VOTE

Dave,

You had the majority of BOD present so the vote was legal. However, with 1/2 of the voters abstaining, you will need to see what your governing Articles say about abstention votes. 5 abstaining seems to be a huge number which tells me that something very controversial is contained in what they are voting on.

If your governing docs say that votes are based on having a quorum of the Board and only votes are based on votes after the quorum, then 100% of the quorum voted for the measure. The 5 abstentions are a mute issue in counting the votes that were cast.

Dave,

After looking into the florida Statutes, I am going with a revote.

617.0824 Quorum and voting.--

(1) Unless the articles of incorporation or the bylaws require a different number, a quorum of a board of directors consists of a majority of the number of directors prescribed by the articles of incorporation or the bylaws.

(2) The articles of incorporation may authorize a quorum of a board of directors to consist of less than a majority but no fewer than one-third of the prescribed number of directors determined under the articles of incorporation or the bylaws.

(3) If a quorum is present when a vote is taken, the affirmative vote of a majority of directors present is the act of the board of directors unless the articles of incorporation or the bylaws require the vote of a greater number of directors.

(4) A director of a corporation who is present at a meeting of the board of directors or a committee of the board of directors when corporate action is taken is deemed to have assented to the action taken unless:

(a) The director objects, at the beginning of the meeting or promptly upon his or her arrival, to holding the meeting or transacting specified affairs at the meeting; or

(b) The director votes against or abstains from the action taken.

Below is from Davis-Stirling.com.

The key thing to remember is that a majority of a required quorum or those present establishing a quorum is requird for passage. 5 votes is one short of a majority required for passage.

Abstention From Voting

Abstention Defined. When it comes time for directors to vote on an issue, a director may vote "yes" or "no." If a director abstains from voting, that means the director has not voted. An abstention is a non-vote, a decision not to make a decision. (Robert's Rules of Order, 10th ed., p 43.) The president votes on all motions, not just to break ties.

Negative Impact of an Abstention. An abstention may have the practical effect of a "no" vote since the motion may fail for lack of sufficient "yes" votes. Unless a greater number is called for in the articles or bylaws, a matter is deemed "approved" by the board if at any meeting at which a quorum is present at least a majority of the required quorum of directors votes in favor of the action. Corp. Code §7211(a)8.

For example, 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 only received two. Accordingly, the pool remains open to 10:00 p.m. each night. Under limited circumstances, a director may change his/her vote or the matter may be reconsidered at a later date.

Remaining Silent. When the chair calls for a vote, abstentions are not called for, only the ayes and nays. (Robert's Rules, 10th ed., p 43.) The burden is on an abstaining director to speak up if he/she wants to be recorded as an abstention. If the vote is called for and one of the directors fails or refuses to indicate "yes," "no" or "abstain," and the chair of the meeting deems the director to have voted "yes" and the silent director does not object, the vote is counted as a "yes" vote.

When to Abstain. Whenever a director believes he/she has a conflict of interest, the director should abstain from voting on the issue and make sure his/her abstention is noted in the minutes. (Robert's Rules, 10th ed., p 394.) The other reason a director might abstain is that he/she believes there was insufficient information for making a decision. Otherwise, directors should cast votes on all issues put before them. Failure to do so could be deemed a breach of their fiduciary duties.

Robert's Rules. Boards may but are not obligated to follow Robert's Rules of Order (or any other parliamentary system) for their board meetings. The Davis-Stirling Act calls for the adoption of a parliamentary system only for membership meetings. Civil Code §1363(d). Even so, boards should use some form of parliamentary procedure for its meetings so as to keep order.

Read more: Abstention From Voting http://www.davis-stirling.com/AbstentionFromVoting/tabid/1300/Default.aspx#FirstV#ixzz1Oi8Ln1wi
from Davis-Stirling.com by Adams Kessler PLC

Susan,

I agree that a vote is a non vote. However in determining if the measure is adopted will depend on the language concerning voting. Does the language require a majority of the Board to adopt or a majority of the votes cast or a majority of those present or is silent on the subject. Each of those mean different things.

In the example provided:

11 seats on the Board, 10 were in attendance. vote was 5 yea, 0 nay, 5 abstain.

Majority of the Board = 6 yeas needed to pass, thus measure failed
Majority of votes cast = 50%+1 of votes cast, 5 votes, 5 yea - measure passed
Majority of those present = 10 present, majority is 6, thus measure failed
Documents are silent = majority of votes cast, thus measure passed

A quick search of FL statutes indicate that they are silent on this subject. Therefore, it will depend on what the Association bylaws or resolutions say.

Tim

Tim

If you look at Donna's reference to Florida statues, 3) If a quorum is present when a vote is taken, the affirmative vote of a majority of directors present is the act of the board of directors unless the articles of incorporation or the bylaws require the vote of a greater number of directors.

Unless the Articles or Bylaws say differently, you may abstain, but you can't hide the fact you're present.