proper procedure to nullify actions taken without a quorum

[paul545]

Hi, there is a extreme animosity amongst the hoa board I am on.   

The board is defined as 9 people.   Only 5 remained.  one of the board members  A. continued to push to fill the empty seats.(our bylaws state,, empty seats SHALL be filled) , the other 4  B,C,D, E saw no reason to fill the seats and claimed there was no time period in which they were required to fill the seats.(true, no time frame is specified in the bylaws)

3 (B C D )of the board members got together with the hoa attorney and made decisions and took action.   The one board member A. who the other board members are trying to eliminate was not notified of the meeting. 

Turns out, that our hoa requires 5 board members present to constitute a quorum.    Board member A was never notified of the secret meeting.  The next meeting agenda came out and had items on the agenda that said,,"ratify  actions taken at meeting on sept 2"   When that board member A protested, the attorney stated that they didn't have to invite the board member because it was a conflict of interest since the board was meeting to take actions that were based "behavior" of board member A.     Board member A objected and stated that the entire meeting was invalid because there was no quorum .   Any actions at that invalid meeting can't just be ratified at the next meeting.   Since there was no meeting.  No notification to member A.  And member A was not even aware of what was going on.

 

what is the proper procedure to nullify the decisions and actions taken at the secret meeting.   Can the failure to notify member A be used to nullify any actions.  

[Richard Brown]

33 minutes ago, paul545 said:

Hi, there is a extreme animosity amongst the hoa board I am on.   

The board is defined as 9 people.   Only 5 remained.  one of the board members  A. continued to push to fill the empty seats.(our bylaws state,, empty seats SHALL be filled) , the other 4  B,C,D, E saw no reason to fill the seats and claimed there was no time period in which they were required to fill the seats.(true, no time frame is specified in the bylaws)

3 (B C D )of the board members got together with the hoa attorney and made decisions and took action.   The one board member A. who the other board members are trying to eliminate was not notified of the meeting. 

Turns out, that our hoa requires 5 board members present to constitute a quorum.    Board member A was never notified of the secret meeting.  The next meeting agenda came out and had items on the agenda that said,,"ratify  actions taken at meeting on sept 2"   When that board member A protested, the attorney stated that they didn't have to invite the board member because it was a conflict of interest since the board was meeting to take actions that were based "behavior" of board member A.     Board member A objected and stated that the entire meeting was invalid because there was no quorum .   Any actions at that invalid meeting can't just be ratified at the next meeting.   Since there was no meeting.  No notification to member A.  And member A was not even aware of what was going on.

 

what is the proper procedure to nullify the decisions and actions taken at the secret meeting.   Can the failure to notify member A be used to nullify any actions.  

Action taken at an illegal meeting... i.e., a meeting not properly called and noticed to all members... is invalid and cannot be ratified.

You might find the discussion in this current thread informative as to the effect of a special meeting which has not been properly called or noticed as required by the bylaws.  The discussion in this thread contains citations to RONR which are most likely applicable to your situation. https://robertsrules.forumflash.com/topic/36132-reversing-adoption-of-revised-by-laws/

All members of a body (in this case your board) are entitled to notice of meetings and to attend and participate in those meetings.  RONR (12th ed.) 9:13 - 9:16.  See also 1:6.  If the rules in RONR are controlling, no member can be forced to abstain from voting or from attending a meeting regardless of any alleged "conflict". 

It is also true that action taken at a meeting without a quorum is also null and void.  Some actions taken in the absence of a quorum can be ratified at a later meeting, but there are restrictions on this and those actions cannot be ratified if the meeting was not properly called.  RONR (12th ed.) 10:54 - 10:55.

The proper procedure is for a member to raise a point of order at the next meeting that the meeting in question was an illegal meeting and that all action taken at that meeting is null and void.  The chair should rule on the point of order.  The chair's ruling can then be appealed to the assembly (the board) which has the final word, short of going to court.

I do have a question for you:  You say the board is supposed to have nine member but actually has only five member.  How did that happen?

 

[paul545]

One board member resigned last year.   Because of Covid, the annual elections in february never actually occurred.  The board was operating with 8. then one resigned for family reasons. another resigned because he was fed up. and then the president resigned because he was acting outside his authority and kept getting called out on it.(the actions he was taking required a board decision, he was making the decisions then coming to the board to get them approved)

[Josh Martin]

11 hours ago, paul545 said:

Turns out, that our hoa requires 5 board members present to constitute a quorum.

What is the exact wording of the bylaws on this matter?

11 hours ago, paul545 said:

The next meeting agenda came out and had items on the agenda that said,,"ratify  actions taken at meeting on sept 2"   When that board member A protested, the attorney stated that they didn't have to invite the board member because it was a conflict of interest since the board was meeting to take actions that were based "behavior" of board member A.     Board member A objected and stated that the entire meeting was invalid because there was no quorum .   Any actions at that invalid meeting can't just be ratified at the next meeting.   Since there was no meeting.  No notification to member A.  And member A was not even aware of what was going on.

The board member is correct that the actions taken at the meeting are invalid on the grounds that a quorum was not present and also on the grounds that not all members were notified of the meeting. Nothing in RONR would suggest that a board member does not need to be notified of a meeting on the grounds that "it was a conflict of interest since the board was meeting to take actions that were based "behavior" of board member A." Perhaps there is something in the organization's rules or applicable law which provides otherwise, but that is beyond the scope of RONR and this forum.

I would note that board member A is mistaken in his claim that "the entire meeting was invalid because there was no quorum." The lack of a quorum makes any substantive actions taken at the meeting null and void, but does not make the meeting itself null and void. The failure to notify member A, however, does make the meeting itself null and void.

In regards to Member A's claim that "Any actions at that invalid meeting can't just be ratified at the next meeting," Member A is partially correct. A board can ratify actions taken in the absence of a quorum. A board cannot ratify actions taken at a meeting which was not properly called due to failure to notify all members of the board (and therefore, is not a proper meeting of the board), however, the board can ratify actions taken by officers or staff pursuant to the decisions made at that meeting. So most likely, the board can indeed ratify the actions in question.

"In the absence of a quorum, any business transacted (except for the procedural actions noted in the next paragraph) is null and void. But if a quorum fails to appear at a regular or properly called meeting, the inability to transact business does not detract from the fact that the society’s rules requiring the meeting to be held were complied with and the meeting was convened—even though it had to adjourn immediately." RONR (12th ed.) 40:6.

The one caveat I have is that I would be curious to know exactly what sort of actions we are talking about. We are told that the actions "were based [on the] 'behavior' of board member A." It seems implied that some sort of disciplinary action may have been taken. If so, there may be additional problems with this, and I think it would be necessary to know in that instance what the bylaws say regarding disciplinary action.

"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. Cases where the procedure of ratification is applicable include:

• action improperly taken at a regular or properly called meeting at which no quorum was present (40:6–10);

• action taken at a special meeting with regard to business not mentioned in the call of that meeting (9:15–16);

• action taken by officers, committees, delegates, subordinate bodies, or staff in excess of their instructions or authority—including action to carry out decisions made without a valid meeting, such as by approval obtained separately from all board members (49:16) or at an electronic meeting (9:30–36) of a body for which such meetings are not authorized;

• action taken by a local unit that requires approval of the state or national organization; or

• action taken by a state or national society subject to approval by its constituent units." RONR (12th ed.) 10:54

11 hours ago, paul545 said:

what is the proper procedure to nullify the decisions and actions taken at the secret meeting.   Can the failure to notify member A be used to nullify any actions.  

The failure to notify member A, as well as the absence of a quorum (provided there is clear and convincing proof of this, which actually doesn't seem difficult in the circumstances) can indeed be used to nullify those actions. There does not, however, seem to be any need to do so. The board appears to already be aware that the actions taken at the meeting in question are not valid, which is presumably why the motion to ratify is being used. If the board was under the belief that the actions were already valid, there would be no need to ratify the actions.

10 hours ago, Richard Brown said:

Action taken at an illegal meeting... i.e., a meeting not properly called and noticed to all members... is invalid and cannot be ratified.

Mr. Brown, I agree that the actions taken at a meeting which was "not properly called and noticed to all members" cannot be ratified. Any actions subsequently taken by officers or staff pursuant to the decisions made at such a meeting, however, can be ratified. The text notes that "action taken by officers, committees, delegates, subordinate bodies, or staff in excess of their instructions or authority—including action to carry out decisions made without a valid meeting." While the text continues on to say "such as approval obtained separately from all board members (49:16) or at an electronic meeting (9:30–36) of a body for which such meetings are not authorized", it seems clear that these are simply examples and not an exhaustive list.

In the event that there were actions taken at the meeting in question for which no follow-up has yet occurred, those actions could not be ratified, although the relevant motions could be made anew.

10 hours ago, Richard Brown said:

The proper procedure is for a member to raise a point of order at the next meeting that the meeting in question was an illegal meeting and that all action taken at that meeting is null and void.  The chair should rule on the point of order.  The chair's ruling can then be appealed to the assembly (the board) which has the final word, short of going to court.

The board, however, already seems to be aware that the actions taken are null and void, which is presumably why the motion to ratify is being made. So instead, the member should raise a Point of Order while the motion to Ratify is pending, noting that the actions taken at the meeting may not be ratified since it was not a regular or properly called meeting of the board. This may not fully prevent the ratification of all actions, since it may be that officers or staff have taken action to implement some of the decisions made at the meeting in question, but it's better than nothing.

8 hours ago, paul545 said:

One board member resigned last year.   Because of Covid, the annual elections in february never actually occurred.  The board was operating with 8. then one resigned for family reasons. another resigned because he was fed up. and then the president resigned because he was acting outside his authority and kept getting called out on it.(the actions he was taking required a board decision, he was making the decisions then coming to the board to get them approved)

Have any of these resignations been accepted? Resignations are not effective until they have been accepted, unless the bylaws provide otherwise.

Edited October 18, 2020 at 03:11 PM by Josh Martin

[Richard Brown]

12 hours ago, Richard Brown said:

The proper procedure is for a member to raise a point of order at the next meeting that the meeting in question was an illegal meeting and that all action taken at that meeting is null and void.  The chair should rule on the point of order.  The chair's ruling can then be appealed to the assembly (the board) which has the final word, short of going to court.

 

1 hour ago, Josh Martin said:

The board, however, already seems to be aware that the actions taken are null and void, which is presumably why the motion to ratify is being made. So instead, the member should raise a Point of Order while the motion to Ratify is pending, noting that the actions taken at the meeting may not be ratified since it was not a regular or properly called meeting of the board

Yes, I am aware of that.  My comment was in direct response to the direct question by the original poster, to-wit:  "what is the proper procedure to nullify the decisions and actions taken at the secret meeting.   Can the failure to notify member A be used to nullify any actions."   Raising a point of order at the next meeting is the normal and proper way to do that.  If there is a motion to ratify made first, he can make his point of order then.  Otherwise, he can and should raise it at the first opportunity.

I have a bigger concern, though.  There appears to be a 4 to 1 split on the board, with member A in one camp and three or all four of the other members in the other camp. We haven't been told who the chairman is.  If that is the case, and if the three members of the other camp are determined to ignore/undermine/fight/overrule everything member A tries to do, he is likely going have the chair rule against his point of order and on an appeal the majority will likely sustain the decision of the chair.  Member A may need to convert TWO of the other four members to see things his way and vote to overrule the chair (unless there are some abstentions).  It requires a majority vote to overrule the decision of the chair.  The chair's decision is sustained on a tie vote.

Then, of course, there are the concerns about just how many members are actually on the board at this time and whether any or all of the "resignations" are actually effective and whether the bylaws actually say that a quorum of the board is five members.

This HOA is in a mess due to the bickering on the board and the resignations and unfilled vacancies, assuming they are actually vacancies.  I think the dysfunction here is probably rather deep and that consulting with a professional parliamentarian might well be in order.  The two national parliamentary organizations both provide references.  They are the National Association of Parliamentarians (NAP) and the American Institute of Parliamentarians (AIP).  They both have websites.

[paul545]

Basically, we had a new employee hire. The employee was not able to perform the basic job functions as described in the job offer.  The day of the 3 month review to determine if this employee would be hired , the employee sent an email accusing board member a of creating a hostile work environment. It was clear from the email that this employee was possibley setting up a pretext for a lawsuit .     The accusations were untrue.  The board members who had interaction with office manager told the other board members this employee was trying to divide the board and deflect attention.   Despite the board members who had interacted with the property manager giving statements that did not support employees claims.  Two of the board members proceeded to have the attorney take actions as if the claims were true.  These board members did not have the board approval to contact the attorney.

 

blah blah blah..

 

we have hired a parliamentarian.  the problem is a parliamentarian suggests , they don't have any real authority.   And it seems that every objection made by board member a. the parlimentarian gives a workaround..

[Nathan Zook]

On 10/18/2020 at 1:31 PM, paul545 said:

we have hired a parliamentarian.  the problem is a parliamentarian suggests , they don't have any real authority.   And it seems that every objection made by board member a. the parlimentarian gives a workaround..

If the board really is split 4-1, then the odd man out is going to lose a lot.  That's actually an important principle in RONR.  Not that the rest of the board is acting morally, just that proper procedure requires that majorities be able to work there will.  From the other side, one might complain that the odd member is being dilatory.

And when an employee sends out an email alleging "hostile work environment", I would lawyer up.  Sadly.