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Continuing Breach?


Guest Martha

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Our bylaws call for the Board of Directors to approve contracts with persons to fill roles the membership approves, such as a lobbyist for the organization. The current contract with our lobbyist was drawn up by the previous secretary, signed by the president and has been in effect for a almost a year. The term of the contract expires in a little over a year. Is the fact that the contract was not approved by the Board of Directors a continuing breach? If so or if not, what action, if any should be taken?

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Is the fact that the contract was not approved by the Board of Directors a continuing breach? If so or if not, what action, if any should be taken?

I would think that contract questions should be addressed to an attorney.

Other than that, you might consider disciplinary action against the officers who acted improperly. See Chapter XX.

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Our bylaws call for the Board of Directors to approve contracts with persons to fill roles the membership approves, such as a lobbyist for the organization.

OK.

Your board is empowered to do X.

The current contract with our lobbyist was drawn up by the previous secretary, signed by the president and has been in effect for a almost a year.

The term of the contract expires in a little over a year.

"... been in effect ..."?

So this contract has been approved by the board?

Is the fact that the contract was not approved by the Board of Directors a continuing breach?

If so or if not, what action, if any should be taken?

Wait a minute.

If this contract was never approved by the board, then what makes you suspect that "it has been in effect for almost a year"?

I would have thought you should have said, "Even though the board has not approved this contract, the parties involved have been acting under the assumption that the board will surely adopt this contract eventually."

And you failed to mention the current status of the other party, namely,

"... Our bylaws call for the Board ... to approve contracts with X the membership approves."

Q. Has the membership approved this contract?

You have too many loose ends to determine (a.) who is responsible; (b.) who has taken action.

But before you post again, be aware that your question is NOT a question about Robert's Rules of Order, but a question of (a.) your own bylaws; (b.) who is responsible for what, per your own bylaws.

So you are asking a question beyond this forum's purpose, which is to answer questions about the rules in Robert's Rules of Order. -- Not question about "Are we in compliance with our bylaws, which no one has read?"

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I don't think this automatically becomes a question about the contract; it is, as Kim said, calmly at first, that the board was empowered to do *X*. Actually I'm not sure that what Martha said first "*empowers*" the board to approve *X*; more likely, the bylaws say that the board's approval is an intrinsic part of the process.

Martha, is that it? Or do the bylaws merely give the board the option to chime in, if it wants?

Martha, when Kim quotes you as saying that "the current contract [ ... um, *X* ...] has been in effect," is he right that you meant to say that the approval process was really complete? Or, did you simply really mean that sensible stuff about "acting under the assumption", which somehow Kim seems to see as far-fetched?

Kim, if we simply take it as a given that Martha had said all that long stuff about acting under the assumption, can we now get on with it?

And can't we reasonably take it that if the membership approval were part of the question, then Martha just would somehow have mentioned it?

Isn't the issue simply first, determining whether the bylaws were violated, and then, if they were, whether that constitutes a continuing breach? And isn't that a question about Robert's Rules of Order?

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Isn't the issue simply first, determining whether the bylaws were violated, and then, if they were, whether that constitutes a continuing breach? And isn't that a question about Robert's Rules of Order?

Martha's wording leaves me wondering what the membership's role is in this. She says "Our bylaws call for the Board of Directors to approve contracts with persons to fill roles the membership approves, such as a lobbyist for the organization."

Does the membership approve the the "role", the "person", the "contract", or some combination thereof? I read it initially as the membership approves the "role", thus empowering the board to approve a contract with a person to fill a position that the membership agrees needs to be created and/or filled. Martha will need to clarify that for us, of course.

But this seems more about contract law than bylaw, and as the board never approved the contract, whether all parties involved have been operating for nearly a year under the assumption that a valid and enforceable contract exists is not a question to be answered parliamentarily, at least at first. If it is determined that, by law, there is no contract, the board members may have some liability as to incurred costs and such. Or perhaps the contractee has gone on his own initiative, thinking he had been contracted, and is (at least to some degree) contributorially responsible for his own actions and expenses.

If the membership approved whatever it has the duty to approve, and the board simply failed to finalize the contract, there may be some consideration there. But I'm unclear from Martha's description of the situation what the membership is seeking. Void the "contract", censure the board, recapture of associated costs to the contractee? And I'm not yet clear that any continuing breach has occurred.

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I was away for a couple of days and came back to all these wonderful posts! I tried to make my post concise, but apparently I chiseled away with a jackhammer instead of a pick, so please allow me to give a little more information:

I am a new (6 months)parliamentarian for our professional organization, which has been parliamentarian-less for almost 8 years. The organization approved a bylaws revision in 2008 which required the Board of Directors (new requirement contained in the revision) to approve contracts with people or agencies to fill "roles" that the membership approves. My example in my orginal post was lobbyist for the organization, another example is webmaster.

The membership at some point in the past, prior to the bylaws revision approved these roles to be filled. Old bylaws and Policies and Procedures were silent on how they were to be filled. Old contracts have expired and new ones "executed" since the bylaws revision. The BOD has not approved the contracts as required in the bylaws. Contracts with a lobbyist and webmaster are "presumed" to be currently in effect. I discovered that the bylaws are not being adhered to and have advised the president and secretary that the organization is not in compliance with the bylaws. I also want to be able to advise the president and BOD on how to proceed from here.

No one has done anything in bad faith here, unless you consider not reading the bylaws a crime--it probably should be, but I'm not going there. No one has raised a Point of Order. If this situation does present a continuing breach, how does the organization go about resolving it? Should I advise the president to bring up the issue at the next BOD meeting and ask for their approval? Or, since the lobbyist and webmaster and the organization have been acting for almost a year now under the assumption that contracts exist (people have signed agreements, are doing the work and are being paid), is it one of those situations where it's too late to do anything to resolve it, and the organization just needs to focus on getting it right when the current contracts expire? I don't think anybody wants to go after the current officers.

Thank you for your suggestions on having an attorney draw up the contracts, which I will pass along to the executive committee of the organization.

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If this situation does present a continuing breach, how does the organization go about resolving it? Should I advise the president to bring up the issue at the next BOD meeting and ask for their approval?

Consult a lawyer. Since contracts are legal documents, the purely parliamentary answer won't do your organization much good.

Or, since the lobbyist and webmaster and the organization have been acting for almost a year now under the assumption that contracts exist (people have signed agreements, are doing the work and are being paid), is it one of those situations where it's too late to do anything to resolve it, and the organization just needs to focus on getting it right when the current contracts expire?

It is not too late to do anything about it so far as RONR is concerned, but the fact that contracts have been signed may complicate things.

Of course, if the assembly has no desire to "rock the boat" on this issue, the simplest thing to do might be to just have the board approve the contracts.

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