October 29, 1974 KEY WC : o ,
RE: Attorney General Opinion 074-289
Which was distributed to the Governing Board
Members by Jay Ahern
I read the Attorney General's opinion and disagree with
the conclusions he arrived at as to question 2, 3 and 4.
At least I think they need some further amplification.
Without extensive research, it is my opinion that when
a member of a board abstains from voting, as authorized
by 286.012, that person would not be considered as being
"present" for the purpose of determining the voting
requirements on the particular issue. That member would
be considered present for the purpose of determining
whether or not a quorum existed but would not be considered
present for the purpose of determining a simple majority.
The Attorney General has misapplied the material quoted
from its earlier opinion.
Thus, if two of the six members present properly abstain
from voting, there would then be four members present and
a vote of three of the four would constitute a majority.
In the Attorney General's answer to question 3, if one of
the six members present was temporarily absent, there
would only be five members present for the purpose of
determining a quorum (which would still be four) and for
the purpose of determining a majority "of those present."
Since only five members are present, a majority vote would
be three. The same would apply if two of the six members
were temporarily absent. Four would be present for the
purpose of determining a quorum and a majority vote of the
four would be three.
A board member who temporarily absents himself from a
meeting may be derelict in his duty, but his absence
should not be a means of making it necessary for those who
remain to declare a recess until the member returns unless,
of course, his absence, whether temporary or permanent,
results in less than a quorum being present at which time
the body may have lost its capacity to transact business.
In sum and substance, I think it is a bad opinion and am
sorry that Mr. Ahern has seen fit to distribute it to