Can an Arkansas school board require a two-thirds vote to suspend the rules or call the question, even though state law says a majority of a quorum is enough to pass any motion?

Plain-English summary

Representative Charles Armstrong asked AG Dustin McDaniel a question on behalf of the Little Rock School District Board. The board has long used Robert's Rules of Order to run its meetings. Robert's Rules requires a two-thirds vote to pass certain procedural motions, like suspending the rules or calling the question (closing debate). But Arkansas statute A.C.A. § 6-13-619(c)(1)(C) says "a majority of a quorum voting affirmatively is required for the passage of any motion or resolution." The board worried that requiring two-thirds for procedural motions might conflict with the statute's "any motion" language.

The AG concluded there was no conflict. He made two key points:

First, A.C.A. § 6-13-619(c) does apply to all motions, procedural and substantive. The word "any" means "any."

Second, the statute sets the minimum vote required to pass a motion, not the maximum. The legislature said a majority of a quorum is required, which is consistent with a local rule saying that for certain motions a higher threshold is required. A two-thirds vote includes a majority by definition. The statute uses the word "required," not "sufficient," which leaves room for higher local thresholds.

The AG also drew structural support from the rest of the statute. Section -619(c) is mostly about minimum conditions for the board to conduct business, like quorum requirements. The statute leaves many procedural matters open (how to make motions, whether to require a second, how to tabulate votes, whether to allow debate without a quorum). Robert's Rules covers all of those things, and nothing in -619 forecloses adopting Robert's Rules to fill those gaps.

A final point: the two-thirds rule for procedural motions exists to protect minority rights. Robert's Rules describes it as "a compromise between the rights of the individual and the rights of the assembly." Reading the statute to bar that protection would mean a bare majority could suspend the rules and run roughshod over dissenting members. The AG saw no indication the legislature intended that.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Can an Arkansas school board adopt Robert's Rules of Order?
At the time of this opinion, yes. Arkansas AG opinions had long held that deliberative bodies can adopt their own rules of procedure as long as those rules do not conflict with state law. Op. 2011-034 expressly so held, and the 2014 opinion confirmed that for school boards specifically.

Does state law require a school board to pass motions by majority of a quorum?
A.C.A. § 6-13-619(c)(1)(C) requires that "a majority of a quorum voting affirmatively" pass any motion. That's the floor. A board may locally require more for certain types of motions, like procedural motions that affect rights of minority members.

What's a "procedural motion" under Robert's Rules?
The 2014 opinion used "procedural" to refer to the 26 kinds of motions Robert's Rules designates as requiring a two-thirds vote. Examples include motions to suspend the rules, call the question (close debate), take up a question out of its proper order, limit or extend limits of debate, and amend something previously adopted.

Why is a two-thirds vote required for procedural motions?
Procedural motions change the rules by which the body operates. Those rules typically protect minority members. If a bare majority could change procedure on the fly, the majority could effectively silence dissent. The two-thirds rule, as Robert's Rules puts it, is "a compromise between the rights of the individual and the rights of the assembly."

Does the statute set a maximum vote threshold or just a minimum?
The 2014 AG read it as a minimum only. The text says majority is "required," not "sufficient." A locally imposed higher threshold satisfies the statute because a two-thirds vote necessarily includes a majority.

Where else has the Arkansas General Assembly specified majority-only voting?
A.C.A. § 2-2-110(c) (agricultural cooperative association amendments require majority vote at quorum meeting) and A.C.A. § 14-233-108(f)(2) (sanitation authority directors: majority of all directors' votes "necessary and sufficient" to act). The use of "and sufficient" in those statutes, contrasted with "required" in § 6-13-619, supports reading § 6-13-619 as setting only a minimum.

Background and statutory framework

The 2014 opinion sits at the intersection of statutory school-board governance and parliamentary tradition. Key pieces:

• A.C.A. § 6-13-619(c) governs meetings of school district boards of directors. Subsection (c)(1)(A) requires physical presence to count toward a quorum. Subsection (c)(1)(B) prohibits a vote without a quorum. Subsection (c)(1)(C) requires majority of a quorum to pass any motion. Subsection (c)(2) defines quorum as a majority of the entire board.

• Robert's Rules of Order Newly Revised (11th ed.) is the parliamentary manual most American deliberative bodies use. Its "gray pages" appendix (§ VI, pp. 44-45) lists the 26 procedural motions that require a two-thirds vote.

• Op. Att'y Gen. 2011-034 had previously held that local deliberative bodies can adopt their own rules of procedure as long as those rules do not conflict with state law.

The AG's analysis used statutory construction (a minimum-vs-maximum distinction) and structural context (the rest of § 6-13-619 sets minimums, so subsection (c)(1)(C) likely does too) to reconcile the seeming tension. The opinion also flagged Robert's Rules' own justification for two-thirds procedural votes (minority protection) as a policy reason for allowing the local rule.

Citations

• A.C.A. § 6-13-619(c)(1)(C) (majority of a quorum required for passage of any motion or resolution)
• A.C.A. § 6-13-619(c)(1)(A) (physical presence required to count toward quorum)
• A.C.A. § 6-13-619(c)(1)(B) (no vote until quorum established or restored)
• A.C.A. § 6-13-619(c)(2) (quorum defined as majority of the board)
• A.C.A. § 2-2-110(c) (agricultural cooperative association amendment: majority sufficient)
• A.C.A. § 14-233-108(f)(2) (sanitation authority board: majority necessary and sufficient)
• Robert's Rules of Order Newly Revised (11th ed.) §§ 4, 10, 16, 40, 44-45 (motions, debate, voting)
• Op. Att'y Gen. 2011-034 (deliberative bodies may adopt procedural rules consistent with state law)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS

THE ATTORNEY GENERAL
Dustin McDANIEL

Opinion No. 2014-031

June 2, 2014

The Honorable Charles Armstrong
State Representative

9900 West 36th Street

Little Rock, Arkansas 72204-6606

Dear Representative Armstrong:

You have requested my opinion on a question about the number of votes required
to pass certain motions in a meeting of the school board. You give the following
background for your request:

For years the LRSD Board of Directors has conducted its meetings
in accordance with the procedural requirements found in Robert's
Rules of Order. According to Robert's Rules, there are a number of
procedural motions which require a greater number of votes than a
simple majority. The LRSD Board is concerned that following
Robert's Rules of Order may put the LRSD Board of Directors in
conflict with A.C.A. § 6-13-619(c)(1)(C) if that statute is read to
apply to procedural as well as substantive motions. Section 6-13-
619(c)(1)(C) states that "[a] majority of a quorum voting
affirmatively is required for the passage of any motion or
resolution." With respect to procedural motions such as suspending
the rules or calling a question, however, LRSD has followed the
Robert's Rules requirement of a two-thirds vote.

With this background in mind, you ask the following question:

May LRSD lawfully follow Robert's Rules of Order with respect to
such purely procedural motions and follow A.C.A. § 6-13-
619(c)(1)(C) only with respect to substantive motions?

RESPONSE

It is my opinion (1) that section 6-13-619(c) applies to all motions and resolutions,
regardless of whether they are procedural or substantive in nature; and (2) that
section 6-13-619(c) only establishes the minimum (not the maximum) vote
required for the passage of motions and resolutions. Thus, there is no reason to
think that, by enacting section 6-13-619(c), the General Assembly intended to
prohibit school boards from requiring a higher vote on certain procedural motions.
Therefore, in my opinion, a school board is free to adopt the requirement in
Robert's Rules that the passage of certain procedural motions requires a two-thirds
vote.

DISCUSSION

Section 6-13-619(c)(1)(C) states that "[a] majority of a quorum voting
affirmatively is required for the passage of any motion or resolution." Before
directly addressing your question, I need to clarify how I will use the term
"procedural motion" and make two preliminary observations about section -619.

Your question asks about the vote requirement for "procedural motions" and
alludes to the requirement in Robert's Rules governing such motions. In one sense,
all motions are "procedural" in nature because a motion just is the procedural
device by which a deliberative body considers a topic. Though you do not define
what you mean by "procedural," you offer two examples of such a motion:
suspending the rules or calling a question. For purposes of this opinion, I will use
the term "procedural" to refer to the 26 kinds of motions that Robert's Rules
specifically designates as requiring a two-thirds vote. Examples of such motions
include motions to take up a question out of its proper order, to suspend the rules,
to limit or extend limits of debate.

With this definition of "procedural motion" in mind, we can move to the first
preliminary observation regarding section -619(c). It seems clear that
subsection -619(c)(1)(C) applies to all motions and resolutions, regardless of
whether they are procedural or substantive in nature. This is evident because the
provision states that a "majority of a quorum voting affirmatively is required for
the passage of any motion...." (Emphasis added.) Because this subsection is
clearly intended to apply to all motions, the statute will not support the view that
the phrase "any motion" is only referring to substantive motions.

The second preliminary observation is two-fold. First, section 6-13-619(c) clearly
establishes that a simple majority of the quorum is (at least) the minimum vote
required for the passage of any motion. Second, nothing in section -619 clearly
addresses whether the General Assembly intended that a simple majority of the
quorum be considered the maximum vote requirement.

In my opinion, a court would probably rely on some or all the following inferences
from section -619 to conclude that section -619(c)(1)(C) does not prohibit school
boards from establishing a higher vote requirement for certain motions.

First, section -619 as a whole seems mainly concerned with what is minimally
required for the school board to conduct business. Section -619(c) is almost
entirely concerned with addressing the number of persons who must be present to
validly convene and conduct a meeting at which official action can take place. For
example, subsection -619(c)(1)(B) requires that no vote may take place until a
quorum has been "established or restored." And subsection -619(c)(1)(A) requires
that a board member must be "physically present at a meeting" to be counted for
purposes of establishing a quorum. Subsection -619(c)(2) defines a "quorum" as a
majority of the membership of the entire board of directors. These provisions are
all designed to establish the minimum requirements for the board to conduct
business. The fact that subsection -619(c)(1)(C) is set within this context provides
moderate evidence that the provision is also setting the minimum standards for
voting.

Second, the General Assembly probably did not intend section -619 to
exhaustively cover all rules governing board meetings. This is evident because
section -619 itself does not address all matters that might arise in a meeting. For
example, the provision does not address how motions are to be made or whether
they require a second. In addition, though the statute clearly says a vote cannot be
taken when a quorum has not been maintained, the statute does not indicate
whether debate may continue in the absence of the quorum. The statute also does
not address how votes are to be tabulated, whether by voice, by hand, by
standing, or by ballot. But Robert's Rules addresses all these matters. Therefore,
it seems that the General Assembly did not intend for section -619 to foreclose
school boards from adopting local rules that govern these more detailed matters,
which would certainly include how boards handle procedural motions.

Third, nothing in the wording of subsection -619(c)(1)(C) technically prohibits a
two-thirds vote on certain motions. The provision does not state that "a majority of
a quorum voting affirmatively is sufficient for the passage of any motion or
resolution." Rather, the provision states that a majority of a quorum is "required"
for the passage of any motion. This language is consistent with a locally-adopted
rule that certain motions only pass upon a two-thirds vote of the quorum, for a
two-thirds vote necessarily includes a majority.

In short, while the statute's language could certainly be clearer, it does not
necessarily lead to the view that school boards are prohibited from adopting higher
vote requirements.

A final reason can be found in the rationale for requiring a two-thirds vote on
procedural motions. Such motions change the rules by which a deliberative body
typically abides. Those rules are usually in place to ensure the efficiency and
efficacy of the deliberative process and to protect the individual rights of voting
members. If a deliberative body can alter the procedural rules by a mere majority
vote, the body runs the risk of impinging on the individual rights of members who
are in the minority. Thus, Robert's Rules describes the two-thirds vote requirement
for procedural motions as "a compromise between the rights of the individual and
the rights of the assembly." The General Assembly could certainly prohibit
school boards from such a compromise, but nothing in section 6-13-619 seems to
do so.

For the foregoing reasons, it is my opinion that section 6-13-619 does not prohibit
school boards from establishing higher vote requirements on certain motions. As
this office has opined on several occasions, local deliberative bodies can adopt
their own rules regarding the conduct of their meetings as long as those rules do
not conflict with state laws. Therefore, a school board may use Robert's Rules to
cover matters that section 6-13-619 leaves open, which, in my opinion, includes
the two-thirds vote requirement for certain motions.

Assistant Attorney General Ryan Owsley prepared this opinion, which I hereby
approve.

Sincerely,

DUSTIN McDANIEL
Attorney General

DM:RO/cyh