I’ve always told board members that the residents in their communities elected them to vote on the issues that come before them and not to refuse or decline to vote on those issues. There are very few circumstances that justify a board member abstaining on an issue and most, if not all, involve situations where the board member would find himself in a conflict of interest if he voted on that particular matter.
The following are not valid reasons to abstain:
- The board member feels he doesn’t know enough about the issue. It’s that board member’s responsibility to do his homework about the issue before the meeting.
- The board member doesn’t want to take an unpopular position or offend any of the residents. Board members should not be elected because they are nice or will make the easy and popular decisions. They are elected to properly and prudently make the sometimes difficult and unpopular decisions required to effectively operate the community.
- The member, who happens to be the chairman/president, feels he only has to vote if a tie needs to be broken. In most communities, the chairman/president is elected by only the members of the board while each board member is elected by the entire membership. I believe that the chairman/president is first and foremost a member of the board that was elected by the entire membership and has been given and accepted the same responsibility of every other board member–which is to vote on every issue that comes before the board, regardless of whether a tie vote needs to be broken.
What is the effect of an abstention?
- The 2008 amendments to Florida Statute Section 718.111(1)(b) provide that a member of the board of directors of a condominium association who abstains from voting "on any action taken on any corporate matter shall be presumed to have taken no position with regard to the action." Apparently, that abstaining member’s vote cannot be counted either for or against the action.
- However, this provision is not found in Chapter 719. Instead, cooperative associations are governed by Florida StatuteSection 719.104(8)(b) which provides that a director who is present at a board meeting is presumed to have assented to the action taken by the board unless the director votes against such action or abstains because of an asserted conflct of interest. It would seem that any abstention that is not based on a conflict of interest would be held to be a vote "for" the action taken by the board.
- It appears that the provisions of either Florida Statute Sections 607.0824(4) or 617.0824(4) will apply to homeowners associations, depending on whether that particular association is organized as a for profit (Chapter 607) or not for profit (Chapter 617) corporation. Those sections provide that a director who is present at a meeting of the board or a committee of the board when corporate action is taken is held to have assented to that action unless he either objects at the beginning of the meeting or promptly upon his arrival to holding the meeting or transacting specified affairs at the meeting, or he votes against or abstains from the action taken.
As you can see, the statutes are not quite identical and can cause some confusion. My apologies to those of you that caught my earlier entry this morning which did not include the reference to Section 719.104(8)(b). We’ve talked about this not quite logical provision at a number of our seminars and thanks to the followers of this blog that reminded me of the inconstency between Chapter 718 and Chapter 719.
In any event, the best way to avoid the questions arising from abstentions is for a board member to vote on the issue unless a conflict of interest prevents him from doing so.