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Special meeting to rescind the Board’s decision


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Our Board terminated a contract in keeping with the Constitution and Bylaws of our Society, according to our policies and within the parameters of the contract itself.  The constitution states that the Board is responsible for the running of the society and the policy book grants the Board the power to hire and dismiss employees and contractors. The contractor was notified by legal letter.  There is a call for a special meeting and a motion is put forward to require the board to rescind its decision and renew the contract for another year.  Is this motion out of order?

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The Board of Directors shall have the power, from time to time to appoint and dismiss a club professional, a greens superintendent, and such other staff as required, and to prescribe their respective powers and duties and to fix the amount of their salaries. Such appointments and salaries are to be reviewed annually.

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6 minutes ago, Daniel H. Honemann said:

There is also an issue here as to whether or not what has been done as a result of the vote taken in July is something that is impossible to undo.

Suppose this is the case, would a remedy for KTB's situation be to move the contracting of the individual anew if possible (and maybe pursue a censure or some other measure against the Board)? 

 

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21 minutes ago, KTB said:

The Board of Directors shall have the power, from time to time to appoint and dismiss a club professional, a greens superintendent, and such other staff as required, and to prescribe their respective powers and duties and to fix the amount of their salaries. Such appointments and salaries are to be reviewed annually.

It's a matter of bylaw interpretation for your organization, but my personal opinion is that this does not grant the board the exclusive power to make these decisions. Thus, the assembly could rescind or amend the board's actions. But:

19 minutes ago, KTB said:

The decision was made in July, carried out according to the contract in September, and the petition and notice of special meeting was received in late October.

 

12 minutes ago, Daniel H. Honemann said:

There is also an issue here as to whether or not what has been done as a result of the vote taken in July is something that is impossible to undo.

You cannot rescind actions already taken. If the person has been fired, the membership could potentially direct a rehiring, but cannot rescind or amend the firing decision.

Edited by Joshua Katz
Mistake
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51 minutes ago, KTB said:

There is a call for a special meeting and a motion is put forward to require the board to rescind its decision and renew the contract for another year.  Is this motion out of order?

I think we need more information in order to answer this. Besides the questions asked by Mr. Katz and Mr. Honemann, I’m not clear as to whether all of these meetings that you have referenced are board meetings or is one (or more) of them a general membership meeting?  Also, was the decision to terminate the contract made at a regular or properly called and noticed board meeting?

As mentioned by Mr. Honemann, it may not be possible to rescind the termination or cancellation of the contract, but it may well be possible to rehire the individual(s) and/or to enter into a new contract. Certain things cannot be “undone“, but you can always start over and enter into a new contract with the same contractor.

i’m having a hard time putting my finger on it, but I feel like something is missing here.

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1 minute ago, Richard Brown said:

Besides the questions asked by Mr. Katz and Mr. Honemann, I’m not clear as to whether all of these meetings that you have referenced are board meetings or is one (or more) of them a general membership meeting?

Good point. For clarify, my answers thus far have assumed (although maybe without good reason) that we're talking about a membership meeting. 

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15 minutes ago, Daniel H. Honemann said:

There is also an issue here as to whether or not what has been done as a result of the vote taken in July is something that is impossible to undo.

I have to agree with Mr. Honemann on this.  The contract has ended and it too late to rescind it. On that ground, the motion to rescind is out of order.

Depending upon the notice for the special meeting, the assembly may have the ability to adopt a motion encourage the board to rehire the person.   I would need to have some idea of what the notice said to determine what options exist. 

I do agree with Mr. Brown's points.

Edited by J. J.
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@KTBPlease tell us whether this upcoming special meeting is a board meeting or a meeting of the general membership.

Also, although Mr. Katz askEd you to quote the provision in the bylaws granting the board the sole authority to manage the affairs of the society, you have not quoted such a provision. You quoted only the provision regarding hiring and firing of personnel, etc. We are looking for a provision that grants  the board the sole and exclusive authority to manage the affairs of the organization.

if your bylaws contain such a provision, please quote it verbatim.
 

Edited by Richard Brown
Typographical correction. Deleted a paragraph which repeated itself
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“ The board of directors shall be responsible for the operation of the club. The Board and Membership are governed by the club constitution and bylaws.”

The decision was made by the board in camera at a board meeting in July. It is not in the regular minutes that the membership receives because notice couldn’t be given to the contractor until September. The board didn’t think it was prudent to publish in the minutes for that reason.

The board doesn’t feel that the specific details regarding its decision to terminate the contract and not renew should be made public to the membership. The board feels they are a matter of privacy as well as the contractor’s reputation.  The board made a unanimous business decision which they feel was in the best interest of the club.  The board remains steadfast in their decision and is wondering if a vote of confidence might be the only resolution if they (the board) are unwilling to renew a contract with the contractor in question.  If the board, in fact, is forced to rehire and or renegotiate with this contractor, then does it not potentially bring into question and possibly debate, every single business decision the board makes? This could make serving on A board of directors as a volunteer a very undesirable thing to do.

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15 minutes ago, KTB said:

The board doesn’t feel that the specific details regarding its decision to terminate the contract and not renew should be made public to the membership. The board feels they are a matter of privacy as well as the contractor’s reputation.

The membership meeting should be held in executive session. RONR (12th ed.) 9:26 says, "The general rule is that anything that occurs in executive session may not be divulged to nonmembers (except any entitled to attend)."

Review 9:24-28 for more information about executive session.

2 minutes ago, KTB said:

I don’t know if this has any bearing or not; but, most of the signatures on the petition for the special meeting were solicited by the contractor and/or one of the contractor’s employees.

That doesn't affect the validity of the petition. It may be a good idea, at the beginning of the meeting, to remind members that this is being held in executive session and what this means. This is the information found in 9:24-28.

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4 minutes ago, KTB said:

I don’t know if this has any bearing or not; but, most of the signatures on the petition for the special meeting were solicited by the contractor and/or one of the contractor’s employees.

That has no bearing on the situation.

It is a question of bylaw interpretation, but the clause you quoted does not appear to give the board exclusive authority to hire and fire contractors.

What does the notice for the meeting actually say? 

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The notice says:

As per article 3, 15 (3)of the updated constitution the attached list of club members are requisitioning the board to call a special meeting to discuss the rationale for not renewing (name) restaurant contract for 2021 and to reconsider renewing the contract for 2021.

it goes onto list reasons why the members representing the people who signed the petition feel the contract should be renewed.

Truthfully, the relationship between the contractor and the board of directors deteriorated much earlier on in the year. According to the contract,

1.  This agreement may be terminated by either the club or the operator giving the other party 90 days written notice. Notice will not be given between March 1 to August 31.

2. This agreement may be Terminated by the club without notice if there is just cause for immediate dismissal.

This agreement may be terminated by the club without notice in the event of the operator having a long or protracted illness, or in the opinion of the Board of Directors has an unwarranted lengthy absence.

There are many aspects of the contract between the operator and the club that the operator has not lived up to. There have also been many threats by the operator to sue the club and the board members directly. There have been sudden closures that have not been approved by the board of directors as per the contract. The list goes on and on. The operator refuses to communicate anything to the Board and the contract has become a joke.

The board of directors sought legal counsel regarding the matter and received advice from counsel stating the best way to end the relationship with the contractor was to give 90 days notice rather than dismiss with cause. The attorney felt we had just cause but to avoid a lawsuit 90 days notice seemed to be in the best interest of the club. Since notice was given, and the notice of special meeting was presented to the board of directors, the contractor is in direct violation of the contract in many areas.  The board wishes to stick to our original reason, being that The current business model isn’t working and continue to take the highroad. With all of this in mind, it is fascinating and beyond comprehension that the board can be forced to rehire and re-negotiate a contract for 2021 with a contractor that is so toxic for the club.

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1 hour ago, KTB said:

The notice says:

As per article 3, 15 (3)of the updated constitution the attached list of club members are requisitioning the board to call a special meeting to discuss the rationale for not renewing (name) restaurant contract for 2021 and to reconsider renewing the contract for 2021.

it goes onto list reasons why the members representing the people who signed the petition feel the contract should be renewed.

 

 

The term "reconsider" is specific in RONR and could not be made. 

That point aside, "reconsider" in English means "to consider again especially with a view to changing or reversing."  I think I would interpret this to mean that the meeting will be considering an action that effectively reverses the board's decision. 

What I think is unimportant, however, since it up to the assembly (the meeting of members) to interpret any ambiguities in the bylaws.  I have a feeling that this will be their interpretation:

1.  To interpret the bylaws to permit the adoption of a motion for the club to establish a contractual relationship with the individual.    The motion would be enacted by the membership.

2.  Interpret the notice as permitting a motion to establish a contractual relationship to be introduced at this meeting.

I do not think that these interpretations are unreasonable. 

 

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4 hours ago, KTB said:

“ The board of directors shall be responsible for the operation of the club. The Board and Membership are governed by the club constitution and bylaws.”

 

4 hours ago, J. J. said:

It is a question of bylaw interpretation, but the clause you quoted does not appear to give the board exclusive authority to hire and fire contractors.

I tend to agree, but the grant of powers to the board does come pretty darn close to being an "exclusive" right to the board for the operation of the club.  I agree that this is ultimately a question of bylaws interpretation.  I think reasonable minds might well disagree on whether the grant of power to the board for "the operation" of the club is exclusive. 

KTB, you might search the forum for other threads on topic.  I suggest you start with this thread from 2012 which has a very extensive discussion as to what it takes for a grant of authority to a board to be "sole and exclusive".  This  thread also  contains references and link to other threads.  It is an excellent starting place.  It is most likely going to be up to the membership to settle the issue of whether the grant of power to the board to manage the affairs of the club is exclusive. 

Here's a link to the discussion.  I recommend it highly to you:  https://robertsrules.forumflash.com/topic/15927-exclusive-powers-of-a-board-p-578

Note that the references to RONR in that discussion are to the 11th edition, but any changes in the text in the 12th edition are minor, if there any changes at all.

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