Attorney General: Honorable Gloria Schaffer, Commissioner of Consumer Protection, 1991-007 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

February 25, 1991

 

Honorable Gloria Schaffer
Commissioner of Consumer Protection
165 Capitol Avenue
Hartford, CT 06106

Dear Commissioner Schaffer:

This is in response to a request by former Commissioner Heslin for an opinion of the Attorney General concerning whether a board or commission member who is disqualified from acting and voting on a particular matter because of a conflict of interest, may, for the purposes of Conn. Gen. Stat. 21a-7(6), be counted in determining if a quorum of such board or commission is present to legally act. The answer to your inquiry is that under 21a-7(6), a disqualified member of a board or commission designated under 21a-6 should not be counted in determining whether a quorum is present for such board or commission to legally act on a particular matter.

Section 21a-7(6) provides that in any meeting which is held by members of a board or commission, "[a] majority of the members shall constitute a quorum." Since 21a-7(6) does not expressly state any further guidelines as to how a majority quorum is formed, it is appropriate to examine applicable common-law rules as an aid in construing the majority quorum provision under 21a-7(6) in relation to whether a disqualified board or commission member may form a majority quorum. See generally Levinson v. Board of Chiropractic Examiners, 211 Conn. 508, 539-540 (1989) (use of a common-law rule for construing a statute and determining whether a board or commission may function and form a majority quorum to legally act, even though a vacancy existed).

Connecticut law holds that a board may act as long as there exists a quorum comprising a majority of all the actual members of the board. Levinson v. Board of Chiropractic Examiners, 211 Conn. 508, 539 (1989); Lee v. Board of Education, 181 Conn. 69, 83-84 (1980); U.S. Vision, Inc. v. Board of Examiners For Opticians, 15 Conn. App. 205, 213 (1988). See also F.T.C. v. Flotill Products, Inc., 389 U.S. 179, 183 (1967); Strain v. Mims, 123 Conn. 275, 281 (1937) (public bodies can legally act only when a majority are present). This is consistent with the generally accepted and common law rule which states the same in the absence of a statute which provides otherwise. See generally 2 Am. Jur. 2d Administrative Law 196; 73 C.J.S. Public Administrative Law and Procedure 20.1

For purposes of determining the presence of a quorum, the membership of a body may consist of regularly appointed members and duly designated substitute members, and it has been held that ex officio members must be counted. 2 Am. Jur. 2d Administrative Law 197; 73 C.J.S. Public Administrative Law and Procedure 20. A "quorum" has been defined as "such a number of members of a body as is competent to transact business in the absence of other members"; the "number which must be present in a deliberative body before business may be transacted." Black's Law Dictionary 1130 (5th ed. 1979) Thus, the general rule in state and federal courts is that a member who is disqualified may not be counted in determining the presence of a legal quorum. LaPeyre v. F.T.C., 366 F.2d 117, 122 (5th Cir. 1966); Graham v. McGrail, 345 N.E.2d 888 (Mass. 1976); King v. New Jersey Racing Commission, 205 N.J. Super. 411, 415, 501 A.2d 173, 175, aff'd, 103 N.J. 412, 511 A.2d 615 (1986); Aurentz v. Planning Board of Township of Little Egg Harbor, 171 N.J. Super. 135, 141, 408 A.2d 140, 143 (1979); Meixell v. Hellertown Borough Council, 370 Pa. 420, 88 A.2d 594, 595-96 (1952) (neither vote nor presence should be counted in computing a quorum of a majority).2

The question as to whether a disqualified board member may be counted as part of a quorum and may vote on a particular matter has arisen in connection with corporate directors acting in the interest of their respective corporations. This question has been resolved by the courts with the aid of common-law rules, but in doing so, the court decisions have been split. The majority of court decisions in this area have held that when a board director is disqualified from voting on a matter because of a conflict of interest, such director is not to be counted as part of the quorum present when the vote is taken. Enright v. Heckscher, 240 F. 863, 872 (2nd Cir. 1917); 18B Am. Jur. 2d Corporations 1474 (ed. 1985). This continues to be the case even though such director does not vote on the matter. 18B Am. Jur. 2d, supra. "If one of the directors whose presence is necessary to constitute a quorum, or whose vote is necessary to constitute a majority of a quorum, is disqualified by reason of his personal interest, any act done by the body is invalid." In re Webster Loose Leaf Filing Co., 240 F. 779, 785 (D. New Jersey 1916).

In Application of Shapiro, 392 F.2d 397, 399 (3rd Cir. 1968), the court noted that the analogous problem has been decided by several courts in relation to the quorum requirements for corporate boards or directors. Quoting Piccard v. Sperry Corp., 48 F.Supp. 465, 469 (S.D.N.Y. 1943), aff'd 152 F.2d 462 (2d Cir. 1946), the court stated that "[a] director so disqualified loses his character as a director and cannot be counted. All directors constituting a quorum must be qualified to act."3 The court went on to state:

The purpose of a quorum is to insure that at least a certain percentage of the total board will be present to pass upon the matters before the board. If a person disqualifies himself and therefore cannot vote, or act ..., it seems consistent with the policy behind quorum requirements to hold that that person may not be counted as part of the quorum. Thus, if a disqualified member cannot act, a rule recognizing his presence as part of a quorum would vitiate the very purpose in having a quorum in the first instance.

392 F.2d at 400. Otherwise, a disqualified member could attend a meeting, be counted as part of the quorum and abstain from voting and have a different effect than if that person were physically absent from the meeting. See Digiacinto v. City of Allentown, 406 A.2d 520, 522 (Pa.1979); Gallaher v. Texagon Mills, Inc., 67 F. Supp. 845, 846 (S.D.N.Y. 1946).

An exception to the disqualification rule exists, however, based upon necessity. Disqualification will not be permitted to destroy the only tribunal with power to act. An officer, otherwise disqualified, may still be counted in the quorum and may act if his failure to act would necessarily result in a failure of justice. For instance, an officer may act if his jurisdiction is exclusive and there is no legal provision for a substitute so that his refusal to act would absolutely prevent a determination of the proceeding. See generally 1 Am. Jur. 2d Administrative Law 66; Annot., 39 A.L.R. 1476. Thus, even where a statute clearly requires a hearing before a designated officer and no other officer can hold the hearing, the language of the statute may not be disregarded nor the legislative intent defeated by holding that the officer is disqualified. However, if there is anyone else who can act in the place of the disqualified person or if a board or commission may act in the absence of the disqualified person, the doctrine of necessity does not apply. Id.

In short, barring the application of the rule of necessity, the general rule followed by state and federal courts is that a member of a board or commission who is disqualified from acting or voting on a particular matter because of a conflict of interest or other cause for disqualification may not be counted in determining if a quorum of such board or commission is present to legally act.

Thus, when boards and commissions meet pursuant to 21a-6 and 21a-7(6), a board or commission member who is disqualified from voting on a matter because of a conflict of interest should not be counted as part of the quorum present when the vote is taken.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Michael A. Arcari
Assistant Attorney General

CNR/MAA/mdl


1A further delineation of this rule is that valid action requires a vote of a majority of the quorum present and not merely a majority of those voting. 2 Am. Jur. 2d Administrative Law 196-197. That only a quorum is needed to render a decision is supported by Conn. Gen. Stat. 1-1(h) and 4-179. See Levinson, 211 Conn. at 539.

It should be noted that there is no Connecticut law on the specific question raised.

2The rule regarding disqualification does not require the member be disqualified soley for reasons of interest, bias or prejudice and applies even where the member disqualifies himself through voluntary recusal which is tantamount to disqualification. King, 511 A.2d at 618.

3It should be noted that "disqualify" is defined as "to divest or deprive of qualifications; to render ineligible or unfit." Black's Law Dictionary 424 (5th ed. 1979). See also In re Tyers' Estate, 84 N.Y.S. 934, 935, 41 Misc. 378 (1903)(to deprive of legal capacity, power or right).


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