no quorum?

[Guest Guest - Sue R]

I am on a board which called a special board meeting to fill a vacancy, per our Bylaws. Normally it is a 6 person board. Of the 5 remaining directors, only 3 attended. The Chair wanted to set the quorum on the 5 filled seats, not the 6 total. We did use the 6 total for determining the quorum.

Could we have used 3 of 5 for a majority in attendance?

Knowing we did not have a quorum, the chair announced we could not hold the meeting because there was no quorum. A spectator stopped us and stated per RRO we had to call the meeting to order with/without a quorum then adjourn due to no quorum.

Which is correct?

[Guest Edgar]

Which is correct?

No one.

The meeting should have been called to order, with or without a quorum. Without a quorum there's very little that can be done but you needn't adjourn immediately.

And the quorum is typically based on the number of actual members, not potential members so, absent any rule to the contrary, the presence of three out of five members would constitute a majority, and therefore the default quorum, of the board.

[David A Foulkes]

The Chair wanted to set the quorum ....

The Chair doesn't "set the quorum." Either the quorum is defined in the bylaws or other governing documents, or (according to RONR) it is a majority of the members (not the actual positions, vacant or not).

Knowing we did not have a quorum....

Apparently no one knew (or knows) what the quorum is. So, do your bylaws tell you?

[Guest Sue R]

The chair knew what a quorum was, we just were not sure if we should consider the majority at 5 directors due to the vacancy or the full 6 seats.

from our bylaws: Section 8. Quorum. A majority of the Board of Directors shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, but if less than such a majority is present at a meeting, no business will be conducted.

[jstackpo]

Well, the RONR standard meaning of "majority of the Board of Directors" is a majority of the living, breathing, thinking(?) members, not counting any vacant positions.

So with your five extant members, three is a majority and you could have held a meeting and accomplished business properly.

[Guest Sue R]

Thank you very much.

I also just found where the MO statutes give the majority of the remaining members the authority to act (RSMO 190.052 re: vacancies "Such appointment shall be made with the consent of a majority of the remaining members of the board.") So with only 3 of the 5 directors present we could have held the meeting!

Wonderful to know because we anticipate the same 2 directors being absent at the next regular meeting to once again stop an appointment.

[David A Foulkes]

In my opinion, the statue you cited does not speak to the quorum but rather to the required vote (i.e. consent) required to make "such appointment." While, in your case, RONR would say 3 directors constitute a quorum (majority of members), what your own bylaws says is what's important since they supersede RONR, and we don't interpret bylaws here. So, if only 3 directors show up at the next meeting, and no member raises a Point of Order about there not being a quorum, then (and this is what the statue seems to be saying) all three must agree to the appointment.

By the way, why is there a "spectator" at the meeting, and why is s/he being allowed to say anything about anything? Per RONR only members of the body that is meeting have the right to attend or speak, unless the assembly permits it (by unanimous consent or majority vote).

I'd also expect some resistance from the other two directors once they learn of the appointment, since they clearly think they are "quorum busting" by staying away. Just sayin'......

[Trina]

Thank you very much.

I also just found where the MO statutes give the majority of the remaining members the authority to act (RSMO 190.052 re: vacancies "Such appointment shall be made with the consent of a majority of the remaining members of the board.") So with only 3 of the 5 directors present we could have held the meeting!

Wonderful to know because we anticipate the same 2 directors being absent at the next regular meeting to once again stop an appointment.

If your own bylaws give the board authority to fill a vacancy (by majority vote, at a meeting with quorum present), you should probably check further on the interaction between the statute and your bylaws, to determine how many votes (out of the 3 members you expect to have present) are actually needed to make the appointment. Procedural provisions in statute supersede the bylaws. However, statutes of this type often seem to have a statement that the statute steps in if the bylaws 'do not otherwise provide' for a particular situation.

[Guest Edgar]

So with only 3 of the 5 directors present we could have held the meeting!

As stated, you could have, and should have, held the meeting no matter how few directors were present.

And I agree with Mr. Foulkes that the Missouri (?) statute cited appears to relate to voting requirements, not quorum requirements (assuming it's even applicable to this situation, which is a question for an attorney, not this forum).