What is a “unanimous” vote of a 3 member board of township trustees?

Zoning & Public Sector

The issue discussed in this article is whether a 2-0 vote of a board of trustees of an Ohio township where the third member is absent due to illness constitutes the “unanimous vote of the board”? This question was addressed in by the Ohio Attorney General in Opinion 99-004 and 85-010. A board of township trustees is a public body, which must take official action and conduct deliberations upon official business at open meetings, except as otherwise provided by law.

It has been found, under Ohio law, that all members of a board of township trustees must be notified of a meeting of the board, but that a majority of the board – that is, two of the three members – constitutes a quorum that is qualified to take action on behalf of the board. Therefore, if two or three trustees are present at a meeting, there is a quorum.

According to the Ohio Attorney General, the majority of a quorum may act for a board, provided that all members had notice and an opportunity to be present. See In re Slavens; State ex rel. Green v. Edmondson, 12 Ohio N.P. (n.s.) 577 (C.P. Hamilton County 1912) (on seven-member building commission, four members could act by majority vote if three members refused to attend or to vote, except when statute required affirmative vote of five members); 1998 Op. Att’y Gen. No. 98-007; 1965 Op. Att’y Gen. No. 65-70. With respect to a three-member board, however, two members may be a quorum, but a single member does not constitute a majority (i.e., more than half) of the quorum. Therefore, two members must act, whether two or three members are present. Under this rule, two or three of the township trustees must be present and voting in order for the board to take action. If only two members vote, they must concur in order for the board to act. See, e.g., State ex rel. Saxon v. Kienzle; 1976 Op. Att’y Gen. No. 76-022; see also State ex rel. Dry Ridge Dev. Co. v. Hamilton County Bd. of Comm’rs, 30 Ohio App. 3d 217, 507 N.E.2d 438 (Hamilton County 1986); 1934 Op. Att’y Gen. No. 2292, vol. I, p. 164. See generally Federal Trade Comm’n v. Flotill Products, Inc., 389 U.S. 179 (1967); 1998 Op. Att’y Gen. No. 98-007; 1992 Op. Att’y Gen. No. 92-047; 1978 Op. Att’y Gen. No. 78-047.

It has also been concluded that, if one member of the board of township trustees abstains from acting on a particular matter because of a conflict of interest, the remaining two members may take action on behalf of the board and, if they agree, their action may be considered the unanimous vote of the board. See 1985 Op. Att’y Gen. No. 85-010; see also State ex rel. Dry Ridge Dev. Co. v. Hamilton County Bd. of Comm’rs (reaching same conclusion with respect to board of county commissioners). But see 1934 Op. Att’y Gen. No. 2292, vol. I, p. 164 (citing instances in which requirement of a unanimous vote meant that the votes of all three township trustees were required). This conclusion is based on the principle that a unanimity requirement does not necessarily mean that all members must vote for a proposition, but it may require only “that those who vote on the proposition vote in agreement and that no one dissents.” 1985 Op. Att’y Gen. No. 85-010, at 2-38; cf. Seyler v. Balsly, 5 Ohio Misc. 210, 210 N.E.2d 747 (C.P. Hamilton County 1965) (finding that a vote by two members of a board of county commissioners satisfied the requirement of R.C. 303.12 that denial of a recommendation of the county rural zoning commission be by unanimous vote of the board when the third member was absent on leave and not voting). Under this principle, if one member of a board of township trustees abstains from voting and the other two concur, the vote is a unanimous vote (and, thus, also a majority vote).

Please note that the Attorney General limited its rationale in OAG 99-004 to a township that has not adopted the limited self-government form of township government pursuant to R.C. Chapter 504. Absent anything to the contrary in Chapter 504, we do not find any reason to believe that the same reasoning would not apply to all townships.

Please note that there is however, a subtle twist depending on the statutory language and may not be true in every instance. This analysis is limited to R.C. §519.12 due to the language used for unanimity. The Hamilton County Court of Common Pleas in Seyler et al v. Balsly. Inspr., et al., 210 N.E.2d 747 (1965) noted this distinction as follows:

“That where the requirement is for a unanimous vote of ‘all of the members or the body,’ or ‘of all those elected or appointed’ as members thereof, or some such impelling words, then [an affirmative vote of all members of the body is required]; but that where the requirement is *** that there shall ‘be a unanimous vote’ of the body, then the declared rule is that the requirement is satisfied if a quorum is present and the action taken is approved by all of the members present.”

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admin @ February 8, 2008