04-14-1986 Council Packet - Laserfiche WebLink

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II. The F ect of Abstention on the Computation of ttie Voting Aajority The common law rule regarding the effect of an abstention is that whenever municipal officials are present and do not vote at all, they virtually acquiesce in the election made by those who do vote. The common law rule evolved because the courts were confronted with situations in which it appeared that one or more members of a municipal council had sought, by abstention from voting, to block or to impede the adoption of some measure even though, had they actually voted against the action, they could not have achieved such an objective. 63 American Law Reports 1077. The issue often arose in situations where one or two members objected to the appointment of some city official. By abstaining, and thereby preventing a quorum, the non -voting members could control the appointment even though a no vote would have been insufficient. In response to this problem, the !.-.;urts adopted the common law rule that an abstention is to be construed as agreement wi'.:i the motion before the body. The result is to prohibit a council member from accomplishing by inaction a result or a purpose which he or she could not achieve by proper participation, in necessary decision making. Several cc. is have modified the common law rule to allow an abstention to be counted as a negative vote when the non -voting member has in fact voiced oppoEition to the motion prior to the vote. This modification, however, is not the prevailing rule. Similarly, the courts have recognized that an abstention from voting may be due to a ►a mber's personal pecuniary interest in the matter at hand. An a �ssion of a member's conflict of :.iterest prior to a vote ied some court's to rule that the abstention cannot be count as an affirmative vote. See L. �iesey v< Secancus, 87 A 950 (Ni Sup. i91 Quinn v. Sea Isle City, 1 A 1118 (NJ 1909). This interpretation _..snot be relied upon in all instances. For example, in 1973 the North Dakota Supreme Court held that the abstentions of two Northwestern Bell employees, who refused to vote on a tax matter affect.ng their company were t) be counted as votes with the majority. Northwestern Bell Telephone Company v. Board of Commerce, 211 N.W.2d 39—(N.D. 1973). Given the fact that the Courts are not in total agreement on the effect of an abstention, it would b� prudent to def:?r the taking of a vote when a council member must abstain due to a `list of interest. Such deferment would leave the Council in a u ter oos.ition should tha vote ever be contested. KAD/jk 4497e