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Vacancies blocking quorum


J. J.
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On 8/7/2022 at 11:55 AM, Dan Honemann said:

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.

No member will agree, or at least will permit the action to ratified.  That is similar to PL Q&A 107.

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I want to make it clear that J.J. is welcome to post as often and as much as he wishes here in this forum, even on those rare occasions where there is universal disagreement with what he posts.  He has, on a number of occasions, called my attention to things that I was missing or had misunderstood, and I have been grateful whenever that has happened.

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On 8/8/2022 at 9:09 AM, Dan Honemann said:

With all due respect, J.J., this makes no sense.  Perhaps you should try again.

That has been given from the start.

The four members that are present agree with this action at this point; they will not raise a point of order.  The members that have submitted resignations will not attend the meeting, either because they cannot do so physically or because they do not wish to attend. 

 

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On 8/11/2022 at 8:01 AM, J. J. said:

The four members that are present agree with this action at this point; they will not raise a point of order. 

I understand that this is the case.  However, there is no need for them to formally raise a point of order that a quorum is not present when they all know full well that there is no quorum present.  This is clearly an instance, such as that described in 40:11, in which the chair called the meeting to order knowing that a quorum could not be obtained.  

On 8/11/2022 at 8:01 AM, J. J. said:

The members that have submitted resignations will not attend the meeting, either because they cannot do so physically or because they do not wish to attend. 

I understand that this is the case, but I do not think it relevant.

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On 8/11/2022 at 9:21 AM, Dan Honemann said:

I understand that this is the case.  However, there is no need for them to formally raise a point of order that a quorum is not present when they all know full well that there is no quorum present.  This is clearly an instance, such as that described in 40:11, in which the chair called the meeting to order knowing that a quorum could not be obtained.  

I understand that this is the case, but I do not think it relevant.

The chair may have a reasonable belief that the quorum will not be reached, but he cannot "know" it in advance.  You may have a reasonable belief that a vote will go a certain way prior to it being taken, for example, but you cannot "know" that until the vote is taken and the result is announced.  In any case, the chair will not rule the motion out of order.

Respectfully, most posters are not considering the reason for a quorum, i.e. to protect absentee rights (25:10). Gen. Robert, in Q&A 107, is saying that there is another way to protect absentee rights.  In my scenario, I am stating that the same thing is happening. 

There may be certain points where someone could raise a point or order that the action was not taken at a quorate meeting, but at some point in time that particular point of order could not be legitimately raised. 

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On 8/14/2022 at 7:48 AM, J. J. said:

The chair may have a reasonable belief that the quorum will not be reached, but he cannot "know" it in advance.  You may have a reasonable belief that a vote will go a certain way prior to it being taken, for example, but you cannot "know" that until the vote is taken and the result is announced.  In any case, the chair will not rule the motion out of order.

You said in your original post, "The members that have resigned cannot attend any future board meetings." (Emphasis yours.) So in the situation you describe, it seems that the chair would know that a quorum cannot be reached. But I'm not sure that's relevant to the issue. The fact is that a quorum was not reached.

On 8/14/2022 at 7:48 AM, J. J. said:

Respectfully, most posters are not considering the reason for a quorum, i.e. to protect absentee rights (25:10). Gen. Robert, in Q&A 107, is saying that there is another way to protect absentee rights.  In my scenario, I am stating that the same thing is happening. 

I can't speak for "most posters," but I am fully cognizant that at least one purpose of a quorum is to protect absentees. And it may be that the remaining board members did the best thing they could for the survival of the organization. But that doesn't mean that what their purported "ratification" was legitimate, as you seem to be claiming.

On 8/14/2022 at 7:48 AM, J. J. said:

There may be certain points where someone could raise a point or order that the action was not taken at a quorate meeting, but at some point in time that particular point of order could not be legitimately raised. 

I agree that the more time that passes without a Point of Order being raised, the less likely it will be that one will be. But I am not so sure that there ever would be a time when one "could not be legitimately raised." Of course, if one is raised and the chair rules it not well taken, and either there is no appeal or the chair's ruling is sustained on appeal, that will settle the matter unless someone chooses to litigate the issue. And if that happens, all bets are off. 

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On 8/14/2022 at 9:48 AM, J. J. said:

Respectfully, most posters are not considering the reason for a quorum, i.e. to protect absentee rights (25:10).

While that is one reason for a quorum, it is not the reason (and definitely not the only reason). I believe the rationale that is more relevant for this discussion is 3:3

Quote

The requirement of a quorum is a protection against totally unrepresentative action in the name of the body by an unduly small number of persons.

I believe that the other points of your argument here are distractions from the fundamental point under discussion. You recently said

On 8/14/2022 at 9:48 AM, J. J. said:

The chair may have a reasonable belief that the quorum will not be reached, but he cannot "know" it in advance.

and Mr. Merritt correctly responded that

On 8/14/2022 at 1:53 PM, Weldon Merritt said:

You said in your original post, "The members that have resigned cannot attend any future board meetings." (Emphasis yours.) So in the situation you describe, it seems that the chair would know that a quorum cannot be reached. But I'm not sure that's relevant to the issue. The fact is that a quorum was not reached.

The fundamental point, as I understand it, is that you are arguing that an inquorate body can ratify action taken informally (40:9) at an earlier inquorate meeting.

All of your various combinations of how many of the members who "resigned" could not or would not attend the meeting (whether due to relocation, death, coma, or whatever) do not make this argument correct, so I cannot imagine a permutation of facts that will bestow upon this informal action the presumption of legitimacy that requires a point of order to rebut. 

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On 8/14/2022 at 5:16 PM, Atul Kapur said:

While that is one reason for a quorum, it is not the reason (and definitely not the only reason). I believe the rationale that is more relevant for this discussion is 3:3

I believe that the other points of your argument here are distractions from the fundamental point under discussion. You recently said

and Mr. Merritt correctly responded that

The fundamental point, as I understand it, is that you are arguing that an inquorate body can ratify action taken informally (40:9) at an earlier inquorate meeting.

All of your various combinations of how many of the members who "resigned" could not or would not attend the meeting (whether due to relocation, death, coma, or whatever) do not make this argument correct, so I cannot imagine a permutation of facts that will bestow upon this informal action the presumption of legitimacy that requires a point of order to rebut. 

The "unrepresentative" aspect of a quorum requirement is a function of protecting absentee's rights. 

In the initial scenario, it is clear that the members will not be attending under the current circumstances.  No member can know if those circumstances will change before the next meeting.  The only exception would be the dead member; presumably the assembly would not need to accept his resignation.

My point is that the board can achieve a quorum, provided that its actions protect absentee right.

The inquorate board accepts the resignations, however, those resignations will not be official until the acceptances are ratified at a quorate meeting.  The board sends out notice that the vacancies will be filled at the next meeting.  The notice goes out to anyone who could be a voting member of the board, which includes those people that have resigned. 

At that next meeting, a quorum is not achieved.  The vacancies are filled, subject to ratification.  At this meeting, the acceptance of the resignations is approved because there is a quorum.  I am suggesting that, when a past motion or action is ratified, its effects begin from the time when that action began, not from when the motion to ratify was adopted.  In other words, it makes the previously taken action "valid."

Assume that, at the inquorate July meeting, the board adopted a motion to hire cleaning service, in July. beginning in July.  If they ratify that action at quorate meeting, say September, when does the effect of that motion begin?  In July. 

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On 8/17/2022 at 12:20 AM, J. J. said:

The inquorate board accepts the resignations, however, those resignations will not be official until the acceptances are ratified at a quorate meeting.  

Now we're making progress.  Please keep this in mind as we proceed.

 

On 8/17/2022 at 12:20 AM, J. J. said:

The board sends out notice that the vacancies will be filled at the next meeting.  The notice goes out to anyone who could be a voting member of the board, which includes those people that have resigned. 

As you know, 40:9 provides that: "The prohibition against transacting business in the absence of a quorum cannot be waived even by unanimous consent, and a notice (10:44–51) cannot be validly given."  Let's assume here, for the sake of argument, that this prohibition against giving notice does not apply to a notice that vacancies in office will be filled at the next meeting. In this case, however, the notice would have to be that vacancies in these offices will be filled if there are any such vacancies to fill. Since one member has died, we know that this one vacancy does already exist.

 

On 8/17/2022 at 12:20 AM, J. J. said:

At that next meeting, a quorum is not achieved.  The vacancies are filled, subject to ratification.  At this meeting, the acceptance of the resignations is approved because there is a quorum. 

Here's where you lose me.  You have the four members of this board, at at a time when no quorum is present, fill vacancies which do not then exist along with, presumably, the one that does then exist, but you say that they do so properly recognizing that this action is subject to ratification. You then appear to claim that, somehow or other, a quorum is now present at this August meeting that can ratify the acceptance of the resignations at the July meeting.  

How so?  You have stated that this board has 9 members and the bylaws say "A quorum of the board shall be six members", and specifically require all members to be physically present. Even forgetting this, and assuming that a quorum of this board is simply a majority of its members, there will still be no quorum present following the filling of vacancies subject to ratification.

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On 8/17/2022 at 8:22 AM, Dan Honemann said:

 

Here's where you lose me.  You have the four members of this board, at at a time when no quorum is present, fill vacancies which do not then exist along with, presumably, the one that does then exist, but you say that they do so properly recognizing that this action is subject to ratification. You then appear to claim that, somehow or other, a quorum is now present at this August meeting that can ratify the acceptance of the resignations at the July meeting.  

How so?  You have stated that this board has 9 members and the bylaws say "A quorum of the board shall be six members", and specifically require all members to be physically present. Even forgetting this, and assuming that a quorum of this board is simply a majority of its members, there will still be no quorum present following the filling of vacancies subject to ratification.

The act of accepting the resignations, taken in July, will be valid, from July, when (or if) the board ratifies it, at a quorate meeting.  The filling of the vacancies likewise will be valid if previous notice was given and the action was either taken either at a quorate meeting or was ratified at a quorate meeting.

At the July meeting, the 4 members accept the 4 member resignations, noting that they will be effective only if ratified.  They then instruct the secretary to send out the notice, including to those 4 members (there resignations are still not effective).

At the August meeting, the four original members attend, along with 3 of the 5 people who are planning to be replaced.   The board votes to name all 5 to the vacancy.  While this could be disputed, I would say that the action would need ratification.  The dispute would be that the second these 3 people were appointed, there was a quorum.  At the very least, after the appointment, there will be a quorum upon ratification of the appointments.

Still at the August meeting, the motion to ratify the acceptance of the resignations is adopted.  If the motion to ratify the filling of the vacancies is ratified, this was done at a quorate meeting.  The board sends out notice to the 9 members, the 4 original and 5 replacements that, at the September meeting. 

At the September quorate meeting, the board ratifies the filling of vacancies.  After that point, the point of order regard a lack of a quorum is not well taken, because the action was ratified. 

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On 8/18/2022 at 8:09 AM, J. J. said:

The dispute would be that the second these 3 people were appointed, there was a quorum.

I think it is indisputable that there was not a quorum.

As we go round and round, the fact still seems to remain: the board is not able to attain a quorum at its meetings.  As long as this continues to be the case, there is no way that the board can take action effectively, unless some operation of the civil law reconstitutes the board's powers.

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On 8/18/2022 at 9:09 AM, J. J. said:

The act of accepting the resignations, taken in July, will be valid, from July, when (or if) the board ratifies it, at a quorate meeting.  The filling of the vacancies likewise will be valid if previous notice was given and the action was either taken either at a quorate meeting or was ratified at a quorate meeting.

At the July meeting, the 4 members accept the 4 member resignations, noting that they will be effective only if ratified.  They then instruct the secretary to send out the notice, including to those 4 members (there resignations are still not effective).

At the August meeting, the four original members attend, along with 3 of the 5 people who are planning to be replaced.   The board votes to name all 5 to the vacancy.  While this could be disputed, I would say that the action would need ratification.  The dispute would be that the second these 3 people were appointed, there was a quorum.  At the very least, after the appointment, there will be a quorum upon ratification of the appointments.

Still at the August meeting, the motion to ratify the acceptance of the resignations is adopted.  If the motion to ratify the filling of the vacancies is ratified, this was done at a quorate meeting.  The board sends out notice to the 9 members, the 4 original and 5 replacements that, at the September meeting. 

At the September quorate meeting, the board ratifies the filling of vacancies.  After that point, the point of order regard a lack of a quorum is not well taken, because the action was ratified. 

J.J., it is abundantly clear that at no time during these three meetings is a quorum present.

You recognize that the action taken at the July inquorate meeting (the acceptance of resignations) cannot become effective unless and until ratified at a quorate meeting.

You have also recognized that, at the outset of the August meeting, no quorum is present. You say that the Board then acts to fill the five "vacancies.".  This is also action taken that cannot become effective unless and until ratified at a quorate meeting.  The August meeting then continues and the board adopts a motion to ratify the July acceptance of the resignations.  This is also action taken at an inquorate meeting that will have to be ratified at a quorate meeting in order to become effective.

You then say that "At the September quorate meeting, the board ratifies the filling of vacancies.  You have yet to explain how it is that a quorum is magically present at this September meeting. 

 

 

 

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On 8/18/2022 at 12:04 PM, Dan Honemann said:

You have also recognized that, at the outset of the August meeting, no quorum is present. You say that the Board then acts to fill the five "vacancies.".  This is also action taken that cannot become effective unless and until ratified at a quorate meeting.  The August meeting then continues and the board adopts a motion to ratify the July acceptance of the resignations.  This is also action taken at an inquorate meeting that will have to be ratified at a quorate meeting in order to become effective.

You then say that "At the September quorate meeting, the board ratifies the filling of vacancies.  You have yet to explain how it is that a quorum is magically present at this September meeting. 

 

 

 

At the August meeting, the quorum may be achieved.  That action, the filling of the vacancies, will become valid when ratified.  When ratified, even at a later date, it will be valid as of August.  The ratification of the acceptance of resignations will be valid as of July.  

The action of ratifying the filling of the vacancies creates sufficient members to have a quorum.  The notice of filling vacancies serves to protect the rights of any absentees.

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On 8/18/2022 at 12:01 PM, Rob Elsman said:

I think it is indisputable that there was not a quorum.

As we go round and round, the fact still seems to remain: the board is not able to attain a quorum at its meetings.  As long as this continues to be the case, there is no way that the board can take action effectively, unless some operation of the civil law reconstitutes the board's powers.

You could make the same argument regarding the seating of delegates in a convention.  How could the assembly possibly determine if there was a quorum present if they don't know who the members are?  Well, obviously, they can.  :)

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On 8/18/2022 at 6:39 PM, J. J. said:

You could make the same argument regarding the seating of delegates in a convention.  How could the assembly possibly determine if there was a quorum present if they don't know who the members are?  Well, obviously, they can.  :)

But RONR specifically allows a convention to determine who its member are. It contains no similar provision for the situation you describe.

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Quote

You could make the same argument regarding the seating of delegates in a convention.

Third Base!

(with apologies to Messrs. Abbott and Costello)

. . . I mean . . . As discussed previously (at least once), a board and a convention are different bodies and the differences between them render this comparison absurd.

Edited by Atul Kapur
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On 8/18/2022 at 8:35 PM, J. J. said:

At the August meeting, the quorum may be achieved.  That action, the filling of the vacancies, will become valid when ratified.  When ratified, even at a later date, it will be valid as of August.  The ratification of the acceptance of resignations will be valid as of July.  

The action of ratifying the filling of the vacancies creates sufficient members to have a quorum.  The notice of filling vacancies serves to protect the rights of any absentees.

But J.J., although an act of ratification may have a retroactive effect as you describe here, the fact remains that, in order to have any effect at all, the act of ratification must itself be valid, and no motion to ratify can be validly adopted when no quorum is present.  

You have acknowledged that the actions taken at the July and August meetings were actions taken in the absence of a quorum, thus requiring ratification in order to become effective. You have also erroneously claimed that a quorum was present at the September meeting when the board purportedly ratified the filling of vacancies in August.  

Present at the September meeting are the four members of the board and also, presumably, the five persons whose election in August to fill vacancies remains subject to ratification. There is clearly no quorum present at this meeting. The five persons whose election remains subject to ratification are not yet members and are obviously not qualified to vote on a motion to make valid their own invalid election (or anything else, for that matter).

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On 8/19/2022 at 8:08 AM, Dan Honemann said:

But J.J., although an act of ratification may have a retroactive effect as you describe here, the fact remains that, in order to have any effect at all, the act of ratification must itself be valid, and no motion to ratify can be validly adopted when no quorum is present.  

 

RONR does not quite say that. 

It says that rules protecting absentee cannot be suspended (25:10), and that action taken in violation of a rule protecting absentees creates a breach of a continuing nature (23:6 e)).  The notice, in this instance, protects absentee rights.  The action is not subject to a non-timely point of order. 

I think that is what General Robert was saying in 1923 in Q&A 107 as well, i.e. amending the bylaws in this way may violate the rules, but it does not create a breach of a continuing nature in regard to absentee rights. 

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On 8/20/2022 at 8:56 AM, J. J. said:

RONR does not quite say that. 

It says that rules protecting absentee cannot be suspended (25:10), and that action taken in violation of a rule protecting absentees creates a breach of a continuing nature (23:6 e)).  The notice, in this instance, protects absentee rights.  The action is not subject to a non-timely point of order. 

I think that is what General Robert was saying in 1923 in Q&A 107 as well, i.e. amending the bylaws in this way may violate the rules, but it does not create a breach of a continuing nature in regard to absentee rights. 

I'm afraid that you are overlooking the footnote to 25:10, which clearly states that a board such as the one which you have described may not suspend the quorum requirement even if there are no absentees to protect.

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On 8/20/2022 at 9:17 AM, Dan Honemann said:

I'm afraid that you are overlooking the footnote to 25:10, which clearly states that a board such as the one which you have described may not suspend the quorum requirement even if there are no absentees to protect.

I am not suggesting suspension.

I think a point of order could be raised at certain points, but once ratified, with notice, it is too late to raise a point of order, because it no longer violates absentee rights.  :)

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To give a fuller scenario, I will add that at the August and September meetings, one of the four members that did not submit a resignation was not in attendance (though not the same member).  25:10 will not apply (much less the footnote), because there are absentees but at least 6 members attend.  At not point is this board even implicitly suspending rules.  There are breaches of a continuing nature, but they do not always continue eternally.  When I say that a point of order can be raised, that includes the chair making a ruling on his own initiative as per 23:3.

At the July meeting, the action is taken to accept the resignations of the 4 members and the secretary is instructed to send out notice to all members that the vacancies will be filled at the August meeting.  Notice is not valid if given at an inquorate meeting.  Notice is sent to all members.  The ones that have resigned are still members at this point and receive notice.  At the July meeting, a member could raise a point of order that the acceptance of the resignations is out of order because it is done at an inquorate meeting, but none is raised.

The August meeting is called to order.  A member could raise a point of order that the acceptance of the resignations is out of order because it is done at an inquorate meeting, but none is raised.

The vacancies are filled by motion.  A member could raise a point of order that acceptance of resignations was not finally approved and the vacancies cannot be filled.  A member could raise a point of order that the meeting lacks a quorum.  (That is debatable, but I will give that point for the sake of the example).  No point of order is raised. 

The motion to ratify the resignations is made and adopted.  At this point, the action of accepting the resignation has been made valid; that valid action was taken at the July meeting.  A point of order that the action taken at the July meeting is invalid because it happened at the inquorate meeting should not be well taken.  A point of order that acceptance of resignations was not finally approved and the vacancies cannot be filled is not valid because the assembly made that action valid from when it was taken by ratification.  A point of order would have to raised that the August meeting was inquorate and that ratification was adopted at an inquorate; it would only be after that determination that the action taken at the July meeting was invalid.  A member could raise a point of order that the August meeting lacks a quorum.  No point of order is raised. 

The secretary sends notice to all members that the filling of vacancies will be ratified at the September meeting.  

The September meeting is called to order.  A member could raise a point of order that the actions taken at the August meeting were invalid because no quorum was present; he could do so up  to the point that the action was made valid by ratification.  Upon ratification of the filling of the vacancies, there is very clearly a quorum at the August.  It is too late to raise a point of order that no quorum was present.

10:54 says that a breach regarding an action taken without a quorum can be fixed by ratification.  However 23:6 e) requires that absentee rights be protected and to fill vacancies, notice is required, so the assembly has to do both to protect absentee rights. 

A point of order raised at the October meeting would not well taken, because the board fixed the lack of quorum by ratifying the filling of the vacancies and by giving notice of the filling of the vacancies which protects absentee rights.  There is no breach of of a continuing nature, because there is no 23:6 violation at that point in time.

I suspect that something like this is what Gen. Robert was looking at in Q&A 107.   

 

 

 

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