Can an exofficio member of a board count for quorum purposes?

[obrienlaw]

By state constitution, we are an 8 person, elected governing board of a public university. We hire the president. President is an exofficio member of the board without the right to vote (as set forth in state constitution). The state constitution describes who the governing board  will consist of:  "the board of each institution shall consist of eight members who shall hold office for terms of eight years and who shall be elected as provided by law".  It doesn't say the board is 9 members (which would include the president). During every roll call, only the names of the 8 elected members of the board are called upon, never the president.

Our bylaws state "a quorum for business shall be five members of the Board. Whenever any vacancy shall occur  by reason of death, resignation, or otherwise, a quorum for the transaction of business shall be a majority of the members of the Board then in office."

There are currently no vacancies. At a board meeting only 4 of the 8 voting members of the board were in attendance. the president (exoffico w/o the right to vote) asked that he be counted as a board member in determining a quorum to conduct business. Legal counsel agreed and meeting took place with several substantive actions being taken.

I thought the whole purpose of a quorum was to allow the ability to transact business... if you're an exofficio member without a right to vote, you're not able to transaction business, make motions, or vote, so how can that person be used in determining whether a quorum is present to transact business?  

[Joshua Katz]

8 minutes ago, obrienlaw said:

I thought the whole purpose of a quorum was to allow the ability to transact business... if you're an exofficio member without a right to vote, you're not able to transaction business, make motions, or vote, so how can that person be used in determining whether a quorum is present to transact business?  

Others might think differently, but in my view, the President is not an exofficio member of the board, because he is not a member of the board. A member has the unconditional right to participate in the body's proceedings. The President does not, as he cannot vote. Therefore, as a quorum is five members of the board, and there were only 4 members present, there was no quorum, and no business could be conducted, aside from the motions that are in order without a quorum.

Any motion adopted without a quorum may be challenged so long as there is clear and convincing evidence of a lack of quorum.

But:

11 minutes ago, obrienlaw said:

By state constitution, we are an 8 person, elected governing board of a public university.

You'll have to see if there are any relevant constitutional provisions or laws that may impact your quorum.

[obrienlaw]

Thank you. The president is only ex officio because the constitution states so.  he presides at the meeting and gives the governing board (8 electeds)  an update report.

legal counsel relied upon some exofficio rule in Roberts Rules, no one could understand. But I think he had it wrong, he should have been looking at the "quorum" section instead.

[Richard Brown]

I agree with the conclusion of Mr. Katz  that the ex-officio member it's not a member of the board and that he should not count for quorum purposes and that a quorum was not present. However, I disagree with his rationale.

Apparently the Constitution says that the board consists of eight members. In my opinion, that is controlling. The fact that the ex-officio remember, whatever his status, does not have the right to vote is not determinative in my opinion. He could  indeed be a member without the right to vote, notwithstanding the provision in RONR to the contrary. if the Constitution or bylaws say he is a member, then that provision trumps RONR and he is a member. However, that is a moot point because the Constitution apparently does not say that he is a member and instead says that the board consists of eight members. He is apparently the 9th person.

I don't know what his status is, but in my opinion, based on what we have been told, he is not a member of the board.

Edited to add:. I'm  going to backtrack a bit on my statements above. I think that ultimately this is a matter of interpreting the organization's Constitution and bylaws to determine whether the ninth person, who I assume is the president, is a member of the board. There appears to be a conflict in the Constitution since in one place it says the board shall consist of eight members but then in another place it apparently says the president shall be ex-officio a member of the board. This would make it a board of nine members. Since the board hires the president and he is an employee of the society, if he is an ex officio member of the board, he is a full-fledged member and should be counted for quorum purposes. RONR, page 483.

Edited June 23, 2019 at 04:37 AM by Richard Brown
Added last paragraph

[obrienlaw]

I think that the description of "who" the board members shall consist of as set forth in the constitution, is telling too. What is the RONR provision you write about? 

 

[Richard Brown]

2 minutes ago, obrienlaw said:

I think that the description of "who" the board members shall consist of as set forth in the constitution, is telling too. What is the RONR provision you write about? 

 

 see the last paragraph of my post above, which I edited to add just before you made your comment above

Edited June 23, 2019 at 04:39 AM by Richard Brown
Typographical correction

[obrienlaw]

Would this be true, even if he has no voting rights? How can one be a full-fledged member without the right to vote?

Edited June 23, 2019 at 04:47 AM by obrienlaw

[obrienlaw]

This could set an unintended legal precedent that would allow a nonvoting member of the board  the power to conduct business without 1/2 of the voting, elected members of the board.

[Richard Brown]

33 minutes ago, obrienlaw said:

Would this be true, even if he has no voting rights? How can one be a full-fledged member without the right to vote?

It depends on what the bylaws say. If they make him a member without the right to vote, then he is a member without the right to vote. However, since your bylaws also say the board shall consist of 8 members, I question whether he is a member at all. You appear to have conflicting provisions in your bylaws and it is up to your organization itself interpret its own bylaws and to to resolve that conflict.

[obrienlaw]

Agreed! Thank much.

[Richard Brown]

33 minutes ago, obrienlaw said:

This could set an unintended legal precedent that would allow a nonvoting member of the board  the power to conduct business without 1/2 of the voting, elected members of the board.

Well, if he cannot vote, it seems to me the amount of business which he can conduct is rather limited. I presume he could make motions and speak in debate, but if he cannot vote, his influence will be limited.

[Guest Zev]

This thread is truly mystifying. The president is ex-officio because the state constitution determined where he came from (the OP never told us) and established the fact that he cannot vote. The state constitution also provided that the number of board members is eight, therefore the quorum requirement is five. If five board members show up then business may proceed. If less than five board members show up then no business may be conducted until at least five board members show up. So what is the problem?

[Joshua Katz]

6 hours ago, obrienlaw said:

President is an exofficio member of the board

 

6 hours ago, Richard Brown said:

I agree with the conclusion of Mr. Katz  that the ex-officio member it's not a member of the board

 

6 hours ago, Richard Brown said:

Apparently the Constitution says that the board consists of eight members. In my opinion, that is controlling. The fact that the ex-officio remember, whatever his status, does not have the right to vote is not determinative in my opinion.

Why is the 8 member statement controlling, rather than the statement (true, we haven't seen the exact language, but it's what we're told) that the President is an ex-officio member? 

[Joshua Katz]

2 hours ago, Guest Zev said:

This thread is truly mystifying. The president is ex-officio because the state constitution determined where he came from (the OP never told us) and established the fact that he cannot vote. The state constitution also provided that the number of board members is eight, therefore the quorum requirement is five. If five board members show up then business may proceed. If less than five board members show up then no business may be conducted until at least five board members show up. So what is the problem?

The problem, in my view, is determining whether a person who cannot vote is a member. 

If we think it's a matter of a body interpreting its own rules, it seems clear how they've interpreted it in the past: they haven't treated the President as counting towards quorum. If they had, he wouldn't have needed to ask (whom did he ask, if he was presiding?) to be counted. 

[Richard Brown]

Obrienlaw, can you quote for us, verbatim, the exact language of the Constitution regarding the board being comprised of eight membyand also the language about the president being ex officio a non voting member of the board? Please quote exactly, don't paraphrase . 

BTW, in previous posts I forgot that these provisions are apparently in your state Constitution when I made reference to your bylaws.  This may be more a legal question than a parliamentary one. 

[obrienlaw]

In Michigan, three of the 15 public university's are created as "body corporates", with their own statewide elected (and partisan) governing boards (UofM Regents, MSU Trustees & WSU Governors). We serve without pay, as we control the University's purse strings.  Article VIII Section 5 of the michigan constitution reads in full:

Sec. 5. The regents of the University of Michigan and their successors in office shall constitute a body corporate known as the Regents of the University of Michigan; the trustees of Michigan State University and their successors in office shall constitute a body corporate knowns as the Board of Trustees of Michigan State University; the governors of Wayne State University and their successors in office shall constitute a body corporate known as the Board of Governors of Wayne State University. Each board shall have general corporate supervision of its institution and the control and direction of all expenditures from the institution's funds.  Each board shall, as often as necessary, elect a president of the institution under its supervision. He shall be the principal executive officer of the institution, be ex-officio a member of the board without the right to vote and preside at meetings of the board. The board of each institution shall consist of eight members who shall hold office for terms of eight years and who shall be elected as provided by law.  The governor shall fill board vacancies by appointment. Each appointee shall hold office until a successor has been nominated and elected as provided by law.

I've been on this board for 7 years and at no time has the president's name every been call during roll call to establish a quorum. 

[obrienlaw]

Mr. Katz, my understanding is that the president stated the constitution allows him to be exofficio member of the board. One of my colleagues (a real voting member of the board) then quoted our bylaws and said they're not clear so asked university's general counsel (who works for the president) to chime in and he quoted the exoffico stuff from page 483 and they proceeded with raising tuition and other substantive votes.

[Gary Novosielski]

I'd point out that much of this discussion is being supported by paraphrases rather that quotations of the rules.  If the rules say that the board shall consist of "eight members ... who shall be elected", they may elsewhere say that it may also comprise an additional member who shall be, ex officio, a member without a vote.

However, I agree that without a vote, the president is more like a guest-ex-officio, or in this case a presiding-officer-ex-officio.  I would not expect him to count toward or against a quorum, as that term, to me, implies a given fraction of voting members.

Unfortunately, state governments, in writing regulations, routinely fail to consult a parliamentarian--at least one familiar with RONR, as distinguished from whatever authority the legislature uses.  Although IANAL, I'm familiar with the regulations in New Jersey, which has multiple examples of parliamentarily questionable language, like the infamous "majority of a quorum" rule, whatever that is intended to mean.

The public school board on which I served had nine members elected by the public, who then elected officers from among their own number.  Also listed as ex-officio board members, but without a vote, were the Business Administrator/Board Secretary, and the Superintendent of Schools, both of whom are hired under contract by the board.  The quorum was five, not six.  During the opening roll-call, only the names of elected members were called and a quorum determined thereby. The presence or absence of the Secretary and Superintendent was also noted in the minutes, but did not affect a quorum. 

During roll-call votes, which were required for all resolutions, those two names were not called, and though the regulation only mentioned their non-right to vote, I have never heard of a case in my board or any other where either of them made or seconded a motion.  They were recognized during debate only by general consent, or via a Request for Information.

I don't expect this to be persuasive in the OP's case, but I offer it as an example of how it was handled in at least one instance of hazy state regulation.

Edited June 23, 2019 at 02:55 PM by Gary Novosielski

[Gary Novosielski]

3 hours ago, obrienlaw said:

Mr. Katz, my understanding is that the president stated the constitution allows him to be exofficio member of the board. One of my colleagues (a real voting member of the board) then quoted our bylaws and said they're not clear so asked university's general counsel (who works for the president) to chime in and he quoted the exoffico stuff from page 483 and they proceeded with raising tuition and other substantive votes.

I'd be concerned that this may have created a continuing breach, subject to reversal if challenged in court.  Although the state may not state clearly what they mean, they often know what they mean.

Edited to add;

  I'm surprised that the counsel didn't advise more caution, especially if substantive monetary actions were contemplated.

Are you certain the general counsel works for the president, and not the board?  Does the board have a legal advisor?

Edited June 23, 2019 at 04:45 PM by Gary Novosielski
Add words

[Richard Brown]

29 minutes ago, Gary Novosielski said:

I'd be concerned that this may have created a continuing breach, subject to reversal if challenged in court.  

I have that same concern.

[Richard Brown]

I also believe that if a point of order is raised, the actions taken at that meeting are subject to being declared null and void by the chair or by the board itself. It only takes a majority vote to do that. in fact, doing that and then voting again on the motions adopted at the meeting in question might be the best thing to do. You should at least consider that and discuss the alternatives and ramifications with your attorney. If there is a question about the legitimacy of the actions taken, it may be best to address that issue now, rather than in court years later.

Edited to add:  assuming this was a properly called or scheduled meeting, the actions taken at that meeting, if invalid, can be ratified at a subsequent meeting. That may be the best course to follow at least as far as the actions taken at the meeting in question.

Edited June 23, 2019 at 03:48 PM by Richard Brown
Added last paragraph

[obrienlaw]

Thanks Guys, a respected professional parliamentarian her in michigan says "if you didn't have five people entitled to vote, you don't have a quorum."

[J. J.]

I agree with Dr. Katz, as far as RONR concerned.  The quorum is the number of voting members (p. 3, ll. 1-5).

 

12 hours ago, Joshua Katz said:

Others might think differently, but in my view, the President is not an exofficio member of the board, because he is not a member of the board. A member has the unconditional right to participate in the body's proceedings. The President does not, as he cannot vote. Therefore, as a quorum is five members of the board, and there were only 4 members present, there was no quorum, and no business could be conducted, aside from the motions that are in order without a quorum.

Any motion adopted without a quorum may be challenged so long as there is clear and convincing evidence of a lack of quorum.

But:

You'll have to see if there are any relevant constitutional provisions or laws that may impact your quorum.

I also agree with Mr. Brown.  If the bylaws specifically and clearly say the board consists 8 members, no amount of interpretation can change "eight" to "nine."

[Joshua Katz]

 

9 minutes ago, J. J. said:

I agree with Dr. Katz, as far as RONR concerned. 

Sigh.

[J. J.]

7 minutes ago, Joshua Katz said:

 

Sigh.

Would you prefer post-nominal letters. 

 

(I got the message.)