School Board Member Voting Abstention

Michigan law suggests that a school board member who is present at a board meeting has a fiduciary duty to vote on every motion that comes before the school board unless a statute permits abstention. A board member who abstains from voting absent a statute permitting abstention is arguably neglecting the duties of their public office, which is prohibited under the Michigan Penal Code. Both the Revised School Code (RSC) and the Contracts of Public Servants with Public Entities Act, however, permit a school board member to abstain from voting in certain circumstances.

Revised School Code

RSC Section 1203 requires a board member who believes or has reason to believe they have a conflict of interest regarding a contract or other financial transaction to abstain from voting on the matter and to disclose the conflict. Although the statute does not define “conflict of interest,” it states that a conflict is “presumed” if the board member or the board member’s family member: (1) has a financial interest, or a competing financial interest, in the contract or other financial transaction, or (2) is an employee of the board member’s school.

Contracts of Public Servants with Public Entities Act

Subject to certain exceptions, this statute prohibits a school board member from directly or indirectly being a party to a contract with the board member’s school. The school board member may not vote on a motion related to the contract unless the vote is required by law or a 2/3 quorum cannot be reached, and if the amount of the contract’s direct benefit to the board member is less than $250 and less than 5% of the public cost of the contract. In such circumstances, the board member must file with the school board a sworn affidavit to that effect.

Incompatible Public Offices Act

This statute does not permit voting abstention, although it is often cited for that purpose. This statute typically prohibits a public officer from holding two or more incompatible offices at the same time. Incompatible offices are those that result in (1) the subordination of one public office to another, (2) the supervision of one public office by another, or (3) a breach of duty of public office. Michigan courts have consistently held that only vacating one of the incompatible offices will prevent a statutory violation – voting abstention is not sufficient.

Board Policies

School board members and school officials should check board policies on voting abstention. For Thrun Policy Service subscribers, Policy 2301 (Conflict of Interest) summarizes abstention authority and procedures.

Board members take an oath of public office that they will faithfully discharge their duties to the best of their abilities. Michigan law suggests voting is one of those duties. Accordingly, absent a statute that expressly authorizes or requires a board member to abstain from voting, a board member who is present at a board meeting must vote on every motion before the board. Failure to do so may result in legal liability.