Opinion No. (1978)

REQUESTED BY: Gary L. Hogg, Buffalo County Attorney, Kearney, Nebraska. In a meeting of a county board of supervisors wherein a quorum of five is present, may a question be determined where two supervisors vote `aye' and the balance abstain?

No. Section 23-277, R.R.S. 1943, requires the vote of a majority of the members present to determine a question.

You have stated that at a recent meeting of your seven member Buffalo County Board of Supervisors, a quorum was present. A question arose upon which two supervisors voted `aye,' and the balance of the board abstained. The Chairman thereupon held the issue to have lost since a majority of those present did not cast affirmative votes. You question whether this was a proper ruling should a similar situation occur in the future.

Section 23-277, R.R.S. 1943, provides as follows for a county with a township form of government under the supervisor system:

"Two-thirds of all the supervisors elected in any county shall constitute a quorum for the transaction of business, and all questions which shall arise at meetings shall be determined by the votes of a majority of the supervisors present, except in cases otherwise provided for."

We note particularly that the section provides that questions are to be determined by a majority of the supervisorspresent as opposed to a majority of the supervisorsvoting. Therefore, the language clearly requires that in order for a question to be determined, over half of the members present (including those abstaining) must vote either for or against a proposal. If the abstaining members were not considered to be `present' under the statute, a quorum would be lacking and the board could take no action on the question presented.

In summary, should such a situation arise again, the Chairman should declare that the proposition has failed to receive sufficient affirmative votes for passage, since a majority of supervisors present did not vote for the proposition. The question has not been finally determined against the proposition, however, since a majority of supervisors present did not vote `no.'