Hey, Prez: no vote is a ‘nay’ vote
by Paul Blume General Counsel
Published in the February 2008 issue of The Report Card

Some presidents believe they should not vote unless there is a tie. But by law, they are actually voting against the motion.

Every now and then, something comes up that I thought I’d dealt with, once and for all, and then someone proves me wrong. (No, I’m not talking to you. I’m talking to the other guy. You’re doin’ fine.)

Lotsa board members, and particularly you big shots, the presidents, seem to think that the board president only votes when there’s a tie. All other times, that is, when there’s no tie vote, the president just sits there, looking and being important, and doesn’t vote.

That is wrong. Let me repeat: Wrong.

Boards have an uneven number of members, so as to avoid a tie. Sometimes, of course, some board member or another is absent from a meeting (trip to Europe; maybe the meeting is scheduled in conflict with a Hannah Montana concert). In those cases, a tie is possible, assuming everyone votes. And everyone should vote.

In ordinary cases, when everyone is present, a vote, even if split, will not create a tie (odd number of members, remember?).

Two things to remember: (1) Everyone on the board is just a regular, ordinary board member for voting purposes, regardless of his office. That is, if Madame President is presiding over a meeting, and she calls for a vote on a motion, EVERYBODY VOTES! Even the big shot president. Vote. Then go back to looking important. (You are important, by the way. It’s just that you, Madame President, have to vote, too).

Wait. There’s more.

By law, A.C.A. §6-13-619, if anyone on the board is in the meeting room and doesn’t vote, that member – president included! – has to be counted as having voted against the motion. That is, if you don’t vote on a motion, you’re counted as having voted “No.” Look on page 192 of your purple law book. That’s where Section 6-13-619 is located. Read the whole thing. It’s in there.

Every board member has the ability to abstain, that is, to have his vote not count. But it’s not done by sitting there and looking important. Or cute.

Section 6-13-619 (page 192 again) provides the means for abstaining. It’s like this: (1) The board member who wants to abstain has to announce that he has a conflict of interest on the issue to be voted on. (2) Having declared a conflict, that member (or president, for that matter) must leave the room and be absent from the meeting room during the vote. (3) The abstaining board member returns to the room when the voting is concluded. (4) He is recorded as having abstained. That is, he was able to avoid voting on the issue.

Now, if the would-be abstaining member (or president) had just sat there, that would have been recorded as a “no” vote; that is, he would have to be recorded as voting against the motion, whatever the motion was. Whether he actually was in favor of the motion.

So, if you’re in the room during a vote, you’re voting whether you want to or not. You can’t avoid voting by just sitting there and doing nothing, because, if you do that, you’re not really doing nothing. You’re voting “No.” If you’re in favor of the motion, vote “Yes.” You can do that, too.

But the president and all of the members of the board have to vote if they don’t want their votes counted as votes against the motion. It’s up to the secretary of the board, or whoever is counting votes during the meeting, to make absolutely certain that every time a vote is taken, all of the votes are counted. If someone – anyone – does not appear to have voted, the vote-counter should inquire of the person whether he voted. If he didn’t, you know what to do.

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