When should an abstain be a no, and a no be an abstain?

In our last directors' meeting 3 of the 5 directors said Aye to a motion, and the 4th director that was in the meeting abstained. Motion passed.

It got me thinking more about the difference between abstain and no, and which one is the correct to use at different times. Maybe the director that "abstained" should have said "no". She disagreed with the motion, but used abstain instead?

Cut to this week, there is a vote tomorrow over email (allowed in Tennessee).
I don't feel comfortable saying yes or no without more discussion and info. So probably have to abstain.

Even if the vote count is the same, what is the general threshold between voting "no" and "abstaining"?

Did the 4th director say why he or she was abstaining? Usually, this is done if the director has an actual or potential conflict of interest concerning the issue being voted upon - and if that's the case, he or she should leave the room while the issue is being discussed, so there's no possibility he/she could influence the vote or the motion from the other directors.

I know many government legislative bodies like the city council or Congress will announce they're abstaining and in that case, you can't say the person is voting yes or no but simply indicating he or she is present. That contributes to the quorum (number of people needed to have an official meeting or to vote on a board resolution).

For me, I might understand if the person decided to abstain because he/she didn't have enough information to cast an informed decision, but then I'd ask why not? Did you not get the same information at the same time and chose not to read it, or did something happen where you didn't have the time to do so (e.g. personal emergency?) In that case, explain yourself and your reason for abstaining can be noted in the minutes.

So abstaining because of a conflict of interest or being unable to review the information needed to cast an informed vote would be ok - anything else is a cop-out. These days, too many politicians are experts at that and not much else! Board members are supposed to be voting on HOA issues - that's why they're there - and sometimes, those decisions are difficult and people will be pissed one way or another. You may as well take a stand and cast the vote.

It depends how you look at it. An "abstain" is not a "no" or a "yes", it's no vote at all. But - what I think you're asking - is if it changes the number of votes needed to pass a resolution.

In other words, do you base your majority opinion on the number of board members in attendance or on the number voting? Usually bylaws say that a motion must be approved by a majority of directors in attendance, not a majority of those who voted.

Example: you have a 5-person board, 4 directors present so you have a quorum. The board votes and you have 2 in favor, 1 opposed and 1 abstention. Some would say that the majority of voters were in favor, so the motion passed. But problem is that you'd then have a motion that was approved by only 2 directors, clearly a minority of the board - which is nonsensical. And in practice it would mean that a director could use an abstention strategically to affect the outcome of the vote when a simple "no" could not.

Your example was fine since you had three votes in favor and the abstention didn't matter.

However, the other objection to abstentions is that it is the duty of directors to attend board meetings and to vote. They should not be able to pick and choose their duties. Note: abstention is not the same as a recusal when a director has a conflict of interest.

Here's what Davis Stirling says (and they address the same example that I did):

https://www.davis-stirling.com/HOME/V/Voting-Abstention

The example you cited makes perfect sense to me. A majority of the directors who voted on the particular issue passed the motion. Even though it's not a majority of the board, one chose to forgo his/her right to vote and the other was not present and thus not able to vote. There is nothing wrong with a 2-1 vote making a decision for a 5 person board if 2 members are choosing not to vote (either by not being present or choosing to abstain).

I would tread just a tad lightly on this point. On certain topics the Bylaws may require "a majority of the number of directors authorized by the Bylaws... " (or similar wording).

"Deciding based on a majority of those who voted means that motions can pass with the support of only a minority of directions..."

Directors. Darned auto-correct...

We DID have a erector who abstained regularly. He WAS a loser and useless. He lost in his bid for reelection.
As pointed out by others. The job of directors IS to make decisions. The board IS the "decider."

A majority of the 4 present is 3, so the motion would not pass. An assentation might as well be a no. I have seen many director abstain from voting on the approval of minutes because they were not in attendance for the meeting for which the minutes are being approved from.

I disagree. Under normal parliamentary procedures a vote carries with a majority of directors present, as long as there is a quorum. In your example, 2/3 of the directors voted yea. The two absent directors are not part of the equation. They don't exist for voting purposes.

How does one make an amendment to a meeting for which they didn't attend? Are we now a clairvoyant?

Correction: "Under normal parliamentary procedures a vote carries with a majority of directors present, as long as there is a quorum. In your example, 2/3 of the directors (casting votes) voted yea." In my example it was not 2/3 of directors present at the meeting, it was only 1/2, which is why I have a problem with it.

You're getting at what the OP was asking (I think): does the abstention count as a "no" vote, or is it not considered "not present"? This changes the calculation.

What you're saying (I think) is that the abstention counts as "not present" for for purposes of the vote, which strikes me as wrong headed because that person is being counted toward making quorum. In my admittedly simple mind, you're either present at the meeting or you're not. And depending on the numbers involved, if you allow a director to say "pretend I'm not here for this bit of the meeting", you allow them to control the vote by manipulating the numbers. It will become more obvious if two or more directors collude on their abstentions, because in theory you may no longer have a quorum of directors actually voting - and I don't care which system you're using, that's just wrong (in my opinion).

I say the abstentions are as if the person is not there for the vote.
Say a BOD of 5. Vote held. 2 Yeas, one Nay, 2 abstain. I say the measure passed 2 to one.
Two Yeas, 2 Nays, one abstain, I say the measure did not pass as it was a 2 to 2 tie.

You didn't mention it so I'll point out that you need to make sure your CCRs, bylaws and state statutes don't limit remote voting.

You may be required to have a unanimous vote when it's not in-person.

Covid has changed that in some states, but don't assume it's true in yours or for your HOA.

Thanks for the heads up, I had no idea that agendas had to be posted 4 days ahead of the meeting, hell, I didn't even think you needed to inform anyone. To your second sentence, in a court of law, that would be called hearsay evidence. None of the associations I manage, nor the one I lived in were required by the Bylaws to recognize any form of parliamentary procedures for Board meetings. If you want to vote on something you were not a party to, be my guest, I chose not to.

Interesting that you would say that Kerry!
The vote that the director abstained from in the original post, was for the board to implement consent calendar/consent agenda. Which got me thinking why that would be an abstain not just a plain old no vote?

It looks like I don't have to abstain from my vote coming up today. I got un-bullied, and the info is going to be provided to me to make an informed decision.

I'll speak to what our Bylaws said in California, and what the Open Meeting Act states.

Action Without a Meeting
----Any action by the Board of Directors may be taken without a meeting if all members of the Board shall individually or collectively consent in writing to such action.

A meeting in California, as defined §4090,

“Board meeting” means either of the following:

(a) A congregation, at the same time and place, of a sufficient number of directors to establish a quorum of the board, to hear, discuss, or deliberate upon any item of business that is within the authority of the board.

(b) A teleconference, where a sufficient number of directors to establish a quorum of the board, in different locations, are connected by electronic means, through audio or video, or both. A teleconference meeting shall be conducted in a manner that protects the rights of members of the association and otherwise complies with the requirements of this act. Except for a meeting that will be held solely in executive session or conducted under Section 5450, the notice of the teleconference meeting shall identify at least one physical location so that members of the association may attend, and at least one director or a person designated by the board shall be present at that location. Participation by directors in a teleconference meeting constitutes presence at that meeting as long as all directors participating are able to hear one another, as well as members of the association speaking on matters before the board.

Any AWM I have ever conducted has always been by email, and that is not at the same time and place, therefore, unanimous consent is required. A virtual has been considered at same time and place (internet or teleconference).

Pedantry: In Tennessee and per the Tn Nonprofit Corporation Act, an action without a meeting appears to be lawful as long as all directors consent, in writing, to deciding without a meeting. The vote does not have to be unanimous for the motion/action to pass. See section 48-57-104, https://law.justia.com/codes/tennessee/2019/title-48/nonprofit-corporations/chapter-57/part-1/section-48-57-104/ .

The COA's Bylaws may say more on this.

Post-o. The correct section is 48-58-202. See https://law.justia.com/codes/tennessee/2019/title-48/nonprofit-corporations/chapter-58/part-2/section-48-58-202/ . It says what I say above.

JanineR has not posted her Bylaws on this point. Until she does, one cannot deduce whether the statute section is what the COA should follow or the Bylaws are what the COA should follow.

First, in California, the above is not so. As of about 2012, only emergencies may be voted on without a meeting. Furthermore apparently there is disagreement about whether votes on emergencies, without a meeting, must be unanimous. More at https://www.davis-stirling.com/HOME/E/Emergency-HOA-Board-Meetings.

Second, Tennessee's nonprofit corporation statute section seems to me to be the exception and not the rule.

Third, so far I found at least one Tennessee COA's Bylaws that allow actions without a meeting to pass by a non-unanimous vote of the board.

If I had to bet, I would bet JanineR's Bylaws either allow non-unanimous votes for actions without a meeting to be authorized, or they are silent on the point.

This is from a HOA in Nashville

Section 5. Action Taken Withou t a Meeting. The directors shall have the right to take any action in the absence of a meeting which they could take at a meeting by obtaining the written approval of all the directors. Any action so approved shall have the same effect as though taken at a meeting of the directors.