Annual Membership Meeting Quorum during Covid-19

[Guest Mary Ball]

Can membership quorum rules be suspended at annual membership meetings during Covid-19?

[Bruce Lages]

No, not unless your bylaws (where the quorum requirements should be stated) allow for their suspension.

[Mary Ball]

Thank you for your prompt response!

[Josh Martin]

6 minutes ago, Guest Mary Ball said:

Can membership quorum rules be suspended at annual membership meetings during Covid-19?

No.

"The prohibition against transacting business in the absence of a quorum cannot be waived even by unanimous consent" (RONR, 11th ed., pg. 348)

An option would be to conduct business notwithstanding the absence of a quorum, however, it must be noted that members do so at their own risk. Such actions may later be ratified by the assembly at a meeting with a quorum present, but if the actions are not ratified, the members who took these actions are on the hook for them.

"If, instead, the members present take action informally in the absence of a quorum, they do so at their own risk. Although the assembly can later ratify their action (pp. 124–25), it is under no obligation to do so." (RONR, 11th ed., pg. 348)

Edited August 4, 2020 at 01:33 PM by Josh Martin

[Ray Harwood]

I’ve felt uneasy about the last item quoted: “it us under no obligation to do so.”

 My issue is that absent any subsequent action, the previous action and note under scrutiny remains in effect. Perhaps there is no consensus that the actions were improperly taken. In the absence of a decision to rescind or a decision to censure the action taken for taking an unauthorized action, who is to say that the action was indeed unauthorized or improper?

 The failure of a motion to ratify is not the same as a motion to rescind the previous decision. There seems to be no motion or guidance to “declare a meeting or motion as unauthorized.”

Edited August 10, 2020 at 01:33 AM by Ray Harwood

[Joshua Katz]

1 hour ago, Ray Harwood said:

There seems to be no motion or guidance to “declare a meeting or motion as unauthorized.”

You would raise a point of order as to the lack of a quorum and present clear and convincing evidence.

[Josh Martin]

1 hour ago, Ray Harwood said:

I’ve felt uneasy about the last item quoted: “it us under no obligation to do so.”

 My issue is that absent any subsequent action, the previous action and note under scrutiny remains in effect. Perhaps there is no consensus that the actions were improperly taken. In the absence of a decision to rescind or a decision to censure the action taken for taking an unauthorized action, who is to say that the action was indeed unauthorized or improper?

The failure of a motion to ratify is not the same as a motion to rescind the previous decision. There seems to be no motion or guidance to “declare a meeting or motion as unauthorized.”

The situation above assumes that the members honestly acknowledge that a quorum was not present and that actions taken without a quorum are not valid until ratified. Due to the risks of leaving the actions unratified, the members will presumably seek to ratify the actions as soon as possible. A motion to Rescind is not necessary or appropriate because no motion was ever properly adopted by the assembly. Nonetheless, it is correct that failing to adopt a motion to Ratify, in and of itself, does not order whatever is necessary to undo the action (assuming this is possible) nor does it censure or otherwise discipline those responsible. If a motion to Ratify is defeated, it would likely to be desirable to take some follow-up actions to clarify next steps.

If the situation is that there is not "consensus that the actions were improperly taken," then the proper course of action would be to raise a Point of Order that a quorum was not present at the time (which takes clear and convincing proof if done after the fact) and that, as a result, the motions adopted during the absence of a quorum are not valid. The chair will then rule on this point, and this ruling may be appealed from.

The lack of a quorum does not make the meeting itself invalid, although if there is some reason the meeting itself was invalid (such as if the meeting was not properly called), the procedure would be the same.

If this is not simply a hypothetical question, it may be desirable to post a new topic and provide the relevant facts for your situation.

Edited August 10, 2020 at 03:17 AM by Josh Martin

[J. J.]

2 hours ago, Ray Harwood said:

I’ve felt uneasy about the last item quoted: “it us under no obligation to do so.”

 My issue is that absent any subsequent action, the previous action and note under scrutiny remains in effect. Perhaps there is no consensus that the actions were improperly taken. In the absence of a decision to rescind or a decision to censure the action taken for taking an unauthorized action, who is to say that the action was indeed unauthorized or improper?

 The failure of a motion to ratify is not the same as a motion to rescind the previous decision. There seems to be no motion or guidance to “declare a meeting or motion as unauthorized.”

I would presume that the meeting was quorate, unless a point of order was raised in regard to the lack of a quorum.  Such a decision may be subject to appeal.

If the assembly determines that there was a quorum present, no additional action need by taken.   If the assembly determines that a quorum was not present, then the action would be subject to ratification.  

[Richard Brown]

2 hours ago, Ray Harwood said:

I’ve felt uneasy about the last item quoted: “it us under no obligation to do so.”

 My issue is that absent any subsequent action, the previous action and note under scrutiny remains in effect. Perhaps there is no consensus that the actions were improperly taken. In the absence of a decision to rescind or a decision to censure the action taken for taking an unauthorized action, who is to say that the action was indeed unauthorized or improper?

 The failure of a motion to ratify is not the same as a motion to rescind the previous decision. There seems to be no motion or guidance to “declare a meeting or motion as unauthorized.”

If a quorum was not present, then any action taken at that meeting is automatically null and void and of no effect unless later ratified.  There does not need to be a determination that the action was inappropriate:  It is automatically null and void if a quorum was not present unless later ratified at a properly called meeting with a quorum present. 

Edited to add:  I agree with the comment by JJ above, who posted his comment as I was typing.  My answer assumes that the members present knew that a quorum was not present when the motions were adopted.  If that fact was not known at the time and no member raised a point of order at the time about the lack of a quorum, then a quorum could be presumed to be present, but that assumption can be challenged by a point of order at a subsequent meeting weeks, months, or even years later. 

Edited August 10, 2020 at 04:27 AM by Richard Brown
Added last paragraph

[Ray Harwood]

Thanks for the discussion – it’s helpful. 

16 hours ago, Josh Martin said:

If this is not simply a hypothetical question, it may be desirable to post a new topic and provide the relevant facts for your situation.

Both a specific situation and just wanting to understand better. My HOA board (of which I am president) has in fact been meeting electronically since March, and while there is language in both bylaws and Arizona statutes allowing electronic participation in meetings, but neither specifically allows fully-electronic meetings. If nobody ever raises the issue of the validity of our electronic meetings, then they’re assumed to be valid – in my opinion. 

15 hours ago, Richard Brown said:

If that fact was not known at the time and no member raised a point of order at the time about the lack of a quorum, then a quorum could be presumed to be present, but that assumption can be challenged by a point of order at a subsequent meeting weeks, months, or even years later. 

This too helps clarify. My further question is: Could we, by some mechanism (bylaw amendment – very difficult to do in an HOA setting – or Special Rules of Order), state that any point of order challenge to the validity of a decision must be completed within 1 calendar year of the date of the decision?  Or at some point a year or more later is it a valid response that a point of order challenge is dilatory, because specific knowledge and/or documentation of the situation is no longer available? 

i know it’s impossible to have everything wrapped up in a tidy bow – no matter how much I wish it to be. 

[Richard Brown]

4 minutes ago, Ray Harwood said:

Thanks for the discussion – it’s helpful. 

Both a specific situation and just wanting to understand better. My HOA board (of which I am president) has in fact been meeting electronically since March, and while there is language in both bylaws and Arizona statutes allowing electronic participation in meetings, but neither specifically allows fully-electronic meetings. If nobody ever raises the issue of the validity of our electronic meetings, then they’re assumed to be valid – in my opinion. 

This too helps clarify. My further question is: Could we, by some mechanism (bylaw amendment – very difficult to do in an HOA setting – or Special Rules of Order), state that any point of order challenge to the validity of a decision must be completed within 1 calendar year of the date of the decision?  Or at some point a year or more later is it a valid response that a point of order challenge is dilatory, because specific knowledge and/or documentation of the situation is no longer available? 

i know it’s impossible to have everything wrapped up in a tidy bow – no matter how much I wish it to be. 

Yes, per the provissions in RONR  you may provide n your bylaws that challenges to certain types of actions must be made or brought within a certain time frame. However, since there might be legal ramifications outside of RONR, you should consult with local counsel on this issue.  We do not give legal advice on this forum.

[Josh Martin]

2 hours ago, Ray Harwood said:

Both a specific situation and just wanting to understand better. My HOA board (of which I am president) has in fact been meeting electronically since March, and while there is language in both bylaws and Arizona statutes allowing electronic participation in meetings, but neither specifically allows fully-electronic meetings. If nobody ever raises the issue of the validity of our electronic meetings, then they’re assumed to be valid – in my opinion. 

I would first note that it may well be that the language in the bylaws "allowing electronic participation in meetings" is flexible enough that it could be interpreted to authorize "fully-electronic meetings," and so it may be that there is no issue with the meetings in question. Another workaround might be to declare the physical location to be one member's home and to have all other members participate electronically.

In the event there is an issue with the meetings in question, I agree that it is technically correct that "If nobody ever raises the issue of the validity of our electronic meetings, then they’re assumed to be valid." If I was the officer who actually carried out the actions in question (such as spending funds), however, I wouldn't really want to gamble on that. As I noted above, the persons who took the actions should be the people seeking to get those actions ratified as soon as possible. A violation of this nature is a continuing breach, and as a result, a Point of Order may be raised at any time during the breach, even years later. Just "looking the other way" isn't actually a good idea.

2 hours ago, Ray Harwood said:

This too helps clarify. My further question is: Could we, by some mechanism (bylaw amendment – very difficult to do in an HOA setting – or Special Rules of Order), state that any point of order challenge to the validity of a decision must be completed within 1 calendar year of the date of the decision?  Or at some point a year or more later is it a valid response that a point of order challenge is dilatory, because specific knowledge and/or documentation of the situation is no longer available? 

I guess you could, but it would seem to be simpler to just ratify the actions at an in-person meeting when it is safe to do so.

I would note that in the ordinary case a Point of Order must be raised promptly at the time of the breach, and a Point of Order regarding a continuing breach may be raised at any time during the breach, even years later. An organization could adopt its own rules on this matter if it wishes. If the organization does so, I would be sure to provide in the rule that "A Point of Order regarding a breach of the rules may be raised within the time provided by the parliamentary authority, or within one calendar year, whichever is sooner." Otherwise, the rule might be read not only as shortening the timeliness period for continuing breaches but also lengthening the timeliness period for non-continuing breaches, and I don't think you want people raising Points of Order about minor violations like the lack of a second a year later.

Edited August 10, 2020 at 10:00 PM by Josh Martin