Abstaining isn’t same as voting ‘no’

Question: I’m an off-again, on-again board member for my Los Angeles homeowners association. I have been playing both sides of the fence for some time. I do this is because it seems to keep the peace between owners and the board, and it was effective for a long time.

Recently, there was a very important issue the board president told me to vote “yes” on. But there was one board member who researched the issue in depth and found very convincing reasons why the board should not pass this motion.

When I told the president and another board member that I had serious reservations about supporting their request for a yes vote, the president said, “Then abstain, but don’t you dare vote ‘no,’ we want to look united.”

Thinking an abstention is the same as voting no, when the vote came up I did what he asked, I abstained.

The vote tally was two in favor, two against and one abstention. It was announced that the motion passed. I was stunned because I thought an abstention meant I voted no.

The passage of this motion is devastating to all the owners, and I don’t understand how it passed.

Can you explain? Can I nix my vote and go back and vote no?

Answer: Following the pack in order for the board to give an appearance of unity is not part of a board member’s fiduciary duty. All board members have a duty to be independent thinkers; there can be no exceptions because each titleholder’s equity is at risk by decisions a board makes and does not make.

The job description of a board member does not include instructing other board members how they must vote. In fact, each director is required to make independent decisions and, if necessary, conduct research into the issue and perform due diligence to determine whether a proposal is right for the association and its owners.

Though an abstention is sometimes referred to as a nonvote, that is misleading. Most courts hold that an abstention is to be construed as agreeing with the majority.

There is also a distinction to be drawn between a director’s presence counting toward a quorum and a director abstaining from voting, which disenfranchises the titleholders who elected him or her.

Because every director owes a duty to perform due diligence and become knowledgeable about the issues brought before the board, not voting may be an admission that one has failed to fulfill that duty.

Board members sometimes believe that by abstaining they are expressing opposition to a particular issue, but nothing could be further from reality. Abstaining means that no vote is cast and any opinion on the subject at issue goes unexpressed.

A vote to abstain usually occurs when either a yes or no vote will not change the outcome but allows the one casting the vote to avoid expressing an opinion that may be construed as siding with a particular person or faction. The director who abstains from voting does a disservice to himself and his constituency, and operates as if he were not on the board.

Outside of abstaining because the issue presents a conflict of interest, failure to vote may indicate apathy or that it is time for a board member to resign, letting other, more interested individuals serve.

Each director’s assent or abstention must be noted in the minutes. It is not enough to state that so many voted for, so many against, so many abstained. Board member names and votes should be published so titleholders will know how their directors sided on each issue.

With each titleholder’s equity at risk by actions of the board, putting a director’s name next to his or her vote is the very least an owner should expect from the board.

Questions can be sent to P.O. Box 11843, Marina del Rey, CA 90295 or e-mailed to [email protected].