For a New York state board with both voting and non-voting (ex officio) members, do you count the non-voting members when figuring out quorum, and can a bare majority of those present pass a motion under Robert's Rules?

Plain-English summary

The New York State Independent Living Council, a federal Rehabilitation Act creature (29 U.S.C. §§ 796c-796d) that develops the State's plan for independent living for people with disabilities, has 24 voting members appointed by the Board of Regents plus several ex officio non-voting members representing state agencies. Its Executive Director asked the AG two questions: do the non-voting members count for quorum purposes under General Construction Law § 41, and does Robert's Rules of Order (incorporated into the Council's bylaws) let a motion pass on the vote of a majority of those present even if that is fewer than a majority of the whole body?

The AG had already concluded in 1997 (Op. Att'y Gen. No. 97-F11) that Council members are public officers and the Council is subject to GCL § 41's voting rules. This 2008 opinion answers the two follow-up questions.

Quorum: non-voting members do not count. GCL § 41 defines quorum as a "majority of the whole number" (with vacancies and disqualifications counted in). The AG read "whole number" the same way in both clauses, the quorum clause and the affirmative-vote clause:

• The affirmative-vote clause obviously cannot include non-voting members in the majority (they cannot vote).
• The quorum clause uses the identical phrase and should be read the same way.
• If non-voting members counted toward quorum but not toward votes, you could assemble a quorum that lacked enough voting members to pass anything (an absurd result the statute should not produce).

This is consistent with the AG's earlier Op. Att'y Gen. No. 84-F19 (committee with 5 voting and 6 ex officio non-voting members; quorum is 3, not 6).

So the Council's quorum is 13 of the 24 voting members.

Affirmative votes required: majority of the whole voting body. GCL § 41 says "not less than a majority of the whole number may perform and exercise [a] power, authority or duty." That means at least 13 voting members must vote yes for a Council action.

Robert's Rules conflict. The Council's bylaws make Robert's Rules of Order governing except as inconsistent with New York law. Under Robert's Rules and common law, a majority of a quorum suffices: 7 of 13 present could pass a motion. The AG explained that this is exactly the common-law rule GCL § 41 was meant to abrogate, citing Town of Smithtown v. Howell, 31 N.Y.2d 365, 377-78 (1972). § 41 reduced the quorum requirement (no need for the whole body present), but did not reduce the votes required to act. Rockland Woods, Inc. v. Inc. Vill. of Suffern, 40 A.D.2d 385, 387 (2d Dep't 1973), applied this to a 5-member board where 2 voted yes, 1 voted no, 1 abstained, and 1 seat was vacant: the resolution failed, because 2 is not 3 (a majority of the whole 5-member body).

So Robert's Rules yields. The Council needs 13 affirmative votes for action, even if only 13 members are present and 7 vote yes.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why does General Construction Law § 41 even apply to a federally-established council?
Op. Att'y Gen. No. 97-F11 had previously found that the Council's members are public officers under New York law, even though the Council exists under federal Rehabilitation Act authority. § 41 applies to public officers and joint duties of three or more under state law. The 2008 opinion does not reopen that 1997 ruling.

What if a voting member abstains?
The Rockland Woods case directly answers: an abstention is not a yes vote. You still need 13 yes votes (a majority of the whole 24-member voting body), not 13 votes one way or another.

What if a seat is vacant?
GCL § 41 expressly says the "whole number" counts in vacancies. So 24 voting seats with 2 vacant still requires 13 yes votes to act. Vacancies cannot reduce the action threshold.

Can the Council's bylaws override § 41?
No. § 41 is a state statute. The bylaws can fill in details § 41 does not address (committee structure, procedure, etc.) but cannot reduce the affirmative-vote threshold below the statutory floor.

Does this apply to other state boards with mixed voting/non-voting membership?
Yes, by parallel reasoning. The 1984 opinion (84-F19) involved a different board with the same structure; this opinion extends the rule to the Independent Living Council. The principle is general: only voting members count for "whole number" in § 41.

Background and statutory framework

State Independent Living Council. Established under 29 U.S.C. § 796d (federal Rehabilitation Act), responsible for developing the State Plan for Independent Living under § 796c. § 796d(b)(2)(B) provides for ex officio non-voting representatives of state agencies providing services for individuals with disabilities. The voting members are appointed by the Board of Regents in New York.

General Construction Law § 41. New York's default rule for public bodies of three or more members: quorum is a majority of the "whole number," and not less than a majority of the whole number may take action. "Whole number" counts vacancies and disqualifications.

Common law to be displaced. Pre-§ 41 common law required the whole body to be present for any action. § 41 lowered that to a majority. Town of Smithtown v. Howell explains the reform.

Action by majority of the whole, not majority of those present. Rockland Woods applies the rule in a 5-member board context.

Citations

• 29 U.S.C. § 796c (State Plan for Independent Living); § 796d (Council establishment, structure); § 796d(b)(2)(B) (non-voting ex officio members).
• General Construction Law § 41 (quorum and majority-of-whole-number rules; vacancies and disqualifications count toward "whole number").
• Town of Smithtown v. Howell, 31 N.Y.2d 365, 377-78 (1972) (§ 41 abrogated common-law whole-body requirement but did not reduce votes required).
• Rockland Woods, Inc. v. Inc. Vill. of Suffern, 40 A.D.2d 385, 387 (2d Dep't 1973) (resolution requires majority of whole body, not majority of those voting).
• Op. Att'y Gen. No. 97-F11 (Council subject to § 41; majority of authorized membership required).
• Op. Att'y Gen. No. 84-F19 (non-voting ex officio members not counted toward quorum).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/2008-F1_pw.pdf

Original opinion text

29 United States Code §§ 796c, 796d, 796d(b)(2)(B); General Construction Law § 41

Thirteen voting members of the Council constitute a quorum, and at least thirteen voting members must approve a motion for it to pass.

August 1, 2008

Brad Williams
Executive Director
New York State Independent
Living Council, Inc.
111 Washington Avenue
Suite 101
Albany, New York 12210

Formal Opinion
No. 2008-F1

Dear Mr. Williams:

You have requested an opinion regarding the quorum and voting number requirements applicable to the New York State Independent Living Council ("Council"). The Council is established pursuant to 29 U.S.C. § 796d, and is responsible for developing the State's plan for independent living. Id. § 796c. You have explained that the Council is composed of twenty-four voting members and several ex officio members who, by statute, may not vote, id. § 796d(b)(2)(B). The voting members are appointed by the Board of Regents. The ex officio members are representatives of state agencies that provide services for individuals with disabilities. Id.; see also By-Laws of the New York State Independent Living Council 2.7(2).

In Op. Att'y Gen. No. 97-F11, we concluded that the members of the Council were public officers, and that the Council was subject to the voting requirements of General Construction Law § 41. Applying section 41, we concluded that a majority of the total authorized membership of the Council constituted a quorum; the Council could not exercise its powers in the absence of a quorum; and a majority vote of the total authorized membership was necessary for the Council to take action. Op. Att'y Gen. No. 97-F11.

You raise two further questions concerning the application and continued force of that opinion. First, you have asked whether the non-voting members are to be included in the total number of Council members when determining what constitutes a quorum. Second, you have asked whether our opinion that an action of the Council requires the affirmative vote of a majority of the whole is altered by the fact that Robert's Rules of Order permit action by a majority of those present, so long as a quorum is present. As explained below, we conclude that non-voting members should not be counted in determining a quorum, and therefore thirteen voting members constitute a quorum. We further conclude that, notwithstanding Robert's Rules of Order, General Construction Law § 41 provides that an action of the Council must have the affirmative votes of a majority of the whole, i.e., at least thirteen voting members.

I. Quorum

Section 41 has not been amended in the time since we issued Op. Att'y Gen. No. 97-F11. It provides that

[w]henever three or 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 . . . shall constitute a quorum and not less than a majority of the whole number may perform and exercise such power, authority or duty. 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 none of the persons or officers disqualified from acting.

General Construction Law § 41.

Thus, pursuant to section 41, a quorum consists of "a majority of the whole number," meaning the total number the Council would have were there no vacancies and no members disqualified from acting. We are of the opinion that the non-voting ex officio members should not be included in the determination of the "whole number" for the purpose of determining the number of members needed for a quorum. The statute uses the same phrase, "majority of the whole number," to specify both the number of people necessary for a quorum and the number of affirmative votes necessary to take action. Since non-voting members cannot logically be included in the "majority of the whole number" whose votes are needed to take action, non-voting members also cannot be included in the "majority of the whole number" needed to constitute a quorum. It would be illogical to interpret the phrase "majority of the whole number" differently, within the same statutory provision, with respect to the number for a quorum and the number for a majority. Moreover, if non-voting members were counted in making a quorum but not in making the number of affirmative votes necessary to take action, it would be possible to have a quorum that could not take action: a bare quorum containing several non-voting members would not contain enough voting members to take action as a majority of the whole. A statute should not be construed in a manner that produces such an absurd result.

This conclusion is consistent with our conclusion in Op. Att'y Gen. No. 84-F19. In that opinion, we considered what constituted a quorum of a committee composed of five voting members and six ex officio non-voting members, and concluded that a majority of only the voting members constituted a quorum.

Accordingly, because the Council has twenty-four voting members, we are of the opinion that thirteen voting members constitute a quorum of the Council.

II. Votes Required to Pass a Motion

Furthermore, we continue to believe, as stated in Op. Att'y Gen. No. 97-F11, that the affirmative votes of a majority of the voting members are required in order to pass a motion of the Council; in 1997, when the Commission had twenty voting members, we opined that eleven affirmative votes were required, and now that the Commission has twenty-four voting members, the same analysis leads to the conclusion that thirteen affirmative votes are required. We come to this conclusion because section 41 provides that "not less than a majority of the whole number may perform and exercise [a] power, authority or duty" granted to a group of public officers.

We recognize that the By-Laws of the Council provide that the meetings of the Council are to be governed by Robert's Rules of Order, except as inconsistent with, in relevant part, the laws of New York. By-Laws § 3.3(b). We understand that under Robert's Rules, as at the common law, a majority of a quorum suffices to adopt a motion. Thus, if a quorum of thirteen voting members were present and each voted, under Robert's Rules a motion before the Council could pass with just seven votes.

This, however, was precisely the result that General Construction Law § 41 was intended to prevent. In Town of Smithtown v. Howell, 31 N.Y.2d 365 (1972), the Court of Appeals explained that section 41 was designed to abrogate the common law rule that required the presence of the whole body to act. 31 N.Y.2d at 377. It did not, however, reduce the number of affirmative votes required for action. Id. at 377-78. In Rockland Woods, Inc. v. Inc. Vill. of Suffern, 40 A.D.2d 385, 387 (2d Dep't 1973), the court explained that the purpose of section 41 is, notwithstanding the reduced quorum requirement, "to ensure that before official action is taken by a public body, there must be clear and express approval by a majority of its members." In that case, in a five-member board, two members voted in favor of a measure, one member voted against it, one member abstained, and one position was vacant. The court held that the resolution did not pass; passage required not merely a majority of those voting (two of three) but rather a majority of the whole membership (three of five). Accordingly, the laws of New York are inconsistent with Robert's Rules in this regard, and the laws of New York are controlling.

In summary, we conclude that thirteen voting members of the Council constitute a quorum, and at least thirteen voting members must approve a motion for it to pass.

Very truly yours,

ANDREW M. CUOMO
Attorney General