Quorum Quandaries: When Is a Council Member Not a Member?
In previous blog posts, we’ve discussed the requirements of the Texas Open Meetings Act, and various issues related to properly held open meetings and quorum requirements. Though there’s substantial case law and legislative history on these issues, recently a unique question arose in this context. Where a meeting is properly noticed and convened, and a quorum of council is present but one or more members is faced with a legal conflict; could this conflict break a quorum and prevent the city council from taking action? To examine the question, we first have to go through a brief review of meeting and quorum requirements under state law.
In Texas, a quorum of a public body is a majority of the number of members of that body fixed by statute. Further, a grant of authority to three or more persons as a public body confers the authority on a majority of the number fixed by statute. Tex. Loc. Gov’t Code §311.013. For general law cities, the number of councilmembers or aldermen is set by statute. For home-rule cities however, the number of members of a city council is determined in the City Charter.
The common law rule is that decisions entrusted to governmental bodies must be made by the body as a whole at a properly called meeting. See Webster v. Tex. & Pac. Motor Transp. Co., 166 S.W.2d 75, 76–77 (Tex. 1942); Fielding v. Anderson, 911 S.W.2d 858, 864 (Tex. App.—Eastland 1995, writ denied). Under the Texas Open Meetings Act a meeting is defined, in relevant part, as a deliberation between a quorum of a governmental body during which public business or public policy is discussed or considered. Tex. Gov’t Code §551.001(4). By definition, without a quorum present, an open meeting cannot be convened. Simply put, the law requires a quorum of members to be present in order to conduct an open meeting, and at least a majority of that quorum is required to take action on a particular item.
While the Texas Open Meetings Act (“TOMA”) makes it clear that a meeting cannot be convened unless a quorum is present in the meeting; Texas case law and attorney general opinions have not addressed the issue of whether or not a properly convened meeting could continue if a quorum is lost due to the later departure or temporary absence of a council member. In any event however, the council could not take any action during a meeting while a quorum was not present. In other words, if a quorum is broken due to a member leaving during a meeting, the council could not take any official action during that time.
This notion is further supported by Robert’s Rules of Order, which has been adopted by the vast majority of cities in Texas. Robert’s Rules of Order Newly Revised (11th ed.) states that “in the absence of a quorum, any business transacted is null and void.” RORN (11th ed.), p. 347, ll 21-25. In the absence of a quorum, the governing body may adjourn, recess, or take measures to obtain a quorum. Id. at p. 347-348.
The law appears clear that a quorum must be present in the meeting in order to conduct a meeting or take official action. However, what happens if a quorum is convened, but one of the members must abstain from participation in a matter due to a legal conflict? In theory, the council member is still physically present in the meeting, so would the member be counted towards a quorum, or could this member potentially break a quorum due to a legal conflict?
In order to determine these questions, it is first necessary to determine how the law views council members when they abstain from participation on a matter due to a legal conflict. Under Chapter 171 of the Texas Local Government Code, a public official is prohibited on voting on or participating in certain matters in which the public official may have a conflict of interest. If a public official has such a conflict, the official must file an affidavit with the city’s official record keeper stating the nature and extent of the interest. Additionally, the public official is required to abstain from any further participation in the matter. Tex. Loc. Gov’t Code 171.004.
There have not been any Texas cases or Attorney General Opinions which address the issue of whether or not such a conflict can bust a quorum for purposes of a particular matter or topic. Opinions from other state courts however, can provide some guidance. In Coles v. Trustees of Williamsburgh, a New York court squarely addressed the issue. In Coles, a board of trustees was made up of 5 members. At a meeting of the trustees, all 5 trustees were present, however only 2 trustees voted on a particular matter with the other 3 members declining to vote on the basis of a conflict of interest. The court noted that the governing statute required 3 out of 5 trustees in order to have a quorum. The court further found that since 3 of the trustees were incompetent, by law, to vote, they were not trustees at all with regard to voting on that particular matter, and thus there was no quorum necessary for the transaction of business. Coles v Trustees of Williamsburgh (1833, NY) 10 Wend 659). Though this case is nearly 200 years old, it has not received any negative treatment and appears to still be the law in New York.[1]
Texas Courts have also looked at the issue of members who are disqualified from voting on a matter due to conflict, but in a slightly different context. In Alamo Heights, the city council consisted of 5 aldermen. In order to approve a proper rezoning, ‘the favorable vote of three-fourths of all the members of the legislative body’ was required. All 5 aldermen were present at the meeting in which the rezoning was considered. One of the aldermen disqualified himself by reason of conflict of interest and accordingly, he did not participate in the hearing. See Alamo Heights v. Gerety (1954, Tex Civ App) 264 S.W.2d 778. At the hearing, 3 of the 5 aldermen voted to approve the rezoning, one voted against, and the alderman with the conflict abstained due to a legal conflict. The court took the position that where a member of a city council is disqualified from voting upon a particular matter by reason of personal interest, the situation is comparable to that where a vacancy in the council membership has occurred by reason of death, resignation, or disqualification. The court explained that the basic question was whether or not an admitted disqualification should be treated as a vacancy with regard to tallying the percentage of the vote. Id. The court determined that upon disqualification of the 1 member, the remaining 4 members constituted ‘all of the members of the legislative body’ for purposes of calculating the vote. The court concluded that ‘all the members of the legislative body’ means “all the members in esse and qualified to act.” Id. In other words, if a member is disqualified by way of conflict, they are not a member at all for purposes of voting on that subject. It is worth noting once again that Alamo Heights, looked at the question from the standpoint of calculating votes rather than from the standpoint of establishing a quorum. However, it does seem to suggest that the same analysis would apply in the context of quorums.
While there are not any Texas cases or Attorney General opinions directly on point, the case law strongly suggests that a council member who is disqualified due to a legal conflict can break a quorum, at least for a particular topic or matter. Without a quorum, no official action could be taken on any matters.
[1] It is worth noting that the situation addressed by the court in Coles, has actually been addressed in a different context through a Texas statute. Under the local government code, if a majority of the members of the governing body have a substantial interest and are required to file conflict affidavits on the same official matter, those officials are not required to abstain from participating in the matter. Tex. Loc. Gov’t Code 171.004(c). This essentially ensures that a governing body will be capable of acting if a majority of its members are conflicted out on a matter.
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