Abstentions, Proxies, and Other Unusual Legislative Body Voting Scenarios

Can a councilmember abstain from voting on a controversial topic? What happens if there is a tie vote? Can a commissioner who is absent from a meeting ask another commissioner in attendance to be their proxy?

These are some of the more frequent questions MRSC receives about unusual voting situations that can occur during meetings of a legislative body. This blog will review these voting scenarios, set forth the legal landscape, and offer best practices on how to proceed in these relatively unusual situations.

Abstentions

Abstentions occur when a member of the legislative body declines to vote “yes” or “no” on an action. Abstentions most commonly arise when a member of the legislative body has a personal conflict of interest before the body. When that occurs, the law requires that the member abstain from voting. (Whether it is sufficient to abstain from voting in these types of financial conflict of interest scenarios is a matter MRSC explored in more detail in Resolving Financial Conflicts of Interest: Is Abstaining from Voting Enough?)

Abstentions can also arise when a controversial topic is before the body for a vote, or a member feels they simply don’t have sufficient information yet to vote “yes” or “no.” In these types of abstention scenarios, when the time comes for the vote, that person should stay silent or state, “I abstain.” For example, members of governing bodies have recently abstained from the following actions: 1) allowing a retail cannabis store in a particular zoning district (see the Kitsap Daily News reporting on Poulsbo’s recent vote on a retail cannabis store); and 2) adopting a Gaza cease fire resolution (see meeting minutes related to Seattle’s Resolution 32118).

Are these types of abstentions allowed? While abstaining from a vote is not addressed in state law, many jurisdictions have adopted Robert’s Rules of Order, which provides the following with regard to abstentions:

• While it is the duty of every member to vote, a member can abstain since they cannot be compelled to vote.
• Abstentions are counted and noted, but not as a “yes” or “no” vote.
• A member has an obligation to abstain if they have a direct personal interest in the matter that amounts to a legal conflict of interest.

Some jurisdictions have adopted local rules that diverge from Roberts Rules and count abstentions not related to a conflict of interest or appearance of fairness matters as either a “yes” or a “no” vote. See, for example, Issaquah Municipal Code Sec. 2.06.120, which counts abstentions as a “yes” vote, and the City of Port Townsend Council Rules of Procedure, 2.7(c), which counts them as a “no” vote.

Complicating factors with abstentions

One complicating factor with abstentions is that sometimes state law requires a certain number of “yes” votes to pass a particular action. While the basic rule is that only a majority of “yes” votes of all votes cast are needed to pass an action, many cities, for example, can only pass ordinances with an affirmative vote of a majority of the whole membership of a city council (RCW 35A.12.120). So, if the vote for an ordinance at a code city is three “yes” votes, two “no” votes, and two abstentions, the ordinance would not pass.

Another complicating factor with abstentions is that it can result in tie votes. Even if an affirmative vote of the majority of the whole governing body is not required to pass a particular action, if a five-member body votes 2-2 (or a seven-member body votes 3-3), with one abstention, the motion will fail unless the tie vote can be broken. (Tie votes are covered in more detail below.)

Legislative Walkouts

While legislative walkouts aren’t the same as abstentions, a recent Ninth Circuit Court of Appeals case addressing walkouts may nonetheless be of interest to readers.

In 2023, two Oregon state senators engaged in a legislative walkout over several weeks, resulting in more than 10 unexcused absences from legislative floor sessions, causing the body to lose its quorum and grinding legislative business to a halt. The state constitution disqualifies from the next election any senator with 10 or more unexcused absences, so the secretary of state disqualified these two state senators from appearing on the 2024 ballot.

The senators claimed that their walkout was protected speech under the First Amendment and the disqualification amounted to First Amendment retaliation. The Ninth Circuit Court disagreed, holding that the walkout was not constitutionally protected activity, stating: “walkouts by legislators to deny a quorum to conduct business in the legislature are exercises of legislative power not protected under the First Amendment …”

Washington statutes for cities, towns, and water-sewer districts allow for only three consecutive unexcused absences of a member before their position is considered vacant, and whether or not an absence is excused is left to the discretion of the governing body. Washington statutes for other special purpose districts consider a position vacant if the commissioner fails to attend meetings for a period of 60 days. Non-charter counties do not appear to have a similar provision. This topic is explored in more depth on MRSC’s Vacancies in Local Elected Offices webpage. Regardless of how many unexcused absences results in a vacancy, this Ninth Circuit case is something Washington local government elected officials should keep in mind when deciding whether to assert that their meeting absence is protected speech under the First Amendment and, therefore, should be excused.

Tie Votes and Veto Power

There is no procedure for the governing bodies of counties or special purpose districts to break tie votes although some charter counties specifically give the county executive the power to veto legislation. That veto can often be overridden by a majority of the council plus one.

The mayor in mayor-council cities and towns can break tie votes and veto legislation only in certain situations as follows:

First-class cities would provide for any tie-breaking vote or veto power in their charters. For example, the City of Aberdeen’s charter provides the mayor with tie-breaking authority, whereas the City of Bremerton’s charter only provides veto power to the mayor that can be overridden by a majority of the council plus one.

Proxy or Absentee Votes

Proxies are commonly used in the private corporate setting (and absentee votes are utilized in state and local elections), but local government governing bodies do not appear to have the same flexibility.

While not directly addressed in state law, Roberts Rules of Order strongly disfavors absentee and proxy voting, stating:

It is a fundamental principle of parliamentary law that the right to vote is limited to the members of an organization who are actually present at the time the vote is taken in a regular or properly called meeting. (See Roberts Rules of Order, Section 45:56.)

Also, the Washington State Attorney General has opined that a school district board of directors cannot vote by proxy. See AGO 51-53 No. 283 noting that:

...members of a school board must act as a board and…their legislative and discretionary powers can only be exercised by the coming together of the members who compose the board.

Conclusion

While unusual voting situations can arise, Robert’s Rules of Order and/or the agency’s local rules of procedure generally inform how to proceed. MRSC also has a Council Voting webpage which provides additional information on voting procedures.