Ratification and Retroactivity

[Dan Honemann]

The bylaws of the Lutherville Dog Lover's Club provide that any proposed amendment of its bylaws must first be adopted by the Club's Executive Board, and then this adoption of the amendment by the Board must be ratified by the club's membership, at which time the amendment shall become effective.

At the Board's regular meeting in January of 2022, a proposed amendment to the bylaws is adopted, and this adoption of the amendment by the Board is ratified at the annual meeting of the membership in March of 2022.  At the Board's regular meeting in April of 2022, a point of order is raised that the adoption of the amendment by the Board in January was null and void because no quorum was present at the time the vote was taken. The chair's ruling that this point of order is well taken is sustained on appeal.

Question 1.  Does this determination by the Board concerning the invalidity of its adoption of the amendment invalidate the amendment?

[Joshua Katz]

On 4/7/2022 at 4:05 PM, Dan Honemann said:

Question 1.  Does this determination by the Board concerning the invalidity of its adoption of the amendment invalidate the amendment?

I don't think so. The amendment takes effect when the membership adopts it, so objections to board procedure need to be raised before that vote takes place, I would think.

[J. J.]

On 4/7/2022 at 4:05 PM, Dan Honemann said:

The bylaws of the Lutherville Dog Lover's Club provide that any proposed amendment of its bylaws must first be adopted by the Club's Executive Board, and then this adoption of the amendment by the Board must be ratified by the club's membership, at which time the amendment shall become effective.

At the Board's regular meeting in January of 2022, a proposed amendment to the bylaws is adopted, and this adoption of the amendment by the Board is ratified at the annual meeting of the membership in March of 2022.  At the Board's regular meeting in April of 2022, a point of order is raised that the adoption of the amendment by the Board in January was null and void because no quorum was present at the time the vote was taken. The chair's ruling that this point of order is well taken is sustained on appeal.

Question 1.  Does this determination by the Board concerning the invalidity of its adoption of the amendment invalidate the amendment?

In this particular case, the annual meeting, by ratifying the amendment, determined that the amendment was validly adopted by the board.  At that point, the decision is no longer under the control of the board, and the board's attempt, via a point of order, to deal with the matter violates 49:7. The board, after discovering the flaw, could inform the assembly. 

The rule that an amendment "must first be adopted by the Club's Executive Board, and then this adoption of the amendment by the Board must be ratified by the club's membership," might by a rule in the nature of a rule of order.  I'm hesitant to say that it is without actually seeing the rule. 

Edited April 7, 2022 at 11:25 PM by J. J.
added a comma

[Rob Elsman]

Mr. Honemann, it's your bylaw, you tell us. 🙂

[Dan Honemann]

On 4/7/2022 at 7:04 PM, J. J. said:

In this particular case, the annual meeting, by ratifying the amendment, determined that the amendment was validly adopted by the board.  At that point, the decision is no longer under the control of the board, and the board's attempt, via a point of order, to deal with the matter violates 49:7. The board, after discovering the flaw could inform the assembly. 

The rule that an amendment "must first be adopted by the Club's Executive Board, and then this adoption of the amendment by the Board must be ratified by the club's membership," might by a rule in the nature of a rule of order.  I'm hesitant to say that it is without actually seeing the rule. 

Here's the rule:

                                             ARTICLE XII      Amendment of Bylaws

          Amendment of these bylaws shall require, and shall be effected by, adoption of the amendment by the Board and the Club's subsequent ratification of that adoption, as hereinafter set forth.

1. Adoption by the Board. Any proposed amendment to these Bylaws may be considered and adopted at any regular meeting of the Board provided that the amendment has been submitted in writing at the previous regular meeting of the Board. Adoption by the Board shall require a two-thirds vote. 

2. Ratification by the Club. Adoption by the Board of any amendment to these bylaws shall be submitted for ratification by the Club at its next regular meeting or at any special meeting of the Club called for that purpose. The amendment, as adopted by the Board, shall be set forth in full in the written notice of the meeting of the Club at which its adoption by the Board is to be considered for ratification. Ratification by the Club shall require only a majority vote

[J. J.]

On 4/7/2022 at 7:30 PM, Dan Honemann said:

Here's the rule:

                                             ARTICLE XII      Amendment of Bylaws

          Amendment of these bylaws shall require, and shall be effected by, adoption of the amendment by the Board and the Club's subsequent ratification of that adoption, as hereinafter set forth.

1. Adoption by the Board. Any proposed amendment to these Bylaws may be considered and adopted at any regular meeting of the Board provided that the amendment has been submitted in writing at the previous regular meeting of the Board. Adoption by the Board shall require a two-thirds vote. 

2. Ratification by the Club. Adoption by the Board of any amendment to these bylaws shall be submitted for ratification by the Club at its next regular meeting or at any special meeting of the Club called for that purpose. The amendment, as adopted by the Board, shall be set forth in full in the written notice of the meeting of the Club at which its adoption by the Board is to be considered for ratification. Ratification by the Club shall require only a majority vote

I tend to think that the requirement that the assembly can only considered if it has been previously approved by the Board is a rule in the nature of a rule of order.  I would liken it to a rule that said some types of motions could only be brought up if it was approved by a standing committee. 

So, in my opinion, the Board action in ruling it out of order after it is adopted by the membership meeting violates 49:7.  A point of order raised at the meeting, presumably after the Board reports, would not be well taken, as it is not timely.  I agree with Mr. Katz, to an extent, however, that a timely point of order could have been raised at the membership meeting. 

Even if there was something in the bylaws that prevented rules in the nature of rules of order embedded in the bylaws from being suspended, 49:7 would still apply. 

 

Edited April 8, 2022 at 12:08 AM by J. J.
made "rule" plural.

[Rob Elsman]

I have only a layman's understanding of "null and void".  It tells me that an act is as lacking in value as if it had never happened.  This implies that the timing of the determination of nullity is not relevant to the reality of the nullity.  If my understanding is correct, an act that depends for its validity on the validity of an antecedent act does not, because of the timing of the determination of the nullity of the antecedent act, become valid.  Instead, it is just as if the antecedent act had never occurred at all.

In this case, adoption by the board is the necessary predicate for ratification by the general membership of the club.  Without adoption by the board, there can be no ratification.  Applying my understanding, the value of the board's null act of adoption is exactly the same value as no act at all.  The timing of the determination of nullity is not relevant.  The breach continues until questions about the validity of the ratification of the amendment are moot.

I do not know how nullity works in civil law, but I know something about how it works in canon law.  When a marriage is annulled, the nullity of the marriage goes all the way back to the beginning.  The fact that conjugal life has been well established for a long time or that multiple children have been born into the family before nullity is determined by a judicial procedure does not, somehow, launder a null marriage into a valid one.  My reasoning about the nullity of the adoption of the amendment is similar.  Nothing will launder the ratification into a valid act, regardless of the timing of the determination of the nullity of the necessary antecedent act.

[J. J.]

On 4/7/2022 at 11:10 PM, Rob Elsman said:

 

In this case, adoption by the board is the necessary predicate for ratification by the general membership of the club.  Without adoption by the board, there can be no ratification.  Applying my understanding, the value of the board's null act of adoption is exactly the same value as no act at all.  The timing of the determination of nullity is not relevant.  The breach continues until questions about the validity of the ratification of the amendment are moot.

I do not know how nullity works in civil law, but I know something about how it works in canon law.  When a marriage is annulled, the nullity of the marriage goes all the way back to the beginning.  The fact that conjugal life has been well established for a long time or that multiple children have been born into the family before nullity is determined by a judicial procedure does not, somehow, launder a null marriage into a valid one.  My reasoning about the nullity of the adoption of the amendment is similar.  Nothing will launder the ratification into a valid act, regardless of the timing of the determination of the nullity of the necessary antecedent act.

Even before you get to that point, there is the very real question of if the Board has any authority to determine if an act of the assembly is null and void. 

I say that the Board does not, based on 49:7.  To give an analogy, look at 46:49 and 46:50.  46:49 list a number of things that could cause an election to be null and void, i.e. to have been conducted in such a way that it created a breach of a continuing nature.  46:50 goes on to say that, absent a bylaw or rule, the Board has no authority to reverse the action, though the matter could be referred to a committee when the election is pending. 

To use your marriage analogy, canon law of that church could grant a bishop the authority to nullify a marriage, annul it.  A canon granting the bishop that authority would not empower a parish priest to exercise that authority.  In this particular case, the Board is like the parish priest.

[Shmuel Gerber]

On 4/7/2022 at 4:05 PM, Dan Honemann said:

Question 1.  Does this determination by the Board concerning the invalidity of its adoption of the amendment invalidate the amendment?

It's the lack of a quorum that invalidated the amendment. The board is simply recognizing that fact, albeit at an inconvenient time.

[Shmuel Gerber]

On 4/7/2022 at 11:10 PM, Rob Elsman said:

It tells me that an act is as lacking in value as if it had never happened.  This implies that the timing of the determination of nullity is not relevant to the reality of the nullity

I hadn't seen Mr. Elsman's response when I wrote my own, but I agree.

[Gary Novosielski]

On 4/8/2022 at 12:13 AM, Shmuel Gerber said:

It's the lack of a quorum that invalidated the amendment. The board is simply recognizing that fact, albeit at an inconvenient time.

But if the general assembly has already ratified the bylaws amendment as required, the alleged lack of a quorum in January has been cured.  10:54

[Shmuel Gerber]

On 4/8/2022 at 12:18 AM, Gary Novosielski said:

But if the general assembly has already ratified the bylaws amendment as required, the alleged lack of a quorum in January has been cured.  10:54

An assembly's ratification of action taken without a quorum at one of its own meetings is a kettle of horses of a different color than its ratification of board action validly taken that requires the assembly's confirmation in order to become final.

[J. J.]

On 4/8/2022 at 12:25 AM, Shmuel Gerber said:

An assembly's ratification of action taken without a quorum at one of its own meetings is a kettle of horses of a different color than its ratification of board action validly taken that requires the assembly's confirmation in order to become final.

Why wouldn't 49:7 apply.  Even if the action is null and void, how can the Board void it? 

[Dan Honemann]

On 4/8/2022 at 12:51 AM, J. J. said:

Why wouldn't 49:7 apply.  Even if the action is null and void, how can the Board void it? 

To say that the rule in 49:7 applies begs the underlying question, which I think is: "Did the Club's action taken at its meeting in March ratify and make valid the action taken by the board at its inquorate meeting in January for purposes of determining compliance with the provisions of ARTICLE XII of the bylaws?" 

After giving this question a bit more thought, I am now inclined to agree with Mr. Elsman when he said "Mr. Honemann, it's your bylaw, you tell us."

Next time, I shall endeavor to come up with a better question; one that does not require the interpretation of a bylaw provision.

 

[J. J.]

On 4/8/2022 at 7:55 AM, Dan Honemann said:

To say that the rule in 49:7 applies begs the underlying question, which I think is: "Did the Club's action taken at its meeting in March ratify and make valid the action taken by the board at its inquorate meeting in January for purposes of determining compliance with the provisions of ARTICLE XII of the bylaws?" 

 

 

I do not agree that it begs the underlying question as it does not make any assumption about if there is some fatal error that the Board made and if that fatal error carried over into the assembly's action.  The question is if the Board (arguably for a very good reason) can reverse the action of the assembly.

For me, when the rules provide that the assembly must ratify the action of the board, and the assembly ratifies that action, it is no longer subject to reversal, including reversal by a point of order, by the Board. 

All that said, here is an example of a bylaw that would permit the point of order to reverse the action:

ARTICLE XII      Amendment of Bylaws

          Amendment of these bylaws shall require, and shall be effected by, adoption of the amendment by the Board and by the Club.

1. Adoption by the Board. Any proposed amendment to these Bylaws may be considered and adopted at any regular meeting of the Board provided that the amendment has been submitted in writing at the previous regular meeting of the Board. Adoption by the Board shall require a two-thirds vote, and;

2. Adoption by the Club. Any proposed amendment may be considered by the Club at a regular meeting or at any special meeting of the Club called for that purpose. The amendment shall be set forth in full in the written notice of the meeting of the Club at which is shall be considered.  Adoption by the Club shall require a majority vote.

With this quoted bylaw, the Board could rule the action of adopting this at an inquorate meeting out of order.

 

 

[Joshua Katz]

Having thought about it some more, I now agree with this:

On 4/8/2022 at 9:20 AM, J. J. said:

For me, when the rules provide that the assembly must ratify the action of the board, and the assembly ratifies that action, it is no longer subject to reversal, including reversal by a point of order, by the Board. 

 

I don't think this is far off from my original view, but it's certainly more elegant.

[J. J.]

I will try to construct a question that might work better with Mr. Honemann's perceived intent. 

[Dan Honemann]

On 4/8/2022 at 9:20 AM, J. J. said:

The question is if the Board (arguably for a very good reason) can reverse the action of the assembly.

The Board isn't reversing action of the assembly. It is determining that its own action is null and void due to the fact that no quorum was present when it was taken.

If the bylaw provision which I quoted is intended to mean that the required actions of both the Board and the Club must be validly taken in order for the bylaws to be amended, then I think the amendment has not validly been adopted.

[Dan Honemann]

On 4/8/2022 at 9:29 AM, J. J. said:

I will try to construct a question that might work better with Mr. Honemann's perceived intent. 

Please feel free to do so by starting your own topic, and not here in this thread.

[J. J.]

On 4/8/2022 at 9:32 AM, Dan Honemann said:

The Board isn't reversing action of the assembly. It is determining that its own action is null and void due to the fact that no quorum was present when it was taken.

If the bylaw provision which I quoted is intended to mean that the required actions of both the Board and the Club must be validly taken in order for the bylaws to be amended, then I think the amendment has not validly been adopted.

The Board is, effectively, in this case, reversing the assembly's action.  This is tantamount to the Board adopting an action in conflict with the assembly, even if the action that the assembly took was null and void. 

Edited April 8, 2022 at 02:03 PM by J. J.

[Dan Honemann]

On 4/8/2022 at 10:02 AM, J. J. said:

The Board is, effectively, in this case, reversing the assembly's action.  This is tantamount to the Board adopting an action in conflict with the assembly, even if the action that the assembly took was null and void. 

I respectfully disagree.

[Rob Elsman]

I also respectfully disagree.  The board is merely finding that its antecedent action was taken during an inquorate meeting, and the action is null and void.

Were things done correctly, the board should have presented a report at the next meeting explaining the facts, and the reporting member should have raised a Point of Order that the ratification is null and void on account that it was done without the antecedent adoption of the board, as the bylaws require.  The chair should have ruled favorably.