Where's the line?

[Tomm]

Our corporation is a Del Webb senior community. The corporation is responsible for the operation and maintenance of the various recreation facilities and activities. Everything is currently shut-down including all Board and committee meetings. Nothing in the Bylaws allows for electronic meetings or addresses an emergency situation such as this. There are no deliberative assemblies in accordance with RONR being held.

In relation to RONR, I’m wondering to what extent the Board (or any organization for that matter) can make decisions during this shut-down? Can they simply discus issues over the phone or via e-mail, come to general consensus and put some form of action into place by a consensus instead of an actual vote?

I know this is probably not an easy question to answer, but there must some criteria that can define the differences between certain actions that require its implementation be taken by a vote and those taken by a simple consensus, in a deliberative assembly setting?!?!  

[Tomm]

CORRECTION:

I know this is probably not an easy question to answer, but there must some criteria that can define the differences between certain actions that require its implementation be taken by a vote and those taken by a simple consensus, NOT in a deliberative assembly setting?!?!  

[J. J.]

Actions could be ratified at a future meeting.

[Tomm]

But if no "deliberative assembly" had taken place, and electronic meetings are not authorized in the Bylaws, is any decision or action taken even legal under RONR? 

[Atul Kapur]

Without a meeting, similar to the situation when there is not a quorum, no business can be validly transacted.

If, based on informal discussion, actions are taken then the people taking those actions do so at their own risk. The assembly may later ratify their actions, but it is under no obligation to do so. See RONR 11th ed., p. 348, lines 19-23 (regarding actions taken in the absence of a quorum) and pages 124-5 regarding ratification.

 

[Joshua Katz]

I thought we decided, on another thread, that actions taken without a meeting cannot be ratified.

[Richard Brown]

4 minutes ago, Joshua Katz said:

I thought we decided, on another thread, that actions taken without a meeting cannot be ratified.

The devil is in the details. I think what we decided is that decisions made by an organization outside of a properly called and noticed noticed meeting cannot be ratified, but actions of officers taken pursuant to such a decision or even without the pretense of a meeting may be ratified. There is a difference. 

[Joshua Katz]

Indeed, there is a difference, but I have trouble imagining why that would be the case. 

Suppose the board just is the officers. If they decide to hold an illegal meeting, their decisions cannot be ratified. But if they just discuss it over coffee (not that they would now), and then go and act on it, everything can be ratified?

Edited April 7, 2020 at 05:10 AM by Joshua Katz

[Atul Kapur]

In both cases, whether the decision is made at an illegal meeting or whether the decision is made over coffee (or over Skype), the question will be whether to ratify the actions of the officers that flowed from such a decision so, rather than the decision itself.

At least, that's how I remember us resolving this discussion on that other thread.

Edited April 7, 2020 at 03:31 PM by Atul Kapur
corrected typo as indicated

[Dan Honemann]

I think our former student has got this down pat.

[J. J.]

What, then, would be the mechanism for enacting such action?

The members, at an improperly called meeting, agree to sell a piece of property, Lot Z. 

At the next properly called meeting (with a quorum), the assembly wishes to enact this action.  What is the mechanism?

I  could see a motion "That we approve the sale of Lot Z," but that seems like a form of ratify, at least.

[Atul Kapur]

It is a form of ratify, specifically ratifying "action taken by officers, committees, delegates, or subordinate bodies in excess of their instructions or authority" (RONR 11th ed., p. 124, lines 34-35).

In the example you give, whoever signed the document of sale (let's say the President) had no valid instruction or authority to sell Lot Z, at the time that it was done.

So, the more proper motion would be "That we ratify the President's sale of Lot Z."

Edited April 8, 2020 at 12:17 PM by Atul Kapur

[Richard Brown]

58 minutes ago, Atul Kapur said:

In the example you give, whoever signed the document of sale (let's say the President) had no valid instruction or authority to sell Lot Z, at the time that it was done.

So, the more proper motion would be "That we ratify the President's sale of Lot Z."

I agree with Dr. Kapur’s analysis and conclusion. 

[J. J.]

1 hour ago, Atul Kapur said:

It is a form of ratify, specifically ratifying "action taken by officers, committees, delegates, or subor-
35 dinate bodies in excess of their instructions or authority" (RONR 11th ed., p. 124, lines 34-35).

In the example you give, whoever signed the document of sale (let's say the President) had no valid instruction or authority to sell Lot Z, at the time that it was done.

So, the more proper motion would be "That we ratify the President's sale of Lot Z."

What if it isn't an officer or a committee, but a group of members (in an improperly called meeting).  If ave no doubt that the assembly, at a properly called meeting, could somehow authorize the action; I am wondering about the mechanism.

The only distinction I can see is that the motion might be an original main motion.

[Joshua Katz]

15 hours ago, J. J. said:

What if it isn't an officer or a committee, but a group of members (in an improperly called meeting).  If ave no doubt that the assembly, at a properly called meeting, could somehow authorize the action; I am wondering about the mechanism.

The only distinction I can see is that the motion might be an original main motion.

Yes, I have also wondered what the distinction accomplishes. 

[Atul Kapur]

One possible reason for the distinction is what happens if the action is not ratified.

If the meeting was properly called but, for example, inquorate then it would be those who were present who voted for the action who would be liable (RONR 11th ed., p. 348, lines 19-21). On the other hand, if the meeting was not properly called to begin with, then liability would fall on those individuals who affected the action.

This is complete speculation, of course. And I'm not a lawyer. All other standard and specific disclaimers apply as well.

But you did ask 

[J. J.]

1 hour ago, Atul Kapur said:

One possible reason for the distinction is what happens if the action is not ratified.

If the meeting was properly called but, for example, inquorate then it would be those who were present who voted for the action who would be liable (RONR 11th ed., p. 348, lines 19-21). On the other hand, if the meeting was not properly called to begin with, then liability would fall on those individuals who affected the action.

This is complete speculation, of course. And I'm not a lawyer. All other standard and specific disclaimers apply as well.

But you did ask 

What is the difference in terms of liability (or responsibility) between the members meeting at an inquorate meeting and members meeting at an improperly called meeting?  In either case, the persons that took the action.

[Joshua Katz]

1 hour ago, Atul Kapur said:

If the meeting was properly called but, for example, inquorate then it would be those who were present who voted for the action who would be liable (RONR 11th ed., p. 348, lines 19-21). On the other hand, if the meeting was not properly called to begin with, then liability would fall on those individuals who affected the action.

This is complete speculation, of course. And I'm not a lawyer. All other standard and specific disclaimers apply as well.

 

And I'm not a doctor 😉

I agree with the distinctions you make in the parliamentary context. The legal situation, as you note, may not follow. But I don't see why this distinction makes sense of the distinction between ratifying and just passing a main motion to do the same thing. Both have the effect of relieving someone of liability (again, so far as RORN is concerned, which is not a law book). The someone differs, to be sure, but I'm not clear on why that means you need different words.

[Atul Kapur]

I had replies to Mr. J. and Mr. Katz, but thought better of extending my speculation.

Edited April 9, 2020 at 09:19 AM by Atul Kapur

[Richard Brown]

17 hours ago, J. J. said:

What is the difference in terms of liability (or responsibility) between the members meeting at an inquorate meeting and members meeting at an improperly called meeting?  In either case, the persons that took the action.

I don't see any difference except insofar as RONR says decisions made at a properly called but inquorate meeting can be ratified and decisions made at a "meeting" not properly called cannot be ratified.  In both situations, the members present do not have the authority to make a decision, at least not at that meeting and at that time.   I think the parliamentary difference is that in either case (or in both cases), actions taken by officers pursuant to those decisions  CAN be ratified regardless of whether the decision of the members can be ratified. 

Also, actions of officers taken on their own without having even the semblance of having been previously authorized can be ratified.  In terms of potential liability of the members who purported to "authorize"  the action, I don't see any difference in the two situations. In both situations, the members made a decision they had no authority to make, at least not at that meeting and at that time.