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CHANGES TO DRAFT MINUTES

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Our board had a special meeting to approve a contract with a vendor we are hiring.  At the meeting we approved the contract with a contingency. The following day the board decided via email to remove the contingency and send the contract as it was originally written.

The secretary provided a draft of the minutes that includes the contingency.  The contract has already been sent to the vendor for signing with the contingency removed.  What is the proper protocol with regards to the minutes of that meeting.  Should we remove the contingency from that meetings minutes as a correction, or leave it as is and just make a note in the minutes of our next meeting that the contract was submitted without the contingency?

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What do your bylaws and other rules say about email voting? It is prohibited unless specifically authorized.  

What you should do is submit the contract WITH the contingency unless the email vote to remove the contingency complied with your bylaws and other rules for email voting and for amending something previously adopted.

The minutes should reflect the adoption of the motion as it was originally adopted at the in person meeting .

If... and only if... the later amendment was PROPERLY adopted, should new minutes (not the minutes of the in person meeting) reflect the amendment the same way your minutes reflect other action taken via an email vote.

The minutes should reflect what actually transpired .

I suspect the email modification was not validly adopted, but we need more information.

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If there is agreement, you may be able to ratify the removal of the contingency clause, at a properly called meeting with a quorum. 

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11 minutes ago, J. J. said:

If there is agreement, you may be able to ratify the removal of the contingency clause, at a properly called meeting with a quorum. 

No, I don't think so, although I suppose the action of the officer who submitted the contract without the contingency might be ratified.

 

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41 minutes ago, J. J. said:

If there is agreement, you may be able to ratify the removal of the contingency clause, at a properly called meeting with a quorum. 

 

23 minutes ago, Daniel H. Honemann said:

No, I don't think so, although I suppose the action of the officer who submitted the contract without the contingency might be ratified.

 

I agree with Mr. Honemann. If the removal of the "contingency clause" wasn't done at a properly called and noticed special meeting or as otherwise authorized in the bylaws, the decision to remove the clause cannot be ratified. But, as Mr. H stated, perhaps the actions of the officer who removed the clause can be. 

I'm still anxious to know by what authority the clause was "removed" via an email vote. 

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21 hours ago, J. J. said:

If there is agreement, you may be able to ratify the removal of the contingency clause, at a properly called meeting with a quorum. 

 

21 hours ago, Daniel H. Honemann said:

No, I don't think so, although I suppose the action of the officer who submitted the contract without the contingency might be ratified.

 

 

21 hours ago, Richard Brown said:

 

I agree with Mr. Honemann. If the removal of the "contingency clause" wasn't done at a properly called and noticed special meeting or as otherwise authorized in the bylaws, the decision to remove the clause cannot be ratified. But, as Mr. H stated, perhaps the actions of the officer who removed the clause can be. 

I'm still anxious to know by what authority the clause was "removed" via an email vote. 

After doing a bit more reading, I'm not so sure of the answers that Mr. Honemann and I gave.  This quote from page 488 of RONR seems to say that action "approved" by unanimous agreement of a board outside of a board meeting CAN be ratified:  "The personal approval of a proposed action obtained separately by telephone, by individual interviews, or in writing, even from every member of the board, is not the approval of the board, since the members lacked the opportunity to mutually debate and decide the matter as a deliberative body. If action is taken on such a basis, it must be ratified (pp. 124–25) at a regular or properly called board meeting in order to become an official act of the board."

What am I missing?  The email approval referred to by the OP and JJ's answer seems to fit squarely within that provision. 

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31 minutes ago, Richard Brown said:

 

 

After doing a bit more reading, I'm not so sure of the answers that Mr. Honemann and I gave.  This quote from page 488 of RONR seems to say that action "approved" by unanimous agreement of a board outside of a board meeting CAN be ratified:  "The personal approval of a proposed action obtained separately by telephone, by individual interviews, or in writing, even from every member of the board, is not the approval of the board, since the members lacked the opportunity to mutually debate and decide the matter as a deliberative body. If action is taken on such a basis, it must be ratified (pp. 124–25) at a regular or properly called board meeting in order to become an official act of the board."

What am I missing?  The email approval referred to by the OP and JJ's answer seems to fit squarely within that provision. 

That's what you get for doing too much reading.  :)

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3 hours ago, Richard Brown said:

After doing a bit more reading, I'm not so sure of the answers that Mr. Honemann and I gave.  This quote from page 488 of RONR seems to say that action "approved" by unanimous agreement of a board outside of a board meeting CAN be ratified:  "The personal approval of a proposed action obtained separately by telephone, by individual interviews, or in writing, even from every member of the board, is not the approval of the board, since the members lacked the opportunity to mutually debate and decide the matter as a deliberative body. If action is taken on such a basis, it must be ratified (pp. 124–25) at a regular or properly called board meeting in order to become an official act of the board."

What am I missing?  The email approval referred to by the OP and JJ's answer seems to fit squarely within that provision. 

Note that the last sentence begins with “If action is taken on such a basis...” So the board is not ratifying the decision reached by the board members, it is ratifying the action (if any) taken by the officers to carry out that decision.

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Like I said, if there is agreement, AYork's board may be able to ratify the removal of the contingency clause, at a properly called meeting with a quorum.  :)

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8 hours ago, J. J. said:

Like I said, if there is agreement, AYork's board may be able to ratify the removal of the contingency clause, at a properly called meeting with a quorum.  :)

Yeah, but the next time you go and answer a question about ratification that wasn't asked, please make clear exactly whose action you say it is that might be ratified.  :)

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On 9/29/2017 at 6:59 PM, Josh Martin said:

Note that the last sentence begins with “If action is taken on such a basis...” So the board is not ratifying the decision reached by the board members, it is ratifying the action (if any) taken by the officers to carry out that decision.

I don't think so. If that's what it meant, it would have said, "If action is taken to carry out action taken on such a basis . . ." :)

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11 hours ago, Shmuel Gerber said:

I don't think so. If that's what it meant, it would have said, "If action is taken to carry out action taken on such a basis . . ." :)

Or to put a different slant on it, if it meant to say what it said it should have said so.  :)

In this discussion we are assuming that this board's governing documents do not permit it to vote by e-mail. Since voting by e-mail is prohibited, there is no time when (or any place where) the result of such a vote can properly be announced, and no rules relating to when points of order regarding the conduct of the vote must be raised.  There are no rules relating to the keeping or approval of minutes, since no meeting has been held. Minutes are a record of the proceedings of a deliberative assembly. The fact is, there has been no decision made or action taken by the board, as the board.

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Interesting discussion but so far no one has really answered the actual question asked.

The minutes of the special meeting should accurately reflect what occurred at the special meeting. Then, the action that occurred afterward should be reported at the next meeting and properly recorded in those minutes.   Whether that later action is valid or not is immaterial to the minutes -- it happened and needs to be recorded.  The digression of whether that later action is valid or not something that can't really be answered with the limited information we have.  If this is an incorporated organization, the codes of many states permit board approval via email if consent is unanimous.   Likewise, if the contract is signed by both parties, you may have a valid contract -- even if it may have been improperly authorized.  The latter two points are outside the realm of this forum.

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27 minutes ago, smb said:

Interesting discussion but so far no one has really answered the actual question asked.

The minutes of the special meeting should accurately reflect what occurred at the special meeting. Then, the action that occurred afterward should be reported at the next meeting and properly recorded in those minutes.. . . . (Remainder of post omitted)

Um, did you read the first response to AYork's question?  :)

I agree with the remainder of your comment, though. 

 

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8 hours ago, smb said:

Interesting discussion but so far no one has really answered the actual question asked.

The minutes of the special meeting should accurately reflect what occurred at the special meeting. Then, the action that occurred afterward should be reported at the next meeting and properly recorded in those minutes.   Whether that later action is valid or not is immaterial to the minutes -- it happened and needs to be recorded. 

Yes, the first response answered the questions asked rather nicely. It's worth quoting:

"The minutes should reflect the adoption of the motion as it was originally adopted at the in person meeting .

"If... and only if... the later amendment was PROPERLY adopted, should new minutes (not the minutes of the in person meeting) reflect the amendment the same way your minutes reflect other action taken via an email vote."

That first response is based upon the rules in RONR, as it should be. To say that "the action that occurred afterward should be reported at the next meeting and properly recorded in those minutes" most certainly is not based upon the rules in RONR if it refers to the decision which was purportedly arrived at by e-mail the next day.

I agree that the second response moved off in a different direction, since it concerns the proper application of rules in RONR relating to motions to ratify, but since the OP's questions had been answered, I think this can be forgiven.  :)

 

Edited by Daniel H. Honemann

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3 hours ago, Daniel H. Honemann said:

Yes, the first response answered the questions asked rather nicely. It's worth quoting:

"The minutes should reflect the adoption of the motion as it was originally adopted at the in person meeting .

"If... and only if... the later amendment was PROPERLY adopted, should new minutes (not the minutes of the in person meeting) reflect the amendment the same way your minutes reflect other action taken via an email vote."

 

 

I this this is a bit unclear.  You wrote:  "the later amendment was PROPERLY adopted, should new minutes"

1.  Is the "later amendment" the amendment to the contract?

2.  Are the "new minutes" the minutes of a future meeting where the ratification takes place?

 

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3 minutes ago, J. J. said:

I this this is a bit unclear.  You wrote:  "the later amendment was PROPERLY adopted, should new minutes"

1.  Is the "later amendment" the amendment to the contract?

2.  Are the "new minutes" the minutes of a future meeting where the ratification takes place?

 

Well, first of all, I didn't write it, I was quoting Mr. Brown. But in any event, when read as the response to what was asked, it seems clear that "later amendment" refers to amendment of the motion adopted at the special meeting, and "new minutes" refers to minutes of the meeting at which such amendment was adopted, if it was properly adopted. 

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Oops....somehow I did miss that answer in the first response.   But I think it is somewhat incomplete and I must disagree with the criticism of my response.  Mr Brown stated [and Mr. Honemann appears to agree] that the results of the email vote should be recorded in later minutes only if that amendment was properly adopted.  So, what if it was NOT properly adopted -- do you simply ignore it?  Of course not  -- whether or not it was properly adopted it is still an action by the Board that needs to be recorded -- if for no other reason than to provide the factual foundation for whatever needs to happen next.   Hence, my suggestion that the emailed action be 'reported' at the next meeting and that report be recorded in those minutes.  Above, it was 'presumed' the bylaws don't allow for an emailed vote -- why are we presuming that?  Moreover the statement on p 487 of RONR [ll. 4-12] that permits a Board to ratify an emailed [or telephoned] action does not require as a predicate that email be authorized in the bylaws. It's very purpose is to ratify an improper act.  And, if this is an incorporated body that is statutorily permitted to take action by unanimous consent via email, that statutory authorization trumps RONR's admonition on p. 487.  I realize I am getting into a bunch of speculative non-RONR issues here -- but they are necessary to the point:  This board took an action to amend [either expressly or implicitly] an adopted motion; whether or not it was proper and whether or not that action took place in a 'deliberative proceeding' it still needs to be put into the minutes somewhere so that the factual foundation for whatever further action might be necessary is part of the record; that can occur at the next meeting either by ratifying the action or by reporting the action as having been taken and recording that report.   I erred earlier by only suggesting the latter.

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7 hours ago, smb said:

Oops....somehow I did miss that answer in the first response.   But I think it is somewhat incomplete and I must disagree with the criticism of my response.  Mr Brown stated [and Mr. Honemann appears to agree] that the results of the email vote should be recorded in later minutes only if that amendment was properly adopted.  So, what if it was NOT properly adopted -- do you simply ignore it?  Of course not  -- whether or not it was properly adopted it is still an action by the Board that needs to be recorded -- if for no other reason than to provide the factual foundation for whatever needs to happen next.   Hence, my suggestion that the emailed action be 'reported' at the next meeting and that report be recorded in those minutes.  Above, it was 'presumed' the bylaws don't allow for an emailed vote -- why are we presuming that?  Moreover the statement on p 487 of RONR [ll. 4-12] that permits a Board to ratify an emailed [or telephoned] action does not require as a predicate that email be authorized in the bylaws. It's very purpose is to ratify an improper act.  And, if this is an incorporated body that is statutorily permitted to take action by unanimous consent via email, that statutory authorization trumps RONR's admonition on p. 487.  I realize I am getting into a bunch of speculative non-RONR issues here -- but they are necessary to the point:  This board took an action to amend [either expressly or implicitly] an adopted motion; whether or not it was proper and whether or not that action took place in a 'deliberative proceeding' it still needs to be put into the minutes somewhere so that the factual foundation for whatever further action might be necessary is part of the record; that can occur at the next meeting either by ratifying the action or by reporting the action as having been taken and recording that report.   I erred earlier by only suggesting the latter.

First of all, the discussion prompted by J.J.’s response presumes that voting by e-mail is not authorized because J.J.’s response made that presumption. Why else bring up the possibility of ratification?

Secondly, to say “whether or not it was properly adopted it is still an action by the Board that needs to be recorded” has no basis at all in RONR. As far as the rules in RONR are concerned, no action was taken by the board, since “a board can transact business only in a regular or properly called meeting …” (RONR, 11th ed., p. 486, ll. 33-34). There is certainly nothing in RONR which even hints at the notion that minutes should be taken at anything that isn't a regular or properly called meeting.

It may well be that if an officer takes action prompted by what a group of people (it’s not the board) decides by e-mail should be done, that fact will undoubtedly end up being reported in some fashion to the board (or perhaps to the association itself), at which time that unauthorized action may or may not be ratified. That’s beside the point of this discussion, which is really a discussion about why RONR says what it says on page 487, lines 9-12, or, at least, how to properly understand it.

It’s not really an earth shattering sort of discussion, but we're having fun with it and you can join in if you'd like. :)

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Sorry for the long delay in responding -- I've been away.   But, since I agree with Mssr. Honemann's assertions 1) that this is not an earth shattering discussion, and 2) but we are having fun with it anyway -- I feel the desire to raise a further point:

He concludes that "no action was taken by the board since 'a board can transact business only in a regular or properly called meeting …'”  and that "there is certainly nothing in RONR which even hints at the notion that minutes should be taken at anything that isn't a regular or properly called meeting", quoting RONR at p. 486 ll. 33-34. 

But the excerpted quote is incomplete:  that sentence in RONR ends with the words "and at which a quorum ...is present." [(RONR, 11th ed., p. 486-487-7, ll. 33-3).  We all know that if an assembly loses its quorum there are still actions that RONR  permits to be taken in the absence of a quorum. [(RONR, 11th ed., p. 348, ll. 14-23).  But if we accept the analysis above, then once the quorum is lost, none of those actions -- including  adopting a motion 'to fix the time to which to adjourn' -- would be "board actions" since they would have been taken without a quorum present.  I think most of us would agree that an adopted motion to fix the time to which to adjourn is a 'board action' that would go into the minutes of that meeting.  If that is correct, then shouldn't the alternative of adopting an urgent motion that can't await the next meeting [with the admonition it must be ratified later] also be entered into those minutes?  And if that is the case, then shouldn't a record also be made of the informal action taken by the board later via email?  Whether an action was taken at a meeting that was properly convened  but then lost its quorum or was taken informally via a later email the result is still the same. An action was taken that does not comply with the quoted language above.   So...what is the proper way of recording it? RONR is silent; and perhaps the best answer is that this is not covered by RONR and you just have to punt.   

I can live with that  -- my only objection is to the suggestion that because the vote was taken by email, it was not 'the board' that took action.   The Board did take  action and some record needs be made of that action. [Whether the action is valid or not is a separate matter.] The only question is how and when that record is most properly made. 

 I'm still having fun.

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The sentence referred to, in its entirety, reads as follows:

"In any case, a board can transact business only in a regular or properly called meeting of which every board member has been notified—or at an adjournment of one of these meetings (pp. 9394)—and at which a quorum (a majority of the total membership unless otherwise specified in the bylaws or established by the constituting power) is present." 

Yes, we all know that if a regular or properly called meeting lacks a quorum, there are certain procedural actions which can properly be taken, that the inability to transact substantive business (the kind of business referred to in the sentence quoted above) does not detract from the fact that such meeting was held, and that minutes of the meeting should be taken and subsequently presented for approval at the next regular meeting at which a quorum is present (or a special meeting properly called for that purpose). These minutes should contain all of the information called for on pages 468-71 of RONR (11th ed.).

But all of this is in reference to a regular or properly called meeting, and none of it even hints at the notion that minutes should be taken at anything that isn't a regular or properly called meeting.

 

 

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Let's cut to the chase:   the members of an imaginary board make a unanimous decision outside a properly noticed meeting.  Regardless of whether it is later ratified [or not] does a record need to be made that the action was taken -- even if for no other purpose than to use as evidence in some later disciplinary action or a court suit to have them reimburse the association for their spendthrift ways?  If the answer is yes, then what form does that record take?  And if we don't call it minutes, what do we call it?

 

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5 minutes ago, smb said:

Let's cut to the chase:   the members of an imaginary board make a unanimous decision outside a properly noticed meeting.  Regardless of whether it is later ratified [or not] does a record need to be made that the action was taken -- even if for no other purpose than to use as evidence in some later disciplinary action or a court suit to have them reimburse the association for their spendthrift ways?  If the answer is yes, then what form does that record take?  And if we don't call it minutes, what do we call it?

 

There is nothing in RONR requiring that a record be kept of what members of a board (imaginary or otherwise) do outside of a regular or properly called meeting, since they can transact business only in a regular or properly called meeting. 

Many state statutes (perhaps most) permit the boards of incorporated organizations to take action outside of a meeting by unanimous written consent, in which event the writing by which they do so would itself constitute the record of the decision so made. But this is corporation law, not parliamentary law, and thus beyond the interests of this forum. 

 

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1 hour ago, Daniel H. Honemann said:

There is nothing in RONR requiring that a record be kept of what members of a board (imaginary or otherwise) do outside of a regular or properly called meeting, since they can transact business only in a regular or properly called meeting. 

Many state statutes (perhaps most) permit the boards of incorporated organizations to take action outside of a meeting by unanimous written consent, in which event the writing by which they do so would itself constitute the record of the decision so made. But this is corporation law, not parliamentary law, and thus beyond the interests of this forum. (Emphasis added)

 

2

I completely understand Dan's point, but still have a question: If such action is permissibly taken by a board outside of a meeting by unanimous written consent, should that action be recorded somewhere in the board's minutes?  If so, what minutes and how?   (How and where?)

I would presume that a copy of motion adopted in such a way should be kept somewhere in the secretary's records, but should mention of it be somewhere in the minutes if the minutes are the record of official actions taken (or motions adopted) by the society?

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2 hours ago, Daniel H. Honemann said:

Many state statutes (perhaps most) permit the boards of incorporated organizations to take action outside of a meeting by unanimous written consent, in which event the writing by which they do so would itself constitute the record of the decision so made. But this is corporation law, not parliamentary law, and thus beyond the interests of this forum.  (Emphasis added)

 

42 minutes ago, Richard Brown said:

I completely understand Dan's point, but still have a question: If such action is permissibly taken by a board outside of a meeting by unanimous written consent, should that action be recorded somewhere in the board's minutes?  If so, what minutes and how?   (How and where?)

I would presume that a copy of motion adopted in such a way should be kept somewhere in the secretary's records, but should mention of it be somewhere in the minutes if the minutes are the record of official actions taken (or motions adopted) by the society?

Like I said, ... :)

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