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Meeting and Action without Proper Notice- "Apparent Authority"


JoCo Bylaw

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Under our current bylaws, 10 days' notice is required for meetings and action to take place. Further, the 10-day notice requirement can be waived by a vote at the meeting.

As to the situation at hand, our Chair provided notice for a vote by email (arguably not permissible under our bylaws) to occur on 10 days later on whether or not to enter a contract. However on the day set for the vote, the Chair—at the behest of several members—decided to "delay the vote" and to call an emergency in-person meeting for 3 days later. At the meeting, neither the Chair or any Committee member moved to waive the 10-day notice requirement and no one raised any objections. Not all members were there but there was a quorum. The contract was approved via majority vote. Subsequently, a committee member who was present at the meeting and was on the losing side of the vote, has raised objection to the lack of notice for the in-person meeting.

My question is whether or not one could argue that the waiver of the 10-day notice requirement was “already apparent” to the Chair as no one objected to the vote at the time in which the meeting took place. Each member knew the meeting and vote were taking place inside the 10-day notice window, which would be in violation of the bylaws absent a waiver. However, no one objected to the issue until significant time had passed. As Robert’s Rules of Order spells out, “[i]n cases where unanimous consent is already apparent, the chair may sometimes assume it.” Robert's Rules of Order Newly Revised (“RONR”), 12th edition (p. 104). Given the circumstances here, was it reasonable for the Chair to assume that unanimous consent was given to waive the 10-day notice requirement as 1) each member present knew or should have known that the meeting and vote was take place inside the 10-day window, 2) the first notice of a "meeting" (aka, the email vote) laying out the subject of the vote, occurred 13 days prior to the actual vote, and 3) no one objected to the matter at the meeting.  The only objections were brought forth the day after the meeting and vote occurred. 

In short, did the Chair act with "Apparent Authority" as spelled out in 4:62 of Robert's Rules of Order waving the 10-day notice requirement apply validating the vote? Or is the meeting and vote null and void? 

Also, if I'm missing anything, please let me know! Thanks for everyones help!

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Can you provide an actual quote (do not paraphrase) of the bylaws language that requires notice, and that permits waiving of notice at a meeting?  Specifically any special voting threshold for the waiver.

You refer to a "committee? member who raised no timely Point of Order, but "subsequently" raised an objection.  Objections can be raised during meetings.  Outside of meetings they are more commonly referred to as "whining".   Was this meeting actually a committee meeting, a board meeting, a membership meeting, or...?

Under the rules of RONR, business conducted at a meeting held without proper notice is null and void, and it actually would be possible to raise a point of order at a later date (but in a meeting).  But since your bylaws allow the notice requirement to be waived, the entire situation becomes ambiguous.  It could be argued that any point of order would need to be raised at the time.  

The statement that the chair may "assume" unanimous consent means that the chair can say something like "Without objection, the notice requirement is waived", but this still is an opportunity for anyone to object at that time.  If the chair wished to seek unanimous consent without assuming it, he would say something like "If there is no objection, the notice requirement will be waived.  Is there objection? <pause> Hearing no objection, the notice requirement is waived."  In either case, the unanimous consent would be entered in the minutes.

What "assuming unanimous consent" does not mean is ignoring the fact that a specific approval is required, saying nothing, and later claiming that everyone agreed.  Did the minutes make any mention that the notice requirement had been waived by any means at all?  I think it would be a stretch to assume that in this case unanimous consent was "apparent".  How would the notice requirement have any meaning at all?  The fact that a vote is required in the bylaws suggests that it would be a presumptuous assumption.

The words "Apparent Authority" do not appear in 4:62, or anywhere else in RONR, and the benign situation described there could hardly be further from the one you describe in your question

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On 9/29/2022 at 11:53 AM, JoCo Bylaw said:

My question is whether or not one could argue that the waiver of the 10-day notice requirement was “already apparent” to the Chair as no one objected to the vote at the time in which the meeting took place. Each member knew the meeting and vote were taking place inside the 10-day notice window, which would be in violation of the bylaws absent a waiver. However, no one objected to the issue until significant time had passed. As Robert’s Rules of Order spells out, “[i]n cases where unanimous consent is already apparent, the chair may sometimes assume it.” Robert's Rules of Order Newly Revised (“RONR”), 12th edition (p. 104). Given the circumstances here, was it reasonable for the Chair to assume that unanimous consent was given to waive the 10-day notice requirement as 1) each member present knew or should have known that the meeting and vote was take place inside the 10-day window, 2) the first notice of a "meeting" (aka, the email vote) laying out the subject of the vote, occurred 13 days prior to the actual vote, and 3) no one objected to the matter at the meeting.  The only objections were brought forth the day after the meeting and vote occurred. 

In short, did the Chair act with "Apparent Authority" as spelled out in 4:62 of Robert's Rules of Order waving the 10-day notice requirement apply validating the vote? Or is the meeting and vote null and void? 

In my view, the chair did not act appropriately in this matter, however, the vote is nonetheless valid.

I do not think that, based upon the facts and circumstances presented here, it should be assumed that each member present knew or should have known all of the details concerning the society's notice requirements and the situation and that their silence constituted a waiver of those notice requirements. Additionally, the fact that the first notice was sent 13 days in advance is immaterial, since the meeting scheduled for that notice never occurred. (Even to the extent that a notice for a separate meeting could somehow be considered proper, you also suggest that it is questionable whether notice by email is permissible under your bylaws. It should be noted that canceling a meeting was also improper. The meeting should have been held and the assembly could then have decided to set an adjourned meeting if it wished.) So no, I do not view this as a case where unanimous consent was "already apparent" and that the chair could assume it.

Notwithstanding all this, it would seem to me that the vote is valid, due to a different provision in RONR.

"The general rule is that if a question of order is to be raised, it must be raised promptly at the time the breach occurs." RONR (12th ed.) 23:5

RONR does go on to suggest that rules protecting absentees are an exception to this rule and uses rules regarding previous notice as an example.

"The only exceptions to the requirement that a point of order must be made promptly at the time of the breach arise in connection with breaches that are of a continuing nature, whereby the action taken in violation of the rules is null and void. In such cases, a point of order can be made at any time during the continuance of the breach—that is, at any time that the action has continuing force and effect—regardless of how much time has elapsed. Instances of this kind occur when:

...

e) any action has been taken in violation of a rule protecting absentees, a rule in the bylaws protecting the secrecy of the members’ votes (as on a ballot vote), or a rule protecting a basic right of an individual member (25:7, 25:10–11)." RONR (12th ed.) 23:6

"Rules protecting absentees cannot be suspended, even by unanimous consent or an actual unanimous vote, because the absentees do not consent to such suspension. 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." RONR (12th ed.) 25:10

I do not think, however, that this exception is applicable in this particular case. RONR provides that rules regarding previous notice cannot be suspended unless all members are present. (Because if there are no absentees, there are no absentees to protect.) But the organization's bylaws apparently provide that this rule can be suspended. If a rule can be suspended by the members present, then the rule does not truly afford any protection to absentees. As a result, this is no longer a rule protecting absentees, and therefore the general rule in 23:5 is applicable.

So in summary, the chair and the assembly erred (and the assembly should formally adopt a waiver next time), but it is too late to complain about it now.

Edited by Josh Martin
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On 9/30/2022 at 1:47 PM, Josh Martin said:

In my view, the chair did not act appropriately in this matter, however, the vote is nonetheless valid.

I do not think that, based upon the facts and circumstances presented here, it should be assumed that each member present knew or should have known all of the details concerning the society's notice requirements and the situation and that their silence constituted a waiver of those notice requirements. Additionally, the fact that the first notice was sent 13 days in advance is immaterial, since the meeting scheduled for that notice never occurred. (Even to the extent that a notice for a separate meeting could somehow be considered proper, you also suggest that it is questionable whether notice by email is permissible under your bylaws. It should be noted that canceling a meeting was also improper. The meeting should have been held and the assembly could then have decided to set an adjourned meeting if it wished.) So no, I do not view this as a case where unanimous consent was "already apparent" and that the chair could assume it.

Notwithstanding all this, it would seem to me that the vote is valid, due to a different provision in RONR.

"The general rule is that if a question of order is to be raised, it must be raised promptly at the time the breach occurs." RONR (12th ed.) 23:5

RONR does go on to suggest that rules protecting absentees are an exception to this rule and uses rules regarding previous notice as an example.

"The only exceptions to the requirement that a point of order must be made promptly at the time of the breach arise in connection with breaches that are of a continuing nature, whereby the action taken in violation of the rules is null and void. In such cases, a point of order can be made at any time during the continuance of the breach—that is, at any time that the action has continuing force and effect—regardless of how much time has elapsed. Instances of this kind occur when:

...

e) any action has been taken in violation of a rule protecting absentees, a rule in the bylaws protecting the secrecy of the members’ votes (as on a ballot vote), or a rule protecting a basic right of an individual member (25:7, 25:10–11)." RONR (12th ed.) 23:6

"Rules protecting absentees cannot be suspended, even by unanimous consent or an actual unanimous vote, because the absentees do not consent to such suspension. 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." RONR (12th ed.) 25:10

I do not think, however, that this exception is applicable in this particular case. RONR provides that rules regarding previous notice cannot be suspended unless all members are present. (Because if there are no absentees, there are no absentees to protect.) But the organization's bylaws apparently provide that this rule can be suspended. If a rule can be suspended by the members present, then the rule does not truly afford any protection to absentees. As a result, this is no longer a rule protecting absentees, and therefore the general rule in 23:5 is applicable.

So in summary, the chair and the assembly erred (and the assembly should formally adopt a waiver next time), but it is too late to complain about it now.

Well reasoned.  I think that solves any open questions I had.  I still we we had the rule to look at.  I would hope it would have a requirement higher than a majority vote--perhaps even unanimous consent, and of course a quorum present.

Edited by Gary Novosielski
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On 9/29/2022 at 11:28 PM, Gary Novosielski said:

.  If the chair wished to seek unanimous consent without assuming it, he would say something like "If there is no objection, the notice requirement will be waived.  Is there objection? <pause> Hearing no objection, the notice requirement is waived."  In either case, the unanimous consent would be entered in the minutes.

did I miss something.

the minutes need to record the motion that the notice requirement is waived.

But does the minutes  need to record it was by unanimous consent?

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