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Vacancies blocking quorum


J. J.
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A society meets annually in May.  It elects a board which, in turn, elects a president, secretary, and treasurer from its membership.  Only the assembly can amend the bylaws, with notice. 

The board has general supervision of the society between meetings or the assembly, but it has the sole authority set the day within May, and the time and place of any meeting of the society; there is no provision for special meetings of assembly.  It also has the sole authority to fill vacancies on the board.  The board meets once a month on a day fixed by the bylaws.  It has 9 members and the bylaws say "A quorum of the board shall be six members."  The bylaws specifically require all members to be physically present. 

In late June, the board suffers 5 vacancies, 4 resignations and a death, all of which occurred after the meeting.  The members that have resigned cannot attend any future board meetings. 

The four members that can attend the July meeting accept the resignation of the four members, noting that will be subject to ratification.  The four members then send notice to all surviving members, that they will fill the vacancies at the August meeting.  At the August meeting, they fill the vacancies and then ratify the resignations.  The board gives notice that it will ratify the filling of vacancies.  It fills them at the September meeting. 

What are the problems with doing this under RONR 12th ed,  and would it be be different under the 1915 edition?  If so, why? 

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This is just another round of the discussion of the "black hole" that arises in an organization when the rules are written in such a way that circumstances of varying kinds make it impossible to obtain a quorum.  It is possible to conjure up any number of factual situations, some more complex than others, but the principle is the same:  for business to be validly transacted, a quorum must be present in the one room or area.  I have previously opined, and will do so again, that the solution to the "black hole" is a matter of civil law, not parliamentary procedure.  An attorney in the state having jurisdiction would know how to proceed.

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On 8/1/2022 at 11:53 AM, Rob Elsman said:

This is just another round of the discussion of the "black hole" that arises in an organization when the rules are written in such a way that circumstances of varying kinds make it impossible to obtain a quorum.  It is possible to conjure up any number of factual situations, some more complex than others, but the principle is the same:  for business to be validly transacted, a quorum must be present in the one room or area.  I have previously opined, and will do so again, that the solution to the "black hole" is a matter of civil law, not parliamentary procedure.  An attorney in the state having jurisdiction would know how to proceed.

No one has claimed that the organization is incorporated, so statutory requirements may not apply.

I looked at Parliamentary Law again.  He actually used an example where delegates would be chosen at an inquorate meeting, and apparently could function as delegates, apparently fully voting and counting in the quorum of a convention, even prior to ratification of their election.  It was General Robert's one example for ratifying something at an inquorate meeting.  That is in addition to Q&A 107.

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Whether the society is incorporated or is formed as some other kind of association does not affect my answer.  All the complexities of the original post merely obscure the simple principle that business can only be transacted at a meeting at which there is a quorum present in the one room or area.  All the other rigmarole pertains to the civil law, in my own opinion. 

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On 8/1/2022 at 12:09 PM, J. J. said:

No one has claimed that the organization is incorporated, so statutory requirements may not apply.

So what? Lawyers can and will look into the question as to whether or not contractual or other legal obligations have been violated by the members who resigned.  I realize that you have said that these members cannot attend any future board meetings, but you fail to say why this is so.  

Mr. Elsman continues to make a very relevant point.

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On 8/1/2022 at 12:23 PM, Dan Honemann said:

So what? Lawyers can and will look into the question as to whether or not contractual or other legal obligations have been violated by the members who resigned.  I realize that you have said that these members cannot attend any future board meetings, but you fail to say why this is so.  

Mr. Elsman continues to make a very relevant point.

In one case, the member is dead.  Some other cases can be, the member or members are in comas, they are in prison, they have taken a job on another continent and cannot return, they went missing, or, they do wish to continue involvement in the organization.  In any event, they had some inkling that the problem would arise and submitted a resignation before it happened (or from jail).   I'm not suggesting bad faith, though that could be a reason in some cases.  I am also not suggesting it would be the same reason for all the members.

The question though is a parliamentary one, actually two, not a question of law. 

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On 8/1/2022 at 12:43 PM, J. J. said:

In one case, the member is dead.  Some other cases can be, the member or members are in comas, they are in prison, they have taken a job on another continent and cannot return, they went missing, or, they do wish to continue involvement in the organization.  In any event, they had some inkling that the problem would arise and submitted a resignation before it happened (or from jail).   I'm not suggesting bad faith, though that could be a reason in some cases.  I am also not suggesting it would be the same reason for all the members.

The question though is a parliamentary one, actually two, not a question of law. 

Oh , I agree that these facts have no bearing on anything other than the question as to whether or not these resignations must be accepted, but it may well be quite beside the point because, based upon your statement of facts, the remaining four members, at the July meeting, "accept the resignation of the four members, noting that will be subject to ratification."  In other words, they take this action knowing full well that they have no right to do so.

You then tell us that, at the August meeting, these four members "fill the vacancies and then ratify the resignations."  Aside from the fact that they seem to have the cart before the horse, they obviously have no power to do either of these things, and they know it.

You then tell us that "The board gives notice that it will ratify the filling of vacancies."  By "The board", you must still be referring to these four remaining members who have no power to do anything.  You then say that "It fills them at the September meeting."  I can only conclude that the "It" here refers once again to these four members who still have no power to do anything.

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On 8/1/2022 at 1:42 PM, Dan Honemann said:

Oh , I agree that these facts have no bearing on anything other than the question as to whether or not these resignations must be accepted, but it may well be quite beside the point because, based upon your statement of facts, the remaining four members, at the July meeting, "accept the resignation of the four members, noting that will be subject to ratification."  In other words, they take this action knowing full well that they have no right to do so.

You then tell us that, at the August meeting, these four members "fill the vacancies and then ratify the resignations."  Aside from the fact that they seem to have the cart before the horse, they obviously have no power to do either of these things, and they know it.

You then tell us that "The board gives notice that it will ratify the filling of vacancies."  By "The board", you must still be referring to these four remaining members who have no power to do anything.  You then say that "It fills them at the September meeting."  I can only conclude that the "It" here refers once again to these four members who still have no power to do anything.

Do they have no right to do so.  You are assuming a fact not in evidence.

It looks like, in PL, the people appointed as delegates would have the right to vote and the assembly would have the right to appoint them, even without a quorum. 

As for notice, any member can give notice and it need not be given within a meeting.  In this example, notice is being sent out to all members. 

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On 8/1/2022 at 3:26 PM, Drake Savory said:

Let's look at another angle.  Despite what the Board does in violation of quorum rules, are all of those healed in May if the assembly Ratifies their actions? 

Yes and no.  If the board does not have a quorum, it cannot schedule a meeting of the assembly. 

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On 8/1/2022 at 4:20 PM, J. J. said:

Do they have no right to do so.  

In the second and third paragraphs of my response I said that they had no power to do what they purported to do, and "power" may have been a better word to use in the first paragraph as well.  It's not worth fussing about. 

On 8/1/2022 at 4:20 PM, J. J. said:

You are assuming a fact not in evidence.

And you're watching too many courtroom dramas on TV.   🙂

On 8/1/2022 at 4:20 PM, J. J. said:

It looks like, in PL, the people appointed as delegates would have the right to vote and the assembly would have the right to appoint them, even without a quorum.

This introduces a bunch of stuff having nothing to do with your question or set of facts. It's not at all helpful.

On 8/1/2022 at 4:20 PM, J. J. said:

As for notice, any member can give notice and it need not be given within a meeting.  In this example, notice is being sent out to all members. 

None of this is relevant.

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On 8/1/2022 at 5:13 PM, Dan Honemann said:

In the second and third paragraphs of my response I said that they had no power to do what they purported to do, and "power" may have been a better word to use in the first paragraph as well.  It's not worth fussing about. 

And you're watching too many courtroom dramas on TV.   🙂

This introduces a bunch of stuff having nothing to do with your question or set of facts. It's not at all helpful.

None of this is relevant.

The facts that you assume that are not in evidence is that the members know that they have know right to act.  PL does provide that the assembly can act.  RONR notes that the assembly can approve action taken in the absence of a quorum via ratification, if the assembly can take that action in the first place.  In this case, the board specifically has the authority to accept the resignations. 

My initial question specifically included the 1915 edition, to which PL is in "complete harmony," so it is relevant. 

I will agree that the claim you made that the board lacks the power to send out notice is irrelevant, since it is not a power that needs to be authorized by a meeting of the board.  Notice is given. 

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On 8/2/2022 at 7:31 AM, J. J. said:

The facts that you assume that are not in evidence is that the members know that they have know right to act. 

J.J., let's first try to see if we both understand and agree upon exactly what the relevant facts are, as you intend them to be, and then perhaps we can try to determine what, if anything, we can agree upon as to the proper application of the rules to those facts.

In your statement of facts you say that "the remaining four members, at the July meeting, "... accept the resignation of the four members, noting that will be subject to ratification."  When you say this are you telling us that, under the facts as you present them and intend them to be, these resignations must be accepted in order to be effective? You have also stated as a fact that "The members that have resigned cannot attend any future board meetings. By this are you intending to present a situation which, for all intents and purposes, is the same as if these four members had also died? 

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On 8/2/2022 at 9:02 AM, Dan Honemann said:

J.J., let's first try to see if we both understand and agree upon exactly what the relevant facts are, as you intend them to be, and then perhaps we can try to determine what, if anything, we can agree upon as to the proper application of the rules to those facts.

In your statement of facts you say that "the remaining four members, at the July meeting, "... accept the resignation of the four members, noting that will be subject to ratification."  When you say this are you telling us that, under the facts as you present them and intend them to be, these resignations must be accepted in order to be effective? You have also stated as a fact that "The members that have resigned cannot attend any future board meetings. By this are you intending to present a situation which, for all intents and purposes, is the same as if these four members had also died? 

I would say, based on 32:5 it would be necessary to accept the resignations.

Under the current conditions at this point in time, members cannot attend.  Those conditions could change.  In the case of a member in a coma, he could recover at some point.  Police might find new evidence leaving charges against the member in jail to be dropped and the member released.  The missing member might turn up.  The member that  took an out of the area job may be transferred back to heard a new regional.  No one in the assembly, nor the resigning members, can know for sure what the future will bring. 

 

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On 8/3/2022 at 7:56 AM, J. J. said:

I would say, based on 32:5 it would be necessary to accept the resignations.

Under the current conditions at this point in time, members cannot attend.  Those conditions could change.  In the case of a member in a coma, he could recover at some point.  Police might find new evidence leaving charges against the member in jail to be dropped and the member released.  The missing member might turn up.  The member that  took an out of the area job may be transferred back to heard a new regional.  No one in the assembly, nor the resigning members, can know for sure what the future will bring. 

 

Okay, you say that, at the July meeting, the four remaining members "accept the resignation of the four members, noting that will be subject to ratification."  This means to me that these four members know that no quorum is present and that their acceptance of these resignations must be ratified in order to become effective.  Isn't this the case?  

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On 8/3/2022 at 11:49 AM, Dan Honemann said:

Okay, you say that, at the July meeting, the four remaining members "accept the resignation of the four members, noting that will be subject to ratification."  This means to me that these four members know that no quorum is present and that their acceptance of these resignations must be ratified in order to become effective.  Isn't this the case?  

They know that there is no quorum at the July, and take an action that they are permitted to take at a meeting with a quorum.  They also know give notice to fill the vacancies at the August meeting.  

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On 8/3/2022 at 2:44 PM, J. J. said:

They know that there is no quorum at the July, and take an action that they are permitted to take at a meeting with a quorum.  

I don't think this answers my question.  Isn't it true that their acceptance of these resignations at the July meeting must be ratified in order to become effective?

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And I think this thread vs mine illustrates the dichotomy in two scenarios

1)  Members resign (Request to be Excused From Duty) that the assembly must accept to be effective under RONR.  The acceptance was not done (or done at an inquorate meeting) and therefore they are still members and a quorum is still theoretically possible.

2)  Members resign.   This is done either in a licit manner contained in the bylaws or special rules OR the members tender their resignation, the assembly (including them) vote to accept it, they leave and those left realize, "Oh no!  We don't have a quorum."  In this case a quorum in impossible unless there is some sort of out, like the members of the parent body can call a special meeting themselves and fill the vacancies.

 

I would argue this thread is a case of the 1st scenario.  In July, if the 4 remaining members have to vote to accept the resignations then up until that vote, those that resigned are still members so why is the claim made that they cannot attend the meeting?  T

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On 8/3/2022 at 2:59 PM, Dan Honemann said:

I don't think this answers my question.  Isn't it true that their acceptance of these resignations at the July meeting must be ratified in order to become effective?

No.  The action will be effective until challenged by a point of order; the ground for that point of order is the action was adopted at a meeting without a quorum and was not subsequently ratified. 

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On 8/3/2022 at 2:44 PM, J. J. said:

They know that there is no quorum at the July, and take an action that they are permitted to take at a meeting with a quorum.  They also know give notice to fill the vacancies at the August meeting.  

 

On 8/3/2022 at 2:59 PM, Dan Honemann said:

I don't think this answers my question.  Isn't it true that their acceptance of these resignations at the July meeting must be ratified in order to become effective?

 

On 8/4/2022 at 11:59 PM, J. J. said:

No.  The action will be effective until challenged by a point of order; the ground for that point of order is the action was adopted at a meeting without a quorum and was not subsequently ratified. 

The "action" is null and void from its introduction and has no presumption of validity that needs to be challenged by a point of order. It is informal action, not a valid act of the assembly. 

RONR (12th ed.) 40:6 "In the absence of a quorum, any business transacted (except for the procedural actions noted in the next paragraph) is null and void."

40:9 "The prohibition against transacting business in the absence of a quorum cannot be waived even by unanimous consent . . . . If, instead, the members present take action informally in the absence of a quorum, they do so at their own risk. Although the assembly can later ratify their action (10:54–57), it is under no obligation to do so."

40:12n1 "If such a question, however, was introduced as new business and it is proven that there was already no quorum when it was introduced, its introduction was invalid and, to be considered at a later meeting, it must again be brought up as new business."

Edited by Atul Kapur
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On 8/4/2022 at 10:59 PM, J. J. said:

No.  The action will be effective until challenged by a point of order; the ground for that point of order is the action was adopted at a meeting without a quorum and was not subsequently ratified. 

I strongly disagree with this view.  I think the book is very clear that the action is null and void from the get-go.  The timing of the chair's ruling has nothing to do with it.  There is no point in trying to sew a silver purse out of a sow's ear.  Mr. Kapur has laid out the relevant rules very well.  There is no point in trying to squirm this way or that to circumvent them.

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On 8/3/2022 at 2:59 PM, Dan Honemann said:

I don't think this answers my question.  Isn't it true that their acceptance of these resignations at the July meeting must be ratified in order to become effective?

 

On 8/4/2022 at 11:59 PM, J. J. said:

No.  The action will be effective until challenged by a point of order; the ground for that point of order is the action was adopted at a meeting without a quorum and was not subsequently ratified. 

I suspect that this completely erroneous statement is based largely, if not entirely, upon General Robert's illustration of the use of the motion to Ratify found on page 13 of PL.  There we find this:

"A meeting at which the delegates to the state convention are to be elected occurs on such a stormy night that no quorum is present.  Since the next meeting will be too late for the election, the delegates are chosen at this meeting, and at the next meeting the fact is reported and the society legalizes the election by ratifying it."

J.J. says, and rightly so, that General Robert here "actually used an example where delegates would be chosen at an inquorate meeting, and apparently could function as delegates, apparently fully voting and counting in the quorum of a convention, even prior to ratification of their election."  I agree, and can say only that I find this most unfortunate, because General Robert makes it perfectly plain elsewhere in both PL and ROR that action taken by an assembly when no quorum is present (other than the designated permissible actions) is invalid (he sometimes calls it "illegal") unless and until it is validly ratified.  

And so my answer to J.J.'s final question in his initial post is no, there is no material difference in this respect between the current edition of RONR and the 1915 edition of ROR.

 

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On 8/5/2022 at 12:35 AM, Atul Kapur said:

 

 

The "action" is null and void from its introduction and has no presumption of validity that needs to be challenged by a point of order. It is informal action, not a valid act of the assembly. 

RONR (12th ed.) 40:6 "In the absence of a quorum, any business transacted (except for the procedural actions noted in the next paragraph) is null and void."

40:9 "The prohibition against transacting business in the absence of a quorum cannot be waived even by unanimous consent . . . . If, instead, the members present take action informally in the absence of a quorum, they do so at their own risk. Although the assembly can later ratify their action (10:54–57), it is under no obligation to do so."

40:12n1 "If such a question, however, was introduced as new business and it is proven that there was already no quorum when it was introduced, its introduction was invalid and, to be considered at a later meeting, it must again be brought up as new business."

However, it has not been determined by the assembly that the introduction was invalid.  That determination can only be made by the society. either by acquiescing to the chair's ruling, or by a point of order, internally to the society.  An outsider, which all of us are here, cannot enforce that rule.

40:12n1 raises a point.  If the motion can be made anew, why even have a motion to ratify something at an inquorate meeting.  The example given in PL answers that question.

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On 8/7/2022 at 11:06 AM, J. J. said:

However, it has not been determined by the assembly that the introduction was invalid. 

There is no need to formally make a point of order that a quorum is not present at a meeting, such as this July meeting of the board, when it is clearly understood by all of the members present that there is no quorum present.

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On 8/7/2022 at 11:06 AM, J. J. said:

.  If the motion can be made anew, why even have a motion to ratify something at an inquorate meeting. 

An action taken informally in the past can be ratified and is then considered valid retroactively.  A motion made anew today only applies proactively.

An action in the past that is found to have been null and void is null and void since its inception.  There was no period in which it enjoyed the presumption of validity; it was null and void all the while, before and after it was found out. 

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