Question on Vote?

John, you are correct. The votes counted are 4 to 3 in favor so the motion passed.

John,
In my opinion, it passed. You had a quorum and the vote was 4 to 3 in favor. Majority voted to pass.

According to accepted parliamentary practice, the default rule is a majority of the votes cast. Abstentions are not counted. Thus, if 7 votes are cast and 2 members abstain, 4 votes is a majority. I concur with others who have said the same thing.

I might add, members who abstain in situations such as this are doing a disservice to those whom they represent by letting less than a majority of the board make the decisions.

Only if the bylaws are worded "a majority of the board members present" would the result be counted differently. In this case, if nine members were present and only four voted yes, the motion would have failed.

And John needs to confirm whether the bylaws say motions pass when approved by a majority of the Board, or a majority of the Board members present and voting.

John,

Nope. That changes everything. "The act of the majority of the directors present at a meeting ..." How many directors were present? Nine? What is a majority of 9? It is five. Read the last paragraph of my previous post.

There were only 4 "yes" votes. Four is not a majority of the directors present.

Note that abstentions are still not counted. That is, you do not record them as "no" votes, even though their effect in this case is the same as a no vote.

See Robert's Rules, 10th ed. pp 389-390 for another example of this situation.

Jerry--Yes, that is another possibility but the original post asks specifics on what happened. We all agree that the vote was legal with 4 yes, and 3 no votes with 2 abstensions. The 9 member Board was present , therefore a quorum was reached which made for a legal vote of the "majority of votes cast (7)

Sorry Donna, can't agree with you.

The question is a simple one of logical deduction from the bylaws as they are written. Read the quote that the poster of the original question posted further down in the thread.

It says, the majority of the directors PRESENT. It does NOT say the number of directors present and voting.

How many directors were PRESENT at the meeting? There were nine.

What is a majority of the nine members that were present?

A majority is more than half. More that half of nine (the number of members present according to the bylaws) is five.

Again, see Robert's Rules, 10th ed., pp 389-390 for a complete answer. Check any parliamentary authority. Ask any parliamentarian. Ask any lawyer. Ask any judge. This is a perfect example of what I have said in this forum many times. Although some may say that Robert's Rules doesn't apply, you do need a rule book to turn to when you can't agree on what something like this means. What do you think an arbitrator or a judge is going to do? He'll turn to a rule book, and Robert's Rules is most likely the one he'll turn to. The exact page to find the answer is above.

You can't put words into the bylaws that aren't written there.

Bruce,

I agree with you (for what it's worth!). My CCRs state: "Every act or decision done or made by a majority of the directors present at a duly held meeting at which a quorum is present shall be regarded as the act of the Board." As in John's case, this means a majority of 9 board members or 5 to carry the vote. IMO, the vote failed.

I also agree that by abstaining the board members do a disservice to the members of the assn. In fact, IMO, it just shows their inability to make a decision or perhaps they are afraid to let their feelings be known on a particular issue. Whatever the case, they shouldn't be on the board if they cannot voice their opinion on the actions brought before them. Hope the members are taking notes on this!!

Donna,

You're my kinda gal! It takes a big person (I don't mean size-wise! LOL) to admit to being wrong. :-)

This is from our By-Laws.

Presumption of Assent. A director of the Association who is present at a meeting of the Board of
Directors at which action on any matter is taken shall be presumed to have assented to the action taken unless his
contrary vote is recorded or dissent is otherwise entered in the minutes of the meeting or unless he shall file his written
dissent to such action with the person acting as Secretary of the meeting before the adjournment thereof or shall
forward such dissent by registered mail to the Secretary of the Association immediately after the adjournment of the
meeting. Such right to dissent shall not apply to a director who voted in favor of such action.

Clearly states a director who is present shall be presumed to have assented to the action if his/her dissent is not recorded.

Based on this does Motion Pass?

Hold on Mary, don't be too quick here. I thought so too, at first, until I thought more about it. I've seen this statement before.

There's always a new wrinkle or twist.

John, at first, it would seem so, but that provision definitely contradicts what you quoted earlier. I'd say no, it doesn't change anything, and here's why.

I think the problem is, sections of the bylaws are being quoted out of context. One has to see the entire bylaws to determine the proper context for each provision contained therein. When sections are quoted out of context, it's often possible to find a statement that supports a particular point of view and one can arrive at opposite conclusions.

My interpretation is that the action of the board occurs once the vote has been taken, not before or during the vote. Until the vote has been taken, there is no "action" by the board. Thus, there can be no presumption of assent to any action prior to the vote, because no action yet exists.

I think what is intended here is to insure the protection of individual members from liability. For example, suppose an action is taken by the board that results in the board being sued. A person can sue the association (the board) and each board member individually (that's why you carry D&O insurance). However, if a judge is able to determine from the minutes how an individual member voted (or abstained), then he may decide to dismiss the suit against those board members who either voted no or abstained. If the judge is not able to determine how each individual voted, because all that was recorded was the number of votes, then all members are presumed to have assented to the action, since there is no way to determine otherwise. (SO, SECRETARIES, TAKE NOTE!).

Let's take your example: Vote 4-3, 2 members abstaining. In this case, the motion fails because the required majority of all members present did not happen. So, the "assent" clause you quoted above does not even come into play.

Suppose, instead, that the vote had been 5-2, with 2 members abstaining. In that case, the motion would have passed because 5 would be a majority of the 9 members present. In this case, the "assent" clause DOES come into play. Basically, if all the secretary records is the result of the vote (no names, just the count), then, if the association is later sued because of the action, all nine members of the board that were present when the vote was taken are presumed to have voted for it (the "assent" rule) since there is no formal record indicating who voted for it, or who voted against it, or who abstained. It is up to the members who voted against the measure, and up to those who abstanied, to insure that their objection has been entered into the record for their own protection.

This is the meaning I have seen given to the "presumption of assent" clause in the past. It is not used to determine the outcome of a vote. Thus, the two clauses do not contradict each other.

IMO, the answer is the same. The motion failed.

Bruce,

You must have posted while I was writing. Good, detailed reasoning.

JohnK3, J, concurs in this opionion!

Thanks Bruce and John.

This will be an interesting next meeting discussing this subject. I agree with you, in that abstentions are a cop-out and I understand the presumption of assent clause. The majority of directors present means 5 and only 4 affirmative votes were cast, so motion failed.

Thanks again.
John

Roger,

I agree, but the problem comes about when state law dictates otherwise. Our state law covering nonstock corporations (which applies to our HOA) regarding votes of the board is worded in a similar way; a vote of the majority of directors that are presnt. It also contains, in the next paragraph, a similar provision for a "presumption of assent." That's why it all looked so familiar to me.

Chapter 602, Section 33-1100, parts (c) and (d) read:

"(c) 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 sections 33-1000 to 33-1290, inclusive, the certificate of incorporation or bylaws require the vote of a greater number of directors.

(d) A director 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: (1) He objects at the beginning of the meeting, or promptly upon his arrival, to holding it or transacting business at the meeting; (2) his dissent or abstention from the action taken is entered in the minutes of the meeting; or (3) he delivers written notice of his dissent or abstention to the presiding officer of the meeting before its adjournment or to the corporation immediately after adjournment of the meeting. The right of dissent or abstention is not available to a director who votes in favor of the action taken.

The last sentence of (d) clearly distinguishes the preseumption of assent from the vote. Note also, that although the bylaws can be worded differently, they can only require a number that is greater than a majority.

I'm not saying this applies to John's case, but it looks like a "word lift" to me.

Our attorney's office has advised all client boards, in it's semiannual newsletter, that CT courts have ruled that the votes of ALL directors, BY NAME, are to be made a part of the minutes.