The staff of the Committee on Open Government is authorized to issue advisory opinions.
The ensuing staff advisory opinion is based solely upon the facts presented in your
Dear Mr. Koury:
I have received your letter of November 24 in which you requested an opinion concerning "quorum parameters and voting procedures for a municipal legislative body."
According to your letter, the Common Council of the City of Oneonta consists of eight voting members, and the Mayor, who is a member of the Council, but who may vote only in the event of a tie. Following a motion made at a recent meeting, the vote was "4 ayes, 3 absents and 1 abstention." The City Attorney indicated that because the Council adopted Roberts Rules, passage of motions, in your words, "simply requires a majority of those present at the meeting and not a majority of the full membership of the legislative body." Roberts Rules refers to the ability to carry a motion by means of a majority, "that is, more than half the votes cast..."
I respectfully disagree with the view of the City Attorney, for Roberts Rules is not law, and in my opinion, insofar as it (or a local enactment) may be inconsistent with an applicable statute, an act of the State Legislature, it is of no effect. In this circumstance, I believe that Roberts Rules is inconsistent with statutes and their judicial interpretation.
As you are aware, first, the Open Meetings Law applies to meeting of public bodies, and §102(2) of the Law defines the phrase "public body" to mean:
"...any entity for which a quorum is required in order to
conduct public business and which consists of two or more
members, performing a governmental function for the state or
for an agency or department thereof, or for a public corporation as defined in section sixty-six of the general construction law, or committee or subcommittee or other similar body of such public body."
Based on the foregoing, the Common Council is clearly a public body, and a quorum must
convene for a public body to conduct public business.
Second, the term "quorum" is defined in §41 of the General Construction Law, which has been in effect since 1909. The cited provision states that:
"Whenever three of more public officers are given any power or authority, or three or more persons are charged with any public duty to be performed or exercised by them jointly or as a board or similar body, a majority of the whole number of such persons or officers, at a meeting duly held at a time fixed by law, or by any by-law duly adopted by such board of body, or at any duly adjourned meeting of such meeting, or at any meeting duly held upon reasonable notice to all of them, shall constitute a quorum and not less than a majority of the whole number may perform and exercise such power, authority or body. For the purpose of this provision the words 'whole number' shall be construed to mean the total number which the board, commission, body or other group of persons or officers would have were there no vacancies and were one of the persons or officers disqualified from acting."
Based upon language quoted above, a quorum is a majority of the total membership
of a public body, notwithstanding absences or vacancies, for example; the number of the total
membership determines what a quorum is, and absences or vacancies do not alter quorum
requirements. Further, in order to carry a motion or take action, there must be an affirmative vote of a majority of the total membership. Therefore, if a public body consists of either eight or nine members, five affirmative votes would be needed to approve a motion, even if as few as five members are present.
With respect to the effects of abstentions, §41 of the General Construction Law has
been interpreted by the courts on various occasions regarding abstentions. In short, it has
consistently been found that an abstention has the effect of a negative vote and that action
may be taken only by means of an affirmative vote of the majority of the total membership of a public body [see e.g., Rockland Woods, Inc. v. Suffern, 40 AD 2d 385 (1973); Walt
Whitman Game Room, Inc. v. Zoning Board of Appeals, 54 AD 2d 764 (1975); Guiliano v. Entress, 4 Misc. 2d 546 (1957); and Downing v. Gaynor, 47 Misc. 2d 535 (1965); also Ops Atty Gen 88-87 (informal)]. In the opinion of the Attorney General cited above, it was
advised that on a seven member board where two members are absent and two others abstain, no action can be taken.
In sum, I believe that the Council may carry motions and take action only by means of an affirmative vote of a majority of its total membership, not, as suggested in Roberts Rules, by means of a majority of votes cast.
I hope that I have been of assistance.
Robert J. Freeman
cc: Common Council