directors, including the president, should vote on all motions.

Although it is the duty of every member who has an opinion on a question to express it by his vote, he can abstain, since he cannot be compelled to 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.)

Proxies Not Allowed. Board members cannot send someone else in their place to attend board meetings and vote. It does not matter whether they have a signed power of attorney or not. A director's duty to attend board meetings and vote on board issues is nondelegable, i.e., it cannot be delegated or assigned to others. "No director may vote at any meeting by proxy." (Corp. Code § 7211(c).) The reason for the prohibition is that sending a proxy to attend a board meeting is incompatible with the deliberative nature of board meetings and a director's fiduciary duty of due diligence. (Robert's Rules, 11th ed., pp. 428-429.) To vote, directors must attend board meetings (either in person or electronically).

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. If no one objects to the president's announcement, 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.)

Abstention. 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 being 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 2 directors vote for a motion, 3 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.]

3. If only 4 directors of a 5-member board attend a meeting and 2 vote for a motion and 2 vote against, the motion fails. If two vote in favor, one votes against and the fourth director abstains, the motion fails. If two vote in favor, one votes against, and the fourth is silent (silent acquiescence), the motion passes.

Recusal. Whenever directors believe they have a conflict of interest, they must recuse themselves 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 directors abstain because they do not believe they have 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.

Rescinding a Decision. boards can change their minds by rescinding and amending motions that were previously adopted. (Roberts Rules, 11th ed., p. 305.) Boards may receive new information that cause them to modify spending priorities. In addition, subsequent boards are not bound by the decisions of prior boards. Subsequent boards are free to change direction by a majority vote of a quorum of the board. However, boards are subject to any contracts entered into by prior boards and should not repudiate contracts without advice of counsel.

One Voice Rule. Board members can and should engage in vigorous debate on issues brought before the board. Diversity of opinion and talking through problems and possible solutions brings about better solutions. That does not mean everyone will ultimately agree with a particular solution but the discussion allows all sides of an issue to be examined. Once a decision is made, the board should speak with one voice. Dissenting directors are not required to be cheerleaders for the board's decision but should not undermine lawful decisions just because he/she disagrees. If a director goes rogue because he/she does not like a particular decision and behaves badly or breaches their own fiduciary duties, the board may have no choice but to censure the director and, when appropriate, form an executive committee to exclude the director from sensitive issues. An exception to the rule is if a majority of directors were to vote to violate the CC&Rs, violate laws, or in some fashion breach their fiduciary duties. Under those circumstances, a dissenting director is not obligated to remain silent and may be obligated to speak up.

Votes Are Protected Speech.  A director’s vote at a board meeting constitutes a protected activity under the anti-SLAPP statute. (Lee v. Silveira).

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