Question on getting a quorum. Rule 40.7

[J. J.]

On 7/29/2022 at 4:14 PM, Josh Martin said:

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.

 

They are the same thing.  Do not conventions have to determine who their members are prior to dealing with a convention.  A convention can determine who the members are prior to establishing if the convention has a quorum? 

Notice must be given to fill the vacancy, so those people whose resignation has not been accepted would get that notice in the first instance.  I would ratification of some action that required notice for being adopted at a regular meeting may need notice to be ratified at a regular meeting.

I am suggesting that, after ratification, it would be too late to raise a point of order.  That would be consistent with PL Q & A 107.

[J. J.]

On 7/30/2022 at 1:46 AM, Gary Novosielski said:

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.

What if this Board is the only group that could amend the bylaws or, at least, must also approve them. 

I have seen some situations where either the board must approve bylaw amendments and that the board is the body with the power to call a membership meeting. 

[Gary Novosielski]

On 7/30/2022 at 1:52 AM, J. J. said:

What if this Board is the only group that could amend the bylaws or, at least, must also approve them. 

I have seen some situations where either the board must approve bylaw amendments and that the board is the body with the power to call a membership meeting. 

At some point the scourge of poorly drafted bylaws becomes irremediable.

[Josh Martin]

On 7/29/2022 at 11:08 PM, Drake Savory said:

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?

One would hope that someone would point out that the board should delay accepting some of the resignations until the board can find replacements, due to the organization's unfortunate rule requiring a fixed number of board members for a quorum, but if this is not done, then the end result is much the same - the board is "stuck."

Setting the quorum at a fixed number is the bigger problem here. An organization should not set a fixed number for the quorum for its board, unless the organization wants to prevent the board from acting if it falls below that number, and in that event, some mechanism should be created to fill those vacancies - either by the membership or by adding a provision which permits the board members to fill vacancies notwithstanding that the board has fallen below the prescribed quorum.

On 7/30/2022 at 12:48 AM, J. J. said:

They are the same thing.  Do not conventions have to determine who their members are prior to dealing with a convention.  A convention can determine who the members are prior to establishing if the convention has a quorum? 

Yes, they do, because a convention is a body which is established anew with each convention, as opposed to a board which is an assembly with a defined, continuing membership. There is not a new decision at each board meeting regarding which persons are members of the board.

On 7/30/2022 at 12:52 AM, J. J. said:

What if this Board is the only group that could amend the bylaws or, at least, must also approve them. 

If the board can amend the bylaws, then this means the board has the authority to set its own quorum, and may therefore suspend the requirement if all members of the board are present.

[Dan Honemann]

J.J., you appear to be saying two different things at the same time, but I do not think that you intend to do so.  Forgive me for returning now to the earliest portion of this rather lengthy thread.

This is your original post:

"One solution would be for the board to accept the resignations, fill sufficient vacancies (3 [sic] 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."

Here you seem to be saying that the procedure you have described is legitimate and in compliance with the rules. Virtually no one will agree that this is so if the "future quorate meeting" to which you refer depends, for its quorum, upon the presence of the three persons elected at the inquorate meeting to fill vacancies.  However, by your later reference to Q&A 107 in PL, I think you are admitting that your suggested procedure is not, in fact, in compliance with the bylaws but is, as General Robert described his suggested solution, in compliance "with the spirit of" the existing bylaws as nearly as possible or practicable.  General Robert freely admits that his suggested procedure violates the rule that voting by mail is not allowed unless it is provided for in the bylaws.

Do you admit that your suggested procedure violates the rule requiring the presence of a quorum in order to fill any vacancies in office?

 

[J. J.]

On 7/30/2022 at 8:24 AM, Dan Honemann said:

J.J., you appear to be saying two different things at the same time, but I do not think that you intend to do so.  Forgive me for returning now to the earliest portion of this rather lengthy thread.

This is your original post:

"One solution would be for the board to accept the resignations, fill sufficient vacancies (3 [sic] 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."

Here you seem to be saying that the procedure you have described is legitimate and in compliance with the rules. Virtually no one will agree that this is so if the "future quorate meeting" to which you refer depends, for its quorum, upon the presence of the three persons elected at the inquorate meeting to fill vacancies.  However, by your later reference to Q&A 107 in PL, I think you are admitting that your suggested procedure is not, in fact, in compliance with the bylaws but is, as General Robert described his suggested solution, in compliance "with the spirit of" the existing bylaws as nearly as possible or practicable.  General Robert freely admits that his suggested procedure violates the rule that voting by mail is not allowed unless it is provided for in the bylaws.

Do you admit that your suggested procedure violates the rule requiring the presence of a quorum in order to fill any vacancies in office?

 

I think this consistent with PL Q&A 107.  Gen. Robert described it as "the only thing that could be done."  I will agree that if other methods internal to the society can be taken, this principle would not apply. 

I am also suggesting than any time a main motion is taken at a meeting without a quorum, such action is subject to a point of order on that ground, until ratified. After ratification, it could not be subject to a point of order on that particular ground. 

[Dan Honemann]

On 7/30/2022 at 8:24 AM, Dan Honemann said:

Do you admit that your suggested procedure violates the rule requiring the presence of a quorum in order to fill any vacancies in office?

 

On 7/30/2022 at 8:52 AM, J. J. said:

I think this consistent with PL Q&A 107.  Gen. Robert described it as "the only thing that could be done."  I will agree that if other methods internal to the society can be taken, this principle would not apply. 

I am also suggesting than any time a main motion is taken at a meeting without a quorum, such action is subject to a point of order on that ground, until ratified. After ratification, it could not be subject to a point of order on that particular ground. 

I'll ask again, do you admit that your suggested procedure violates the rule requiring the presence of a quorum in order to fill any vacancies in office?

Or perhaps I should be asking, do you admit that your suggested procedure violates the rule requiring the presence of a quorum in order to ratify action previously taken in the absence of a quorum?

Edited July 30, 2022 at 01:09 PM by Dan Honemann
Added the second question.

[J. J.]

On 7/30/2022 at 7:07 AM, Josh Martin said:

If the board can amend the bylaws, then this means the board has the authority to set its own quorum, and may therefore suspend the requirement if all members of the board are present.

Please not two very real problems.  The board may not have the authority to amend the bylaws alone, it may be shared.  Both the Board and the parent assembly may have to take action to approve bylaw amendments. 

Second, in something fairly common in my experience, the Board may be the only entity that can call meetings of the parent assembly.   This is particularly true with societies that meet annually, or less frequency.  

[J. J.]

On 7/30/2022 at 9:04 AM, Dan Honemann said:

 

I'll ask again, do you admit that your suggested procedure violates the rule requiring the presence of a quorum in order to fill any vacancies in office?

Or perhaps I should be asking, do you admit that your suggested procedure violates the rule requiring the presence of a quorum in order to ratify action previously taken in the absence of a quorum?

At the point where the action is ratified, I do not believe it does.  At the moment of ratification, the quorum is present.  After that point, there would be no breach of a continuing nature. 

[Dan Honemann]

On 7/30/2022 at 9:21 AM, J. J. said:

At the point where the action is ratified, I do not believe it does.  At the moment of ratification, the quorum is present.  After that point, there would be no breach of a continuing nature. 

But J.J., there is no "moment of ratification" because the presence of a quorum is necessary for there to be any ratification.

[J. J.]

On 7/30/2022 at 10:03 AM, Dan Honemann said:

But J.J., there is no "moment of ratification" because the presence of a quorum is necessary for there to be any ratification.

I am saying that there is.   That is an consistent principle with Q & A 107 and with the rules relating to initial seating of delegates in conventions. 

When an action is taken at a previous meeting that is inquorate, it can be challenged by a point of order/appeal.  Until challenged, it is an act of the assembly.  If there is ratification, it can no longer be challenged by a point of order, on that ground. 

Edited July 30, 2022 at 03:12 PM by J. J.

[Atul Kapur]

On 7/30/2022 at 9:04 AM, Dan Honemann said:

 

I'll ask again, do you admit that your suggested procedure violates the rule requiring the presence of a quorum in order to fill any vacancies in office?

Or perhaps I should be asking, do you admit that your suggested procedure violates the rule requiring the presence of a quorum in order to ratify action previously taken in the absence of a quorum?

 

On 7/30/2022 at 9:21 AM, J. J. said:

At the point where the action is ratified, I do not believe it does.  At the moment of ratification, the quorum is present.  After that point, there would be no breach of a continuing nature. 

Except that the "ratification" creates its own continuing breach because ineligible votes were counted, those of the invalidly appointed replacements, in violation of an FPPL.

You are trying to patch a hole on the starboard side of a rowboat by using wood obtained by tearing planks off the port side. It's a different hole, but you are (or this organization is) still sinking.

Edited July 30, 2022 at 03:44 PM by Atul Kapur

[J. J.]

On 7/30/2022 at 11:43 AM, Atul Kapur said:

 

Except that the "ratification" creates its own continuing breach because ineligible votes were counted, those of the invalidly appointed replacements, in violation of an FPPL.

You are trying to patch a hole on the starboard side of a rowboat by using wood obtained by tearing planks off the port side. It's a different hole, but you are (or this organization is) still sinking.

I do not agree that it would. 

To the point where ratification is adopted, these are legitimate members, absent a point of order.  After ratification it becomes too late to claim that these are not legitimate members because their appointments were made at an inquorate meeting.

Except for those motions mentioned in 40:7, any motion adopted at an inquorate meeting becomes binding on the assembly until it is challenged by a point of order.  The board, accepts the resignations, and, with notice, appoints members to fill the vacancy.  At that point, they are members, unless there is a point of order raised that they are not legitimately appointed.

At a future meeting, again with notice, it ratifies the acceptance of the resignations and the appointment of replacements. At the points where those motions are made and until the second motion is adopted adopted, they are members, because there is no point of order that they are not members. 

After ratification, you would be trying to deprive legitimate members of their rights of membership. without disciplinary action. 

If a motion adopted at an inquorate meeting was completely null and void, you would not need the motion to ratify at all in that context.  The assembly simply renew the motion. 

[Drake Savory]

As much as I want to love J.J.'s logic, I have to agree with Messrs. Honemann & Kapur that with that logic it becomes an inquorate meeting making a null and void ratification.  If it were truly impossible to get a quorum and to accomplish the same end as J.J. to make the assembly functional again, I'd rather use the logic that appointing a minimum number of new members was a measure necessary to obtain a quorum under 40:7 and suffer The Wrath of Dan(tm).

[Dan Honemann]

I believe that, with J.J.'s last post, I finally understand what he has been getting at all along.  I myself, among others, have often maintained that actions taken by an officer whose election was null and void for whatever reason (ineligibility, no quorum present when elected, etc.) are not also automatically nullified when it is thereafter determined by the assembly, sometimes many months later (and at a quorate meeting, by the way), that his election was null and void.  But this certainly does not apply to any situation such as this where the election is held with full knowledge that it is null and void, and the subsequent action taken by the officer is to vote to ratify his admittedly void election at a meeting which depends upon the validity of his election to satisfy its quorum requirement.  This carries things a bit too far, to say the least.  

 

[Atul Kapur]

On 7/30/2022 at 12:14 PM, J. J. said:

Except for those motions mentioned in 40:7, any motion adopted at an inquorate meeting becomes binding on the assembly until it is challenged by a point of order.

Where do you get that impression? Any motion adopted at an inquorate meeting (other than those in 40:7) are examples of "the members present tak[ing] action informally in the absence of a quorum" (40:9) and, therefore, are not⁠—cannot be⁠—binding on the assembly. 

Even if we accept your apparent principle that ratification can cure all errors, those improperly named "members" of the board were not members when they voted on the ratification, so their votes are those of non-members and should not have been counted. 

As I tried to say with my fishing-boat analogy, you cannot heal a continuing breach with another continuing breach.

 

[Josh Martin]

On 7/30/2022 at 12:48 PM, Drake Savory said:

As much as I want to love J.J.'s logic, I have to agree with Messrs. Honemann & Kapur that with that logic it becomes an inquorate meeting making a null and void ratification.  If it were truly impossible to get a quorum and to accomplish the same end as J.J. to make the assembly functional again, I'd rather use the logic that appointing a minimum number of new members was a measure necessary to obtain a quorum under 40:7 and suffer The Wrath of Dan(tm).

But RONR is clear, in the very next paragraph, what is meant by "measures to obtain a quorum," and this isn't it.

"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

If one were to pretend 40:8 didn't exist, then I suppose I can see how one might try to "creatively" interpret 40:7, but since it does exist, I do not see how it can reasonably be concluded that the rule includes appointing members to fill vacancies.

[J. J.]

On 7/30/2022 at 4:05 PM, Atul Kapur said:

Where do you get that impression? Any motion adopted at an inquorate meeting (other than those in 40:7) are examples of "the members present tak[ing] action informally in the absence of a quorum" (40:9) and, therefore, are not⁠—cannot be⁠—binding on the assembly. 

Even if we accept your apparent principle that ratification can cure all errors, those improperly named "members" of the board were not members when they voted on the ratification, so their votes are those of non-members and should not have been counted. 

As I tried to say with my fishing-boat analogy, you cannot heal a continuing breach with another continuing breach.

 

Because, if the motion was invalid, then Ratify would and could not be used.  The motion enacted at the inquorate meeting could simply be made again at a quorate meeting when found null and void.  There would no need to have Ratify apply in any such cases. 

In your analogy, the boat is made smaller, but it still floats.

 

[Atul Kapur]

On 7/30/2022 at 5:36 PM, J. J. said:

Because, if the motion was invalid, then Ratify would and could not be used. 

And that's the point: Ratify cannot be validly used in the situation you describe.

On 7/30/2022 at 5:36 PM, J. J. said:

The motion enacted at the inquorate meeting could simply be made again at a quorate meeting

Except that, in this circumstance, the organization may have locked itself into a situation where they cannot have a quorate meeting. I admire your tenacity in trying to find them a way out of this situation they've created for themselves, but (to steal a reference from another thread) if they're on the Kobayashi Maru, neither you nor Captain Kirk can save them⁠—not within the rules, at least

[J. J.]

On 7/30/2022 at 7:48 PM, Atul Kapur said:

And that's the point: Ratify cannot be validly used in the situation you describe.

Except that, in this circumstance, the organization may have locked itself into a situation where they cannot have a quorate meeting. I admire your tenacity in trying to find them a way out of this situation they've created for themselves, but (to steal a reference from another thread) if they're on the Kobayashi Maru, neither you nor Captain Kirk can save them⁠—not within the rules, at least

You do not understand.  You could never use Ratify to approve anything done at an inquorate meeting, if you were correct. 

Ratify, as applied here, basically says, **From the time the meeting without a quorum took this action, that action is valid.**  Once the action has been declared valid, in regard to the absence of a quorum, it cannot be challenged on that ground. 

You see the same thing in a convention, where the body, not yet having members, has to approve who the members are.  The  late Dr. Stackpole use to refer to this as a "bootstrap" effect. 

[Dan Honemann]

On 7/31/2022 at 8:40 AM, J. J. said:

You do not understand.  You could never use Ratify to approve anything done at an inquorate meeting, if you were correct. 

J.J., what Dr. Kapur has been saying is that an assembly cannot, at a meeting which lacks a quorum, ratify action previously taken at a meeting which lacked a quorum.  This is undeniably true.

On 7/31/2022 at 8:40 AM, J. J. said:

Ratify, as applied here, basically says, **From the time the meeting without a quorum took this action, that action is valid.**  Once the action has been declared valid, in regard to the absence of a quorum, it cannot be challenged on that ground. 

Assuming the truth of this statement, its truth depends entirely upon the validity of the ratification, and if that ratification occurs at a time when no quorum is present, that "ratification" is itself invalid.

On 7/31/2022 at 8:40 AM, J. J. said:

You see the same thing in a convention, where the body, not yet having members, has to approve who the members are.  The  late Dr. Stackpole use to refer to this as a "bootstrap" effect. 

This is not at all the same thing, as Mr. Martin explained quite some time ago.

 

 

[Dan Honemann]

J.J., if you insist on pursuing this further, we respectfully request that you initiate another thread in order to do so.