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Ratifying a vote that passed and was then found to not have a quorum


Gary Brainerd, PhD
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We have a situation where there was a quorum, the meeting lasted long, a vote was taken and passed, and then it was discovered that there was no longer a quorum or at least it was not certain.  So another meeting was called to "ratify" the vote that was passed without a quorum.  Is this appropriate.  Or do you have to do the whole thing over again?

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RONR, 11th edition, p. 349:

Quote

Because of the difficulty likely to be encountered in determining exactly how long the meeting has been without a quorum in such cases, a point of order relating to the absence of a quorum is generally not permitted to affect prior action; but upon clear and convincing proof, such a point of order can be given effect retrospectively by a ruling of the presiding officer, subject to appeal (24).

 

56 minutes ago, Gary Brainerd, PhD said:

...the whole thing over again?

What do you mean by "whole thing"?

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Guest Who's Coming to Dinner
3 hours ago, Gary Brainerd, PhD said:

Is this appropriate.  Or do you have to do the whole thing over again?

It is if there was proof that the quorum was lost when the vote was taken and the chair ruled to that effect. Otherwise, it is dilatory to ratify "just in case." A legitimate motion to ratify opens up the original question to full debate, so it can be "doing the whole thing over again" in that sense.

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2 hours ago, Guest Who's Coming to Dinner said:

It is if there was proof that the quorum was lost when the vote was taken and the chair ruled to that effect. Otherwise, it is dilatory to ratify "just in case." . . . .

I disagree. It is hardly dilatory to ratify an action that is of questionable validity and which the assembly clearly wants to ratify.  If anything is dilatory, it would be raising a point of order that the adopted motion is null and void due to the absence of a quorum when it was adopted when there is not clear evidence... at that moment... whether a quorum was or was not present. To force the chair to rule on the validity of the motion, and then his decision get appealed to the assembly to hear and consider the debatable appeal of whether the motion was validly adopted would, in my opinion, be closer to being dilatory.  Then, if you factor in that if the assembly rules that the motion was indeed not validly adopted, the assembly will then go through the process of ratifying the motion.  Having to go through the whole point of order and appeal unnecessarily is what would more likely be dilatory.

If the chair and/or the assembly decides on the point of order that the point of order was not well taken and that the motion was validly adopted, that decision is not permanently binding on future sessions!  At any future session weeks, months or years later a new point of order can be raised, based on newly discovered evidence (or perhaps based on a different group of members being in attendance) and at the future meeting the assembly can decide, with a majority vote (at least if previous notice was given) that the motion was not validly adopted after all.

Here is the definition of a dilatory motion from page 342 of RONR:

A motion is dilatory if it seeks to obstruct or thwart the will of the assembly as clearly indicated by the existing parliamentary situation.

It hardly seems dilatory to ratify a motion whose adoption is questionable and subject to challenge in the future... especially if the assembly clearly wants to ratify it. From a legal standpoint, it seems to me much more prudent to simply ratify the motion and be done with it rather than to rely on a ruling from the chair and an appeal that is subject to reversal in the future.  Nowhere does RONR say that it is dilatory to ratify a motion whose validity is subject to question.  To  the contrary, that seems to me to be the prudent thing to do.  I would not hesitate to urge an assembly to ratify a motion which has been adopted under circumstances which could possibly lead to its being declared null and void in the future.

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10 hours ago, Gary Brainerd, PhD said:

We have a situation where there was a quorum, the meeting lasted long, a vote was taken and passed, and then it was discovered that there was no longer a quorum or at least it was not certain.  So another meeting was called to "ratify" the vote that was passed without a quorum.  Is this appropriate.  Or do you have to do the whole thing over again?

No, it would appear that neither is appropriate. 

“The motion to ratify (also called approve or confirm) is an incidental main motion that is used to confirm or make valid an action already taken that cannot become valid until approved by the assembly.”  (RONR, 11th ed., p. 124)

Any action taken before an assembly determines that a quorum is not present must be regarded as having been validly taken unless and until the assembly also determines that a quorum was not present at the time when such action was taken (RONR, 11th ed. p. 349, ll. 21-28). As best I can determine from the facts as stated, no such determination has as yet been made.

 

 

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1 hour ago, Daniel H. Honemann said:

No, it would appear that neither is appropriate. 

“The motion to ratify (also called approve or confirm) is an incidental main motion that is used to confirm or make valid an action already taken that cannot become valid until approved by the assembly.”  (RONR, 11th ed., p. 124)

Any action taken before an assembly determines that a quorum is not present must be regarded as having been validly taken unless and until the assembly also determines that a quorum was not present at the time when such action was taken (RONR, 11th ed. p. 349, ll. 21-28). As best I can determine from the facts as stated, no such determination has as yet been made.

 

 

I will agree here, if there is the possibility that the assembly makes this determination prior to the adoption to a motion to ratify..

In terms of the process, the motion to ratify, now introduced, would be subject to a point of order that it is out of order ratify an validly adopted motion.  The chair could  rule that the motion was not validly adopted because there was an absence of a quorum, and that the point is not well taken.  That decision could be appealed and the assembly would rule, effectively, on if there was a quorum.   The chair could rule the other way, that the motion to ratify is out of order because there a quorum.  That decision could be appealed, and the assembly would again effectively rule on if there was on if there was a quorum.  In either case, the chair could let the assembly decide.

The chair's decision would be some version of either of these:

"The motion to ratify is in order because it applies to a motion was adopted when no quorum was present."

"The motion to ratify is not in order because it applies to a motion was adopted when quorum was present."

Neither directly answers the question, "Was there a quorum present when the motion was adopted?"  Both very clearly establish if there was quorum present. 

I'm using  this because I expect this is closer to the situation described.

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2 hours ago, J. J. said:

I will agree here, if there is the possibility that the assembly makes this determination prior to the adoption to a motion to ratify..

In terms of the process, the motion to ratify, now introduced, would be subject to a point of order that it is out of order ratify an validly adopted motion.  The chair could  rule that the motion was not validly adopted because there was an absence of a quorum, and that the point is not well taken.  That decision could be appealed and the assembly would rule, effectively, on if there was a quorum.   The chair could rule the other way, that the motion to ratify is out of order because there a quorum.  That decision could be appealed, and the assembly would again effectively rule on if there was on if there was a quorum.  In either case, the chair could let the assembly decide.

 The chair's decision would be some version of either of these:

"The motion to ratify is in order because it applies to a motion was adopted when no quorum was present."

"The motion to ratify is not in order because it applies to a motion was adopted when quorum was present."

Neither directly answers the question, "Was there a quorum present when the motion was adopted?"  Both very clearly establish if there was quorum present. 

I'm using  this because I expect this is closer to the situation described.

What the chair should rule, however, is that the motion to Ratify is not in order because the assembly has not made a determination that the motion was invalid, and therefore, there is no need for a motion to Ratify. The motion to Ratify is out of order at this time whether or not a quorum was present. The chair should inform the assembly that, if there is reason to believe that a quorum was not present and a member can present clear and convincing proof of this, the appropriate course of action is to raise a Point of Order to that effect. If it is ultimately determined that a quorum was not present at the time the motion was adopted, a motion to Ratify would then be appropriate.

9 hours ago, Richard Brown said:

It hardly seems dilatory to ratify a motion whose adoption is questionable and subject to challenge in the future... especially if the assembly clearly wants to ratify it. From a legal standpoint, it seems to me much more prudent to simply ratify the motion and be done with it rather than to rely on a ruling from the chair and an appeal that is subject to reversal in the future.  Nowhere does RONR say that it is dilatory to ratify a motion whose validity is subject to question.  To  the contrary, that seems to me to be the prudent thing to do.  I would not hesitate to urge an assembly to ratify a motion which has been adopted under circumstances which could possibly lead to its being declared null and void in the future.

In my opinion, a motion to Ratify is out of order when applied to an action which, at present, is entirely valid. It seems similar to a motion to “reaffirm,” which is not in order. Additionally, while your argument focuses on the idea that this “saves time” if the motion to Ratify is adopted, what happens if the motion to Ratify is defeated? This seems to create ambiguity regarding the status of the underlying action.

Edited by Josh Martin
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9 hours ago, Josh Martin said:

What the chair should rule, however, is that the motion to Ratify is not in order because the assembly has not made a determination that the motion was invalid, and therefore, there is no need for a motion to Ratify. The motion to Ratify is out of order at this time whether or not a quorum was present. The chair should inform the assembly that, if there is reason to believe that a quorum was not present and a member can present clear and convincing proof of this, the appropriate course of action is to raise a Point of Order to that effect. If it is ultimately determined that a quorum was not present at the time the motion was adopted, a motion to Ratify would then be appropriate.

I disagree on this point (though I a do agree with your other point).

The text says: 

"Cases where the procedure of ratification is applicable include:

action improperly taken in a regular or properly called meeting at which no quorum was present (p.124, ll. 27-32)."

The clause does not say **action that has been found to have been improperly taken in a regular or properly called meeting at which no quorum was present.**

Though not in this case, an inquorate meeting may adopt a motion knowing full well that it will need to be ratified. 

At the next properly called and quorate meeting someone moves to ratify the action.  There is no need to make that determination.  Even if a point of order is raised on the ground that ratification could not be entertained because it was not established that the action was taken at an inquorate meeting, the chair could still rule, "The motion to ratify is in order because it applies to a motion was adopted when no quorum was present." This may especially be true if the chair presided at the inquorate meeting. 

The chair, just by permitting the motion to ratify come before the assembly, has made the determination that the action was adopted at a meeting without a quorum.  It is only if there is a challenge to the chair's determination, would the lack of a quorum need to be otherwise established. 

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7 hours ago, J. J. said:

The chair, just by permitting the motion to ratify come before the assembly, has made the determination...

I was under the impression that any such determination must be done by the assembly and not by the presiding officer. Am I wrong about this?

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15 hours ago, Guest Zev said:

I was under the impression that any such determination must be done by the assembly and not by the presiding officer. Am I wrong about this?

The presiding officer makes the initial ruling on points of order and whether a motion is proper. If no one appeals his decision or makes a point of water order about him allowing a motion, then his decision stands.

Edited by Richard Brown
Corrected point of "water" to point of "order" caused by dictating on a cell phone
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10 hours ago, J. J. said:

I disagree on this point (though I a do agree with your other point).

The text says: 

"Cases where the procedure of ratification is applicable include:

action improperly taken in a regular or properly called meeting at which no quorum was present (p.124, ll. 27-32)."

The clause does not say **action that has been found to have been improperly taken in a regular or properly called meeting at which no quorum was present.**

Though not in this case, an inquorate meeting may adopt a motion knowing full well that it will need to be ratified. 

At the next properly called and quorate meeting someone moves to ratify the action.  There is no need to make that determination.  Even if a point of order is raised on the ground that ratification could not be entertained because it was not established that the action was taken at an inquorate meeting, the chair could still rule, "The motion to ratify is in order because it applies to a motion was adopted when no quorum was present." This may especially be true if the chair presided at the inquorate meeting. 

The chair, just by permitting the motion to ratify come before the assembly, has made the determination that the action was adopted at a meeting without a quorum.  It is only if there is a challenge to the chair's determination, would the lack of a quorum need to be otherwise established. 

I quite agree that no Point of Order is necessary in the case that an action was taken at a meeting which already accepted that a quorum was not present.

If a quorum was believed to have been present at the time, however, I maintain that the action is presumed to be valid until the assembly determines otherwise, and that “The chair, just by permitting a motion to ratify to come before the assembly” is not an appropriate method of making this determination.

3 hours ago, Guest Zev said:

I was under the impression that any such determination must be done by the assembly and not by the presiding officer. Am I wrong about this?

Such a determination certainly could be made by the presiding officer. A member could raise a Point of Order and the chair would rule on that point. If this ruling is not appealed, that would settle the matter.

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22 minutes ago, Josh Martin said:

I quite agree that no Point of Order is necessary in the case that an action was taken at a meeting which already accepted that a quorum was not present.

If a quorum was believed to have been present at the time, however, I maintain that the action is presumed to be valid until the assembly determines otherwise, and that “The chair, just by permitting a motion to ratify to come before the assembly” is not an appropriate method of making this determination.

I wholly disagree with the last statement.

A motion was made to ratify an action taken a meeting that may or may not be inquorate. The chair can do one of three things:

1.  State the motion.

2. Rule the motion out of order on the ground that the action was adopted by a quorate meeting.

3.  Submit the question on the if the action was or was not taken at a quorate meeting to the assembly. 

By doing first, he has, effectively, said that there was no quorum when the decision was taken.  By doing the second, he has determined that there was not sufficient evidence that the meeting was inquorate.  By doing the third, he is asking the assembly if there is sufficient evidence that the meeting was inquorate.

The second decision, is subject to appeal (unless the appeal is dilatory). The first decision is subject to a point of order, and that decision is subject to appeal (unless the appeal is dilatory).

None of this happens prior to the motion to ratify being made. There needs to be no declaration that the action was authorized at an inquorate meeting.  If the chair does feel that there is not enough evidence to show that the meeting was inquorate, he simply rules the motion out of order. His decision is almost always subject to appeal.

The only was that the assembly could determine, before the motion to ratify was made, if there was a quorum would be to adopt an incidental main motion, "That there was no quorum present at the meeting where the motion to authorize _______ was adopted."   I see no reason why such a main motion would be needed as prerequisite to entertain ratify.  Just off the top of my head, I cannot think of any main motion that could not be introduced unless a prior motion was adopted, excluding those that change an adopted main motion.

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3 hours ago, Josh Martin said:

Such a determination certainly could be made by the presiding officer. A member could raise a Point of Order and the chair would rule on that point. If this ruling is not appealed, that would settle the matter.

Then why doesn't the lack of a point of order also settle the matter?

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1 hour ago, J. J. said:

The only was that the assembly could determine, before the motion to ratify was made, if there was a quorum would be to adopt an incidental main motion, "That there was no quorum present at the meeting where the motion to authorize _______ was adopted."   I see no reason why such a main motion would be needed as prerequisite to entertain ratify.  Just off the top of my head, I cannot think of any main motion that could not be introduced unless a prior motion was adopted, excluding those that change an adopted main motion.

What about a Point of Order that no quorum was present?

3 minutes ago, Joshua Katz said:

Then why doesn't the lack of a point of order also settle the matter?

I’m not sure what you mean. Are you referring to the fact that no Point of Order has yet been raised? RONR clearly provides that a Point of Order may be raised on this subject at a later meeting if there is clear and convincing proof that a quorum was not present at the time of the vote.

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18 hours ago, Hieu H. Huynh said:

Did someone raise a point of order regarding the lack of a quorum (see FAQ #3)?

There was a written vote and the total number of actual votes was less than the quorum number  - that was present

 

On 8/22/2018 at 5:04 PM, Hieu H. Huynh said:

Did someone raise a point of order regarding the lack of a quorum (see FAQ #3)?

at the beginning.  When the votes were counted, the Chair

 

On 8/22/2018 at 5:04 PM, Hieu H. Huynh said:

Did someone raise a point of order regarding the lack of a quorum (see FAQ #3)?

No one raised a point of order, but the chair acknowledged the possibility of not having a quorum when the vote was take and decided to have another meeting with a quorum so the vote would not later be challenged and to build trust in the community.

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47 minutes ago, Josh Martin said:

What about a Point of Order that no quorum was present?

 

About what?  At the current meeting there is a quorum, presumably.

A member, when nothing was pending, could raise a point of order, "That the motion authorizing 123  was adopted at a meeting without a quorum."  The chair rules that there was no quorum and that the motion is not in effect.  There is an appeal and the chair's decision is sustained.  From what I can tell, technically, that motion authorizing 123 is null and void. 

From what I can tell, an original main motion, "That 123 be authorized," would be in order. Technically, a motion to ratify is not needed, at least in this case. There may, however, be a problem trying to approve a null and void motion via ratification.

If the assembly is dealing with a motion to ratify, the points of order refer that motion ratify, not the original motion authorizing the action.  

A member raises of point of order, "that the motion to ratify is out of order, because there was a quorum when the that no quorum was present ."  

The chair would rule in one of three ways:

A.  Submit the point of order to the assembly.

B.  Rule that, "The motion to ratify is in order because it applies to a motion was adopted when no quorum was present."

C. Rule that, "The motion to ratify is not in order because it applies to a motion was adopted when a quorum was present."

The point of order applies to the motion to ratify

Assume that the was no quorum when the motion authorizing 123 was adopted, and member raises a point of order,   "That the motion authorizing 123  was adopted at a meeting without a quorum."  The point of order is found to be well taken.

Immediately, a member moves "that the action authorizing 123 be ratified." That assembly would be be in a position of authorizing a motion that a few seconds ago it said was null and void; I would regard this, at least, as a violation of the rules of renewal.   An original main motion, "that the 123 be authorized," would be in order, that authorization would begin if and when that main motion is adopted.  

Finding that the motion "that 123 be authorized"  was adopted at an inquorate meeting and is null and void may technically prevent a ratification of the action authorizing 123.  Finding that the motion to ratify is applicable because the motion "that 123 be authorized" was adopted at an inquorate meeting, clearly permits the assembly to use ratification.  

 

 

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10 minutes ago, Gary Brainerd, PhD said:

No one raised a point of order, but the chair acknowledged the possibility of not having a quorum when the vote was take and decided to have another meeting with a quorum so the vote would not later be challenged and to build trust in the community.

If the chair announced that a quorum may not have been present and announced that, because of that, the assembly needed to adopt this motion at another meeting, that the chair effectively ruled that the meeting did not have a quorum. The chair's action was not textbook, but if he's around, he should be able to tell you that this in what he did. 

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4 minutes ago, Joshua Katz said:

Huh? Why? Isn't that precisely the position where ratification makes sense?

No.  The point of order is raised first, and separately; it is raised when no question is pending.  The point of order is "That the motion authorizing 123  was adopted at a meeting without a quorum," and because of that, the motion authorizing 123, and its effect, are null and void.  

Perhaps with some intervening business but in the same session, a motion to ratify "the motion authorizing 123."  If adopted, the assembly says that the motion authorizing 123 and its effect are in full force.

The assembly at the first point has determined that the motion authorizing 123, the one adopted at the last meeting, and its effect, are null and void.

At the second point, the assembly has determined that the motion authorizing 123, the one adopted at the last meeting, is in full effect, even while the assembly was ruling that it is null and void. There may be some technical problems with that. 

Both the motion to ratify and that point of order apply to the exact same motion, the one that was adopted at the prior (inquorate) meeting.

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5 minutes ago, J. J. said:

At the second point, the assembly has determined that the motion authorizing 123, the one adopted at the last meeting, is in full effect, even while the assembly was ruling that it is null and void. There may be some technical problems with that. 

 

Well, I struggle to see any problem at all. It is null and void because it was adopted without a quorum, but otherwise was within the power of the assembly. Ratification is used when an action is within the power of an assembly but is taken outside of a quorate meeting. It seems to me that your explanation leaves out time's arrow and acts as if the assembly is saying "it's in effect and it isn't." The assembly is deciding, first, that it is not in effect, and, second, that it wishes it to be. 

In any event, if you prefer to simply make the same motion rather than move to ratify, the vote threshold certainly won't be increased, or, to put it more relevantly, ratification does not require a lower threshold than just making the motion. So who cares which word is used? Formality for its own sake.

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2 hours ago, Gary Brainerd, PhD said:

There was a written vote and the total number of actual votes was less than the quorum number  - that was present

 

I would just point out that, unless this vote was taken by roll call (which does not seem to have occurred) or the assembly is a very small one, basing the presence or absence of a quorum on the number of votes cast is strongly suspect. Members always have the right to abstain, so unless your rules do not allow for this possibility, it entirely possible that not every member who was present submitted a ballot. I think there are very few, if any, circumstances where this approach can be reliably considered to provide 'clear and convincing evidence' of the absence of a quorum.

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2 hours ago, Gary Brainerd, PhD said:

No one raised a point of order, but the chair acknowledged the possibility of not having a quorum when the vote was take and decided to have another meeting with a quorum so the vote would not later be challenged and to build trust in the community.

If it was acknowledged at the time that a quorum may not be present, the chair should have taken a count to ensure that a quorum was, in fact, present. Since this was not done, however, the burden of proof now lies with those who claim that a quorum was not present. A member who believes that a quorum was not present may raise a Point of Order to that effect, along with the clear and convincing proof that he has of this fact. The chair will rule on this point, and the chair’s ruling may be appealed from, placing the decision in the hands of the assembly. (The chair could also make a ruling on his own initiative, without waiting for a member to raise a Point of Order.) If and when a determination is made that a quorum was not present and, as a result, the motion is null and void, it would then be in order to make a motion to Ratify, or simply to make the motion anew. Neither of those things are in order at this time.

2 hours ago, J. J. said:

If the chair announced that a quorum may not have been present and announced that, because of that, the assembly needed to adopt this motion at another meeting, that the chair effectively ruled that the meeting did not have a quorum. The chair's action was not textbook, but if he's around, he should be able to tell you that this in what he did. 

I disagree that the chair acknowledging that a quorum may not be present is effectively the same as a ruling that a quorum was not present. The chair’s prior statement in this regard, however, could certainly be used as a piece of evidence in making a ruling now that a quorum was not present at the time.

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