AGO Opinion 97009
Nebraska Investment Council; Quorum to Conduct Business
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.
Fredrick F. Neid
Assistant Attorney General