STATE OF MICHIGAN

The board of directors of a public school academy may transact business on behalf of the academy at a meeting of the board so long as a majority of the members of the board of directors then in office is present, unless the academy's articles of incorporation or bylaws require a larger number, regardless of whether the board at that time consists of fewer members than specified in the articles of incorporation, bylaws, authorizing resolution, or contract issued by the authorizing body.

At a meeting at which a quorum is present, action may be taken by a vote of the majority of members present unless a larger number is required by the public school academy's articles of incorporation or bylaws.

Opinion No. 7155

April 19, 2004

Mr. Thomas Watkins
Superintendent of Public Instruction
Michigan Department of Education
P.O. Box 30008
Lansing, MI 48909

You have asked whether the board of directors of a public school academy may meet to transact business, and make decisions on behalf of the academy, when the number of directors then in office on the board is less than the minimum number of directors specified in the academy's authorizing resolution and contract.

Public school academies are public schools, subject to the general supervision of the State Board of Education. Council of Organizations and Others for Education About Parochiaid v Governor, 455 Mich 557, 583-584; 566 NW2d 208 (1997). Public school academies are authorized to operate as public schools by contracts issued by authorizing bodies. MCL 380.501(2)(d). Under section 502 of the Revised School Code, public school academies are organized and administered under the direction of a board of directors in accordance with provisions of the Code and with bylaws that are adopted by the board of directors. MCL 380.502.

Section 502 of the Revised School Code further provides that public school academies shall be organized under the Nonprofit Corporation Act, 1982 PA 162, MCL 450.2101-MCL 450.3192. When issuing a contract to operate a public school academy, the authorizing body must adopt a resolution establishing the method of selection, length of term, and number of members of the board of directors of the public school academy. MCL 380.503(4). The Revised School Code does not, however, specify the minimum number of board members required to establish a quorum or to take action on behalf of the academy.

With regard to the number of members of the board of directors necessary for the transaction of business, section 523 of the Nonprofit Corporation Act provides:

A majority of the members of the board then in office, or of the members of a committee thereof, constitutes a quorum for the transaction of business, provided that the articles of incorporation or bylaws may provide for a larger number, and provided further that in any corporation where there are more than 7 directors, the articles of incorporation or bylaws may provide that less than a majority, but in no event less than 1/3 of the directors, may constitute a quorum of the board. The vote of the majority of members present at a meeting at which a quorum is present constitutes action of the board or of the committee, unless the vote of a larger number is required by this act, the articles, or the bylaws. [MCL 450.2523.]

Accordingly, for the purpose of transacting business, the Nonprofit Corporation Act defines a quorum as a majority of the members of the board of directors "then in office" unless a "larger number" is required by the articles of incorporation or bylaws.¹ In the absence of such a provision in the articles or bylaws, section 523 of the Nonprofit Corporation Act provides that business may be transacted if a majority of the members of the Board then in office is present, regardless of whether the board of directors at that time consists of fewer board members than specified in the articles of incorporation, bylaws, authorizing resolution, or contract issued by the authorizing body. MCL 450.2523. Moreover, decisions may be made by a vote of the majority of members present at a meeting at which a quorum is present, unless a larger number is required by the public school academy's articles or bylaws.

It is my opinion, therefore, that the board of directors of a public school academy may transact business on behalf of the academy at a meeting of the board so long as a majority of the members of the board of directors then in office is present, unless the academy's articles of incorporation or bylaws require a larger number, regardless of whether the board at that time consists of fewer members than specified in the articles of incorporation, bylaws, authorizing resolution, or contract issued by the authorizing body.

At a meeting at which a quorum is present, action may be taken by a vote of the majority of members present unless a larger number is required by the public school academy's articles of incorporation or bylaws.

MIKE COX
Attorney General

¹As noted above, where the board consists of more than seven directors, the articles of incorporation or bylaws may provide for a quorum that is less than a majority, but in no event less than 1/3 of the directors. MCL 450.2523.