Does the long-standing practice of meetings via conference call create precedent regardless of what is in the bylaws?

[David M.]

I want to first acknowledge the recent updates to RONR that dictate how and when electronic meetings are considered to be in good order. In the absence of a specific amendment to the bylaws, can the long-standing use of electronic meetings, conducted in good faith, negate the need for all past business to be ratified?

 

Situation: A statewide association, whose bylaws do not specifically or explicitly allow electronic meetings, has a board who has been using conference calls as the standard method of meeting and conducting business each month for at least the last 15 years. The separation of all members is not conducive to meeting in-person monthly. In addition to monthly meetings of the board, an annual convention of all assembly members takes place, where voting of new officers occurs, business is conducted, and reports are shared and resolutions are voted on (NOTE: business of the board is NOT specifically ratified, only reported on).

Now with COVID-19 precluding an in-person convention from taking place, there is no ability to amend the bylaws to allow for electronic voting, electronic meeting, etc. This raises a few questions:

1) Will the ratification of ALL past business conducted over the phone need to take place at the next annual in-person convention, or do previous annual conventions where the assembly has accepted the annual business of the board in good faith allow for a quasi-ratification?

2) Can ratification of all previous electronically conducted business take place, or is there a limit to how far back that ratification can extend (think statute of limitations on past business)?

3) Does the preclusion of electronic meetings from the bylaws cast doubt on issues that may have been resolved electronically over a decade ago, or have those issues fully been resolved?

 

From my understanding of RONR, even unanimous consent of the assembly and board to suspend the bylaws and allow for electronic meetings in any capacity without bylaws for allowing for such meetings would be out of order.

[Josh Martin]

2 hours ago, David M. said:

In the absence of a specific amendment to the bylaws, can the long-standing use of electronic meetings, conducted in good faith, negate the need for all past business to be ratified?

No.

"Except as authorized in the bylaws, the business of an organization or board can be validly transacted only at a regular or properly called meeting—that is, as defined in 8:2(1), a single official gathering in one room or area—of the assembly of its members at which a quorum is present." RONR (12th ed.) 9:30

"However, if a customary practice is or becomes in conflict with the parliamentary authority or any written rule, and a Point of Order (23) citing the conflict is raised at any time, the custom falls to the ground, and the conflicting provision in the parliamentary authority or written rule must thereafter be complied with. If it is then desired to follow the former practice, a special rule of order (or, in appropriate circumstances, a standing rule or a bylaw provision) can be added or amended to incorporate it." RONR (12th ed.) 2:25

"The only exceptions to the requirement that a point of order must be made promptly at the time of the breach arise in connection with breaches that are of a continuing nature, whereby the action taken in violation of the rules is null and void. In such cases, a point of order can be made at any time during the continuance of the breach—that is, at any time that the action has continuing force and effect—regardless of how much time has elapsed. Instances of this kind occur when:

...

d) any action has been taken in violation of a fundamental principle of parliamentary law (25:9)" RONR (12th ed.) 23:6

"Rules which embody fundamental principles of parliamentary law, such as the rule that allows only one question to be considered at a time (5:4), cannot be suspended, even by a unanimous vote. Thus, since it is a fundamental principle of parliamentary law that the right to vote is limited to the members of an organization who are actually present at the time the vote is taken in a regular or properly called meeting (45:56), the rules cannot be suspended so as to give the right to vote to a nonmember,7 or to authorize absentee voting (45:56ff.)." RONR (12th ed.) 25:9

I also note that you refer to "precedent" in the subject line of your thread. The fact that something has been done a certain way in the past is a "custom." A "precedent," in the sense the term is used in RONR, is created by a ruling by the chair on a question of order and any subsequent appeal. Even if there were a precedent on this matter, however, this would not change my answer, as a precedent which is in error can and should be corrected.

2 hours ago, David M. said:

1) Will the ratification of ALL past business conducted over the phone need to take place at the next annual in-person convention, or do previous annual conventions where the assembly has accepted the annual business of the board in good faith allow for a quasi-ratification?

Ratification will need to occur at an in-person meeting of some kind, although it does not necessarily need to be an in-person meeting of the convention. Ratification at an in-person meeting of the board would also suffice.

Since we are told that "business of the board is NOT specifically ratified, only reported on," I am not persuaded that this accounts to some sort of "quasi-ratification."

2 hours ago, David M. said:

2) Can ratification of all previous electronically conducted business take place, or is there a limit to how far back that ratification can extend (think statute of limitations on past business)?

The assembly could conceivably ratify all business previously conducted electronically (or more precisely, actions taken by officers pursuant to decisions made at such meetings). There is no "statute of limitations" in this regard.

2 hours ago, David M. said:

3) Does the preclusion of electronic meetings from the bylaws cast doubt on issues that may have been resolved electronically over a decade ago, or have those issues fully been resolved?

The fact that the actions took place over a decade ago, in and of itself, does not necessarily mean those issues have been "fully resolved," although it is certainly conceivable some of those actions have been "fully resolved."

I think it would be preferable to just ratify all of it to be on the safe side.

2 hours ago, David M. said:

From my understanding of RONR, even unanimous consent of the assembly and board to suspend the bylaws and allow for electronic meetings in any capacity without bylaws for allowing for such meetings would be out of order.

Yes, this understanding is correct.

Edited February 20, 2021 at 06:04 PM by Josh Martin

[David M.]

@Josh Martin,

Thank you very much for your thorough reply, and for the corrections of my misuse of terms. It is much appreciated.

1 hour ago, Josh Martin said:

"However, if a customary practice is or becomes in conflict with the parliamentary authority or any written rule, and a Point of Order (23) citing the conflict is raised at any time, the custom falls to the ground, and the conflicting provision in the parliamentary authority or written rule must thereafter be complied with.

As a member of the assembly (specifically, not a member of the board), I informally brought this issue up to a member of the board. Does that "notification" constitute a point of order, or must that Parliamentary Inquiry occur during a meeting of the assembly, for the provision to then "thereafter be complied with"?

1 hour ago, Josh Martin said:

Ratification will need to occur at an in-person meeting of some kind, although it does not necessarily need to be an in-person meeting of the convention. Ratification at an in-person meeting of the board would also suffice.

Since we are told that "business of the board is NOT specifically ratified, only reported on," I am not persuaded that this accounts to some sort of "quasi-ratification."

To be precisely clear, the business in question is that of the board, including the decisions of when annual conferences would take place, donations to charity, etc. If the "business of the board is NOT specifically ratified, only reported on", does ratification of their business need to occur at all (including the decisions for the time and place of annual conferences and donations to charity)? I may be confusing the point you are making here. The business in question is specifically in reference to the monthly meeting of the board, and is separate from the annual meeting of the assembly.

EDITED TO ADD:

You stated that "Ratification at an in-person meeting of the board would also suffice." Does that not contradict the following?:

RONR (12th ed.) 10:54 states that "The motion to ratify...is an incidental main motion that is used to...that cannot become valid until approved by the Assembly.

Wouldn't the motion to ratify need to come before the whole assembly, not just the board, under ordinary circumstances?

Edited February 20, 2021 at 07:54 PM by David M.
Additional question added

[Josh Martin]

1 hour ago, David M. said:

As a member of the assembly (specifically, not a member of the board), I informally brought this issue up to a member of the board. Does that "notification" constitute a point of order, or must that Parliamentary Inquiry occur during a meeting of the assembly, for the provision to then "thereafter be complied with"?

No, such notification does not constitute a Point of Order. A Point of Order must be raised during a meeting, by a member of the body that is meeting. Also, a Parliamentary Inquiry is a question regarding a matter of procedure. A Point of Order is used to actually allege a violation of the rules.

With all this said, it would generally seem advisable for an assembly to correct its practices when it is notified of this regardless of the means through which this occurs, but nonetheless, what you describe does not constitute a Point of Order.

1 hour ago, David M. said:

To be precisely clear, the business in question is that of the board, including the decisions of when annual conferences would take place, donations to charity, etc. If the "business of the board is NOT specifically ratified, only reported on", does ratification of their business need to occur at all (including the decisions for the time and place of annual conferences and donations to charity)? I may be confusing the point you are making here. The business in question is specifically in reference to the monthly meeting of the board, and is separate from the annual meeting of the assembly.

My understanding of the facts (and correct me if I am wrong) is that the board is authorized to take the actions in question. The only issue at hand here is that these decisions have been made at electronic meetings, and such meetings are not authorized in the bylaws.

If this is correct, the issue is that the decisions made in this manner are not, in fact, the decisions of the board, since the board can only make decisions at a regular or properly called meeting held in one room or area with a quorum present. As a result, any actions taken in regard to these decisions are the actions of the individual officers who carry them out. Such decisions may be ratified by the board, at a regular or properly called meeting held in person with a quorum present. The actions could also be ratified by the full membership, I suppose, if the membership happens to meet in person before the board does (although that seems unlikely in the current circumstances).

If the actions in question had been taken during a proper meeting of the board, then no ratification would be necessary.

1 hour ago, David M. said:

You stated that "Ratification at an in-person meeting of the board would also suffice." Does that not contradict the following?:

RONR (12th ed.) 10:54 states that "The motion to ratify...is an incidental main motion that is used to...that cannot become valid until approved by the Assembly.

Wouldn't the motion to ratify need to come before the whole assembly, not just the board, under ordinary circumstances?

The board is an assembly. "The deliberative assembly may exist in many forms. Among the principal types that it is convenient to distinguish for the purposes of parliamentary law are: (1) the mass meeting; (2) the assembly of an organized society, particularly when meeting at the local or lowest subdivisional level; (3) the convention; (4) the legislative body; and (5) the board." RONR (12th ed.) 1:9

The rules you are referring to do not mean that all actions which must be ratified may only be ratified by the full membership of the society. If the board had the power to take the actions in question at a proper meeting of the board, then it has the authority to ratify these actions. A situation in which only the membership could authorize the actions might arise if the board took an action which exceeded the board's authority.

Edited February 20, 2021 at 08:11 PM by Josh Martin

[Gary Novosielski]

8 hours ago, David M. said:

I want to first acknowledge the recent updates to RONR that dictate how and when electronic meetings are considered to be in good order. In the absence of a specific amendment to the bylaws, can the long-standing use of electronic meetings, conducted in good faith, negate the need for all past business to be ratified?

No.  No amount of wrongdoing can turn it into rightdoing.  Permitting electronic meetings will require a bylaws amendment (and presumably some rules of order to allow for the non-standard nature of those meetings.

But since the meetings were not properly called, the business transacted at them is not subject to ratification.

If actions were taken as a result of those meetings, the actions can be ratified, presuming these are actions that the assembly could have authorized in advance.