Reaffirm vote from previous meeting that lacked a quorum

[Victoria Rossander]

I was recently appointed to our county's Planning and Zoning Commission. At my very first meeting they voted to send a proposed ordinance onto the Board of Supervisors.  I asked at that meeting if we had a quorum present as I was not sure how many people were actually on the Commission.  There were 3 members present and they assured me that we had a quorum as there were 5 members on the Commission.  The proposed ordinance went to the Board of Supervisors where they held 3 public hearings as required and the ordinance was passed.  After this happened found out that in fact there are 6 people on the Commission and we needed 4 members for a quorum.  I went to the County Attorney to get his opinion on the process and lack of quorum.

The Planning and Zoning Commission is now going to have another meeting. Under Old Business they have the following item "Reaffirm vote approving Solar Ordinance as approved by the Planning and Zoning Commission on 10-13-21 and approved by the Montgomery County Board of Supervisors on 2-22-22."

I called the Planning and Zoning Chair and asked what this item was about. He told me that we are now going to "go back and make the vote "legal" by having a quorum present at this meeting".  I told him that I did not believe that could happen and would call for a point of order and say the item is out of order. I do not believe we can go back and "correct" a vote, especially one that has already been acted upon by another body.  

If the County Attorney believes the ordinance was passed illegally because of the Planning and Zoning lack of quorum, I believe the Board of Supervisors would have to rescind their vote on the Solar Ordinance and we would have to start over.

Am I correct?

Thank you for your help.

[Joshua Katz]

There are almost certainly applicable laws and other rules here, so a RONR answer is unlikely to be helpful.

However, it's what we can offer.

There is no motion to "reaffirm" in RONR. The meeting at which there was no quorum could not conduct business, and so an adoption there was simply without effect, once a point of order on the matter is ruled upon. So there's no need to rescind it, as it was never passed.

But I'm not clear on what you think is wrong with "correct[ing]" the vote. Nothing happened because there was no ability to conduct business. So the next session is free to, with a quorum, adopt the motion. How that interacts with your 3 meeting rule, I cannot say, i.e. if it requires consecutive readings, etc.

[Victoria Rossander]

The Board of Supervisors - which is the next higher body - did not know that there was not a quorum present at the Planning and Zoning Commission meeting so they believed and acted as if the ordinance had been sent onto them in good standing. That ordinance has now been enacted into law.  

You state that since there was never a quorum present to start with, no business should have been conducted at that meeting.  That makes sense to me.  But I don't see how us voting on the ordinance now can undo the harm that has been created by a vote that should never have happened in the first place.  What if the vote to "reaffirm" fails .....how does that effect the fact that the ordinance has already gone to the Board of Supervisors and been passed into law?

It seems to me that the best thing to do is ask that the item be removed from the agenda as it is out of order?  Or should I wait for it to come up under Old Business and then make of point of order that a RONR does not recognize a reaffirming vote?

Later in the agenda - an item is listed to amend this particular ordinance and fix some errors that are contained in it. Won't we fix the "lack of quorum" vote in the first round by voting to approve the amended ordinance now?

Again --- thank you for your help.  If this is all too complicated --- I understand.

 

[Joshua Katz]

On 3/23/2022 at 5:52 PM, Victoria Rossander said:

The Board of Supervisors - which is the next higher body - did not know that there was not a quorum present at the Planning and Zoning Commission meeting so they believed and acted as if the ordinance had been sent onto them in good standing. That ordinance has now been enacted into law.  

 

That has consequences far beyond the scope of parliamentary procedure. You'll need an attorney with experience with legislation to sort that out.

On 3/23/2022 at 5:52 PM, Victoria Rossander said:

You state that since there was never a quorum present to start with, no business should have been conducted at that meeting.  That makes sense to me.  But I don't see how us voting on the ordinance now can undo the harm that has been created by a vote that should never have happened in the first place.  What if the vote to "reaffirm" fails .....how does that effect the fact that the ordinance has already gone to the Board of Supervisors and been passed into law?

 

Well, as I said, there is no motion to reaffirm. To my view, the proper motion (if the rules in RONR controlled) would be the same as the original motion. If the rules in RONR applied, then the law would presently not be in effect, and if the motion were voted down next time, it still would not be in effect. But, of course, the rules in RONR do not control. 

On 3/23/2022 at 5:52 PM, Victoria Rossander said:

It seems to me that the best thing to do is ask that the item be removed from the agenda as it is out of order?  Or should I wait for it to come up under Old Business and then make of point of order that a RONR does not recognize a reaffirming vote?

 

Well, old business is not a RONR heading, and this is not unfinished business. But, that aside, it seems to me that including a topic on which there will be an out of order motion on an agenda is not itself out of order, so I would raise a point of order when the motion is made. 

On 3/23/2022 at 5:52 PM, Victoria Rossander said:

Later in the agenda - an item is listed to amend this particular ordinance and fix some errors that are contained in it. Won't we fix the "lack of quorum" vote in the first round by voting to approve the amended ordinance now?

 

Well, I don't know how your 3 readings rule works. But to the extent the rules in RONR control, yes, it would make sense to simply pass the perfected motion.

 

[Atul Kapur]

1) RONR does not have a motion to reaffirm, but there is a motion to Ratify, which can be applied to "action improperly taken at a regular or properly called meeting at which no quorum was present" RONR (12th ed.) 10:54

2) It sounds like the people who have put the motion to reaffirm on the commission's agenda are trying to avoid the Board of Supervisors having to go through the three-public-hearings procedure a second time. Whether that is proper according to statute and the Board's governing documents is something to ask a lawyer.

The upshot is that the motion to reaffirm, which appears to be the equivalent of the motion to ratify, appears to be in order.
What happens to that motion after that, i.e. whether the Board of Supervisors has to re-consider the ordinance, is a legal question which is beyond this forum.

 

[Victoria Rossander]

Thank you to all for helping me understand the complexities of this problem.

 

[Dan Honemann]

On 3/23/2022 at 8:21 PM, Atul Kapur said:

1) RONR does not have a motion to reaffirm, but there is a motion to Ratify, which can be applied to "action improperly taken at a regular or properly called meeting at which no quorum was present" RONR (12th ed.) 10:54

2) It sounds like the people who have put the motion to reaffirm on the commission's agenda are trying to avoid the Board of Supervisors having to go through the three-public-hearings procedure a second time. Whether that is proper according to statute and the Board's governing documents is something to ask a lawyer.

The upshot is that the motion to reaffirm, which appears to be the equivalent of the motion to ratify, appears to be in order.
What happens to that motion after that, i.e. whether the Board of Supervisors has to re-consider the ordinance, is a legal question which is beyond this forum.

 

Well, RONR (12th ed.) does recognize that motions to "reaffirm" are all too often made, and therefore notes that such motions are out of order:

"10:10    Motions to 'reaffirm' a position previously taken by adopting a motion or resolution are not in order. Such a motion serves no useful purpose because the original motion is still in effect; also, possible attempts to amend a motion to reaffirm would come into conflict with the rules for the motion to Amend Something Previously Adopted (35); and if such a motion to reaffirm failed, it would create an ambiguous situation."

This recognizes, of course, that these motions refer to motions previously adopted (it's hard to "reaffirm" something that has not been "affirmed" in the first place), and so I fully agree that what is intended is a motion to ratify (RONR, 12th ed., 10:54-57) the action which was taken at the 10/13/21 meeting of the Commission at which, it is alleged, no quorum was present. 

This thread raises a number of interesting questions.  One of which, I think, is the fact that it should be presumed that a quorum was present at the 10/13/21 meeting unless and until the Commission formally determines otherwise. What happens if it just lets sleeping dogs lie? I'm not recommending this, just asking.  🙂

Secondly, suppose the Commission does determine that a quorum was not present at its 10/13/21 meeting, and then adopts a motion to ratify the action which was taken at that meeting. To what extent does this have retroactive effect?  The answer here depends upon the answer to the legal questions which have been referred to the County attorney, and as Dr. Kapur says, this is a legal question which is beyond this forum, but it is interesting to think about when, and under what circumstances, the adoption of motions to ratify have retroactive effect. 

 

 

 

[J. J.]

Sleeping dogs will sleep until someone wakes them.  If no one, ever, raises a point of order, the situation, internal to the group, remains the same.  That is true about anything that creates a breach of a continuing nature. 

Assuming that there was no quorum present, a point of order could be raised at any point in the further that the action was not taken at a quorate meeting.  It could be the basis for a legal challenge by some third party.

As to retroactive effect, that is a legal question, in part.  In terms of the procedural part, the Commission would violate no rule in RONR by retroactively ratifying the action and that such action would remove any chance of using a point of order to rectify the situation. 

I would only note that the concept of non-criminal laws applying retroactively is not unknown in American jurisprudence. 

 

Edited April 4, 2022 at 06:07 PM by J. J.

[Dan Honemann]

I've started a new topic rather than confuse the issue in this one with different facts.