A. PARLIAMENTARY PROCEDURE GENERALLY

Rules of parliamentary procedure provide the means for orderly and expeditious disposition of matters before a board, commission, or council. They govern the way members of a multi-member body interact with each other. As a general proposition, those procedural guides only affect substantive policy development or third-party interests indirectly and do not have the force of law. They may be waived, modified, or disregarded without affecting the validity of the agency’s decisions.

Public bodies, therefore, have great flexibility to determine their own rules of parliamentary procedure without fear that irregularities or errors will lead to judicial invalidation of their actions. When making or applying rules of parliamentary procedure, a board, commission, or council is limited only by (i) any constitutional or statutory requirements, (ii) rights of third parties which may be affected, and (iii) judicial interpretations of constitutional and statutory rights.

Parliamentary procedure for a multi-member body guides all agency decision-making processes, including deliberations following a contested case or rulemaking hearing and deliberations leading to an advisory recommendation on a matter of public policy to another public body.

To facilitate decision-making, a simplified and flexible approach to parliamentary procedure is helpful. The author of one text on parliamentary procedures believes that “stressing a more straightforward and open procedure for meetings eliminates the parliamentary impasses that appear to follow when too much attention is given to parliamentary intrigue and manipulation.”[794] He has, for example, eliminated the “seconding” of motions because it is “largely a waste of time.”[795] This warning against blind adherence to parliamentary rules is echoed by the author of another text who admonishes that “[t]echnical rules should be used only to the extent necessary to observe the law, to expedite business, to avoid confusion, and to protect the rights of members.”[796]

The most commonly known and used parliamentary authority is Robert’s Rules of Order Newly Revised by Henry M. Robert. However, a more readable authority is Alice Sturgis’s Standard Code of Parliamentary Procedure (2d ed 1966). The Oregon House and Senate rely on Paul Mason’s Manual of Legislative Procedure (1989). Any of these texts could be adopted by reference to guide board, commission, or council deliberations. A simple motion such as the following is sufficient for this purpose:

Except as otherwise provided by law and except where the (insert title of board or commission)   directs or acts to the contrary, (insert title and edition of a parliamentary reference book)  shall govern parliamentary processes of this public body.

Alternatively, a board, commission, or council might adapt some of the rules to suit its particular needs and convenience, and adopt a standard text as a “back-up” resource.

B.  QUORUMS AND VOTES

Statutes, not parliamentary procedure, specify quorums and voting requirements. The quorums and voting requirements of Oregon state boards, commissions, or councils are governed by general law, ORS 174.130 », or by special statutes. General authority to adopt rules to govern their proceedings is not sufficient authority for boards, commissions, or councils to write a rule contrary to ORS 174.130 » or special statutes of similar import. However, a state agency with authority to create a board, commission, or council, establish its duties, its structure, and, in short, determine its very existence, may provide by administrative rule what constitutes a quorum and thus release its board, commission, or council from the rigors of ORS 174.130 ».[797]

1.  General Law

ORS 174.130 » provides that “Any authority conferred by law upon three or more persons may be exercised by a majority of them unless expressly otherwise provided by law.”

Attorneys General have consistently advised that this statute requires a majority of all members of a board, commission, or council to concur in order to make a decision.[798] When ORS 174.130 » applies, a majority of those present and voting in favor of a particular action is not sufficient to authorize that action unless that majority is more than one-half of the total members of the board, commission, or council. For example, in the case of a 13-member board, if only 11 persons were present, six votes for a proposition would be insufficient to authorize any action because six votes would not constitute a majority of the members of that board even though it would constitute a majority of those present.

2.  When Other Statute Designates Quorum

Many boards and commissions have specific statutes designating the number of members that form a quorum.  Most of these statutes, but not all, fix the quorum at a majority of the members of the body.[799]

Some of the statutes regarding particular bodies also fix the number of votes required for different types of decisions by the body. For example, the statute concerning the nine-member Oregon Government Ethics Commission provides that “[a] quorum consists of five members but a final decision may not be made without an affirmative vote of a majority of the members appointed to the commission.”[800]

When the statute does not specify the number of votes necessary for a decision, a decision may be made by a majority of the quorum. This was the common law rule, and is also the rule derived from the application of ORS 174.130 » to the quorum that is given authority by the special statute. Different jurisdictions interpret the meaning of “majority of the quorum” differently. The interpretation most consistent with Oregon case law and with ORS 174.130 » is that a “majority of the quorum” means at least a majority of the minimum number required for a quorum.

When a quorum is present, and all members present cast votes, the “majority of the quorum” is the same as a majority of those voting. A tie, of course, does not constitute a decision.

C. VACANCIES

The fact that one or more vacancies exist on a board, commission, or council has no bearing on the quorum requirements. Since the law establishes the number of members required for a quorum, the fact that a position is unfilled does not alter this requirement.[801]

D. ABSTENTIONS

When one or more members present do not vote, the abstention does not count as a vote in favor of the majority position, at least when action requires the concurrence of a majority of the board.[802] No case has yet been decided directly concerning the effect of an abstention when a majority of a quorum may take action. However, based on analogous Oregon precedents and cases from other states, we believe that an abstention does not count as either an affirmative or a negative vote. A member who is present but abstains may, however, be counted toward making up a quorum. An abstention therefore cannot be used to make up the minimum number of votes required to pass or reject a motion.

An example may make this clearer: Board “X” is a seven-member board. A statute provides that four members constitute a quorum. The statute does not specify the number of votes required for action. Therefore, at least three concurring votes are needed (majority of the four required for a quorum) to take action. At a meeting, six of the seven members are present. On a motion, three vote in favor, two vote against, and one abstains. The chairman would correctly declare that the motion passed: the motion only needed three votes in favor, and the abstention counted neither as a vote in favor or as a vote against.

Members of boards, commissions, or councils are obviously appointed to make decisions. Absent compelling circumstances, for example, pecuniary conflict of interest problems, board members should not abstain from voting.[803]

E.  PROXY VOTE, ABSENTEE VOTE, VOTES BY MAIL, AND SECRET BALLOTS PROHIBITED

A vote by proxy is a vote cast by a substitute on behalf of a member who is not present at the meeting. Absent a specific statutory provision authorizing a proxy, proxy voting is not authorized and is improper since no member of a board, commission, or council is empowered to delegate his or her vote to others.[804]

An absentee vote is a vote purportedly cast by a member who is not present at the meeting. This procedure is not authorized by Oregon law and is also improper since the absent member may not be counted toward the quorum requirement and may not vote. This is not to suggest, however, that personal presence at the meeting is required. A member may, for example, be present, participate, and vote by telephone.

A vote by mail is a vote purportedly cast by a member without the necessity of a meeting of the board, commission, or council. Absent specific statutory authorization, this procedure could not be used. It would also be improper because a decision by the board, commission, or council may only be made at a meeting at which a quorum is present.

A secret ballot is a vote of the members in private after which only the result is announced to the public. Absent specific statutory authorization, such a procedure would violate the Oregon Public Meetings Law.[805]

If improper procedures in voting such as the use of a proxy, an absentee ballot, a vote by mail, or a secret ballot are used, it will cast grave doubts on the validity of any decision arrived at as a result of using these procedures. If such procedures are used, an agency should consult its assigned attorney about the possibility of ratifying its prior invalid action.

F.  VOTE TABLES

Two tables follow which show the minimum number of concurring votes necessary to pass or reject a motion. Table I illustrates the application of ORS 174.130 », i.e., when no quorum is otherwise specified for a board or commission. By intersecting the number of members on a board with the number of members voting on an issue, the table shows how many concurring votes are needed to pass or reject a motion.

Table II applies to boards and commissions with special statutes that designate a quorum but do not specify the number of votes required for action. It assumes that the quorum is set at majority of the members. It may, however, be used for boards with a different number required for a quorum: simply ignore the far left-hand column and find the number that the applicable statute designates for a quorum in the column named “Minimum Number Present to Form Quorum.”

TABLE I

Boards and Commissions Covered by ORS 174.130

Key to Table I

1.  The column on the left shows the number of members on the board or commission.

2.  The numbers across the top indicate the number of members voting at a meeting. These include affirmative and negatives votes but do not include abstentions.

3   The number found by intersecting 1 and 2 is the minimum number of concurring votes (affirmative or negative) that must be cast in order to pass or reject a motion.

4.  An abstention is not counted as an affirmative or negative vote to make up the minimum number of concurring votes required to pass or reject a motion. If a member abstains, but is present, he or she is still counted for quorum purposes.

5.  An “X” indicates that no action should be taken because the number voting is below the minimum number of concurring votes required to pass or reject a motion.

TABLE II

Boards and Commissions Covered by Statutes Specifying Quorum Requirements

Key to Table II

1.  The far left column shows the number of members on the board or commission.

2.  The second column from the left shows the minimum number of members required to be present to form a quorum, assuming a statute fixes a quorum as a majority of the members of the board.

3.  The numbers across the top represent the number of members voting at a meeting. These include affirmative and negative votes but do not include abstentions.

4.  The number found by intersecting 1 and 2 with 3 is the minimum number of concurring votes (affirmative or negative) that must be cast in order to pass or reject a motion.

5.  An abstention is not counted as an affirmative or negative vote to make up the minimum number of concurring votes required to pass or reject a motion. If a member abstains, but is present, he or she is still counted for quorum purposes.

6.  An “X” indicates that no action may be taken because the number voting represents less than the minimum number of concurring votes required to effect action.

7.  Assuming a quorum is present, the minimum number of concurring votes required to pass or reject a motion varies according to the number of members voting.

[794] R. Keesey, Modern Parliamentary Procedure XV–XVI (1994).

[795] Id. at 21.

[796] A. Sturgis, Standard Code of Parliamentary Procedure 8 (2d ed 1966).

[797] Letter of Advice to Jeffrey Milligan, at 4–5, 1985 WL 199935 (OP-5763) (Jan 16, 1985).

[798] See, e.g., 36 Op Atty Gen 960, 985, 1974 WL 187642 (1974); 38 Op Atty Gen 1935, 1978 WL 29489 (1978).

[799] See, e.g., ORS 670.300(2) » (concerning professional licensing and advisory boards).

[800] ORS 244.250(5) ».

[801] Letter of Advice to John F. Hoppe, at 3–4, 1989 WL 439831 (OP-6322) (June 8, 1989).

[802] State ex rel Roberts v. Gruber », 231 Or 494 (1962).

[803] See Eastgate Theatre, Inc. v. Bd. of County Comm’rs », 37 Or App 745 (1978) (two commissioners incorrectly abstained from vote).

[804] 16 Op Atty Gen 77, 1932 WL 32868 (1932); Letter of Advice to Fred Segrest (OP-3206) (Feb 21, 1975).

[805] 37 Op Atty Gen 183, 1974 WL 187704 (1974); 39 Op Atty Gen 525, 1979 WL 35618 (1979).