required member participation Null and Void Motions

[BVKO]

Aloha,

Our Association is 250 condominiums with an elected board of directors from 9 of the 247 members and the Board is the governing body of the Association. Meetings are required to be open to all members in accordance to Robert’s Rules of Order.

“All meetings of the Board (whether organizational, regular or special) shall be conducted

in accordance with the most current edition of Robert's Rules of Order.” ~ Association Bylaws

“BOARD MEETINGS OPEN TO OWNERS. With the exception of executive sessions, all meetings of the Board shall be open to all members of the Association, and Association members who are not on the Board may participate in any deliberation or discussion unless a majority of a quorum of the Board determines that such non-Board members shall not so participate in the meeting.” Association Bylaws

First, thanks for having a forum like this!  I have done some research, but realized it was the 1915 edition and it is a multipart point of confusion for me. I've inserted quotes from the minutes for accuracy.  ( is there a downloadable RR’s 11^th edition available for online purchase? I could only find CD and Audio)

Thanks to anyone who responds!

The questions I have are the following:

        At a Board meeting, after the presentation of reports, the Chair opened the meeting for questions from the Owners and then closed participation to non-board members.

There was no action taken by the quorum of the Board to restrict participation other than the Chairs directive that it would be done. The Directors amongst themselves then discussed, deliberated and polled on 7 controversial proposed rules and made recommendation to the rules committee of what had been decided by the Directors.

Minutes describing the above:

“Chairman then opened up the meeting for questions from the owners:

At the conclusion of the questions from owners, President restricted discussion to the board members and requested board input on the following rule issues to give the Special Rules Committee direction”

First Question ~ Did the Chairman, in his capacity as Chair of the meeting, without any record of a determination from the quorum of the Board, satisfy the requirement of the bylaw above to restrict member participation in the discussion? ____________

Minutes describing the above:

“Chairman then opened up the meeting for questions from the owners:

At the conclusion of the questions from owners, President restricted discussion to the board members and requested board input on the following rule issues to give the Special Rules Committee direction”

This would also describe the approach taken for votes on motions or other matters requiring votes of Directors.

In some cases, all discussions of a motion  during  the discussion period of the motion are closed to members.  

In some rare cases, members might be given an opportunity to provide their input after the making of the motion and second before discussion would be closed to non-Board members thru the vote by the Directors.  

If a motion was passed by the Board  on items similar to those below, under either of  the Chair's restrictions of members to participate in the entire discussion and deliberation of the motion, would the Action approved by the Board be:

 Valid and enforceable _______

OR

Null and Void _______

Approve required policies and/or requirement upon the membership,

Passage of House Rules

Passage of Budgets

Approval of legal opinions

Acceptance of contracts

Acceptance of Insurance proposal

Based on my only resource at the time of the 1915 version, under Art 8 rule 47, in 1915 it looks like it would be null and void based on the superiority of the Bylaw over a rule of the Chair.

With the giant assumption that my interpretation is accurate, have revisions changed that interpretation?  

Rule 47 in part 1915 J

No motion is in order that conflicts with the laws of the nation, or state, or with the assembly’s constitution or by-laws, and if such a motion is adopted, even by a unanimous vote, it is null and void. No rule that conflicts with a rule of a higher order is of any authority;

 

c.     In the event some or all of the motions passed are null and void, how does the Association correct an issue in existence for years potentially effecting most of the actions taken by the Board? _____________________________________________ 

d.     Is it an option of Association to correct past digressions thru a blanket correction or would each motion need to be reintroduced open for discussion and passed again? __________________________________

e.     What if the vote the 2^nd time was different than the first, retroactively unwinding any approval for use of Association funds which have been spent? 

f.      Is it an option to start doing things correctly at this point and ignore the past record as flawed but not corrected?

Mahalo!

Sorry if too many questions or they aren’t clear. Novice here!

Aloha!

Confused in Hawaii

[Hieu H. Huynh]

Generally, nonmembers of the board do not have any rights at board meetings and that it is up to the board to allow nonmembers to attend and participate in discussions.

[BVKO]

42 minutes ago, Hieu H. Huynh said:

Generally, nonmembers of the board do not have any rights at board meetings and that it is up to the board to allow nonmembers to attend and participate in discussions.

Thank you, 

I've heard that also of other Associations and States. Hawaii's condominium law addresses that subject and our Association docs mirror the Statute on this quote: "

1 hour ago, BVKO said:

BOARD MEETINGS OPEN TO OWNERS. With the exception of executive sessions, all meetings of the Board shall be open to all members of the Association, and Association members who are not on the Board may participate in any deliberation or discussion unless a majority of a quorum of the Board determines that such non-Board members shall not so participate in the meeting.” Association Bylaws

Based on what appears to create a statutory and bylaw guarantee unless a quorum takes the affirmative action to determine to not allow participation, does that effect your conclusion? 

Thanks again. 

 

[Hieu H. Huynh]

Ultimately it is up to your association to interpret your bylaws. Such interpretation is beyond the scope of this forum.

[BVKO]

I understand and appreciate the complexity of the situation. 

Mahalo! 

[Dan Honemann]

Based solely upon what you have posted it would appear that the answer to your first question is no, the Chairman, in his capacity as Chair of the meeting, without any determination from the quorum of the Board, did not satisfy the requirement in the bylaws relating to restriction of participation by nonmembers.

However, in view of the fact that no point of order was raised at the time, it would also appear that the motions declared to have been adopted are valid and enforceable, assuming that they themselves do not conflict with the bylaws. In such a case, the procedure used in their consideration may be in conflict with the procedure mandated by the bylaws, but this, in my opinion, will not, in and of itself, invalidate the actions taken.

[Chris Harrison]

28 minutes ago, Daniel H. Honemann said:

However, in view of the fact that no point of order was raised at the time...

Who would have standing to raise the Point of Order?  I know normally it would only be the Board members who have any rights in regards to the proceedings.  However, since the (Bylaw granted) right to participation was unilaterally denied by the Chair would that then give the non (Board) members the right to object?

[Dan Honemann]

12 minutes ago, Chris Harrison said:

Who would have standing to raise the Point of Order?  I know normally it would only be the Board members who have any rights in regards to the proceedings.  However, since the (Bylaw granted) right to participation was unilaterally denied by the Chair would that then give the non (Board) members the right to object?

No, I don't think so. I don't think that this right to participate in deliberation and discussion carries with it the right to make motions or raise points of order. 

[BVKO]

Aloha Dan, 

Historically (10 years) ,  Points of Order have been received, acknowledged and determined in Board meetings and/or annual Association meetings. The ability to make motions by members is only permitted in the Annual Association meetings or if the membership (thru 25% of the members at large consent) called a Special Association meeting. 

As I'd mentioned, my only reference at this time is the 1915 version. In that version, rule 47 states in part: 

8 hours ago, BVKO said:

No motion is in order that conflicts with the laws of the nation, or state, or with the assembly’s constitution or by-laws, and if such a motion is adopted, even by a unanimous vote, it is null and void. No rule that conflicts with a rule of a higher order is of any authority;

in this version which is why I wonder if similar language survived the 11 revision, seems to address the question of a motion that has been adopted, (whether or not it was challenged prior to passage ) with no survivability mentioned if it conflicts with a rule of a higher order, ie the Bylaws. 

The restriction of participation by the Chair, while not within the motion itself, was a suspension of rules with out the ability to do so or with out a Board vote approval each time the membership was not permitted to participate. Does a condition created from an improper suspension of the rules, require action prior to passage ?

For example, Member participation and discussion is an established and statutorily protected right under the Bylaws and state law as  the 72 hour requirement of posting meeting notices, quorum requirements etc. Since the language of participation is also included in Hawaii Statute as follows:

Section 514B-125, Hawaii Revised Statutes, is amended to read as follows :

" [Æ] S 514B-125     Board meetings . (a) All meetings of the board, other than executive sessions, shall be open to all members of the association, and association members who are not on the board [may} shall be permitted to participate in any deliberation or discussion, other than executive sessions, pursuant to owner participation rules adopted by the board.

 

Would any motion passed thru the Association Board's illegal act to do so,  such as 72 hour notice, quorum present or  illegally restricting member participation represent a lawful action, therefore a valid action, if it was not legal. In the text above, the amendment took effect July 1, 2017 in which our legislature removed the right completely to restrict participation. The time frame we are discussing prior to the amended version.

Any additional insight if the act of the Board was determined to be illegal at the time the motion was passed?

 

Mahalo 

[Joshua Katz]

45 minutes ago, BVKO said:

in this version which is why I wonder if similar language survived the 11 revision, seems to address the question of a motion that has been adopted, (whether or not it was challenged prior to passage ) with no survivability mentioned if it conflicts with a rule of a higher order, ie the Bylaws. 

 

No longer is an action in contradiction to a substantive law null and void, only procedural laws.

That aside, there is a deeper issue here. Rules are not automatic or self-executing. Actions become null and void only when a point of order is raised to deal with them, and the organization decides the matter. Otherwise, how would we know what is null and void, and what is not? We could rely on your judgment, but then others could say we should rely on their judgment, etc. 

What's more, this only applies to a continuing breach. Why? Because just what are you going to do about it if it is over? For example, if procedure is not followed at a meeting, the decision to, e.g., close debate by a majority vote, was in violation of the rules, but it means nothing to declare it null and void, since the meeting has ended. What it does not mean, is that the action adopted after debate was closed is null and void. Only the specific action which broke the rules - in this case, closing debate - could be void, and if it's all said and done, there's nothing to nullify. 

50 minutes ago, BVKO said:

 The restriction of participation by the Chair, while not within the motion itself, was a suspension of rules with out the ability to do so or with out a Board vote approval each time the membership was not permitted to participate. Does a condition created from an improper suspension of the rules, require action prior to passage ?

 

I do not understand the final sentence of this. It sounds to me, though, like this is like the situation I described above. The Chair restricted participation in violation of, perhaps, a procedural statute (we don't give legal advice here), but that act is now all done, and there is nothing left to nullify. Actions adopted after that are not nullified simply because they were adopted without input - just as in the example of improperly closing debate above.

 

52 minutes ago, BVKO said:

Would any motion passed thru the Association Board's illegal act to do so,  such as 72 hour notice, quorum present or  illegally restricting member participation represent a lawful action, therefore a valid action, if it was not legal. In the text above, the amendment took effect July 1, 2017 in which our legislature removed the right completely to restrict participation. The time frame we are discussing prior to the amended version.

 

That's a legal question, but so far as parliamentary procedure is concerned, a failure of notice to non-members (of the assembly) would not nullify an act. Where a procedural law requires such notice, that law might govern, but that's a question for an attorney. A lack of quorum, upon presentation of clear and convincing evidence (a higher standard than preponderance of the evidence, a lower standard than beyond a reasonable doubt), nullifies actions taken. A lack of notice to members would nullify an act. Restricting non-member participation, even when required by law, would not, in my opinion, nullify the act. Despite the fact that procedural laws govern, I think there is still a difference between members and non-members. Since non-members cannot vote, no fundamental right was denied. Furthermore, the failure of anyone to object might well be seen as unanimous consent to suspend the rules, and your law (again, ask a lawyer) permits the board to restrict participation by non-members.

[Dan Honemann]

39 minutes ago, BVKO said:

Aloha Dan, 

Historically (10 years) ,  Points of Order have been received, acknowledged and determined in Board meetings and/or annual Association meetings. The ability to make motions by members is only permitted in the Annual Association meetings or if the membership (thru 25% of the members at large consent) called a Special Association meeting. 

As I'd mentioned, my only reference at this time is the 1915 version. In that version, rule 47 states in part: 

in this version which is why I wonder if similar language survived the 11 revision, seems to address the question of a motion that has been adopted, (whether or not it was challenged prior to passage ) with no survivability mentioned if it conflicts with a rule of a higher order, ie the Bylaws. 

The restriction of participation by the Chair, while not within the motion itself, was a suspension of rules with out the ability to do so or with out a Board vote approval each time the membership was not permitted to participate. Does a condition created from an improper suspension of the rules, require action prior to passage ?

For example, Member participation and discussion is an established and statutorily protected right under the Bylaws and state law as  the 72 hour requirement of posting meeting notices, quorum requirements etc. Since the language of participation is also included in Hawaii Statute as follows:

Section 514B-125, Hawaii Revised Statutes, is amended to read as follows :

 

" [Æ] S 514B-125     Board meetings . (a) All meetings of the board, other than executive sessions, shall be open to all members of the association, and association members who are not on the board [may} shall be permitted to participate in any deliberation or discussion, other than executive sessions, pursuant to owner participation rules adopted by the board.

 

Would any motion passed thru the Association Board's illegal act to do so,  such as 72 hour notice, quorum present or  illegally restricting member participation represent a lawful action, therefore a valid action, if it was not legal. In the text above, the amendment took effect July 1, 2017 in which our legislature removed the right completely to restrict participation. The time frame we are discussing prior to the amended version.

Any additional insight if the act of the Board was determined to be illegal at the time the motion was passed?

 

Mahalo 

I'm afraid that you will need to address this question, which concerns the meaning and effect of your state's statute, to an attorney in order to determine whether or not any administrative or judicial gloss sheds light on your question. Action taken in violation of procedural rules prescribed by applicable state law is null and void.

Please understand, however, that what you have quoted from Sec. 47 of the 1915 edition has nothing to do with any of this.

[BVKO]

1 hour ago, Daniel H. Honemann said:

I'm afraid that you will need to address this question, which concerns the meaning and effect of your state's statute, to an attorney in order to determine whether or not any administrative or judicial gloss sheds light on your question. Action taken in violation of procedural rules prescribed by applicable state law is null and void.

Please understand, however, that what you have quoted from Sec. 47 of the 1915 edition has nothing to do with any of this.

Thanks, 

To summarize, Rule 47 does not apply 

A point of order at the time of the infraction would have been required at the time of the restriction of member participation if the member felt it was not in order

Once the restriction of the member was allowed (thru no point of order from a nondirector, and implied consent by the remaining Directors) the motion is voted on, it is done.

1 hour ago, Joshua Katz said:

Actions become null and void only when a point of order is raised to deal with them, and the organization decides the matter.

Does this include an existing passed motion as an "action"? That would indicate that a point of order asking for review of a motion made in violation of State Law and for the Association to determine if it was Null and void would be a matter for the Association to decide with consideration of existing relevant state law? 

1 hour ago, Joshua Katz said:

A lack of quorum, upon presentation of clear and convincing evidence (a higher standard than preponderance of the evidence, a lower standard than beyond a reasonable doubt), nullifies actions taken. A lack of notice to members would nullify an act. Restricting non-member participation, even when required by law, would not, in my opinion, nullify the act. 

I am gathering that "member" as used in RR's may be synonymous with our term Director of the Board? In that use,  non-member would be in reference to a member of the Association (with Voting Rights in Association meetings, but not a Director, with no voting rights in  Board meetings, but full rights of participation in the deliberation and discussion of any motion. For clarity, Bylaws and statute in reference to the universe of members, would consist of directors and nondirectors, all of whom are members of the Association. 

1 hour ago, Joshua Katz said:

Despite the fact that procedural laws govern, I think there is still a difference between members and non-members. Since non-members cannot vote, no fundamental right was denied

Would that be accurate of RR's use of Member and Non-member as equivalent to Director and non-director in RR's lexicon?

1 hour ago, Daniel H. Honemann said:

I'm afraid that you will need to address this question, which concerns the meaning and effect of your state's statute, to an attorney in order to determine whether or not any administrative or judicial gloss sheds light on your question. Action taken in violation of procedural rules prescribed by applicable state law is null and void.

Is the last sentence of the above quote a referenceable provision of RR's ? If so, could you provide that citation? I see you are a fisherman, you should come out here! 

Mahalo!  

 

 

 

[Joshua Katz]

2 minutes ago, BVKO said:

Does this include an existing passed motion as an "action"? That would indicate that a point of order asking for review of a motion made in violation of State Law and for the Association to determine if it was Null and void would be a matter for the Association to decide with consideration of existing relevant state law? 

1 hour ago, Joshua Katz said:

Passing a motion is the quintessential "action," as far as meetings and parliamentary procedure are concerned. So, yes, if it is claimed that a motion violates a state procedural law (as a point of order), the organization will have to decide whether this is true or not, through the ordinary process for deciding points of order (ruling by the chair, potentially an appeal). I realize people's minds recoil at this, and say "but it's the law!" The point is, though, that the reality is that laws require interpretation and application, and it's not up to the individual member to do that. When I, as an individual, do my taxes, I do what I think the law requires. Sometimes I'm wrong. Organizations are the same, and so it is the organization that decides. It so happens that, when a law is involved, the potential risk if the decision is wrong is higher than usual, but that's the risk of being human. Of course, the organization can get relevant input, such as consulting legal counsel, before deciding (just as I can consult an accountant or attorney before I file my taxes).

5 minutes ago, BVKO said:

I am gathering that "member" as used in RR's may be synonymous with our term Director of the Board? In that use,  non-member would be in reference to a member of the Association (with Voting Rights in Association meetings, but not a Director, with no voting rights in  Board meetings, but full rights of participation in the deliberation and discussion of any motion. For clarity, Bylaws and statute in reference to the universe of members, would consist of directors and nondirectors, all of whom are members of the Association. 

1 hour ago, Joshua Katz said:

In this instance, probably. Member is more general - whatever body happens to be meeting, "member" means a person with the full right to participate in the proceedings of that body. At a board meeting, that does not describe non-board members.

 

6 minutes ago, BVKO said:

Would that be accurate of RR's use of Member and Non-member as equivalent to Director and non-director in RR's lexicon?

1 hour ago, Daniel H. Honemann said:

Again, not always, but in the case of a board meeting, yes.

 

[BVKO]

Aloha Dan and Joshua, 

Ha : ) …

Just as I'm beginning to follow and pretty sure I've expressed the situation, I get confused again of the answers. I know it's all in the details so I just want to be sure we are all on the same page. In the note below, in our case, according to the Association Bylaws, and using our lexicon, Directors and Non-Directors have full right to participate in the proceedings of that body. It is there by default by statute and bylaws. A secondary ability for that participation to be restricted by a vote of the quorum of that meeting is not disputed, just whether or not it was done. 

In absence of that restrictive determination having been made (which may or may not ever be taken and is not any type of a limit of the full right to participate in the proceedings of that body. That does seem to describe non-board members up to an affirmative motion and vote by the Board to restrict. 

48 minutes ago, Joshua Katz said:

whatever body happens to be meeting, "member" means a person with the full right to participate in the proceedings of that body. At a board meeting, that does not describe non-board members.

Here is the relevant portion of the bylaws: 

All Association members = the 247 Owners in the condominium Association - As in "All Association members who are not on the Board  and inclusive of those who are Association members who happen to be Board members also. 

non-Board members = the universe of all Association members minus the 9 members who also serve on the Board. 

12 hours ago, BVKO said:

“BOARD MEETINGS OPEN TO OWNERS. With the exception of executive sessions, all meetings of the Board shall be open to all members of the Association, and Association members who are not on the Board may participate in any deliberation or discussion unless a majority of a quorum of the Board determines that such non-Board members shall not so participate in the meeting.” Association Bylaws

Hope that clears that up. 

Mahalo

[Joshua Katz]

59 minutes ago, BVKO said:

Just as I'm beginning to follow and pretty sure I've expressed the situation, I get confused again of the answers. I know it's all in the details so I just want to be sure we are all on the same page. In the note below, in our case, according to the Association Bylaws, and using our lexicon, Directors and Non-Directors have full right to participate in the proceedings of that body. It is there by default by statute and bylaws. A secondary ability for that participation to be restricted by a vote of the quorum of that meeting is not disputed, just whether or not it was done. 

 

Well, let's begin with that. If someone can be restricted from participation without disciplinary proceedings, he does not have the full right to participate. But that aside, everything I've seen here (correct me if I'm wrong) has suggested non-members of the board may not vote at board meetings. By definition, if all members can vote, you're not having board meetings, but membership meetings. Since you've referred to board meetings, I've assumed only board members may vote. A person who cannot vote does not have the full right to participate in the proceedings. Note Mr. Honemann's first response above.

[J. J.]

14 hours ago, BVKO said:

 

“BOARD MEETINGS OPEN TO OWNERS. With the exception of executive sessions, all meetings of the Board shall be open to all members of the Association, and Association members who are not on the Board may participate in any deliberation or discussion unless a majority of a quorum of the Board determines that such non-Board members shall not so participate in the meeting.” Association Bylaws

 

This answer does not, in any way, attempt to interpret statute.   It refers solely to the rule in the bylaws.  I will assume that a "majority of a quorum"  was present.

The chair said that the board would not take any comments from the floor; no board member objected.  This is almost like the chair asking for unanimous consent (p. 54ff.), i.e. "Debate shall be limited to board members?"   No member objected to this at the time, and presumably, the "majority of a quorum" could adopt this  motion, "That Association Members  that are not board members be permitted to enter into debate," at some later point in the meeting. 

The chair, to be textbook,  "Without objection, debate shall be limited to board members," and continuing on without objection.  While this was not textbook,it is still fundamentally the same thing.  The chair assumed the motion, and no member objected.  A "majority of a quorum" could take this action.   While a member of the board could object to this process, either or both by objecting to the chair's assumption of the motion or by objecting to the use of unanimous consent, none did. 

I am not seeing a violation of the bylaws, though the chair technically did not text language. 

[Gary Novosielski]

12 hours ago, Daniel H. Honemann said:

No, I don't think so. I don't think that this right to participate in deliberation and discussion carries with it the right to make motions or raise points of order. 

It seems to me that a rule that establishes or protects the rights of non-members should, when broken, be the proper subject of a Point of Order from one of those whose rights are being violated.  Depending upon the 9 members of the board to look out for the rights of all non-members present is no fool-proof guarantee of justice.

But I have to admit that the language does not appear to permit non-members to make motions, and that points of order are a type of motion. 

I just don't have to like it.  

 

[BVKO]

3 hours ago, Gary Novosielski said:

It seems to me that a rule that establishes or protects the rights of non-members should, when broken, be the proper subject of a Point of Order

Yes, you would think 

Aloha

[Josh Martin]

11 hours ago, Gary Novosielski said:

It seems to me that a rule that establishes or protects the rights of non-members should, when broken, be the proper subject of a Point of Order from one of those whose rights are being violated.  Depending upon the 9 members of the board to look out for the rights of all non-members present is no fool-proof guarantee of justice.

But this rule depends on the board members to look out for the rights of the non-members in any event, since the rule permits the board to prevent the non-members from speaking at any time, by a majority vote.

[Gary Novosielski]

Yes, that may be true, but I will go out on a limb and say that it's more difficult (politically at least) for a group in power to disempower others by going on the record and taking an affirmative vote to do so than it is for them to accomplish the same thing by simply remaining silent.