Improper notice of special meeting given but all members attend without objection

[Richard Brown]

I'm wanting confirmation (or a correction!) as to what I believe the rule to be regarding not giving proper notice of a special meeting but all members attend without objection and adopt a motion which was the subject of the special meeting.

Facts:  Bylaws require at least five days notice of a special meeting of the executive board,  The president can call special meetings. Due to an unexpected emergency which requires action in less than five days, only one day's notice of the special meeting is given, but all members of the executive board attend, without objection, and vote to adopt the resolution which is the subject of the special meeting.

Is the special meeting and the adoption of the resolution valid, assuming there are no other issues?

It is my understanding that if all members are present with no absentees and if all members consent to the meeting and no one objects to the short notice, that the meeting and the adoption of the resolution are valid. I base this primarily on what I recall from other discussions on this board and also on pages 263-264 of RONR, particularly this provision from the bottom of p. 263 and top of 264:  "Rules protecting absentees cannot be suspended, even by unanimous consent or an actual unanimous vote, because the absentees do not consent to such suspension. For example, the rules requiring the presence of a quorum, restricting [page 264] business transacted at a special meeting to that mentioned in the call of the meeting, and requiring previous notice of a proposed amendment to the bylaws protect absentees, if there are any, and cannot be suspended when any member is absent."

1. Is my understanding correct that if there are no absentees and if no one objects, the meeting and business conducted there are valid (provided there is no other issue)?

2, What about as to business conducted without objection which was not mentioned in the call of the special meeting?

[Josh Martin]

24 minutes ago, Richard Brown said:

1. Is my understanding correct that if there are no absentees and if no one objects, the meeting and business conducted there are valid (provided there is no other issue)?

2, What about as to business conducted without objection which was not mentioned in the call of the special meeting?

Actually, my understanding is that if a special meeting is improperly called, the “meeting” and the business conducted is null and void no matter what (unless, of course, some rule in the organization’s bylaws or applicable law provides otherwise). This does not have anything to do with absentees in this case, but is based on the fact that an assembly may only take action during a regular or properly called meeting. Of course, if the entire membership of the assembly supports the proposed action, ratifying any actions the officers take in regard to this matter at the next regular or properly called meeting should be easy to do.

If the meeting is properly called, but some business which was not included in the call is conducted, then I agree that the business is valid if all members are present and no member objects. The rule you cite notes that this rule may not be suspended if any member is absent, which suggests that it can be suspended if no member is absent. If a rule may be suspended, violating that rule does not constitute a continuing breach.

Edited May 7, 2018 at 02:12 PM by Josh Martin

[Dan Honemann]

1 hour ago, Josh Martin said:

Actually, my understanding is that if a special meeting is improperly called, the “meeting” and the business conducted is null and void no matter what (unless, of course, some rule in the organization’s bylaws or applicable law provides otherwise). This does not have anything to do with absentees in this case, but is based on the fact that an assembly may only take action during a regular or properly called meeting. Of course, if the entire membership of the assembly supports the proposed action, ratifying any actions the officers take in regard to this matter at the next regular or properly called meeting should be easy to do.

I agree, since I think that it is a fundamental principle of parliamentary law that an assembly may take action only at a regular or properly called meeting.

I would go even further and say that decisions made at a "meeting" which is not a regular or properly called meeting cannot be ratified (although action later taken by an officer or other member based upon such a decision can be ratified), but I'm afraid that I lost this argument quite some time ago. 

 

[J. J.]

8 hours ago, Josh Martin said:

Actually, my understanding is that if a special meeting is improperly called, the “meeting” and the business conducted is null and void no matter what (unless, of course, some rule in the organization’s bylaws or applicable law provides otherwise). This does not have anything to do with absentees in this case, but is based on the fact that an assembly may only take action during a regular or properly called meeting. Of course, if the entire membership of the assembly supports the proposed action, ratifying any actions the officers take in regard to this matter at the next regular or properly called meeting should be easy to do.

If the meeting is properly called, but some business which was not included in the call is conducted, then I agree that the business is valid if all members are present and no member objects. The rule you cite notes that this rule may not be suspended if any member is absent, which suggests that it can be suspended if no member is absent. If a rule may be suspended, violating that rule does not constitute a continuing breach.

My question is if this would be an example of a meeting that was "properly called" or not.

We are given a scenario where the bylaws do authorize special meetings and give two constraints:  1.  The president must be one to call the special meeting.  2.  There must be five days notice. 

The second part, to me, relates solely to the protection of absentees.  If there are no absentees and no member objects, the lack of a five day notice would not cause this to be an improperly called meeting.  The failure of the president to be the one calling the meeting would render the meeting improper; a majority could not get together and issue the call.  If there are no absentees and no member objects, just the lack of five day notice, should not render the meeting improper.

[Josh Martin]

25 minutes ago, J. J. said:

My question is if this would be an example of a meeting that was "properly called" or not.

We are given a scenario where the bylaws do authorize special meetings and give two constraints:  1.  The president must be one to call the special meeting.  2.  There must be five days notice. 

The second part, to me, relates solely to the protection of absentees.  If there are no absentees and no member objects, the lack of a five day notice would not cause this to be an improperly called meeting.  The failure of the president to be the one calling the meeting would render the meeting improper; a majority could not get together and issue the call.  If there are no absentees and no member objects, just the lack of five day notice, should not render the meeting improper.

RONR provides the following:

• That a special meeting may only be called as authorized by the bylaws (there’s the exception for formal disciplinary procedures, but that does not seem relevant here). If the bylaws require five days notice of a special meeting, and less than five days notice is provided, then the meeting has not been called “as authorized by the bylaws.”
• That the bylaws are to contain, with regard to special meetings, who may call them and how much notice is required. The manner in which these are presented suggests they are both equally important aspects of the call.
• RONR refers on several occasions to the notice of the meeting as the “call” of the meeting. This suggests to me that such notice, sent in compliance with the rules in the bylaws, is an integral part of properly calling a special meeting.

Edited May 7, 2018 at 11:18 PM by Josh Martin

[Guest Zev]

What if the meeting had instead voted to amend the bylaws? Would anyone argue that with the obvious lack of notice that the bylaws had been properly amended?

Nevertheless, as a practical matter, it is somewhat difficult to argue with a decision taken by one hundred percent of the membership.

[J. J.]

4 hours ago, Josh Martin said:

RONR provides the following:

• That a special meeting may only be called as authorized by the bylaws (there’s the exception for formal disciplinary procedures, but that does not seem relevant here). If the bylaws require five days notice of a special meeting, and less than five days notice is provided, then the meeting has not been called “as authorized by the bylaws.”

Or is part of the rule effectively "a rule in the nature of a rule of order?"

You have hit upon an exception, disciplinary actions.  That exception is much more likely to happen that there being no absentees and no objection to a shortened notice period. 

Perhaps a similar question would be if the notice requirement would do anything other than protect the rights of absentees.

 

[Josh Martin]

17 hours ago, Guest Zev said:

What if the meeting had instead voted to amend the bylaws? Would anyone argue that with the obvious lack of notice that the bylaws had been properly amended?

If the bylaws require previous notice for their amendment, and such notice is insufficient or lacking, but the action is taken at a regular or properly called meeting with all members present, the bylaws are properly amended. As noted above, a rule requiring previous notice protects absentees. Such rules may not be suspended if any member is absent, but they may be suspended if no member is absent, since in that instance there are no absentees to protect. In my opinion, this answer still applies if the action occurs at a properly called special meeting, but where this particular item if business is not included in the call.

If the action occurs outside of a regular or properly called meeting, however, the action is not valid.

12 hours ago, J. J. said:

Or is part of the rule effectively "a rule in the nature of a rule of order?"

You have hit upon an exception, disciplinary actions.  That exception is much more likely to happen that there being no absentees and no objection to a shortened notice period. 

Perhaps a similar question would be if the notice requirement would do anything other than protect the rights of absentees.

This is beside the point. In my view, if the notice required in the bylaws for a special meeting is not provided, it is not a properly called meeting. As a consequence, no business may be conducted.

EDIT: Changed the words “present” to “absent” in one sentence.

Edited May 8, 2018 at 05:19 PM by Josh Martin

[Richard Brown]

14 hours ago, J. J. said:

My question is if this would be an example of a meeting that was "properly called" or not.

We are given a scenario where the bylaws do authorize special meetings and give two constraints:  1.  The president must be one to call the special meeting.  2.  There must be five days notice. 

The second part, to me, relates solely to the protection of absentees.  If there are no absentees and no member objects, the lack of a five day notice would not cause this to be an improperly called meeting.  The failure of the president to be the one calling the meeting would render the meeting improper; a majority could not get together and issue the call.  If there are no absentees and no member objects, just the lack of five day notice, should not render the meeting improper.

I agree with JJ's rationale.  That was the basis for my conclusion in my original post / question that the meeting was properly held and that any motions adopted at the meeting would be valid.

I view the sole purpose of the rule to be to protect  the rights of absentees and, perhaps, to enable as large a number of members as possible to attend and to ensure that a quorum will likely be present.

I also agree with guest Zev that where 100% of the members agree with the need for the special meeting and willingly attend the meeting without objection and vote unanimously to adopt the motion which was the subject of the meeting, there should be no issue with the validity of the meeting or of the motions adopted at said meeting.

Edited to add: I also view the rule as a rule of order and to protect absentees. Where there are no absentees, there is no one to protect. The rule should have no applicability in such a situation.

Edited May 8, 2018 at 01:55 PM by Richard Brown
Added last paragraph

[George Mervosh]

But you have this sticky little problem of the bylaws requiring 5 days in your scenario.  If that's not given there is no there's no need to worry about absentees because a proper meeting has not been called and held.  (In other words, what Josh said.)

[J. J.]

1 hour ago, Josh Martin said:

This is beside the point. In my view, if the notice required in the bylaws for a special meeting is not provided, it is not a properly called meeting. As a consequence, no business may be conducted.

 

I don't agree that is beside the point.

The question is can the assembly effectively suspend this requirement?   Can they make meeting valid?  Well, they couldn't if it violated the right of absentees.

Can the assembly look at this situation and decide, with the consent of everyone, that they are empowered to meet in this circumstance?  I would have to conclude that:

1.  They can decide that they are empowered to meet.

2.  Even if, on a metaphysical level, the assembly does not have the ability to meet in this circumstance, there is no way to enforce that view, because everyone agrees that this assembly can meet under the circumstance.  

Here is a second case under the same rules:

The president is incommunicado; he is out of town.  The rest of the members call the meeting and give 6 days notice.  Three days after this notice is sent, the president returns.  He sees an absolute need for the special meeting, and approves of what the members did.  Neither he, nor any other member, objects to the special meeting being held.  Is this special meeting valid?

[Gary Novosielski]

2 hours ago, Josh Martin said:

Such rules may not be suspended if any member is present, but they may be suspended if no member is present, since in that instance there are no absentees to protect.

I think if no member is present, it will be difficult to suspend anything.  🙂

[Richard Brown]

I think the purpose of the rule requiring notice of a special meeting is clearly and solely to ensure that all members receive the notice so that they can attend the meeting if possible.  When all members attend the meeting without objection, there is no one to protect and I believe the rule should be considered waived.

[Josh Martin]

2 hours ago, J. J. said:

The question is can the assembly effectively suspend this requirement?   Can they make meeting valid?  Well, they couldn't if it violated the right of absentees.

Can the assembly look at this situation and decide, with the consent of everyone, that they are empowered to meet in this circumstance?

It is a fundamental principle of parliamentary law that the assembly can only act during a regular or properly called meeting. This rule cannot be suspended. Additionally, since the assembly can only act during a regular or properly called meeting, the assembly cannot take any action outside of such a meeting - since, in fact, the assembly does not exist outside of such meetings.

To argue against this view seems to require one or more of the following to be correct, and I do not think any of them are correct:

• That, if all members are present, the meeting is now considered to be “properly called,” notwithstanding that the meeting was not properly called at the time it was called.
• That sending the notice the required amount of time in advance, despite being a rule relating to the manner in which the meeting is called, is not part of what makes the meeting “properly called,” and therefore, that this rule is only a rule protecting absentees (and not an FPPL).
• That RONR doesn’t really mean what it says on this subject, and actually an assembly can take action at any time when all members are physically present in the same room or area, never mind all that nonsense about “regular or properly called” meetings.
• That the members of an assembly (if they are all present) may somehow suspend the rules to transform into a properly called meeting, notwithstanding that they are not acting as the assembly at that time.

 

2 hours ago, J. J. said:

2.  Even if, on a metaphysical level, the assembly does not have the ability to meet in this circumstance, there is no way to enforce that view, because everyone agrees that this assembly can meet under the circumstance.  

Yes, I suppose this is a purely metaphysical question so long as there are no applicable laws on this subject and the assembly is absolutely certain that no one who is a member of the assembly now or will be a member of the assembly in the future will ever disagree with this view.

If I am in fact correct that the assembly may only take action during a regular or properly called meeting, then a Point of Order regarding this fact may be raised at any time during the continuance of the breach, so the fact that no one is complaining now shouldn’t make the members feel that safe. It is both necessary and advisable to adopt the motion anew, and to ratify any actions taken by officers or the board pursuant to the motion, at a regular or properly called meeting so that there is no question on the subject.

2 hours ago, J. J. said:

The president is incommunicado; he is out of town.  The rest of the members call the meeting and give 6 days notice.  Three days after this notice is sent, the president returns.  He sees an absolute need for the special meeting, and approves of what the members did.  Neither he, nor any other member, objects to the special meeting being held.  Is this special meeting valid?

No. This is not a regular or properly called meeting. It is both necessary and advisable to adopt the motion anew, and to ratify any actions taken by officers or the board pursuant to the motion, at a regular or properly called meeting so that there is no question on the subject.

40 minutes ago, Richard Brown said:

I think the purpose of the rule requiring notice of a special meeting is clearly and solely to ensure that all members receive the notice so that they can attend the meeting if possible.  When all members attend the meeting without objection, there is no one to protect and I believe the rule should be considered waived.

How do you reconcile this with the unsuspendable fundamental principle of parliamentary law that action may only be taken during a regular or properly called meeting?

Edited May 8, 2018 at 05:54 PM by Josh Martin

[Guest Zev]

On ‎5‎/‎7‎/‎2018 at 6:47 AM, Richard Brown said:

... Due to an unexpected emergency which requires action in less than five days, only one day's notice of the special meeting is given, but all members of the executive board attend, without objection, and vote to adopt the resolution which is the subject of the special meeting. ...

The Executive Board has factored in the nature is this emergency (whatever that means) and the probable consequences of doing nothing. We seem to agree that the meeting in question has not been properly called. The individuals at that meeting take personal responsibility for whatever consequences flow from their actions. I do not see how the Executive Board can escape from eventually having to conduct a properly called meeting and ratify the actions taken. I also do not see how the Executive Board could expect to escape disciplinary measures from the assembly if the assembly believes the Executive Board performed an outrageous act. If all is well that ends well (to borrow a phrase) then it seems somewhat difficult for any fundamental principle of parliamentary law to overcome that.

[J. J.]

4 hours ago, Josh Martin said:

 

To argue against this view seems to require one or more of the following to be correct, and I do not think any of them are correct:

• That, if all members are present, the meeting is now considered to be “properly called,” notwithstanding that the meeting was not properly called at the time it was called.

 

 

This comment begs the question.  It is saying that this meeting could not be properly called, because it is not properly called.

The assembly has determined that the bylaw exists to protect absentees and is not applicable when there are no absentees and when no one objects.  There is an FPPL that action can only be taken at a properly called meeting, but this group has determined that this is a properly called meeting.

Firstly, the assembly is the group that ultimately gets to make this interpretation when there is an ambiguity (p. 588, ll. 25-33).   That there are multiple viewpoints on this indicates that there something that is not clear.  As a side point of this, the assembly may have put the notice requirement sole intent to protect absentees, and not for any other purpose.  (When I put a notice requirement into the bylaws, I do it solely for the purpose of protecting absentees.  I do not have the intent of establishing notice to define what is a properly called meeting.)

Secondly, so far as I can tell, this is a reasonable interpretation.  In the scenario, the assembly has determined unanimously, that this a reasonable interpretation.  I would say that a reasonable interpretation of a clause requiring notice for a meeting is to protect absentees.  It is to assure that a subgroup could not meet and claim to act on behalf of the society.

The rest of the argument that Josh put forward is dependent on this not being a properly called meeting.  The assembly has determined that this is a properly called meeting. 

[Shmuel Gerber]

16 hours ago, J. J. said:

This comment begs the question.  It is saying that this meeting could not be properly called, because it is not properly called.

It's not begging the question, but rather stating the obvious. This meeting is not properly called because it is not properly called.

16 hours ago, J. J. said:

The assembly has determined that the bylaw exists to protect absentees and is not applicable when there are no absentees and when no one objects. 

First of all, the assembly in question is an executive board, which I assume is subordinate to the membership. The fact that all members of the executive board choose to ignore the bylaws does not mean that "no one objects."

Second, the assembly cannot determine anything, because there is no regular or properly called meeting at which that determination is taking place.

16 hours ago, J. J. said:

Firstly, the assembly is the group that ultimately gets to make this interpretation when there is an ambiguity (p. 588, ll. 25-33).   That there are multiple viewpoints on this indicates that there something that is not clear.  . . .

I would say that a reasonable interpretation of a clause requiring notice for a meeting is to protect absentees.  It is to assure that a subgroup could not meet and claim to act on behalf of the society.

A claim that the plain language of the bylaws doesn't mean what it says does not create any "ambiguity," no matter how many people make the claim. You are not talking about what the rule actually means, but rather why you think it shouldn't apply in this situation. However, that is not a proper method of bylaws interpretation, except as applied to rules that are in the nature of rules of order.

At best what you have is a legal or practical argument as to why a certain provision of the bylaws should not invalidate action taken because no one's rights have been violated. While this may be a reasonable argument for why the actions should be acceptable to the society, it is not a reasonable argument for saying that the bylaws have been complied with and that an actual meeting of the board took place.

[J. J.]

48 minutes ago, Shmuel Gerber said:

It's not begging the question, but rather stating the obvious. This meeting is not properly called because it is not properly called.

First of all, the assembly in question is an executive board, which I assume is subordinate to the membership. The fact that all members of the executive board choose to ignore the bylaws does not mean that "no one objects."

Second, the assembly cannot determine anything, because there is no regular or properly called meeting at which that determination is taking place.

A claim that the plain language of the bylaws doesn't mean what it says does not create any "ambiguity," no matter how many people make the claim. You are not talking about what the rule actually means, but rather why you think it shouldn't apply in this situation. However, that is not a proper method of bylaws interpretation, except as applied to rules that are in the nature of rules of order.

At best what you have is a legal or practical argument as to why a certain provision of the bylaws should not invalidate action taken because no one's rights have been violated. While this may be a reasonable argument for why the actions should be acceptable to the society, it is not a reasonable argument for saying that the bylaws have been complied with and that an actual meeting of the board took place.

It starts with an assumption, "the meeting is not valid."  That assumption may or may not be the case in this situation and that is begging the question.   I can understand the idea that this was not a properly called meeting, but I also understand that the assembly can look at these bylaws and believe that this applies only to absentees.

As to an objection from the membership meeting, that is possible, but that same assembly may agree with the board's interpretation.  Under the bylaws, the membership may not even have the ability to deal with this issue.

There is more than sufficient ambiguity is this bylaw.  Does the 5 day notice bylaw exist to establish what constitutes  a "properly called meeting" or only to serve as protection for the rights of absentees?  Being able to phrase the question that way shows that there is ambiguity

Then we come down to the bylaw question.  Does this violate the notice requirement in the bylaws for special meeting?  You can argue that.  You can also argue that if everyone attends the meeting a bylaw amendment could not be legitimately adopted, even if everyone favors its consideration at that meeting.

The question comes down to if the notice requirement a necessary part of holding a special meeting or if it exists only to protect absentee rights.  I can see a group legitimately reaching either conclusion, absent of some really specific language in the bylaws.  In this case, we are faced with the group that has reached a conclusion (I may not have reached the same conclusion prior to the assembly's decision). 

[Guest Zev]

On ‎5‎/‎7‎/‎2018 at 6:47 AM, Richard Brown said:

Due to an unexpected emergency which requires action in less than five days, only one day's notice of the special meeting is given, but all members of the executive board attend, without objection, and vote to adopt the resolution which is the subject of the special meeting.

So they adopted the resolution. Once the assembly gets wind of what has taken place one of two things is going to happen: The assembly is going to disagree that there was an emergency and that the Executive Board exceeded their authority with the violation of the bylaws requirement, or the assembly will agree that there was indeed an emergency, ratify the actions of the Executive Board and then either commend them or chastise them for the bylaws violation. Any discussion in the assembly about the Executive Board's action is going to revolve around the question of whether the emergency existed or not. Had there not been an emergency then the actions of the Executive Board cannot be adequately explained. Either way the problem is resolved.

[Ray Harwood]

On 5/9/2018 at 10:27 AM, J. J. said:

Then we come down to the bylaw question.  Does this violate the notice requirement in the bylaws for special meeting?  You can argue that.  You can also argue that if everyone attends the meeting a bylaw amendment could not be legitimately adopted, even if everyone favors its consideration at that meeting.

If the bylaws read "with at least five days notice, or less with the presence and consent of all directors", then there’d be little argument that the meeting was properly called. (There’s always some argument!)

Maybe a bylaws change is in order. 

[Dan Honemann]

On ‎5‎/‎21‎/‎2018 at 11:00 AM, Ray Harwood said:

If the bylaws read "with at least five days notice, or less with the presence and consent of all directors", then there’d be little argument that the meeting was properly called. (There’s always some argument!)

Maybe a bylaws change is in order. 

Per the original post:

"Facts:  Bylaws require at least five days notice of a special meeting of the executive board,  The president can call special meetings."

If we assume that the bylaws do clearly and unambiguously require exactly what Mr. Brown says that they require*, I don't see any reason why a bylaws change is called for, and certainly not the one which is suggested here.

---------------------------------------------------------

He being the guy who so often in this forum demands that posters post the exact language as it appears in their bylaws, and no paraphrasing.  🙂

 

 

 

[Richard Brown]

11 minutes ago, Daniel H. Honemann said:

Per the original post:

"Facts:  Bylaws require at least five days notice of a special meeting of the executive board,  The president can call special meetings."

If we assume that the bylaws do clearly and unambiguously require exactly what Mr. Brown says that they require*, I don't see any reason why a bylaws change is called for, and certainly not the one which is suggested here.

---------------------------------------------------------

He being the guy who so often in this forum demands that posters post the exact language as it appears in their bylaws, and no paraphrasing.  🙂

 

Touche', Dan!   Here it is:

Special meetings. Special meetings of
the board may be called by the
president or any two members of the
board by giving notice of not less than
five, nor more than 14 days before the
date of the meeting.

I trust that I paraphrased accurately, at least for the purposes of my question. 

[SaintCad]

On 5/7/2018 at 4:53 PM, J. J. said:

My question is if this would be an example of a meeting that was "properly called" or not.

We are given a scenario where the bylaws do authorize special meetings and give two constraints:  1.  The president must be one to call the special meeting.  2.  There must be five days notice. 

The second part, to me, relates solely to the protection of absentees.  If there are no absentees and no member objects, the lack of a five day notice would not cause this to be an improperly called meeting.  The failure of the president to be the one calling the meeting would render the meeting improper; a majority could not get together and issue the call.  If there are no absentees and no member objects, just the lack of five day notice, should not render the meeting improper.

 I would disagree with your assessment that the second part relates SOLELY to protect absentees.  Suppose the president calls a special meeting so the body can select what candidate to endorse for Governor.  I would need time to study the candidates not only to support the one I think should be endorsed but to come up with counter-arguments for other candidates that might be supported by other members.

[Josh Martin]

5 hours ago, SaintCad said:

 I would disagree with your assessment that the second part relates SOLELY to protect absentees.  Suppose the president calls a special meeting so the body can select what candidate to endorse for Governor.  I would need time to study the candidates not only to support the one I think should be endorsed but to come up with counter-arguments for other candidates that might be supported by other members.

The situation presented in this thread, however, specifically involved a case in which all members were present and no members objected.

[Tim Wynn]

As a practical note, if everyone shows up for what turns out to be something other than a properly called meeting, don't send everyone home. Have them sit down and informally hash out the details and make up their minds about whatever they came to decide. Then, five days later, when you have the properly called meeting, the matter can be handled in thirty-five seconds.