Conducting business when board membership is below minimum requirement

[Guest Susan]

Hello all.  Bylaws require a minimum of 20 board members.  Board membership has fallen below this number.  If there is a quorum present, can the board - while in violation of this minimum provision - conduct business beyond its basic operations, i.e., can the Board bring resolutions and/or motions to the floor on matters affecting the association and then vote on them?  Alternatively, would it be better practice to first fill the vacancies and then conduct business as described?  Your thoughts are appreciated.

[Atul Kapur]

Quorum is defined as, "The minimum number of members who must be present at the meetings of a deliberative assembly for business to be validly transacted," so, generally, as long as you have a quorum present then you can conduct business. It sounds like your quorum is < 20, so I'm not clear what you mean by "Bylaws require a minimum of 20 board members." You may need to share the exact quote from your bylaws.

If you have vacancies, then it's best to follow your rules to fill them as soon as practical.

[Josh Martin]

1 hour ago, Guest Susan said:

Bylaws require a minimum of 20 board members.  Board membership has fallen below this number.

I'm not entirely sure what is meant by "Bylaws require a minimum of 20 board members," but I imagine it is the case that the bylaws provide a "range" of board members (such as "The board shall consist of between 20 and 30 members.") We frequently get questions that, if the board falls below the lower end of this range, does the board become unable to conduct business?

It seems to me that (barring some very unusual language in the bylaws), the answer to this question is almost certainly "No." Keep in mind that many societies do not provide for a range of board members at all, but instead provide for a fixed number (such as nine members). Does this mean that in such a society, the board becomes unable to act if any vacancy ever occurs? That seems unlikely. Nor do I think it is likely that a society which provided for a range of board members intended for the board to become unable to act if it falls below the lower end of the range. Rather, the intent of such provisions is generally to permit the society to adjust the size of the board as needed (within the limitations of the range), not to change the effect of vacancies.

1 hour ago, Guest Susan said:

If there is a quorum present, can the board - while in violation of this minimum provision - conduct business beyond its basic operations, i.e., can the Board bring resolutions and/or motions to the floor on matters affecting the association and then vote on them?

Yes.

I also don't really know what you mean by the "basic operations" of a board or why you think that to "bring resolutions and/or motions to the floor on matters affecting the association and then vote on them" is "beyond" the "basic operations" of a board.

1 hour ago, Guest Susan said:

Alternatively, would it be better practice to first fill the vacancies and then conduct business as described?

The vacancies should be filled as soon as it is practical to do so. There is no requirement, however, that the board's other business be delayed until the vacancies are filled.

Edited July 20, 2020 at 03:37 PM by Josh Martin

[Guest Thank you.]

Thank you for your response.  From the bylaws:

Size of the Board.  The elected voting members of the Board shall not be less than twenty (20) nor exceed thirty-five (35) in number.

Quorum.  A quorum for regular or special meetings shall consist of a majority of the membership in the Board.

There is a provision for filling Board vacancies.  This has not been complied with in 18 months which has led to a current board membership of 13.

My specific question has to do with the Board voting on resolutions when it is not in compliance with the number of members required to constitute the Board.  My understanding is that, even if the Board is not in compliance with its number of members, it can still vote on resolutions.

I welcome your thoughts.

[Josh Martin]

6 minutes ago, Guest Thank you. said:

Thank you for your response.  From the bylaws:

Size of the Board.  The elected voting members of the Board shall not be less than twenty (20) nor exceed thirty-five (35) in number.

Quorum.  A quorum for regular or special meetings shall consist of a majority of the membership in the Board.

There is a provision for filling Board vacancies.  This has not been complied with in 18 months which has led to a current board membership of 13.

My specific question has to do with the Board voting on resolutions when it is not in compliance with the number of members required to constitute the Board.  My understanding is that, even if the Board is not in compliance with its number of members, it can still vote on resolutions.

I welcome your thoughts.

Yes, based on the facts provided, I still believe it is correct that "even if the Board is not in compliance with its number of members, it can still vote on resolutions."

Notwithstanding this, however, it is completely unacceptable that the board has failed to fill vacancies for eighteen months, and now has a membership of thirteen when the bylaws require twenty board members. While the board is free to continue to conduct business in the interim, it should act to fill the vacancies as soon as practical. Continual failure to do so would, in my view, be grounds for disciplinary action against the board members by the society.

[Guest Susan]

Thank you for your prompt response and input, it's appreciated.