How to call a meeting to order where there's no quorum?

[daphne]

Thank you for your advice about this question.  I can't find a solution.

 

Unit owners in a condo successfully petitioned for a special meeting of the unit owners to remove one or more members of its 9-member Board of Directors.

The Meeting was originally scheduled for 2 weeks ago but it was rescheduled due to inclement weather.

Between that date and the rescheduled date, the terms of 4 directors expired -- including the president, secretary and treasurer.

Prior to the first date, 1 director had been removed.

Thus, there remain only 4 directors out of 9, not a quorum.

 

How can business be conducted at all...how can the unit owners meeting even be called to order? Since it's a meeting of the unit owners, not the board, can the unit owners take over the "meeting?"

There is nothing in the by-laws or declaration that address this problem.

 

Thanks!

[Guest Edgar]

How can business be conducted at all...how can the unit owners meeting even be called to order? Since it's a meeting of the unit owners, not the board, can the unit owners take over the "meeting?"

 

Since this is a meeting of the general membership of the association, not a meeting of the board, what you need is a quorum of general members, not a quorum of board members.

 

The president of the association (who may or may not also be a board member) should call the meeting to order. If the president isn't there the vice-president does the job. If the vice-president isn't there the secretary calls the meeting to order and conducts a brief "election" to select a chair pro tem (a temporary presiding officer). If the secretary is also absent any member can call the meeting to order.

[Josh Martin]

Thus, there remain only 4 directors out of 9, not a quorum.

 

Depending on how the quorum requirements in your bylaws are worded, this may or may not be correct. The default requirement is a majority of the current members, but it's possible your rules provide otherwise.

 

In any event, however, the quorum for the board has nothing to do with the quorum for a meeting of the unit owners.

 

How can business be conducted at all...

 

If it is correct that a quorum is not present (and it's not yet clear whether that will or will not be the case), then no business may be conducted except for a handful of procedural motions.

 

how can the unit owners meeting even be called to order?

 

An inquorate meeting can and should be called to order the same way as any other meeting.

 

Since it's a meeting of the unit owners, not the board, can the unit owners take over the "meeting?"

 

Since it's a meeting of the unit owners, the unit owners are already in charge of the meeting. Additionally, an inquorate meeting is still a meeting - no quotation marks necessary - notwithstanding that the assembly can't do very much.

[daphne]

"Since it's a meeting of the unit owners, the unit owners are already in charge of the meeting"

 

The by-laws provide that, "the unit owners present in person or by proxy, at any meeting of the unit owners, shall constitute a quorum at all meetings of the unit owners.  OK, so it's very clear -- thank you -- that this is OUR Meeting (no quotations marks) and that we will have a quorum!  We, the Unit Owners, don't have a President, etc. so is it appropriate for any one of us to call OUR Meeting to order and move to elect a Chairman Pro Tem to run OUR Meeting? 

 

 

BTW, the by-laws provide that "a majority of the Directors shall constitute a quorum for the transaction of business and the votes of a majority of the directors present at a meeting at which a quorum is present shall constitute the decision of the Board...if there shall be less than a quorum present, a majority of those present may adjourn the meeting...

[daphne]

Thank you, Edgar, and thank you, Josh.

[Guest Edgar]

We, the Unit Owners, don't have a President, etc. so is it appropriate for any one of us to call OUR Meeting to order and move to elect a Chairman Pro Tem to run OUR Meeting? 

 

You'll also want to elect a secretary pro tem (to, among other things, take the minutes).

 

(And I'll assume that the passage you cited about the directors refers to meetings of the board, not all meetings. But bylaws can only be properly interpreted in their entirety. Reading excerpts out of context can be misleading.)

[Josh Martin]

We, the Unit Owners, don't have a President, etc. so is it appropriate for any one of us to call OUR Meeting to order and move to elect a Chairman Pro Tem to run OUR Meeting? 

 

Assuming you are also lacking a Vice President and a Secretary, yes, any member may call the meeting to order and preside over the brief election of a Chairman Pro Tempore, and you'll probably want to follow that up with electing a Secretary Pro Tempore.

 

In the long run, you may want to fill the many vacancies in your permanent officer positions.

 

BTW, the by-laws provide that "a majority of the Directors shall constitute a quorum for the transaction of business and the votes of a majority of the directors present at a meeting at which a quorum is present shall constitute the decision of the Board...if there shall be less than a quorum present, a majority of those present may adjourn the meeting...

 

Thank you. Based on this information, it seems clear to me that the quorum is based on the number of current directors. So with only four directors left, a quorum for the board would be three.

[Guest Edgar]

In the long run, you may want to fill the many vacancies in your permanent officer positions.

 

If the board has been running everything, I wouldn't be surprised if these positions didn't even exist.

[daphne]

Josh, for a Meeting of the Board of Directors, I think a majority of the Directors (9) is 5.  They only have 4 current directors and so the by-law provides that all that the 4 can do is adjourn the Meeting.  I caused that confusion by not quoting the entire By-Law entitled, Quorum of Board of Directors:

 

At all Meetings of the Board of Directors, a majority of the Directors [at least 5] shall constitute a quorum for the transaction of business and the votes of a majority of the directors present at a meeting at which a quorum is present [at least 5] shall constitute the decision of the Board of Directors.  If, at any Meeting of the Board of Directors, there shall be less than a quorum present [less than 5], a majority of those present may adjourn the meeting from time to time. At any such adjourned meeting at which a quorum is present any business which might have been transacted at the meeting originally called, may be transacted without further notice.  [bracketed material added by me]

[Josh Martin]

Josh, for a Meeting of the Board of Directors, I think a majority of the Directors (9) is 5.  They only have 4 current directors and so the by-law provides that all that the 4 can do is adjourn the Meeting.  I caused that confusion by not quoting the entire By-Law entitled, Quorum of Board of Directors:

 

At all Meetings of the Board of Directors, a majority of the Directors [at least 5] shall constitute a quorum for the transaction of business and the votes of a majority of the directors present at a meeting at which a quorum is present [at least 5] shall constitute the decision of the Board of Directors.  If, at any Meeting of the Board of Directors, there shall be less than a quorum present [less than 5], a majority of those present may adjourn the meeting from time to time. At any such adjourned meeting at which a quorum is present any business which might have been transacted at the meeting originally called, may be transacted without further notice.  [bracketed material added by me]

 

If I am understanding correctly that the bracketed material is not part of the bylaws, it remains my opinion that a quorum is a majority of the current directors.

[daphne]

Well, this is a Meeting of Unit Owners not a Board Meeting so we'll proceed as recommended; even if a quorum of the Board is present, we will elect a Chairman pro tempore and a Secretary pro tempore and proceed with the Agenda.

 

You have both been extremely helpful.  Thank you very, very much.

[Guest Edgar]

One other thing to keep in mind is that, since this is a meeting of the general membership, the board, as a board, won't be present (even if all the board members happen to be present). The board can only act as a board at a proper meeting of the board. Which this ain't.

[Gary c Tesser]

Josh, for a Meeting of the Board of Directors, I think a majority of the Directors (9) is 5.  They only have 4 current directors and so the by-law provides that all that the 4 can do is adjourn the Meeting.  I caused that confusion by not quoting the entire By-Law entitled, Quorum of Board of Directors:

 

At all Meetings of the Board of Directors, a majority of the Directors [at least 5] shall constitute a quorum for the transaction of business and the votes of a majority of the directors present at a meeting at which a quorum is present [at least 5] shall constitute the decision of the Board of Directors.  If, at any Meeting of the Board of Directors, there shall be less than a quorum present [less than 5], a majority of those present may adjourn the meeting from time to time. At any such adjourned meeting at which a quorum is present any business which might have been transacted at the meeting originally called, may be transacted without further notice.  [bracketed material added by me]

 

I agree with Mr Martin. You don't have nine directors now:  you have four directors -- as well as five vacant seats.  Among daphne, Josh Martin, and I, there are three opinions, but only one vote:  daphne's.  All Martin and Tesser get to do is rant; it's daphne's opinion that will be tallied.  daphne should note, however, that Mr Martin and I have been at this a while, and have seen this question arise before*.

 

Yet it will be seen that all of daphne's bracketed material identifies Directors with Directorate seats.  Mr Martin and I think vacant seats are not directors; daphne, do you really think that the bylaws say they are?

 

Finally (for the moment) let's be mindful that this is an engaging and stimulating debate, but it's tangential:  the primary issue here is the membership meeting.  daphne, are you satisfied about that, at least for now?

___________

*This indeed approaches the logical fallacy of "-appeal to authority-", but it has merit if it's not mistaken for actually arguing the point at issue.  (So I tell myself.)

[Guest daphne]

"Mr Martin and I think vacant seats are not directors; daphne, do you really think that the bylaws say they are?" 

 

I do.  I do because the number of seats was set at 9 by vote; the by-laws allow between 3 and 9.  I think that there would be chaos, at most, and an inability to function, at least, if that 9 could float as I think that you are suggesting.  That is to say, your suggestion that the Board now consists of 4 directors is inconsistent with the vote to have 9.   If that number was allowed to float, there would always be a quorum and the aforecited provision of the by-law (see post 10) would be rendered meaningless.

[Guest daphne]

Your rants are my education.

[Guest Edgar]

I do.  I do because the number of seats was set at 9 by vote; the by-laws allow between 3 and 9.  I think that there would be chaos, at most, and an inability to function, at least, if that 9 could float as I think that you are suggesting.  That is to say, your suggestion that the Board now consists of 4 directors is inconsistent with the vote to have 9.   If that number was allowed to float, there would always be a quorum and the aforecited provision of the by-law (see post 10) would be rendered meaningless.

 

I don't think anyone is saying that there aren't five vacancies on the board. We're just saying that the quorum is (probably) based on the actual number of members, not the number there should be.

[Weldon Merritt]

That is to say, your suggestion that the Board now consists of 4 directors is inconsistent with the vote to have 9.   If that number was allowed to float, there would always be a quorum and the aforecited provision of the by-law (see post 10) would be rendered meaningless.

No, there would not always be a quorum. There would be a quorum only if a majority (3) of the living, breathing directors (4) showed up at the meeting. Directors are people, not vacant seats. It is possible to define the quorum as a majority or the authorized board strength, but "a majority of the directors" doesn't do it. I doubt you will find any practicing parliamentarian who will agree with your interpretation.

[Josh Martin]

"Mr Martin and I think vacant seats are not directors; daphne, do you really think that the bylaws say they are?" 

 

I do.  I do because the number of seats was set at 9 by vote; the by-laws allow between 3 and 9.  I think that there would be chaos, at most, and an inability to function, at least, if that 9 could float as I think that you are suggesting.  That is to say, your suggestion that the Board now consists of 4 directors is inconsistent with the vote to have 9.   If that number was allowed to float, there would always be a quorum and the aforecited provision of the by-law (see post 10) would be rendered meaningless.

 

I quite agree that there are nine seats, but there are, at present, only four directors, since the other five positions are vacant. The quorum requirement would not be meaningless. Only members who are present count toward a quorum, and I would imagine that you do not always have perfect attendance.

 

It's actually your interpretation which would lead to an inability to function, since it would become increasingly difficult for the board to obtain a quorum if there were more vacancies, and impossible for it to obtain a quorum if there are five or more vacancies. An organization can adopt such a provision for its board's quorum if it wishes, however, and it's properly worded as "a majority of the fixed membership of the board."

 

I'd also note that the sentences about the board being able to adjourn the meeting without a quorum and conduct business without further notice at an adjourned meeting are wholly unnecessary, as RONR already provides for both of those things.

[Gary c Tesser]

Your rants are my education.

 

And thank you, and for a stimulating, spirited debate; and it's a privilege to be of service.  Don't be a stranger (as my mom used to say).