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May 29, 2024

The “Prosser Rule” – What Does An Abstention Vote Mean …

By John Kraft & Kirk Allen

On December 22, 2022

Illinois (ECWd) –

After being informed of a township board meeting where two trustees and the supervisor were present, which created the quorum necessary to conduct and vote on the public business of a five-member public body, we thought it prudent to refresh our reader’s memory on the effect of the Prosser Rule – which determines which votes count and which votes do not count.

One requirement, according to the Illinois Open Meetings Act, is that a board consisting of five members (township boards have five members), a quorum of the board is three, and the affirmative vote of three members is necessary to adopt any motion, resolution, or ordinance.

Open Meetings Act Section 1.02:  . . . Accordingly, for a 5-member public body, 3 members of the body constitute a quorum and the affirmative vote of 3 members is necessary to adopt any motion, resolution, or ordinance, unless a greater number is otherwise required. . .

Now comes an Illinois Supreme Court ruling in Prosser v. Fox Lake, known as the Prosser Rule – when there is other than a Yea or Nay vote (“Abstain” or “Pass” on a vote):

Prosser indicates that when an “affirmative” vote of the members is required, any abstention or pass vote is counted as a “No” vote, but when mere “concurrence of the majority” is required, any abstention or pass vote is counted with the majority of the other Yeas or Nays.

In short, when three board members attend a township meeting, consisting of five members, and two vote Yea with one Pass – the motion voted on does not pass because the Open Meetings Act requires an “affirmative” vote of the members and mandates three votes are required to pass any measure of a five-member board.

More information from the Illinois Municipal League (here).

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