Legal Corner: Quroum Call

A quorum is necessary for most public bodies to conduct business and is defined in state law as a majority of the elected or appointed members of the public body, unless another number is designated in the public body’s bylaws, charter, or code. See A.R.S. §§ 1-216, 9-233. According to the tenth edition of Robert’s Rules of Order, the purpose of a quorum is to protect the public from "totally unrepresented action" in the council’s name by a few individuals. Since a quorum or majority of the council is required to transact business, it is important that all councilmembers regularly attend council meetings because a lack of quorum will prevent city or town business from moving forward.

Whether a quorum exists is also a key component to determine if Arizona’s Open Meeting Law applies since a quorum of council members gathering to discuss or deliberate legal action necessitates the posting of a notice, agenda, and minutes, and prompts other legal requirements. See A.R.S. §§ 38-431 – 38-431.09. The law broadly encompasses any "gathering" including through technological devices so a quorum may be achieved if members are talking in person, by phone or video, through text or email, or any combination of these interactions.

Vacancies and Disqualifications

When preparing for a council meeting, it is important to understand how a quorum is affected by vacancies and disqualifications. According to Chapter 7 of the Arizona Attorney General Agency Handbook, vacant positions do not reduce the quorum requirement. Therefore, if a vacancy occurs, the entire membership must be counted and not merely the remaining members. See also § 13:36.Quorum generally—Computation, 4 McQuillin Mun. Corp. § 13:36 (3d ed.). However, there is no particular statute or rule addressing how the vacancy situation affects quorum and often municipalities have ordinances that guide the vacancy process so if your council has a vacancy, it is important to seek legal advice from your attorney about how to proceed if a vacancy is declared.

Disqualification is similar to vacancy but Arizona has some additional guidance that confirms that the quorum requirement does not change. Disqualification may occur for a number of reasons but typically it is due to a council member’s declaration and recusal due to a conflict of interest. While a disqualified member may attend the council meeting, the councilperson shall not be counted for quorum purposes to discuss or decide the particular matter for which the member is disqualified. For example, a seven-member council may have a quorum of four members present but if one member declares a conflict, the council cannot proceed on that matter until another member attends the meeting. See Croaff v. Evans, 130 Ariz. 353, 356, 636 P.2d 131, 134 (App. 1981) (the board lost a quorum when a member disqualified himself from voting on a zoning amendment).

The laws regarding vacancy and disqualification indicate that it is imperative to have a fully operational council in order to conduct the city or town’s regular business. However, there are rare situations when a majority of the council may be disqualified, especially in smaller communities. Since it is impossible to obtain a quorum in these circumstances, the ‘Rule of Impossibility’ applies and the council may proceed to act despite their disqualification as long as their conflicts are disclosed on the record. See A.R.S. § 38-508(B).

Quorum and Voting
Quorum and the votes needed to take action operate differently. While a quorum is necessary to transact the business of the council, most of the time a quorum is not necessary to take legal action at the meeting. If a seven-member council has a quorum of four present at a council meeting, then only three votes are necessary to pass a measure, unless a specific statute, charter provision, or code specifies different voting requirements. While a majority of the members present is often sufficient for the council to take action, sometimes a supermajority vote is required for certain matters. Zoning protests or passing a measure with an emergency clause requires a three-fourths vote of all members while the adoption of a general plan and action on certain types of annexation petitions require a two-thirds vote. In order to calculate three-fourths or two-thirds, often cities and towns will round up so three-fourths of a seven-member council will ultimately be six members. A two-thirds vote will require five votes from the seven-member council.

A recent change in the zoning protest law changes how a council’s three-fourths vote is calculated in this circumstance by requiring the vote to be rounded to the nearest whole number, which some cities and towns have interpreted to mean a lower voting threshold. See Laws 2017, Ch. 290 (H.B. 2116) codified at A.R.S. § 9-462.04. Prior to the legislation’s enactment, three-fourths of a seven-member council results in 5.25 and would have previously been rounded up to six. However, since the statute allows rounding to the nearest whole number (and not rounding up), an argument has been made that only five votes are necessary to overcome the protest. As with other areas, it is important to discuss this issue with your attorney before the need for a supermajority involving a zoning protest comes to fruition.

Conclusion
Your presence as an elected or appointed official at council meetings is vital and often necessary for the council to pursue its regular course of business. Disqualification due to a conflict of interest doesn’t affect the quorum requirement but there is a safeguard in place to ensure that council business may continue if too many disqualifications prevent a quorum from meeting and taking action. In the same way, vacancies may reduce the quorum requirement. Both rules are an effort to protect the city or town from a small group of people taking action that may not represent the community’s interest and in the case of vacancies incentivizes quick action by the city or town to fill the vacant position. Additionally, higher vote thresholds emphasize the importance of having all members attend the council meetings so there will not be any delays on important council business. Check your charter, code or local rules to determine how your city or town addresses these situations and whether you can participate electronically in meetings in order to meet or exceed the quorum requirements. For more resources about quorum, voting, and other meeting basics, please view the League publications below.

League Publications
Anatomy of a Council Meeting
What All Elected Officials Need to Know
You as a Public Official