Retable a motion that has already be executed upon

[Jon]

My board voted to take a financial action (provide association funds evenly to members of the association) that appears to be in violation of our bylaws. At the time, I (as a board member) voted against the actions on the grounds that I thought it was not legal (for reasons that aren't relevant to this discussion).

Upon taking a deeper dive into our bylaws, I believe that while it may have passed legal scrutiny, it is a clear violation of a clause in our bylaws prohibiting distributions of funds to members. The problem is the motion has passed and the funds distributed.

Do I have any motions (I am still on the board) that can be made to formally declare this a violation of our bylaws so that it does not happen in the future? Would this be a motion to adopt a resolution? Is there anything else that would apply?

Thank you,

Jon

[Guest Puzzling]

2 hours ago, Jon said:

My board voted to take a financial action (provide association funds evenly to members of the association) that appears to be in violation of our bylaws. At the time, I (as a board member) voted against the actions on the grounds that I thought it was not legal (for reasons that aren't relevant to this discussion).

Upon taking a deeper dive into our bylaws, I believe that while it may have passed legal scrutiny, it is a clear violation of a clause in our bylaws prohibiting distributions of funds to members. The problem is the motion has passed and the funds distributed.

Do I have any motions (I am still on the board) that can be made to formally declare this a violation of our bylaws so that it does not happen in the future? Would this be a motion to adopt a resolution? Is there anything else that would apply?

Thank you,

Jon

You could make a resolution deploying what has happened. 

You could make a bylaws amendment that makes it (even more) clear that these  actions are against the bylaws.

I am not sure if there is a way to undue what has happened but it would be a continuing breach and the motion "a point of order" would be the right move.

I would advice to get advice of a lawyer on what to do to prevent legal repercussions against the organisation and against individual boardmembers. 

 

 

[Guest Puzzling]

On 2/24/2021 at 11:10 AM, Guest Puzzling said:

You could make a resolution deploying what has happened

Oops 

I mend 

You could make a resolution deploring what has happened.

Also if the minutes are not approved yet try to get notice that you voted against this motion in the minutes, and also still make a point of order. 

I am puzzling on how this will work out, having a continuing breach of order but there seems no easy way to restore the situation.

Depending where the money came from (can it be seen as a restitution of dues?) There  seems a possibility that the board broke their fiduciary duty.

[Rob Elsman]

See RONR (12th ed.) §62 about the removal of officers guilty of dereliction of duty and misconduct.

As to further actions, you may wish to consult with an attorney to see if you or the organization can pursue civil action in court.  Even in those states that provide a safe harbor for "volunteer" board members of certain classes of organizations, there is often an excepting clause for cases of malfeasance.  Only an attorney is going to be able to help you with the laws in your state and the methods that can be used to charge the expense for the distribution to the board members who may bear responsibility for it.

[Jon]

2 hours ago, Guest Puzzling said:

Oops 

I mend 

You could make a resolution deploring what has happened.

Also if the minutes are not approved yet try to get notice that you voted against this motion in the minutes, and also still make a point of order. 

I am puzzling on how this will work out, having a continuing breach of order but there seems no easy way to restore the situation.

Depending where the money came from (can it be seen as a restitution of dues?) There  seems a possibility that the board broke their fiduciary duty.

It’s kind of complicated as to where the money came from - it was distributed to members as proportional reimbursement for tradeshow booth space paid in prior years. The Tradeshow fees were technically paid to a separate entity however which is owned in part by our association. 
 

personally I believe it was an improper inurement under IRS rules, however, our association’s legal counsel told me at length via email and phone that it was proper. 
 

while I disagree my options are limited - I could file my concern with the IRS but if successful the only result is we lose our non profit status and the association dissolves (which helps no one). 
 

as for the minutes, I did Insist the actual votes be recorded and not simply that the motion passed. 

[Richard Brown]

31 minutes ago, Jon said:

as for the minutes, I did Insist the actual votes be recorded and not simply that the motion passed. 

That was a good move on your part as such a notation in the minutes frequently serves to protect those who voted against the motion.

[Jon]

If I wanted to protect myself against future legal liability, is it possible to make a motion to enter a statement into previously dopted minutes explaining t hat my no vote was made because of my view that the payment was improper for an on profit? I also have numerous emails with our legal council pushing on this issue, but should this be reflected in our board minutes, and can that be done retroactively with a Motion to adopt something previously adopted"?

[Josh Martin]

28 minutes ago, Jon said:

If I wanted to protect myself against future legal liability, is it possible to make a motion to enter a statement into previously dopted minutes explaining t hat my no vote was made because of my view that the payment was improper for an on profit? I also have numerous emails with our legal council pushing on this issue, but should this be reflected in our board minutes, and can that be done retroactively with a Motion to adopt something previously adopted"?

I would first note that any questions regarding what protection such a statement might provide against future legal liability, or whether there is any legal principle suggesting that such statements should or must be included, should be directed to an attorney.

As to the question of whether it is possible to make such a motion, yes. You would make a motion to Amend Something Previously Adopted. Assuming this motion is adopted, "the secretary does not actually alter the content of the original minutes, but may make a marginal notation indicating the corrected text or referring to the minutes of the meeting at which the correction was adopted." See FAQ #16.

So far as RONR is concerned, statements of this nature do not belong in the minutes, but it is conceivable that something in applicable law provides otherwise. As a parliamentary matter, the minutes are a record of what was done, not what was said, and would not include members explanations for their votes. Nonetheless, the assembly may include a statement of this nature if it wishes to do so.

Edited February 26, 2021 at 07:10 PM by Josh Martin

[George Mervosh]

If the statement hasn't been given yet why would the minutes of a past meeting where there was no statement offered be amended?  

[Josh Martin]

14 minutes ago, George Mervosh said:

If the statement hasn't been given yet why would the minutes of a past meeting where there was no statement offered be amended?  

So far as RONR is concerned, the minutes shouldn't be amended to include the statement in any event, but I certainly agree that if the statement never actually happened, that is even more reason not to amend the minutes to include it.

The minutes are intended to be a record of what was done, not what was said, and they certainly are not intended to be a record of things people wish they had said.

Edited February 26, 2021 at 07:26 PM by Josh Martin

[Jon]

The statements regarding my belief that it was not legally permissible were argued at length during the meeting - they just are not reflected in the minutes as the minutes reflect only the vote tally.

I have also directed these questions to our legal counsel so perhaps the need for anything in the minutes to reflect the opinion will be moot based on his response as to liability.

 

[Guest Puzzling]

I am not sure if the motion to "amend something previously adopted " is the right motion, I think that the incidental main motion "point of order" (followed by "appeal" )   is a better alternative.

(This is the same as a point of order only regarding a continuing breach of order)

But I fear neither of these motions will be accepted, and how do you want to restore the situation? 

I think for personal boardmember liability it is enough that it is recorded that you voted against the motion (and print out all those emails) but get advice about this from an lawyer. (Preferably not connected to the organization) 

The more problematic liability is tax that may follow individual members and the organisation for the "windfall" .

 

[Richard Brown]

1 hour ago, Jon said:

The statements regarding my belief that it was not legally permissible were argued at length during the meeting - they just are not reflected in the minutes as the minutes reflect only the vote tally.

I thought you told us in an earlier post that it was a recorded (roll call) vote. If only the vote totals were reflected, and not how each member voted, then that presents a different situation. In that case, I think you should ask that the minutes reflect that you were opposed to the motion and that you voted no. That is in keeping with the law in many states that provide protection to a board member who has the minutes reflect that he voted no or was opposed to a particular motion.

in the future if a situation like this develops, you should ask for a rollcall vote. If the assembly refuses to order the rollcall vote, then you should request that the minutes reflect that you are opposed to the motion and voted no. If I were you I would make sure that the other members hear you voting no and hear you making the request that the minutes reflect that you voted no. 

[Jon]

15 minutes ago, Richard Brown said:

I thought you told us in an earlier post that it was a recorded (roll call) vote. If only the vote totals were reflected, and not how each member voted, then that presents a different situation. In that case, I think you should ask that the minutes reflect that you were opposed to the motion and that you voted no. That is in keeping with the law in many states that provide protection to a board member who has the minutes reflect that he voted no or was opposed to a particular motion.

in the future if a situation like this develops, you should ask for a rollcall vote. If the assembly refuses to order the rollcall vote, then you should request that the minutes reflect that you are opposed to the motion and voted no. If I were you I would make sure that the other members hear you voting no and hear you making the request that the minutes reflect that you voted no. 

I apologize for the confusion, what I meant was the vote tally and who voted yes and no was recorded but not my arguments for why I voted no.

[Richard Brown]

1 minute ago, Jon said:

I apologize for the confusion, what I meant was the vote tally and who voted yes and no was recorded but not my arguments for why I voted no.

The arguments aren’t necessarily pertinent for the purpose of the statutes which I am familiar with. The only requirement is that to be afforded the protection that those statutes afford, the minutes must often reflect that the member voted against the proposal. I do not recall having ever seen such a statute that requires that the reason for voting no be in the minutes. Of course, if the assembly agrees, the minutes may include your reasons, but the assembly itself has the final say on whether to permit such a statement to be included in the minutes. 

[Josh Martin]

1 hour ago, Guest Puzzling said:

I am not sure if the motion to "amend something previously adopted " is the right motion, I think that the incidental main motion "point of order" (followed by "appeal" )   is a better alternative.

Why would a Point of Order be appropriate? What rule was violated by not including the member's comments?

Amend something previously adopted is the correct motion to amend approved minutes, as noted in FAQ #16.

[Guest Puzzling]

51 minutes ago, Josh Martin said:

Why would a Point of Order be appropriate? What rule was violated by not including the member's comments?

Amend something previously adopted is the correct motion to amend approved minutes, as noted in FAQ #16.

Sorry

I thought the question was about which motion to use against the motion over the financial action mentioned in the first post.

Amend something previously adopted is the correct motion to amend approved minutes,

[Gary Novosielski]

6 hours ago, Josh Martin said:

Why would a Point of Order be appropriate? What rule was violated by not including the member's comments?

Amend something previously adopted is the correct motion to amend approved minutes, as noted in FAQ #16.

Yes it is.

But a Point of Order might have been a better choice than merely voting No on the motion.  If a member believes that a motion is not in order because it violates the bylaws, a Point of Order raises the underlying question and addresses it directly, and it also gets the ruling and possible appeal into the minutes, without requiring the permission of the assembly.

[Josh Martin]

14 hours ago, Guest Puzzling said:

Sorry

I thought the question was about which motion to use against the motion over the financial action mentioned in the first post.
Amend something previously adopted is the correct motion to amend approved minutes,

Yes, I agree that a Point of Order (and an Appeal) could be raised regarding the motion, since it appears to be believed that it is a main motion which conflicts with the bylaws.

8 hours ago, Gary Novosielski said:

Yes it is.

But a Point of Order might have been a better choice than merely voting No on the motion.  If a member believes that a motion is not in order because it violates the bylaws, a Point of Order raises the underlying question and addresses it directly, and it also gets the ruling and possible appeal into the minutes, without requiring the permission of the assembly.

Based upon the facts in the original post, it would appear that at the time of the meeting, the OP was unaware of the apparent conflict with the bylaws, and instead opposed the motion due to an apparent conflict with a nonprocedural rule in applicable law.

Certainly if the member had been aware of the conflict with the bylaws, it would have been advisable to raise a Point of Order and an Appeal regarding the matter. Because the adoption of a main motion which conflicts with the bylaws constitutes a continuing breach, the member could still raise these motions now.