Making Motions
Motions are less formal than board resolutions. Motions are proposals for action by the board and can only be made by directors. Motions have a variety of objectives, and each motion has characteristics that make it unique. Directors may make a motion by saying, "I move..." or "I make a motion..." and then stating the motion. Motions should be "worded in a concise, unambiguous, and complete form" appropriate to the purpose for which they are offered. RONR (12th ed.) 10:9. If motions are vague, they are open to different interpretations and disagreements. Directors may have different memories of the intended size of the assessment change and the effective date. It is also good to include some language explaining the purpose of the motion, such as:
Due to a significant reduction in insurance premiums and an unexpected drop in utility costs, the Treasurer forecasted a large surplus in the budget. To zero out the surplus, the Treasurer made a motion to decrease membership dues by 10%, effective in the next billing cycle.
Motion by the President. If the president is a member of the voting body, he or she has the same rights and privileges as all other members have, including the right to make motions, to speak in debate, and to vote on all questions.
Second Required? Depending on how the board wants to conduct its meetings, boards can require that motions require a second. If so, directors cannot second their own motion; the second must be from another director. RONR (12th ed.) 4:2, 9. If no one seconds the motion, there is no discussion, and the motion dies for lack of a second. In the alternative, boards can allow motions without a second and hold informal discussions while no motion is pending. RONR (12th ed.) 4:10. The chair of the meeting can decide how he/she wants to conduct the meeting since there is no requirement in the Davis-Stirling Act that parliamentary procedures be followed in board meetings.
Discussion and Vote. The motion is then discussed by members of the board, after which the motion is put to a vote. Homeowners in the audience do not have a right to participate in the discussion. However, the board can, if it chooses, invite comments from owners. The president then calls for a vote.
Informal Procedures. Boards can allow motions without a second and hold informal discussions while no motion is pending. RONR (12th ed.) 49:21. Unless an association's governing documents require otherwise, the chair of the meeting can decide how to conduct the meeting since there is no requirement in the Davis-Stirling Act that any particular form of parliamentary procedure be followed in board meetings. In the event boards choose to follow Robert's Rules, see a summary of motions prepared by parliamentarian Jim Slaughter.
Resolutions vs Motions
A resolution is a formal expression of the intent voted by the board of directors. It is the same as a motion except more formal and uses "Whereas" and "Resolved." Resolutions are useful in that boards include the rationale for their actions. Following is an example:
WHEREAS, section ____ of the CC&Rs gives the Board of Directors the powers and duties necessary to conduct the affairs of the Association and to make such rules and regulations as the Directors deem in the best interests of the Association and
WHEREAS, for the health, safety, welfare, and comfort and convenience of all residents, the Board wishes to establish rules enforcement policies and procedures so that it may fairly and consistently enforce the governing documents and
WHEREAS, the Board distributed a copy of the proposed policies and procedures to the membership pursuant to Civil Code § 4360 and
WHEREAS, no changes were made to the proposed rules;
NOW, THEREFORE, BE IT RESOLVED that the following rules enforcement policies are adopted by the Board effective _______ and that notice of their adoption shall be given to the membership within 15 days of today's date.
<add enforcement policy being adopted>
By: ____________________________
Association's Secretary
Date: _____________
Recording Motions
See "Recording Motions in the Minutes."
NOTE: Resolutions are not required by statute--simple motions are sufficient. See sample minutes with motions.
Approval by the Board
Boards cannot conduct business until a quorum of directors is present. Once a quorum has been established, all board actions must be approved by the board and recorded in the minutes. The president should vote on all matters, provided no conflicts of interest require the president to recuse him/herself. 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, "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. RONR (12th ed.) 44:1.
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 should 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 on board issues even though they might own only one unit/lot together. 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 entirely virtual, votes must be taken by "roll call." This 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. RONR (12th ed.) 45:3.
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 signed power of attorney. 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. RONR (12th ed.) 45:70. 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.
California's Attorney General supports this interpretation of silent acquiescence (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." RONR (12th ed.) 4:35. A director might abstain because he believes there was insufficient information for him to decide. 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:
- Tie Vote. 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 five directors were present, a majority of three was needed to pass the resolution.]
- Three Abstentions. Similarly, if two directors vote for a motion 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.]
- Split Board. If only four directors of a five-member board attend a meeting and two vote for a motion and two vote against, the motion fails. If two vote in favor, one votes against, and the fourth director abstains, the motion fails. The motion passes if two vote in favor, one against, and the fourth is silent (silent acquiescence).
Voting on Questions Affecting Oneself. Directors are allowed to vote for themselves for an office. RONR (12th ed.) 45:5. It does not qualify as a conflict of interest.
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 previously adopted motions. RONR (12th ed.) 35:1. Boards may receive new information that causes 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 the advice of counsel.
One Voice Rule
Board members can and should vigorously debate issues brought before the board. Diversity of opinion and discussing problems and possible solutions bring 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 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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