Point of Order Regarding Lack of Quorum at Prior Meeting

[Josh Martin]

This is in reference to the discussion started in this thread. The responses generally agree that a Point of Order and Appeal regarding a recently discovered lack of quorum could be applied to actions taken earlier in the meeting (subject to the clear and convincing proof rule) even although the meeting is presently without a quorum, on the grounds that this relates to the conduct of the meeting while it remains without a quorum. I added that such action could also be taken at a later meeting, and then added that:

”I would also suggest that regardless of the determination by the inquorate meeting, this does not prevent a Point of Order (and an Appeal, if necessary) from being raised again at a later meeting with a quorum present.”

Mr. Honemann suggested that this comment warranted further discussion, and I agree.

My reasoning behind this comment was as follows:

• There is, in my view, no issue with the fact that this point has been previously decided, since the decision was made at an inquorate meeting, and therefore, no decision has properly been made by the assembly.
• As a practical matter, it would be problematic if this were not the case, since otherwise a small number of members could simply declare that a quorum was present (even if it clearly was not), or alternately, a small number of members could declare that a quorum was not present for earlier actions they disagreed with (even if it clearly was).

I will concede that if there has previously been a determination made that a quorum was present, this somewhat raises the bar for the “clear and convincing proof” required to show that a quorum was not present, but I still think such a point could be raised.

Edited May 2, 2018 at 01:21 PM by Josh Martin

[George Mervosh]

An additional question if you don't mind,  What is the bar (if any) in meeting #2 if the presiding officer in meeting #1 ruled no quorum was present and his ruling wasn't appealed or was upheld on appeal and those in meeting #2 wish to assert there was a quorum present?  (I hope that makes sense)  

[Richard Brown]

17 minutes ago, George Mervosh said:

An additional question if you don't mind,  What is the bar (if any) in meeting #2 if the presiding officer in meeting #1 ruled no quorum was present and his ruling wasn't appealed or was upheld on appeal and those in meeting #2 wish to assert there was a quorum present?  (I hope that makes sense)  

I've been wondering about the same sort of thing since first reading the other thread.  At this  point, I have more questions than answers.   I imagine those questions are why Mr. Honemann thought the topic merits further discussion.

[Atul Kapur]

I don't see how disagreeing with the Chair's ruling, or decision of the assembly on an appeal, at meeting #1 constitutes a continuing breach that would allow a point of order during meeting #2.

I question Josh Martin's first bullet:

8 hours ago, Josh Martin said:

There is, in my view, no issue with the fact that this point has been previously decided, since the decision was made at an inquorate meeting, and therefore, no decision has properly been made by the assembly.

The reference quoted in the original thread (p. 347, l. 35 - p.348, l. 2) gives the inquorate meeting the authority to make the decision. Following Mr. Martin's logic would mean that any adjourned meeting would also be invalid (both the motion to fix the time to which to adjourn and the appeal get their validity from the same paragraph).

So why would the timeliness requirement not apply?

[Guest Zev]

 

1 hour ago, Atul Kapur, PRP "Student" said:

I don't see how disagreeing with the Chair's ruling, or decision of the assembly on an appeal, at meeting #1 constitutes a continuing breach that would allow a point of order during meeting #2.

It is a continuing breach because it fits letter (d) on page 281. The adoption of a main motion must be done during a meeting that has a quorum present. Without that quorum it is invalid.

1 hour ago, Atul Kapur, PRP "Student" said:

The reference quoted in the original thread (p. 347, l. 35 - p.348, l. 2) gives the inquorate meeting the authority to make the decision.

I am not entirely sure what you mean by this. Inquorate meetings have only the authority to perform the acts described on page 347 and no others.

1 hour ago, Atul Kapur, PRP "Student" said:

Following Mr. Martin's logic would mean that any adjourned meeting would also be invalid (both the motion to fix the time to which to adjourn and the appeal get their validity from the same paragraph).

An adjourned meeting set under those circumstances becomes valid once it is convened, and its actions become valid if a quorum is present.

The only thing that makes me a little bit nervous, like a long-tailed cat in a room full of rocking chairs, is the amount of time that has passed between meeting #1 and whatever meeting the Point Of Order is raised. As the previous meeting fades into the distant past raising a Point Of Order becomes more problematic. As a presiding officer I would feel less worried if someone just moved to Rescind or Amend Something Previously Adopted, or gave notice of such a motion, rather than just reaching into the distant past and declaring the action void. But that is just me.

[J. J.]

6 hours ago, Atul Kapur, PRP "Student" said:

I don't see how disagreeing with the Chair's ruling, or decision of the assembly on an appeal, at meeting #1 constitutes a continuing breach that would allow a point of order during meeting #2.

I question Josh Martin's first bullet:

The reference quoted in the original thread (p. 347, l. 35 - p.348, l. 2) gives the inquorate meeting the authority to make the decision. Following Mr. Martin's logic would mean that any adjourned meeting would also be invalid (both the motion to fix the time to which to adjourn and the appeal get their validity from the same paragraph).

So why would the timeliness requirement not apply?

 

On the first point, most business taken at an inquorate meeting will be invalid, because it violates absentee rights (p. 251, e,).  Even if the assembly "erroneously" determines that no breach took place, that does not change the fact there was no quorum and that business was transacted that was taken in violation of absentee rights.  The breach continues and can be corrected.

Suppose that there was a quorum, but several members were excluded from the meeting improperly; the exclusion was sufficient to have effective the result.  The meeting, still excluding the several members, sustains the chair's ruling that the exclusion was proper.  Would that prevent the next meeting from correcting this breach?  No, because the  action is still a violation of the rules protecting absentees.

In regard to the motion to Fix a Time to Adjourn, that motion may be adopted in the absence of a quorum.

[Shmuel Gerber]

23 hours ago, Josh Martin said:

”I would also suggest that regardless of the determination by the inquorate meeting, this does not prevent a Point of Order (and an Appeal, if necessary) from being raised again at a later meeting with a quorum present.”

 

23 hours ago, Josh Martin said:

There is, in my view, no issue with the fact that this point has been previously decided, since the decision was made at an inquorate meeting, and therefore, no decision has properly been made by the assembly.

I don't think the fact that the decision was made at inquorate meeting is relevant to the question of whether the point of order can be raised again at a later meeting. If it is correct, as stated in the answers to the other topic, that a point of order regarding the loss of a quorum can, during that same absence of a quorum, be applied retrospectively to action taken earlier at the same meeting, then that decision was properly made by the assembly.

Let's say that at the April meeting, a standing rule to prohibit the endorsement of any political candidates was declared adopted. Shortly thereafter, a point of order is raised that a quorum is no longer present -- and was not present at the time of the standing rule's adoption. No one disputes that a quorum is no longer present, and upon proof that is clear and convincing to the chair and the remaining members, the chair determines that indeed no quorum was present at the earlier time, and he rules that the point is well taken and that the main motion to adopt the standing rule is null and void.

At the May meeting, a motion is made to endorse candidate X. Do you think a member can then raise the point of order that this motion is out of order because the standing rule is actually in force, even though it was previously ruled null and void ? On what grounds should this point of order be considered as timely made and well-taken?

[Shmuel Gerber]

16 hours ago, Atul Kapur, PRP "Student" said:

The reference quoted in the original thread (p. 347, l. 35 - p.348, l. 2) gives the inquorate meeting the authority to make the decision.

I don't see how a ruling relating to action taken earlier at a meeting is necessarily "related to . . . the conduct of the meeting while it remains without a quorum," since the whole question is whether or not there was indeed a lack of a quorum at the earlier time, and has nothing to do with the conduct of the meeting at this point.

However, the text on page 349, lines 21-28, gives no indication at all that such a ruling cannot be made at the time it is determined that no quorum is present, and I think that most readers would infer no such restriction.

[Shmuel Gerber]

9 hours ago, J. J. said:

On the first point, most business taken at an inquorate meeting will be invalid, because it violates absentee rights (p. 251, e,).  Even if the assembly "erroneously" determines that no breach took place, that does not change the fact there was no quorum and that business was transacted that was taken in violation of absentee rights.  The breach continues and can be corrected.

23 hours ago, George Mervosh said:

An additional question if you don't mind,  What is the bar (if any) in meeting #2 if the presiding officer in meeting #1 ruled no quorum was present and his ruling wasn't appealed or was upheld on appeal and those in meeting #2 wish to assert there was a quorum present?  (I hope that makes sense)  

George,

I think that is the somewhat more interesting question here. I tend to agree with J. J. that in the opposite case -- when it was ruled that a quorum was present -- additional proof can still be brought at a later meeting to show that it actually wasn't, because the point of order is that action was taken in violation of a rule protecting the rights of absentees.

[Dan Honemann]

It seems to me that, as a general rule, once an assembly has legitimately decided (in any of the various ways this may occur through use of the procedures described in Sections 23 and 24), that a rule (no matter what sort of rule) has or has not been violated in a particular instance, that decision (if not reversed upon reconsideration) is final as to that particular instance, although a different ruling may be made and upheld in any similar instance that may occur in the future.

[J. J.]

3 hours ago, Daniel H. Honemann said:

It seems to me that, as a general rule, once an assembly has legitimately decided (in any of the various ways this may occur through use of the procedures described in Sections 23 and 24), that a rule (no matter what sort of rule) has or has not been violated in a particular instance, that decision (if not reversed upon reconsideration) is final as to that particular instance, although a different ruling may be made and upheld in any similar instance that may occur in the future.

I have to go with the assembly always being able to correct its mistakes, while the mistakes are continuing.

The 10th edition would permit the rescission of "precedent."  That is no longer possible.  I would question of how a point of order can be reconsidered. 

[Dan Honemann]

23 minutes ago, J. J. said:

I have to go with the assembly always being able to correct its mistakes, while the mistakes are continuing.

The 10th edition would permit the rescission of "precedent."  That is no longer possible.  I would question of how a point of order can be reconsidered. 

Since precedents do not have to be followed, there is certainly no need to rescind one, and while points of order, as such, cannot be reconsidered, the assembly's vote on an appeal, or on a point of order referred by the chair to the judgment of the assembly, can be.

[J. J.]

1 minute ago, Daniel H. Honemann said:

Since precedents do not have to be followed, there is certainly no need to rescind one, and while points of order, as such, cannot be reconsidered, the assembly's vote on an appeal, or on a point of order referred by the chair to the judgment of the assembly, can be.

Yes, an appeal or question submitted to the assembly could be reconsidered, within a time frame, but points of order, where there was no appeal are included.  There is also the problem reconsidering an appeal in a future session.  

The principle that " once an assembly has legitimately decided... that a rule (no matter what sort of rule) has or has not been violated in a particular instance, that decision (if not reversed upon reconsideration) is final as to that particular instance, although a different ruling may be made and upheld in any similar instance that may occur in the future," is effectively saying that once the session ends, there can be no longer be a continuing breach. 

The assembly is, ultimately, in control of its own rules and has the power to correct any mistake that is still occurring. 

 

[Dan Honemann]

4 minutes ago, J. J. said:

The principle that " once an assembly has legitimately decided... that a rule (no matter what sort of rule) has or has not been violated in a particular instance, that decision (if not reversed upon reconsideration) is final as to that particular instance, although a different ruling may be made and upheld in any similar instance that may occur in the future," is effectively saying that once the session ends, there can be no longer be a continuing breach. 

Yes, once an assembly has legitimately decided a question of this sort, that's the end of it.

There are other ways that an assembly can deal with any perceived problems that may arise as a consequence, all of which are dependent upon the particular circumstances involved.

[J. J.]

1 minute ago, Daniel H. Honemann said:

Yes, once an assembly has legitimately decided a question of this sort, that's the end of it.

There are other ways that an assembly can deal with any perceived problems that may arise as a consequence, all of which are dependent upon the particular circumstances involved.

Then there would be no such thing as breach of a continuing nature.  It would be ended by, at worst, a point of order.

In this case, the point of order, and possibly an appeal, has been made during an inquorate meeting.  Has the assembly "legitimately decided" the issue?

Assume that the assembly could decide the issue, but incorrectly decided it and it was one of those issues on p. 251 that would create a breach of a continuing nature.  There would be nothing to prevent them fixing it at the next session.

At the inquorate session a point of order is raised regarding the lack of quorum and found not well taken; the decision of the chair was sustained.  At the next session, the point of order is raised that the last session lacked a quorum (and it is evident); the chair rules that the question had been decided.  The chair's decisions that the question has been decided is appealed and overruled. The appeal is not subjected to reconsideration at that meeting.   The chair then rules that yes, there was no quorum at the previous meeting and the business conducted at that meeting is void.  His decision is appealed and this time sustained; there is no reconsideration of that motion either.  That meeting adjourns.

In that case, the business that has been conducted at the inquorate meeting is found to be void due to a lack of a quorum. 

[Josh Martin]

7 hours ago, Daniel H. Honemann said:

It seems to me that, as a general rule, once an assembly has legitimately decided (in any of the various ways this may occur through use of the procedures described in Sections 23 and 24), that a rule (no matter what sort of rule) has or has not been violated in a particular instance, that decision (if not reversed upon reconsideration) is final as to that particular instance, although a different ruling may be made and upheld in any similar instance that may occur in the future.

I agree with this, and I suggested as much back in 2010.

What I am suggesting now is that, if the decision is made at a time when no quorum is present, it is not really the case that the assembly has legitimately decided the issue.

One of the characteristics of a deliberative assembly is that “If any members are absent—as is usually the case in any formally organized assembly such as a legislative body or the assembly of an ordinary society—the members present at a regular or properly called meeting act for the entire membership, subject only to such limitations as may be established by the body's governing rules (see "quorum of members," however, p. 21; also 40).” (RONR, 11th ed., pg. 2)

It seems to me that, when a quorum is not present, the assembly is not acting for the entire membership, but is instead merely acting for those present. Most of the actions that may be taken in the absence of a quorum are consistent with this principle - taking a recess, adjourning the meeting, taking actions to obtain a quorum, or taking actions relating to the conduct of the meeting all relate only to the members present, not to the entire membership of the assembly. The only case in which it seems that an inquorate meeting is truly acting for the entire membership is when it schedules an adjourned meeting, and this seems to be a particular exception in parliamentary law based upon the simple fact that this is the most convenient manner to schedule another meeting in such circumstances.

It would seem to me, therefore, that the members present are free to determine for their own purposes whether a quorum is present (or whether a quorum was present at an earlier time in the meeting), but such a decision is not binding upon the assembly itself, acting within a properly called meeting with a quorum present. Therefore, if the members at an inquorate meeting erroneously decide that a quorum is present, the assembly is free to correct this error.

Edited May 3, 2018 at 10:34 PM by Josh Martin

[Dan Honemann]

31 minutes ago, Josh Martin said:

I agree with this, and I suggested as much back in 2010.

What I am suggesting now is that, if the decision is made at a time when no quorum is present, it is not really the case that the assembly has legitimately decided the issue.

One of the characteristics of a deliberative assembly is that “If any members are absent—as is usually the case in any formally organized assembly such as a legislative body or the assembly of an ordinary society—the members present at a regular or properly called meeting act for the entire membership, subject only to such limitations as may be established by the body's governing rules (see "quorum of members," however, p. 21; also 40).” (RONR, 11th ed., pg. 2)

It seems to me that, when a quorum is not present, the assembly is not acting for the entire membership, but is instead merely acting for those present. Most of the actions that may be taken in the absence of a quorum are consistent with this principle - taking a recess, adjourning the meeting, taking actions to obtain a quorum, or taking actions relating to the conduct of the meeting all relate only to the members present, not to the entire membership of the assembly. The only case in which it seems that an inquorate meeting is truly acting for the entire membership is when it schedules an adjourned meeting, and this seems to be a particular exception in parliamentary law based upon the simple fact that this is the most convenient manner to schedule another meeting in such circumstances.

It would seem to me, therefore, that the members present are free to determine for their own purposes whether a quorum is present (or whether a quorum was present at an earlier time in the meeting), but such a decision is not binding upon the assembly itself, acting within a properly called meeting with a quorum present. Therefore, if the members at an inquorate meeting erroneously decide that a quorum is present, the assembly is free to correct this error.

Well done, Mr. Martin.

[Shmuel Gerber]

13 hours ago, Daniel H. Honemann said:

It seems to me that, as a general rule, once an assembly has legitimately decided (in any of the various ways this may occur through use of the procedures described in Sections 23 and 24), that a rule (no matter what sort of rule) has or has not been violated in a particular instance, that decision (if not reversed upon reconsideration) is final as to that particular instance, although a different ruling may be made and upheld in any similar instance that may occur in the future.

I was beginning to be afraid that my opinion earlier in this thread, which does not agree with Dan Honemann's opinion stated here, came about because I had somehow forgotten an even earlier discussion about this, thereby inadvertently contradicting my own past opinion. Unfortunately, I can't guarantee that that isn't what's happened, but it seems that, in fact, Dan also expressed the opposite opinion at one time:

https://robertsrules.forumflash.com/topic/14317-continuing-breach-no-committees-i-promise/

Edited May 4, 2018 at 04:36 AM by Shmuel Gerber

[Shmuel Gerber]

5 hours ago, Josh Martin said:

It would seem to me, therefore, that the members present are free to determine for their own purposes whether a quorum is present (or whether a quorum was present at an earlier time in the meeting), but such a decision is not binding upon the assembly itself, acting within a properly called meeting with a quorum present. Therefore, if the members at an inquorate meeting erroneously decide that a quorum is present, the assembly is free to correct this error.

Well, one problem I have with this reasoning is that it presumes that there exists some ideal knowledge about whether or not a quorum was "really" present, and that the later assembly is in a better position to access this knowledge and to declare that its own determination of the matter is more correct than the previous assembly's "erroneous" determination. I don't see any obvious reason why this should be so.

[Guest Zev]

1 hour ago, Shmuel Gerber said:

Well, one problem I have with this reasoning is that it presumes that there exists some ideal knowledge about whether or not a quorum was "really" present, and that the later assembly is in a better position to access this knowledge and to declare that its own determination of the matter is more correct than the previous assembly's "erroneous" determination. I don't see any obvious reason why this should be so.

Amen.

[Dan Honemann]

5 hours ago, Shmuel Gerber said:

I was beginning to be afraid that my opinion earlier in this thread, which does not agree with Dan Honemann's opinion stated here, came about because I had somehow forgotten an even earlier discussion about this, thereby inadvertently contradicting my own past opinion. Unfortunately, I can't guarantee that that isn't what's happened, but it seems that, in fact, Dan also expressed the opposite opinion at one time:

https://robertsrules.forumflash.com/topic/14317-continuing-breach-no-committees-i-promise/

Oh, I think that if we dig into the specific facts in the several threads to which reference has been made we will find that there has been no material change in the opinions I have expressed, especially when you note that I have characterized the rule which I have expressed here as being a "general rule".  🙂   I continue to believe that it is correct as a general rule.

11 hours ago, Josh Martin said:

It would seem to me, therefore, that the members present are free to determine for their own purposes whether a quorum is present (or whether a quorum was present at an earlier time in the meeting), but such a decision is not binding upon the assembly itself, acting within a properly called meeting with a quorum present. Therefore, if the members at an inquorate meeting erroneously decide that a quorum is present, the assembly is free to correct this error.

 

5 hours ago, Shmuel Gerber said:

Well, one problem I have with this reasoning is that it presumes that there exists some ideal knowledge about whether or not a quorum was "really" present, and that the later assembly is in a better position to access this knowledge and to declare that its own determination of the matter is more correct than the previous assembly's "erroneous" determination. I don't see any obvious reason why this should be so.

Once again, I think much depends upon the specific facts involved. The question as to whether or not a quorum is present may involve nothing more than a head count, or it may involve something much more complex, such as the proper interpretation of relevant but ambiguous bylaw provisions.

[J. J.]

3 hours ago, Daniel H. Honemann said:

Once again, I think much depends upon the specific facts involved. The question as to whether or not a quorum is present may involve nothing more than a head count, or it may involve something much more complex, such as the proper interpretation of relevant but ambiguous bylaw provisions.

This is basically a "thought experiment," where certain variables that could exist in real life are eliminated.

In real life, you often do not have a situation where those variables are absolute.  The can be questions on what conditions are needed to establish a quorum, on if that conditions that establish that quorum were actually met, and if there is "clear and convincing" evidence.    In some cases, it becomes an evidentiary matter as to if there is "clear and convincing proof" that there was no quorum.   In many real life cases, the absence of "clear and convincing proof" of the lack of a quorum would be sufficient to rule a point of order not well taken. 

In this case, when we discuss this, we set  artificial conditions regarding those variables.  There is a quorum defined in the bylaws, and there can be no reasonable opinion different to what that bylaw says constitute a quorum.  The assembly, at this meeting, did not have this quorum, as a matter of absolute certainty.  At the next meeting, there was absolute proof that the prior meeting did not have a quorum.  

In a thought experiment, eliminating those variables allows us to focus on just one part of a complex question, and the theory behind it. 

 

[Gary Novosielski]

12 hours ago, Shmuel Gerber said:

Well, one problem I have with this reasoning is that it presumes that there exists some ideal knowledge about whether or not a quorum was "really" present, and that the later assembly is in a better position to access this knowledge and to declare that its own determination of the matter is more correct than the previous assembly's "erroneous" determination. I don't see any obvious reason why this should be so.

I agree that it is a reasonable presumption that the meeting at which the quorum was an issue is in a better position to judge the facts than a later meeting could ordinarily be expected to be.

Nevertheless, if the later, clearly quorate, meeting has clear and convincing proof that a quorum was not present when the earlier meeting had decided (perhaps in bad faith) that it was, I think that there should be some remedy available.  I'm not saying this case is typical, but it's easily conceivable.

[J. J.]

12 minutes ago, Gary Novosielski said:

I agree that it is a reasonable presumption that the meeting at which the quorum was an issue is in a better position to judge the facts than a later meeting could ordinarily be expected to be.

Nevertheless, if the later, clearly quorate, meeting has clear and convincing proof that a quorum was not present when the earlier meeting had decided (perhaps in bad faith) that it was, I think that there should be some remedy available.  I'm not saying this case is typical, but it's easily conceivable.

In some of these things, I'm more worried about bad faith than an honest mistake. 

[JamesMcLean]

As the poser of the question in the previous thread, I've followed this sage conversation with interest.  I don't think a resolution was reached.  On further consideration, "outside of the box" as it were, I've reached the following conclusion, about which I would value your opinions.

As a practical matter, it seems that if a member is dissatisfied with the consequences of a quorum ruling at meeting #1, the best course of action is to accept the ruling, and to reintroduce the question through a motion to Rescind or Amend Something Previously Adopted at meeting #2.  It may or may not be in order to raise a point of order concerning previous meeting.  But is there any practical outcome that can be achieved with such a point of order, but cannot be achieved with a "Something Previously Adopted" motion?  If not, then the question is effectively moot.

 

Edited July 6, 2018 at 01:56 PM by JamesMcLean
clarification of conclusion