Should an illegal meeting be called to order?

[Richard Brown]

Should an "illegal" meeting be called to order?

 

Assume these facts:  A board is authorized to have special meetings.  A special meeting has been called, although in a manner and by someone the chair believes it is not authorized to call a special meeting.  The secretary, without the chair's knowledge or consent, issued the call and notice of the special meeting.  In the opinion of the chair, the meeting was not properly called by someone authorized in the governing documents to call a special meeting and the notice of the meeting is deficient for that reason and also for other reasons (Insufficient notice and not properly listing all items to be discussed at the meeting).  The chair believes that the meeting would, without question, be invalid.

 

The chairman believes the meeting would  be improper and any action would be invalid.  He knows he has the authority to rule  that the meeting is out of order, invalid, etc, but he does not want to even call the meeting to order.  He wants to declare the meeting invalid without first calling it  to order.

 

Question:  Must he (or should he) nonetheless first call the meeting to order before declaring that it is "out of order"?   He does not want to "legitimize" it by even calling it  to order. 

 

He is aware that someone might want to appeal from his ruling that the meeting is invalid and that doing so could be problematic if the meeting hasn't actually been called to order.

 

I see his point, but am aware that normally such rulings must be made in a meeting and I have so advised him.

 

Comments and advice, please!  Should he call the meeting to order even though he believes the entire meeting would be invalid?

[Edgar Guest]

Must he (or should he) nonetheless first call the meeting to order before declaring that it is "out of order"?   He does not want to "legitimize" it by even calling it  to order. 

 

He shouldn't even show up.

 

But he certainly can't issue a ruling on anything outside of a (properly called) meeting.

[Shmuel Gerber]

" ... the notice of the meeting is deficient for that reason and also for other reasons (Insufficient notice and not properly listing all items to be discussed at the meeting) ... "

 

Even if the notice doesn't sufficiently list all items that are expected to be discussed at the meeting, that wouldn't in any way make the meeting invalid. It would simply mean that those items could not properly be taken up at the meeting.

[Richard Brown]

He shouldn't even show up.

 

But he certainly can't issue a ruling on anything outside of a (properly called) meeting.

He fully intends to show up and so do the other members  from what I understand.

I agree that he probably can't issue a ruling outside of a meeting....whether it is a properly called meeting is the issue.... 

 

 

" ... the notice of the meeting is deficient for that reason and also for other reasons (Insufficient notice and not properly listing all items to be discussed at the meeting) ... "

 

Even if the notice doesn't sufficiently list all items that are expected to be discussed at the meeting, that wouldn't in any way make the meeting invalid. It would simply mean that those items could not properly be taken up at the meeting.

 

I think I agree, but the deficiency isn't so much just not listing the items to be discussed at the meeting (although that is part of it), his position is that the meeting itself was not properly called and would there be invalid ab initio.  For example, the meeting was called by a member not entitled to call a special meeting. 

 

How is the meeting valid if it the call for the meeting is invalid? 

[Edgar Guest]

He fully intends to show up . . . 

 

Why?

 

Would you attend an illegitimate meeting? Doesn't the attendance of the chair suggest the appearance of legitimacy?

[Richard Brown]

He intends to show up because he understands that all other member will show up, including those who want to have the meeting regardless of the improprieties.  

 

Not creating the "appearance of legitimacy" is the reason he prefers to not even call the meeting to order, but just declare the "gathering" to not be a legitimate meeting.

 

He's showing up regardless of whether you or I would.

 

If the others overrule his declaration that the meeting is invalid, he wants to be there to vote on the main issue to be taken up.

[Dan Honemann]

How is the meeting valid if it the call for the meeting is invalid? 

 

The meeting isn't valid if the call for the meeting is invalid, but, of course, any decision by the board concerning its validity can only be made at a regular or properly called meeting of the board. It appears that you have properly advised the chair in this regard.

 

If the chair refuses to call the meeting to order, presumably someone else will. It doesn't really matter. Whatever they do, they do.

[Edgar Guest]

Not creating the "appearance of legitimacy" is the reason he prefers to not even call the meeting to order, but just declare the "gathering" to not be a legitimate meeting.

 

Well, he can't "declare" anything. Or he can declare whatever he wants. And the motley crew that shows up can't "overrule" his "declaration". Or they can.

 

Anyway, you asked if he should call the meeting to order and, since he doesn't think it's a meeting, my answer is "No".

[smb]

Ok...I'll be the one to take the dissenting view.  

 

Yes he should probably attend and call the meeting to order.  If he is concerned that doing so will 'legitimize' the meeting, that is going to happen anyway.  SOMEONE is going to call the meeting to order and by failing to be there to declare the meeting invalid himself, he is going to let it happen without timely objection.  The issue isn't so much whether the meeting is 'legitimated'; the issue is whether any business conducted at an improperly convened meeting is valid.  It is somewhat akin to holding a regular meeting without a quorum present -- it's the actions taken that may be invalid -- not the fact that you continued meeting.  We also have to note that there are a whole lot of 'believes' in the fact pattern. We don't know exactly what the bylaws provide nor why the Chair 'believes' the meeting to be invalid.  Perhaps the Chair is correct; perhaps there is an ambiguity in the bylaws and others disagree. If that is the case, it isn't the Chair's role to decide; it's the Board's responsibility.  Perhaps others think some emergency action is necessary and the Chair, for whatever reason, is refusing to call a special meeting.  Perhaps they don't care whether the meeting is properly called; they feel they can always ratify any actions taken at a later meeting that is properly convened.  [i am adding a bunch of what-ifs' only because we don't really know what is going on here.]

 

If I had full command of the facts, I might recommend showing up; calling the meeting to order; declaring it improperly convened; and adjourning immediately -- pausing of course in case a point of order is raised.  If he is truly correct, hopefully the body will sustain him on appeal.  If not, the fact that the meeting continued does not validate anything that may subsequently be done in violation of the bylaws or any notice requirements.  But by calling the meeting to order, he has the ability not only to rule that no valid business may be conducted, but continue raising points of order as the meeting progresses.  Since the minutes must include points of order and the rulings thereon, he will be making the necessary record for any later review.  If the body chooses to continue meeting, the Chair can decide whether it makes sense to continue in the role of chair, or to turn the gavel over to another so he has greater freedom to continue to be the gadfly.

[Sean Hunt]

And I would think that the chair's conduct in this manner should be based heavily on the perceived likelihood that a ratification motion, if made, would succeed (if it is in order).

[Richard Brown]

Thank you all for your insightful comments.  I appreciate all of them.   I will respond to your comments and suggestions and follow up with a little more information and maybe some more questions later tonight or tomorrow.  

[Timothy]

Perhaps you are seeing more in the call to order than I am, but it seems to me that if he is going to declare the meeting invalid at that meeting, he has no choice but to call the meeting to order first. A call to order just tells people that it is time to take their seats and be quiet. Without doing so, any declaration he makes will be unheard. Yes, I can see where that would open the door for someone to appeal his ruling, but he doesn't have a right to prevent that.

[Edgar Guest]

 . . . it seems to me that if he is going to declare the meeting invalid at that meeting, he has no choice but to call the meeting to order first.

 

But can one make a valid ruling at an invalid meeting? Isn't everything done at an invalid meeting invalid?

[Timothy]

But can one make a valid ruling at an invalid meeting? Isn't everything done at an invalid meeting invalid?

 

Perhaps, maybe, sort of...If we look at it as saying that the ruling only applies to that particular meeting. I see no reason why it shouldn't be treated in a similar fashion to a meeting at which there isn't a quorum. A meeting without a quorum is also invalid, but the chair calls the meeting to order, declares (rules, if you will) there is a lack a quorum, and the meeting adjourns.

[Edgar Guest]

I see no reason why it shouldn't be treated in a similar fashion to a meeting at which there isn't a quorum.

 

But an inquorate meeting isn't necessarily invalid. In fact, the absence of a quorum, in and of itself, is not a sufficient condition for illegitimacy.

 

Let's suppose there is no provision in the bylaws (or in any superior rule or law) for calling special meetings. And let's suppose a member (not the chair), sends a notice to some (or even all) of the members, notifying them of a (special) meeting at his house tomorrow evening.

 

Should the chair attend, call the "meeting" to order, and then declare it illegitimate?

 

Certainly, as Mr. Honemann noted, any member could call the "meeting" to order but should it be the chair?

[smb]

Methinks people are focusing too much on the Chair's participation rather than the validity/invalidity of the meeting itself.  Any time the members of an association gather to conduct business it is a 'meeting'.  The only question is whether it is a valid meeting or not -- and the simple fact of calling a meeting to order has no effect on that question. Another hypothetical; the President (Chair) refuses to call a special meeting upon request of three members of the board, as the bylaws require, so the Secretary convenes the meeting even though the bylaws do not give the Secretary that authority.  Everyone but the President shows up and the President is recalled.  Valid meeting?  You can come down on either side of that question -- the point is simply that who it was that called the meeting to order is irrelevant.  For the question at hand, certainly, the Chair does not NEED to be there -- and some might register their protest by failing to show up.  My recommendation is no more than that if the Chair wants to ensure that a complete record is made of what is occurring, he either needs to be there or he needs to have a reliable lieutenant.  And if he intends to be there, then he might as well be in charge.

[Edgar Guest]

Any time the members of an association gather to conduct business it is a 'meeting'.

 

No, it's not.

[Dan Honemann]

Is there some point to any of this discussion? I can't find any.

[Timothy]

But an inquorate meeting isn't necessarily invalid. In fact, the absence of a quorum, in and of itself, is not a sufficient condition for illegitimacy.

 

Let's suppose there is no provision in the bylaws (or in any superior rule or law) for calling special meetings. And let's suppose a member (not the chair), sends a notice to some (or even all) of the members, notifying them of a (special) meeting at his house tomorrow evening.

 

Should the chair attend, call the "meeting" to order, and then declare it illegitimate?

 

Certainly, as Mr. Honemann noted, any member could call the "meeting" to order but should it be the chair?

 

If the president is certain that the meeting is illegitimate, there's really no reason for him to show up, but I think it is a safe assumption that many people showed up because they thought what they were doing was legitimate. Out of respect for the position, people will tend to look to the president to call the meeting to order, since he did decide to show up. He does have the option of sitting around waiting to see if anyone else decides to call it to order, but I don't expect most people would appreciate it very much if that's what he did. Because of his position and because he is seeking the best interest of the organization, he might as well call the group to order, even if all they're going to do is decide that they can't meet. If anything, the people who thought they could meet are more likely to decide not to meet if he calls the meeting to order and then say why they can't meet, rather than sitting with his arms folded across his chest, "I'm not calling this thing to order."

[Edgar Guest]

Out of respect for the position, people will tend to look to the president to call the meeting to order, since he did decide to show up.

 

That's my point. The very fact that the chair shows up lends the appearance of legitimacy to this illegitimate "meeting".

 

If the chair then calls the meeting to order the appearance of illegitimacy is enhanced.

 

The original question was, "Should an illegal meeting be called to order?" and I think the answer is no, it shouldn't. That's not to say it can't.

[Dan Honemann]

That's my point. The very fact that the chair shows up lends the appearance of legitimacy to this illegitimate "meeting".

 

If the chair then calls the meeting to order the appearance of illegitimacy is enhanced.

 

Oh, now I get it. 

[Transpower]

Richard:  Why couldn't a second notice go out voiding the first?  Even if there's not much time, members could (perhaps) be notified by phone or e-mail....

[Sean Hunt]

Again, I think it depends heavily on the situation.

 

If it's an organization that does their communication by email, and the "special meeting" is scheduled by a member with complete disregard for the bylaws' requirements, then I don't think the President should do anything other than send an email out to the membership explaining that it is not a validly called meeting, and that his time would otherwise be spent taking a nice walk through the garden looking for orchids to fancy.

 

If it's an organization that does their communication by post, and the special meeting is called by the Board of Directors, but was accidentally called with only 25 days notice when 27 is required, then there would likely be a very confused membership showing up, and it would be poor conduct of the President to not address the membership and explain the mistake, much less to not show up at all.

 

From a parliamentary standpoint, nothing legitimate is going to get done. The rest is politics.

[Timothy]

Again, I think it depends heavily on the situation.

 

If it's an organization that does their communication by email, and the "special meeting" is scheduled by a member with complete disregard for the bylaws' requirements, then I don't think the President should do anything other than send an email out to the membership explaining that it is not a validly called meeting, and that his time would otherwise be spent taking a nice walk through the garden looking for orchids to fancy.

 

If it's an organization that does their communication by post, and the special meeting is called by the Board of Directors, but was accidentally called with only 25 days notice when 27 is required, then there would likely be a very confused membership showing up, and it would be poor conduct of the President to not address the membership and explain the mistake, much less to not show up at all.

 

From a parliamentary standpoint, nothing legitimate is going to get done. The rest is politics.

 

I agree. If, for whatever reason, the president decides to call the gathering to order, doing so does not give legitimacy to the gathering. It doesn't even imply that the president thinks the meeting should take place.

[Edgar Guest]

If, for whatever reason, the president decides to call the gathering to order, doing so does not give legitimacy to the gathering. It doesn't even imply that the president thinks the meeting should take place.

 

So if you were president, and it was obvious to you that this so-called "meeting" was illegitimate, you would still call this so-called "meeting" to order? Why?

 

By the way, you can't call a "gathering" to order.