AGO Opinion 97009

Nebraska Investment Council; Quorum to Conduct Business
Opinion 97009

DATE: January 23, 1997

SUBJECT: Nebraska Investment Council; Quorum to Conduct Business

REQUESTED BY: Rex W. Holsapple, State Investment Officer

WRITTEN BY: Don Stenberg, Attorney General

Fredrick F. Neid, Assistant Attorney General

This is in response to your request for "information or advice

on the minimum number of individuals that need to be present at

Nebraska Investment Council Meeting to conduct business." You have

related that the Investment Council is "operating with three quorum

members being present to take action" and the Council questions

whether or not this is the proper course of action. Generally, it

is our view that the presence of four members is necessary to

constitute a quorum for a meeting of the Investment Council.

The Investment Council is established under the provisions of

the Nebraska State Funds Investment Act, Neb. Rev. Stat. §§ 72-1237

to 72-1260 (Cum. Supp. 1994 and 1996 Neb. Laws 847) (the "Act"), to

establish policies to govern the methods, practices, and procedures

followed by the state investment officer for the investment and

reinvestment of state funds. See Neb. Rev. Stat. § 72-1239 (Cum.

Supp. 1994 and 1996 Neb. Laws 847). There are seven members of the

Council including five members appointed by the Governor and two

non-voting ex officio members, the State Treasurer and the director

of the Nebraska Public Employees Retirement Systems. Neb. Rev.

Stat. § 72-1237 (Cum. Supp. 1994 and 1996 Neb. Laws 847).

The provisions of the Act do not specify the number of members

required to constitute a quorum nor to conduct business at a

meeting of the Council. Thus, it is appropriate to apply the

common law rule, that is, a majority of all members of a board or

commission shall constitute a quorum and a majority of the quorum,

qualified to act, may decide to take action in the absence of

statutory provisions to the contrary. Petition of Kinscherff, 89

N.M. 669, 556 P.2d 355 (1976); Federal Trade Commission v. Flothill

Products, Inc., 389 U.S. 179, 88 S.Ct. 401, 19 L.Ed.2d 398 (1967);

Kaiser v. Real Estate Com'n of Dist. of Columbia, 155 A.2d 715

(Munic. Ct. App., D.C. (1959)), aff'd. Kaiser v. Adams, 108 U.S.

App. D.C. 94, 28 F.2d 642 (1960).

In the presence of a quorum of four members, a majority of the

voting members present is sufficient to take official action at a

meeting of the Council. The number of votes required to take

formal action requiring a vote of the members may vary because the

membership of the Council includes two non-voting ex officio

members. Ex officio members of a body are counted in determining

the presence of a quorum. Louisville v. Jefferson County Planning

& Zoning Com. v. Ogden, 850 S.W.2d 52 (Ky. App. 1948). The quorum

of four members may consist of three combinations of ex officio and

appointed members since ex officio members are included for

purposes of determining a quorum.

In the FIRST circumstance, a quorum may consist of two ex

officio members and two appointed members. A majority of the

quorum present to take official action by vote would require the

concurrence of the two voting appointed members. A SECOND possible

quorum would include one ex officio member and three appointed

members. A majority of the quorum to take official action would

require the concurrence or votes of two appointed members. A THIRD

quorum would consist of four appointed members. In this

circumstance, three concurring and voting members would constitute

a majority of the quorum qualified to act.

While we have applied the common law rule for determining the

presence of a quorum, we point out that a body may establish

internal rules for its governance and procedure. For purposes of

this advisory opinion, we assume that the Investment Council has

not established formal rules or policy addressing the presence of

a quorum and the number of votes required to take official action

at a meeting of the Council.

Sincerely yours,


Attorney General

Fredrick F. Neid

Assistant Attorney General

Approved By:

Attorney General