Ratify - Board action

[J. J.]

The Club has a Board, which meets quarterly and regular Club meeting monthly.  There is no provision for special meetings of either body

The bylaws provide that, “The Board shall the sole authority to employ an attorney, though the Club  shall set a limit on payment by a standing rule.”

At the March Board meeting, which lacked a quorum, the Board  voted to hire an attorney.

First question, At the April Club meeting, which is quorate, can the members ratify the Board’s hiring of an attorney? 

[Dan Honemann]

On 4/8/2022 at 10:18 AM, J. J. said:

The Club has a Board, which meets quarterly and regular Club meeting monthly.  There is no provision for special meetings of either body

The bylaws provide that, “The Board shall the sole authority to employ an attorney, though the Club  shall set a limit on payment by a standing rule.”

At the March Board meeting, which lacked a quorum, the Board  voted to hire an attorney.

First question, At the April Club meeting, which is quorate, can the members ratify the Board’s hiring of an attorney? 

I don't think so. According to your statement of facts, the Board has sole authority concerning employment of an attorney, although it may be somewhat hampered in this regard since the membership of the club apparently sets the limit on the amount of the fee that may be paid to an attorney.

[J. J.]

Second question:  A point of order is raised at the April Club meeting, that the Board hired the attorney at an inquorate meeting.  Is the point of order well taken or not?

[George Mervosh]

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

Second question:  A point of order is raised at the April Club meeting, that the Board hired the attorney at an inquorate meeting.  Is the point of order well taken or not?

With nothing else pending why would it even be proper to raise a point of order?  What is the Club considering that would warrant one?

[J. J.]

On 4/8/2022 at 4:35 PM, George Mervosh said:

With nothing else pending why would it even be proper to raise a point of order?  What is the Club considering that would warrant one?

The Board may have hired the attorney because it is expecting to go into litigation or because they  are planning to enter into a contract.  Billable work might be staring in April. 

The point of order is that the Board authorized the hiring of the attorney at an inquorate meeting. 

[Dan Honemann]

On 4/8/2022 at 9:46 PM, J. J. said:

The Board may have hired the attorney because it is expecting to go into litigation or because they  are planning to enter into a contract.  Billable work might be staring in April. 

The point of order is that the Board authorized the hiring of the attorney at an inquorate meeting. 

But J.J., you are referring to a point of order that is made during a meeting of the Club, not the Board.  I think Mr. Mervosh wants to know what rules of this assembly does the member assert are being violated, and exactly what is happening at this meeting that gives rise to this concern.

 

 

 

[J. J.]

On 4/9/2022 at 7:00 AM, Dan Honemann said:

But J.J., you are referring to a point of order that is made during a meeting of the Club, not the Board.  I think Mr. Mervosh wants to know what rules of this assembly does the member assert are being violated, and exactly what is happening at this meeting that gives rise to this concern.

He is asserting that the bylaws are being violated and that the Board took an action that it cannot take without a quorum being present.  I did not say that the point of order should be well taken.  I have not taken any position on anything on this thread.

[Dan Honemann]

On 4/9/2022 at 9:48 AM, J. J. said:

He is asserting that the bylaws are being violated and that the Board took an action that it cannot take without a quorum being present.  I did not say that the point of order should be well taken.  I have not taken any position on anything on this thread.

"23:1    When a member thinks that the rules of the assembly are being violated, he can make a Point of Order (or “raise a question of order,” as it is sometimes expressed), thereby calling upon the chair for a ruling and an enforcement of the regular rules (emphasis supplied."

 

No determination as to whether the point of order you have quoted is or is not well taken can safely be made based solely upon the facts presented.  These things don't happen in a vacuum.  However, with nothing else to go on, there appears to be nothing at all happening during this meeting of the Club which violates any of its rules.

 

[J. J.]

On 4/9/2022 at 11:07 AM, Dan Honemann said:

"23:1    When a member thinks that the rules of the assembly are being violated, he can make a Point of Order (or “raise a question of order,” as it is sometimes expressed), thereby calling upon the chair for a ruling and an enforcement of the regular rules (emphasis supplied."

 

No determination as to whether the point of order you have quoted is or is not well taken can safely be made based solely upon the facts presented.  These things don't happen in a vacuum.  However, with nothing else to go on, there appears to be nothing at all happening during this meeting of the Club which violates any of its rules.

 

That is everything that has happened, so far. 

The previously adopted standing rule authorizes payment for an attorney, once hired.  In March, an inquorate meeting of the Board hired an attorney.  In April, the Club meets, the reporting member of the Board reports that the Board hired X to be the attorney.  A member, suddenly realizing that the Board meeting was inquorate, raises the point of order that the Board's hiring of the attorney is void, because the meeting lacked a quorum. 

[George Mervosh]

On 4/9/2022 at 1:20 PM, J. J. said:

That is everything that has happened, so far. 

The previously adopted standing rule authorizes payment for an attorney, once hired.  In March, an inquorate meeting of the Board hired an attorney.  In April, the Club meets, the reporting member of the Board reports that the Board hired X to be the attorney.  A member, suddenly realizing that the Board meeting was inquorate, raises the point of order that the Board's hiring of the attorney is void, because the meeting lacked a quorum. 

I don't think this additional explanation changes anything, J.J.   Now a Request for Information about the quorum issue seems fine, since it relates to the business at hand - the board report.  

Edited April 9, 2022 at 05:52 PM by George Mervosh

[Dan Honemann]

I agree with our friend George. 

We don't get to a question as to whether or not this point of order is well taken because the point of order itself is not in order.

[J. J.]

On 4/9/2022 at 3:23 PM, Dan Honemann said:

I agree with our friend George. 

We don't get to a question as to whether or not this point of order is well taken because the point of order itself is not in order.

It the point of order itself is not in order, it is not well taken.

[Dan Honemann]

On 4/9/2022 at 3:41 PM, J. J. said:

It the point of order itself is not in order, it is not well taken.

🙂

[J. J.]

Okay, sometime between the April and May Club meetings, the attorney send in a bill, which is well beneath the limit in the standing rule.

At the May Club meeting, a motion "that the bill for the attorney's services be paid." 

A member raises a point of order that this motion is out of order, because the Board did not adopt the motion to hire the attorney at a quorate meeting.  Should this point be well taken? 

[Dan Honemann]

On 4/9/2022 at 5:16 PM, J. J. said:

Okay, sometime between the April and May Club meetings, the attorney send in a bill, which is well beneath the limit in the standing rule.

At the May Club meeting, a motion "that the bill for the attorney's services be paid." 

A member raises a point of order that this motion is out of order, because the Board did not adopt the motion to hire the attorney at a quorate meeting.  Should this point be well taken? 

Even if this member is somehow able to establish, to the assembly's satisfaction, that no quorum was present when the Board voted to hire the attorney, I do not see why this would mean that a motion "that the bill for the attorney's services be paid" is not in order.  Heaven forbid!  🙂

 

 

[J. J.]

On 4/10/2022 at 11:34 AM, Dan Honemann said:

Even if this member is somehow able to establish, to the assembly's satisfaction, that no quorum was present when the Board voted to hire the attorney, I do not see why this would mean that a motion "that the bill for the attorney's services be paid" is not in order.  Heaven forbid!  🙂

 

 

Because, in theory, it is paying for something that the Board did not authorize according to bylaws and something that the Club cannot authorize, according to the bylaws. 

Also, it can be shown that a quorum was not present, even as of the April; that is not a fact in dispute. 

Edited April 10, 2022 at 04:31 PM by J. J.

[Dan Honemann]

On 4/10/2022 at 12:31 PM, J. J. said:

Because, in theory, it is paying for something that the Board did not authorize according to bylaws ...

Of course the Board did not authorize payment of the bill.  According to you, the only thing the Board had authority to do, and did (or thought it did), was to employ the attorney, a power which you tell us is vested solely in the Board. 

 

On 4/10/2022 at 12:31 PM, J. J. said:

... and something that the Club cannot authorize, according to the bylaws. 

You haven't yet told us about this particular bylaw provision. You told us only that the bylaws provide that "... the Club  shall set a limit on payment by a standing rule.”  You also told us that "sometime between the April and May Club meetings, the attorney send [sic] in a bill, which is well beneath the limit in the standing rule."

Nothing whatsoever that you have posted so far indicates that the motion "that the bill for the attorney's services be paid" is not in order. There may or may not be reasons why it should not be paid, but the motion itself is clearly in order.

Truth be told, J.J., I'm tired of having to drag out of you all relevant facts needed to answer questions that you ask.  No hard feelings, of course, but I'm done.

 

 

 

[Joshua Katz]

Aren't we really getting at this question: when a body adopts a motion that is void ab initio (although it is not clear to me that a motion adopted at a meeting that is, unbeknownst to those present, inquorate, is in fact void as opposed to voidable), and others outside the body act in reliance on it, may the body notice the invalidity and take action based on it? (From a parliamentary, not legal, standpoint, that is.) Isn't that what both questions are about, at core?

[J. J.]

On 4/10/2022 at 1:24 PM, Dan Honemann said:

Of course the Board did not authorize payment of the bill.  According to you, the only thing the Board had authority to do, and did (or thought it did), was to employ the attorney, a power which you tell us is vested solely in the Board. 

 

You haven't yet told us about this particular bylaw provision. You told us only that the bylaws provide that "... the Club  shall set a limit on payment by a standing rule.”  You also told us that "sometime between the April and May Club meetings, the attorney send [sic] in a bill, which is well beneath the limit in the standing rule."

Nothing whatsoever that you have posted so far indicates that the motion "that the bill for the attorney's services be paid" is not in order. There may or may not be reasons why it should not be paid, but the motion itself is clearly in order.

Truth be told, J.J., I'm tired of having to drag out of you all relevant facts needed to answer questions that you ask.  No hard feelings, of course, but I'm done.

 

 

 

Mr. Honemann, in the very first post the bylaw dictates that the Board, and only the Board, may hire an attorney.  Clearly, the Club cannot authorize the appointment of the attorney.  That is what the passage refers to. 

Again, the point of order is the what is being asked to be paid, is something (the hiring of the attorney) that the Board did not authorize according to bylaws and something that the Club cannot authorize (the hiring to the attorney), according to the bylaws.   I am not taking a position on if the point of order should or should not be well taken. 

 

[J. J.]

On 4/10/2022 at 3:36 PM, Joshua Katz said:

Aren't we really getting at this question: when a body adopts a motion that is void ab initio (although it is not clear to me that a motion adopted at a meeting that is, unbeknownst to those present, inquorate, is in fact void as opposed to voidable), and others outside the body act in reliance on it, may the body notice the invalidity and take action based on it? (From a parliamentary, not legal, standpoint, that is.) Isn't that what both questions are about, at core?

Yes, but also a question of when the circumstances permit the other body to act. 

[smb]

Is the hiring of the attorney null and void ab initio or is it simply voidable?  At 40:6 RONR states null and void. But the remedy for such a continuing violation  [23:6, 23:9] is that the action must be declared null and void if a point of order is raised at a subsequent meeting of the Board and the point of order is sustained.   Alternatively,  the members can adopt an incidental main motion to declare the board's action null and void. [23:9].  So....if the Board has not yet met again, and the assembly has met but did not so declare, just what is the status of the action? And, what if the board meets at the next quarter, and no member of the board raises a point of order?

Inquiring minds simply want to know....

[Dan Honemann]

J.J., I apologize for the tone of that last post of mine. I honestly don't think that I have misunderstood any of the facts you have presented, but I confess that I did become overly frustrated with the way in which they had to be elicited, and how the question changed. 

Here is your original statement of facts, in its entirety:

The Club has a Board, which meets quarterly and regular Club meeting monthly.  There is no provision for special meetings of either body

The bylaws provide that, “The Board shall the sole authority to employ an attorney, though the Club  shall set a limit on payment by a standing rule.”

At the March Board meeting, which lacked a quorum, the Board  voted to hire an attorney.

Later you add this additional fact:

A point of order is raised at the April Club meeting, that the Board hired the attorney at an inquorate meeting.

 and you ask "Is the point of order well taken or not?"

After some prompting, you add these facts:

The previously adopted standing rule authorizes payment for an attorney, once hired.  In March, an inquorate meeting of the Board hired an attorney.  In April, the Club meets, the reporting member of the Board reports that the Board hired X to be the attorney.  A member, suddenly realizing that the Board meeting was inquorate, raises the point of order that the Board's hiring of the attorney is void, because the meeting lacked a quorum. 

Then, after being advised as to why we still don't get to a question as to whether or not this point of order is well taken since the point of order itself is not in order, you add even more additional facts:

Okay, sometime between the April and May Club meetings, the attorney send in a bill, which is well beneath the limit in the standing rule.

At the May Club meeting, a motion "that the bill for the attorney's services be paid." 

A member raises a point of order that this motion is out of order, because the Board did not adopt the motion to hire the attorney at a quorate meeting.  

and ask: "Should this point be well taken (my emphasis added)?"

Note that not only has your statement of facts been expanded upon in a piecemeal fashion, the point of order about which you inquire has itself been changed.

So anyway, my answer to this final question remains as I said. I would rule the point of order not well taken.

As I understand it, the point of order is that the motion "that the bill for the attorney's services be paid" is not in order because the Board did not adopt the motion to hire the attorney at a quorate meeting. Even if it can be established that this assertion is correct, the invalidity of the Board's action does not mean that the motion "that the bill for the attorney's services be paid" is not in order. Members may regard the invalidity of the Board's action as a good reason to vote against the motion that the attorney's bill be paid (I certainly would not 🙂), but it does not mean that the motion itself is not in order. 

One caveat. You did tell us that the previously adopted standing rule "authorizes payment for an attorney, once hired." If this standing rule (which we haven't seen), properly understood, actually means that an attorney's bill submitted under circumstances such as are described here cannot be paid, then I would have to say that the motion is not in order. I think the bill will eventually have to be paid, but that's another matter.

 

 

 

 

 

[J. J.]

Thank you for the apology.

The situation does change, but the rules do not.  Also the changes in the situation is what would normally be expected.  The inquorate meeting hires an attorney, the attorney does work for the society, and the attorney sends in a bill for that work.  Certainly, if the Board has a properly called, quorate meeting and ratifies the action, that will change the answer as well. 

The standing rule authorizes payment for an attorney that has been hired by the board.  It limits the amount that can be charged per hour and the total number of hours that can be charged.  The attorney's bill is well below these limits, so that is not an issue.  

In any event, the motion to pay the attorney is pending at the May Club meeting and the point of order raised that the motion is out of order to pay the bill because the Board did not vote to hire the attorney at a quorate meeting.  Is the point of order well taken, or not well taken? 

[Dan Honemann]

On 4/11/2022 at 10:06 AM, J. J. said:

Thank you for the apology.

The situation does change, but the rules do not.  Also the changes in the situation is what would normally be expected.  The inquorate meeting hires an attorney, the attorney does work for the society, and the attorney sends in a bill for that work.  Certainly, if the Board has a properly called, quorate meeting and ratifies the action, that will change the answer as well. 

The standing rule authorizes payment for an attorney that has been hired by the board.  It limits the amount that can be charged per hour and the total number of hours that can be charged.  The attorney's bill is well below these limits, so that is not an issue.  

In any event, the motion to pay the attorney is pending at the May Club meeting and the point of order raised that the motion is out of order to pay the bill because the Board did not vote to hire the attorney at a quorate meeting.  Is the point of order well taken, or not well taken? 

I believe that the response I just posted fully answers your question.

[J. J.]

On 4/11/2022 at 10:43 AM, Dan Honemann said:

I believe that the response I just posted fully answers your question.

Then the point of order is well taken and the chair's decision is sustained upon appeal.  If that is not your ruling, please indicate that.  I do not wish to misrepresent it. 

In June, the Board meets at a properly called, quorate meeting and ratifies the action taken at the March Board meeting.

At the July Club meeting the attorney's bill is presented to the Club for payment authorization.  A member raises a point of order that because the issue was decided at the May Club meeting that the motion to pay the bill was out of order.  Should the point of order be well taken?