Question on getting a quorum. Rule 40.7

[Drake Savory]

We have all seen the posts.  For example, The Board requires 6 members (specifically, not written as "a majority") for a quorum but 7 of the 11 resigned so they only have 4 members left - or some variation thereof.  Let's assume a couple of things for a second:

1)  Those 7 are not going to come to a meeting to make a quorum to accept their resignation OR a reasonable time has passed OR there is an alternate way to resign like a written notice to the President. 

2)  The Board is allowed to fill vacancies on their own.

Under Rule 40.7 this hypothetical Board can "take measures to obtain a quorum".  

Given these circumstances, why wouldn't this allow them to accept resignations (if necessary) and appoint two new 2 members (in this example) to obtain a quorum?

[Josh Martin]

On 7/21/2022 at 2:09 PM, Drake Savory said:

We have all seen the posts.  For example, The Board requires 6 members (specifically, not written as "a majority") for a quorum but 7 of the 11 resigned so they only have 4 members left - or some variation thereof.  Let's assume a couple of things for a second:

1)  Those 7 are not going to come to a meeting to make a quorum to accept their resignation OR a reasonable time has passed OR there is an alternate way to resign like a written notice to the President. 

2)  The Board is allowed to fill vacancies on their own.

Under Rule 40.7 this hypothetical Board can "take measures to obtain a quorum".  

Given these circumstances, why wouldn't this allow them to accept resignations (if necessary) and appoint two new 2 members (in this example) to obtain a quorum?

The phrase "take measures to obtain a quorum" refers to measures to get members who are not currently present to come to the meeting. It is not an authorization for an assembly to accept resignations or appoint members to fill vacancies in the absence of a quorum. The meaning of the phrase "take measures to obtain a quorum" is explained in 40:8.

"A motion that absent members be contacted during a recess would represent a measure to obtain a quorum. A motion to obtain a quorum may be moved as a main motion when no business is pending, or as a privileged motion that takes precedence over a motion to Recess (20). Such motions are out of order when another has the floor; must be seconded; are debatable except when privileged; are amendable; require a majority vote; and can be reconsidered. Motions to obtain a quorum are similar to a Call of the House, which can be ordered in assemblies having the power to compel attendance (see below)." RONR (12th ed.) 40:8

Edited July 21, 2022 at 07:20 PM by Josh Martin

[Drake Savory]

That's what I thought given the context of Rule 40.7 as too an inquorate meeting.  I was just wondering if there could be a larger implication if it was impossible to obtain a quorum given the assembly's rules that could be fixed through motions. 

[Josh Martin]

On 7/21/2022 at 2:30 PM, Drake Savory said:

That's what I thought given the context of Rule 40.7 as too an inquorate meeting.  I was just wondering if there could be a larger implication if it was impossible to obtain a quorum given the assembly's rules that could be fixed through motions. 

Well, I wouldn't actually describe the situation you discuss in your original post as "impossible" to obtain a quorum - just difficult. In the circumstances you describe, the board has sufficient members to obtain a quorum, however, some of those members are unwilling to attend meetings. Perhaps some of those members can be persuaded to attend one last meeting so that the board can accept the resignations. In the alternative, it may be necessary for the general membership to step in. In my view, the general membership could accept the resignations in the circumstances described. The general membership also could (and probably should) amend the bylaws to change the quorum requirement.

RONR does have one out for a situation in which it is truly impossible to obtain a quorum requirement. If every member of an assembly is present, and that assembly has the power to set its own quorum, the assembly may suspend the rules which prevent the assembly from conducting business in the absence of a quorum.

"For example, the rules requiring the presence of a quorum, restricting business transacted at a special meeting to that mentioned in the call of the meeting, and requiring previous notice of a proposed amendment to the bylaws protect absentees, if there are any, and cannot be suspended when any member is absent.

An elected or appointed body that lacks the authority to determine its own quorum may not suspend the quorum requirement, even if all members are present." RONR (12th ed.) 25:10, 25:10n8, emphasis added

An organization could also adopt workarounds in its bylaws if it desires. There may also be solutions in applicable law.

Edited July 21, 2022 at 09:45 PM by Josh Martin

[Drake Savory]

On 7/21/2022 at 3:44 PM, Josh Martin said:

Well, I wouldn't actually describe the situation you discuss in your original post as "impossible" to obtain a quorum - just difficult. In the circumstances you describe, the board has sufficient members to obtain a quorum, however, some of those members are unwilling to attend meetings.

Not necessarily.  Suppose the bylaws allow resignations upon written notice to the President?  They could resign and completely bypass having to make the motion to be Excused from Duty.  If that were to happen it would be impossible to get a quorum.

[Josh Martin]

On 7/26/2022 at 2:15 PM, Drake Savory said:

Not necessarily.  Suppose the bylaws allow resignations upon written notice to the President?  They could resign and completely bypass having to make the motion to be Excused from Duty.  If that were to happen it would be impossible to get a quorum.

Yes, in those circumstances, I suppose it would be impossible for the board to obtain a quorum.

[Drake Savory]

On 7/26/2022 at 4:39 PM, Josh Martin said:

Yes, in those circumstances, I suppose it would be impossible for the board to obtain a quorum.

So then if impossible, what can the Board do if it cannot "take measures to obtain a quorum".

[Josh Martin]

On 7/27/2022 at 2:57 PM, Drake Savory said:

So then if impossible, what can the Board do if it cannot "take measures to obtain a quorum".

RONR does have one out for a situation in which it is truly impossible to obtain a quorum requirement. If every member of an assembly is present, and that assembly has the power to set its own quorum, the assembly may suspend the rules which prevent the assembly from conducting business in the absence of a quorum.

"For example, the rules requiring the presence of a quorum, restricting business transacted at a special meeting to that mentioned in the call of the meeting, and requiring previous notice of a proposed amendment to the bylaws protect absentees, if there are any, and cannot be suspended when any member is absent.

An elected or appointed body that lacks the authority to determine its own quorum may not suspend the quorum requirement, even if all members are present." RONR (12th ed.) 25:10, 25:10n8, emphasis added

An organization could also adopt workarounds in its bylaws if it desires. There may also be solutions in applicable law.

[J. J.]

 

On 7/21/2022 at 3:09 PM, Drake Savory said:

We have all seen the posts.  For example, The Board requires 6 members (specifically, not written as "a majority") for a quorum but 7 of the 11 resigned so they only have 4 members left - or some variation thereof.  Let's assume a couple of things for a second:

1)  Those 7 are not going to come to a meeting to make a quorum to accept their resignation OR a reasonable time has passed OR there is an alternate way to resign like a written notice to the President. 

2)  The Board is allowed to fill vacancies on their own.

Under Rule 40.7 this hypothetical Board can "take measures to obtain a quorum".  

Given these circumstances, why wouldn't this allow them to accept resignations (if necessary) and appoint two new 2 members (in this example) to obtain a quorum?

One solution would be for the board to accept the resignations, fill sufficient vacancies (3 in this case) to have a quorum, and, at a future quorate meeting, ratify the action.  That is not an application of 40:7, however.

[Weldon Merritt]

On 7/28/2022 at 7:09 AM, J. J. said:

 

One solution would be for the board to accept the resignations, fill sufficient vacancies (3 in this case) to have a quorum, and, at a future quorate meeting, ratify the action.  That is not an application of 40:7, however.

Unless I am misunderstanding what you mean, I don't see how that would work. If the board didn't have a quorum when they filled the vacancies, the ones appointed to fill the vacancies would not be validly appointed and thus would not be legitimate members who could vote to ratify the board's action.

[Josh Martin]

On 7/28/2022 at 8:09 AM, J. J. said:

One solution would be for the board to accept the resignations, fill sufficient vacancies (3 in this case) to have a quorum, and, at a future quorate meeting, ratify the action.  That is not an application of 40:7, however.

Who would be considered "members" of the board at the later meeting for purposes of determining the presence of a quorum?

[Dan Honemann]

On 7/28/2022 at 9:09 AM, J. J. said:

 

One solution would be for the board to accept the resignations, fill sufficient vacancies (3 in this case) to have a quorum, and, at a future quorate meeting, ratify the action.  That is not an application of 40:7, however.

 

On 7/28/2022 at 9:23 AM, Josh Martin said:

Who would be considered "members" of the board at the later meeting for purposes of determining the presence of a quorum?

I can understand why Mr. Martin is asking this question.

This suggested solution won't work if "at a future quorate meeting" reference is made to a meeting, say the next meeting of the board, where it will be necessary to count the members elected to fill the vacancies at the previous inquorate meeting in order to have a quorum. 

[Gary Novosielski]

I think the "future quorate meeting"  would have to be a meeting of the general membership, who presumably do have the power to elect board members, and would be empowered to ratify the actions taken by the board.

They could also fail to ratify, and substitute their own choices for those of the board.

Edited July 28, 2022 at 04:28 PM by Gary Novosielski

[J. J.]

On 7/28/2022 at 10:02 AM, Dan Honemann said:

 

I can understand why Mr. Martin is asking this question.

This suggested solution won't work if "at a future quorate meeting" reference is made to a meeting, say the next meeting of the board, where it will be necessary to count the members elected to fill the vacancies at the previous inquorate meeting in order to have a quorum. 

Unless that there was another body that could fill vacancies, I see no way around it. 

The quorum is fixed at a specific number, that cannot be reached, unless the assembly appoints members at an inquorate meeting. 

[Josh Martin]

On 7/28/2022 at 12:15 PM, J. J. said:

Unless that there was another body that could fill vacancies, I see no way around it. 

The quorum is fixed at a specific number, that cannot be reached, unless the assembly appoints members at an inquorate meeting. 

The society's membership could address the issue, such as by amending the bylaws to change the quorum or to create a workaround for the situation of filling vacancies. I am also inclined to think that in these circumstances, the membership could fill the vacancies. It may also be that there is a workaround in applicable law.

There is, however, no workaround for this situation in RONR, unless the board is empowered to set its own quorum. (In this case, since the quorum is set in the bylaws, that would mean if the board is authorized to amend the bylaws.) In such a case, the board could act if all members of the board are present.

[J. J.]

On 7/29/2022 at 10:44 AM, Josh Martin said:

The society's membership could address the issue, such as by amending the bylaws to change the quorum or to create a workaround for the situation of filling vacancies. I am also inclined to think that in these circumstances, the membership could fill the vacancies. It may also be that there is a workaround in applicable law.

There is, however, no workaround for this situation in RONR, unless the board is empowered to set its own quorum. (In this case, since the quorum is set in the bylaws, that would mean if the board is authorized to amend the bylaws.) In such a case, the board could act if all members of the board are present.

You make the assumption that the society could meet, could amend the bylaws or that there would be applicable statute.  I do not, in this situation.  (I will agree that if there is another body of the society's membership it that may provide a solution. 

I would cite Question 107 in Parliamentary Law as the rational, and, to paraphrase several jurists, contend that a parliamentary authority is not a suicide pact.  Note that the filling of the vacancies would require notice to all current members, including those that have submitted a resignation.

[Josh Martin]

On 7/29/2022 at 10:08 AM, J. J. said:

You make the assumption that the society could meet, could amend the bylaws or that there would be applicable statute.  I do not, in this situation.  (I will agree that if there is another body of the society's membership it that may provide a solution. 

I would cite Question 107 in Parliamentary Law as the rational, and, to paraphrase several jurists, contend that a parliamentary authority is not a suicide pact.  Note that the filling of the vacancies would require notice to all current members, including those that have submitted a resignation.

I would note that for the organization to take this action would violate its own bylaws, not just RONR.

I nonetheless agree that there may well be circumstances in which, due to the unwise rules an organization has drafted combined with unusual circumstances, a situation may arise in which there is no path forward which is fully in compliance with the organization's rules. In such a case, the organization may well choose to take an action which is not in compliance with the rules. The solution you have suggested is one such possibility, but may not be the only possibility or best possibility. That will require a careful review of the particular facts and circumstances of a given situation.

I take no issue with any of this, but such a path is outside of the rules and is not a workaround which is found in RONR.

Edited July 29, 2022 at 04:07 PM by Josh Martin

[J. J.]

On 7/29/2022 at 12:05 PM, Josh Martin said:

I would note that for the organization to take this action would violate its own bylaws, not just RONR.

I nonetheless agree that there may well be circumstances in which, due to the unwise rules an organization has drafted combined with unusual circumstances, a situation may arise in which there is no path forward which is fully in compliance with the organization's rules. In such a case, the organization may well choose to take an action which is not in compliance with the rules. The solution you have suggested is one such possibility, but may not be the only possibility or best possibility. That will require a careful review of the particular facts and circumstances of a given situation.

I take no issue with any of this, but such a path is outside of the rules and is not a workaround which is found in RONR.

I do not believe that, once ratified, there is a violation of the bylaws. 

Up to the point of ratification, a point of order could technically be raised, though you could say the same thing regarding any action taken at an inquorate meeting and not yet ratified. 

[Drake Savory]

Thinking on this some more:

Let's say the membership will meet at an annual convention.  Sure the membership can take action then and so it is not impossible to have a quorum eventually once they deal with the problem.  Taking that approach, does it mean the Board does not function until the membership takes care of it no matter how far out the annual meeting is?  Also, if it is acknowledged that the Board cannot function because it is impossible to obtain a quorum (until the annual meeting), then what body/person performs the function of the Board.  I'd assume the President but that assumption is based on the idea that absent any other rule, the President is responsible for maintaining the society.  But of course assumptions are not rules.

On 7/29/2022 at 9:08 AM, J. J. said:

Note that the filling of the vacancies would require notice to all current members, including those that have submitted a resignation.

And if there is an alternate way to resign outside of RONR and so the members do not have to accept it to be effective, then this would be the remaining members of the now inquorate Board, correct?

[Gary Novosielski]

On 7/29/2022 at 2:12 PM, Drake Savory said:

Let's say the membership will meet at an annual convention.  Sure the membership can take action then and so it is not impossible to have a quorum eventually once they deal with the problem.  Taking that approach, does it mean the Board does not function until the membership takes care of it no matter how far out the annual meeting is?  Also, if it is acknowledged that the Board cannot function because it is impossible to obtain a quorum (until the annual meeting), then what body/person performs the function of the Board.  I'd assume the President but that assumption is based on the idea that absent any other rule, the President is responsible for maintaining the society.  But of course assumptions are not rules.

I assume you mean an annual general meeting.  The members of a convention are the delegates, not the entire membership of the organization.

If the board cannot achieve a quorum then it can't conduct business.  Presumably "no matter how far" would always mean less than a year.  But if the bylaws permit it, a special meeting of the membership may be called for the purpose of filling vacancies on the board. It may also be possible to call a special meeting to amend the bylaws and repair the language relating to a quorum.

No, the president does not gain superpowers because the board has lost a quorum

 

On 7/29/2022 at 2:12 PM, Drake Savory said:

And if there is an alternate way to resign outside of RONR and so the members do not have to accept it to be effective, then this would be the remaining members of the now inquorate Board, correct?

If there is a way outside of RONR, then it would be in your bylaws.

[Drake Savory]

On 7/29/2022 at 12:32 PM, Gary Novosielski said:

I assume you mean an annual general meeting.  The members of a convention are the delegates, not the entire membership of the organization.

Maybe.  The society may allow for delegates at a convention to act for the membership.

 

On 7/29/2022 at 12:32 PM, Gary Novosielski said:

If there is a way outside of RONR, then it would be in your bylaws.

True but then there are two different answers.  If the only rule applying to resignations is RONR then it is not impossible (just improbable) to obtain a quorum.  If other rules apply for resignations to be effecting (not an unreasonable scenario) then it would be impossible to get a quorum thus the whole idea behind the OP. 

[Josh Martin]

On 7/29/2022 at 12:48 PM, J. J. said:

I do not believe that, once ratified, there is a violation of the bylaws. 

Up to the point of ratification, a point of order could technically be raised, though you could say the same thing regarding any action taken at an inquorate meeting and not yet ratified. 

Yes, but they're not really the same thing. In the ordinary case, an assembly lacks a quorum because some members are absent. The assembly then, at a future meeting where additional members are present and there is a quorum, proceeds to ratify the action.

What you are proposing is that the assembly would appoint additional members at an inquorate meeting, the assembly would then treat these persons as "members" (notwithstanding that their election has not yet been ratified) and proceed to ratify the election on the basis that the assembly now has a "quorum".

In my view, this is not a permissible use of ratification.

On 7/29/2022 at 1:12 PM, Drake Savory said:

Let's say the membership will meet at an annual convention.  Sure the membership can take action then and so it is not impossible to have a quorum eventually once they deal with the problem.  Taking that approach, does it mean the Board does not function until the membership takes care of it no matter how far out the annual meeting is?

As a parliamentary matter, and assuming there is nothing to the contrary in the organization's rules or applicable law, yes.

On 7/29/2022 at 1:12 PM, Drake Savory said:

Also, if it is acknowledged that the Board cannot function because it is impossible to obtain a quorum (until the annual meeting), then what body/person performs the function of the Board.  I'd assume the President but that assumption is based on the idea that absent any other rule, the President is responsible for maintaining the society. 

I am not certain what you are basing this statement on. RONR says no such thing. Except to the extent the organization's rules provide otherwise, the President's sole duties and authority are those in connection with serving as presiding officer.

"All of the duties of the presiding officer described above relate to the function of presiding over the assembly at its meetings. In addition, in many organized societies, the president has duties as an administrative or executive officer; but these are outside the scope of parliamentary law, and the president has such authority only insofar as the bylaws provide it." RONR (12th ed.) 47:20

RONR does not grant any body or person the authority to assume the full authority and duties granted to the board under the organization's bylaws, and I find it unlikely the organization's rules have such a provision either. It may well be that that the officers and employees of the organization (and the Executive Committee, if there is one and that body can obtain a quorum) may be able to perform certain functions of the board.

You can keep digging at this as much as you like, but RONR does not (and cannot) help an organization escape a trap created by its own bylaws, since the bylaws take precedence over RONR. Any such solution will need to be found either in the organization's bylaws or applicable law, or by taking actions outside of the rules.

On 7/29/2022 at 1:12 PM, Drake Savory said:

And if there is an alternate way to resign outside of RONR and so the members do not have to accept it to be effective, then this would be the remaining members of the now inquorate Board, correct?

While I disagree with J.J. that an inquorate board may fill vacancies in the manner he describes, certainly it is the case that notice of an election to fill vacancies is sent to all members of the assembly which shall conduct that election.

On 7/29/2022 at 1:48 PM, Drake Savory said:

True but then there are two different answers.  If the only rule applying to resignations is RONR then it is not impossible (just improbable) to obtain a quorum.  If other rules apply for resignations to be effecting (not an unreasonable scenario) then it would be impossible to get a quorum thus the whole idea behind the OP. 

Yes, if an organization creates its own customized rules, it is certainly the case that this may create problems not contemplated by RONR.

Edited July 29, 2022 at 08:31 PM by Josh Martin

[Gary Novosielski]

On 7/29/2022 at 2:48 PM, Drake Savory said:

Maybe.  The society may allow for delegates at a convention to act for the membership.

Even if every member of the society is a delegate, the convention is still a different body that the general, membership even if it is authorized to "act for" the membership.

An annual general meeting and an annual convention are therefore different concepts.  I'll grant you that some organizations incorrectly conflate the two words.

 

On 7/29/2022 at 2:48 PM, Drake Savory said:

[regarding rules outside RONR]

True but then there are two different answers.  If the only rule applying to resignations is RONR then it is not impossible (just improbable) to obtain a quorum.  If other rules apply for resignations to be effecting (not an unreasonable scenario) then it would be impossible to get a quorum thus the whole idea behind the OP. 

Under the rules in RONR, resignations must be accepted to be effective.

If you're talking about rules outside RONR, then there are few choices.  Primarily, the bylaws can set the method and rules of resignation.  Also, special rules of order, state statutes, corporate codes, and case law can provide alternatives, and would supersede the rules in RONR.

But if the only rule on resignation is found in RONR, i.e., if none of those other rules exist, then yes it is impossible to achieve a quorum when RONR says otherwise.  Probability doesn't enter into it. 

So if there is only one rule there are not two different answers.

[Drake Savory]

Since there is a lot of talk about going by the RONR rulebook for accepting resignation (which I think needlessly muddies the waters of the true question) let's go that route.

Quorum of 6 (not a "majority") needed for an 11 person board.  7 resign effective immediately and all 11 vote to accept their resignations.    

What now?

[Gary Novosielski]

On 7/30/2022 at 12:08 AM, Drake Savory said:

Quorum of 6 (not a "majority") needed for an 11 person board.  7 resign effective immediately and all 11 vote to accept their resignations.    

What now?

Now very little would be in order except a motion to Adjourn.  

And the membership might consider the wisdom of removing that quorum requirement from the bylaws.