Is Ratification Retroactive

[Guest Tamara Warren]

Due to state laws, official in-person meetings were suspended and electronic meetings occurred. The bylaws did not have a provision for meeting electronically. The body adopted an amendment to have electronic meetings but in the electronic meeting (which was not an authorized meeting type per the existing bylaws prior to the adopted motion), At the next in-person meeting, the body ratifies the adopted amendment that was improperly adopted prior to. My question is was ratification in order or should the process to adopt an amendment to the bylaws have been redone when the body was able to meet in person again.  If the ratification was in order, then would all actions taken between the adopted amendment in the electronic meeting setting need further ratification or the ratification of this particular amendment creates a cascade adoption for all business held after that date.

[Tamara W]

I have read several topic postings on the topic based on different scenarios. So I will also ask this advanced message board.

 

Is Ratification of an action, retroactive to the date in which it was unauthorized or out of order? If a body ratifies an action in July 2022 (for instance for a motion to adopt electronic meetings in Jan 2022), with the adoption of the motion to ratify, will all motions adopted in electronic meetings from Jan - present,  get applied adoption status retroactively. Or is ratification needed from Jan 2022- July 2022 for all adopted motions or actions held in electronic meetings?

[Dan Honemann]

On 10/22/2022 at 2:19 PM, Guest Tamara Warren said:

Due to state laws, official in-person meetings were suspended and electronic meetings occurred. The bylaws did not have a provision for meeting electronically. The body adopted an amendment to have electronic meetings but in the electronic meeting (which was not an authorized meeting type per the existing bylaws prior to the adopted motion), At the next in-person meeting, the body ratifies the adopted amendment that was improperly adopted prior to. My question is was ratification in order or should the process to adopt an amendment to the bylaws have been redone when the body was able to meet in person again.  If the ratification was in order, then would all actions taken between the adopted amendment in the electronic meeting setting need further ratification or the ratification of this particular amendment creates a cascade adoption for all business held after that date.

The prescribed process to adopt an amendment to the bylaws must be done when the body is able to do so during a regular or properly called in-person meeting, and doing so will have no retroactive effect.

 

[Josh Martin]

On 10/22/2022 at 1:19 PM, Guest Tamara Warren said:

Due to state laws, official in-person meetings were suspended and electronic meetings occurred. The bylaws did not have a provision for meeting electronically. The body adopted an amendment to have electronic meetings but in the electronic meeting (which was not an authorized meeting type per the existing bylaws prior to the adopted motion), At the next in-person meeting, the body ratifies the adopted amendment that was improperly adopted prior to. My question is was ratification in order or should the process to adopt an amendment to the bylaws have been redone when the body was able to meet in person again.  If the ratification was in order, then would all actions taken between the adopted amendment in the electronic meeting setting need further ratification or the ratification of this particular amendment creates a cascade adoption for all business held after that date.

 

On 10/22/2022 at 1:38 PM, Tamara W said:

I have read several topic postings on the topic based on different scenarios. So I will also ask this advanced message board.

Is Ratification of an action, retroactive to the date in which it was unauthorized or out of order? If a body ratifies an action in July 2022 (for instance for a motion to adopt electronic meetings in Jan 2022), with the adoption of the motion to ratify, will all motions adopted in electronic meetings from Jan - present,  get applied adoption status retroactively. Or is ratification needed from Jan 2022- July 2022 for all adopted motions or actions held in electronic meetings?

In the particular circumstance described here, I don't think the action to amend the bylaws can be ratified at all. A motion to Ratify would be out of order.

The motion to Ratify is used in certain, specific circumstances which are described in RONR (12th ed.) 10:54. The two which are pertinent to ratifying actions taken by the assembly are as follows:

"• action improperly taken at a regular or properly called meeting at which no quorum was present (40:6–10);

• action taken at a special meeting with regard to business not mentioned in the call of that meeting (9:15–16);" RONR (12th ed.) 10:54

What happened here does not meet either of these criteria. There is no provision by which an assembly can ratify action taken by members at an electronic "meeting," when there is no authorization for such meetings. Such a meeting is not a regular or properly called meeting of the assembly. This is explained further in Official Interpretation 2020-1.

"Our bylaws do not authorize electronic meetings, and the rules in Robert’s Rules of Order Newly Revised (RONR) are controlling. If we nevertheless hold an electronic meeting, can actions taken by our officers to carry out decisions made at that meeting be ratified during a subsequent in-person meeting?

Yes, an assembly can ratify “action taken by officers, committees, delegates, or subordinate bodies in excess of their instructions or authority.” [RONR (11th ed.), p. 124, ll. 34-35.] This includes the ability to ratify action to carry out decisions made at an electronic meeting of a body for which such meetings are not authorized. Similar actions taken by an organization’s staff can also be ratified. However, those who carry out decisions made at an unauthorized electronic meeting do so at their own risk; although the assembly can later ratify their actions at a proper meeting of the organization, it is under no obligation to do so. [Cf. p. 348, ll. 19-23.]" 

Let's take a closer look at this. The answer to the question does not quite say that the actions taken at the electronic meeting can be ratified. Rather, it says that "action taken by officers, committees, delegates, or subordinate bodies in excess of their instructions or authority" to carry out those decisions can be ratified.

Generally speaking, this is a distinction without a practical difference. Whether the assembly is able to ratify the decision made at the electronic meeting, or the actions taken by the officers in carrying out those decisions, the end result is the same.

In a few limited cases, however, there is a problem, because the decision by the assembly is, in itself, the action. Some examples of such circumstances would be amending the bylaws or electing officers. So it is not possible to ratify this action unless the action by the assembly can be ratified - and as noted above, this is not in order.

As a result, the proper course of action in this circumstance is to:

• Assuming the organization still wishes to hold electronic meetings, adopt a bylaw amendment through the appropriate procedures.
• Through separate action(s), use the motion to Ratify to ratify "action taken by officers, committees, delegates, or subordinate bodies in excess of their instructions or authority" in regard to other decisions made during the period when the assembly was (without authorization) meeting electronically.

So because the motion to Ratify is not in order, it is not necessary to reach the question of whether ratification would have "retroactive" effect. But even supposing a similar circumstance in which ratification was permissible (perhaps the motion to amend the bylaws was adopted at a regular or properly called meeting which was in-person, but inquorate), I am still inclined to think that this would not "retroactively" make valid the decisions made at previous electronic meetings, and separate motions to ratify the actions taken by officers to carry out those decisions would still be required.

Edited October 23, 2022 at 09:12 PM by Josh Martin

[Gary Novosielski]

I agree with Mr. Martin.

The motion to allow electronic meetings, presumably via amending the bylaws was:

• not moved at a properly called but inquorate meeting,
• not moved at a special meeting
• not an  “action taken by officers, committees, delegates, or subordinate bodies....

The third point, covered in RONR 10:54, does mention ratification of decisions made at unauthorized electronic meetings, however only with respect to actions taken as a result of those decisions. An assembly cannot ratify any action that it would not have the right to approve of in advance. And under no conditions can an assembly authorize subordinate bodies or officers to amend its bylaws.  It must do so itself.  

In my view, the motion to Ratify will not be in order.

 

Edited October 26, 2022 at 01:24 AM by Gary Novosielski

[J. J.]

My first question would be, do the bylaws require to amend?  If so, was there notice given for the action.

You could adopt a bylaw that would authorize actions already taken, but you still have to go through the process of amending the bylaws.