Rescind a main motion previously approved

[Virgil]

A main motion was previously passed in open-session. Now, the majority members want to rescind the main motion in Executive Session, out of view of the owners.

35:6 (b) seems to apply because a contract has not been signed by one of the majority directors. My question is: Is it out of order to duck into Executive Session to Rescind a Main motion previously adopted in Open-session?

 

Thank you,

Virgil

[Atul Kapur]

That does not violate anything in RONR.

However, your use of the term, "owners" suggests that this is an HOA or similar organization. If so, there are likely laws that apply and the action proposed may run afoul of the applicable law. 

Edited December 13, 2022 at 02:26 AM by Atul Kapur

[puzzling]

On 12/13/2022 at 2:15 AM, Virgil said:

A main motion was previously passed in open-session. Now, the majority members want to rescind the main motion in Executive Session, out of view of the owners.

35:6 (b) seems to apply because a contract has not been signed by one of the majority directors. My question is: Is it out of order to duck into Executive Session to Rescind a Main motion previously adopted in Open-session?

 

Thank you,

Virgil

At what kind of meeting was the original motion adopted?

if it was at a members (HOA-owners) meeting the board (of directors) can not recind it. 

if it was a board of directors meeting then probably they can.

So who could vote at the first meeting, and who could vote at the second.

I am not sure if "signing the contract" has any influence on it (except that the motion is not completed) 

but given it is about a Hoa , go visit the website of the homeowners protection bureau hopb.co for more detailed and legal / (state) law information  Maybe it is against some sunshine or other law. 

 

Good luck

[Richard Brown]

On 12/13/2022 at 5:08 AM, puzzling said:

I am not sure if "signing the contract" has any influence on it (except that the motion is not completed) 

Whether the contract has been signed has everything to do with it because the motion to rescind it’s out of order if something has been done which cannot be undone by means of the motion. If the motion was to approve a contract and the contract has been signed, The motion to rescind is out of order.

Agreeing with Dr. Kapur, no rule in RONR prohibits an assembly from going into executive session to rescind something which it originally adopted in open session.
 

Edited December 13, 2022 at 02:20 PM by Richard Brown
Slight change to wording of last sentence of first paragraph

[George Mervosh]

On 12/13/2022 at 9:17 AM, Richard Brown said:

Whether the contract has been signed has everything to do with it because the motion to rescind it’s out of order if something has been done which cannot be undone by means of the motion. If the motion was to approve a contract and the contract has been signed, The motion to rescind is out of order.

If I recall correctly (please correct me if I'm wrong), RONR used to say that but it no longer does, so I'm not sure I agree with this blanket statement.  

[Richard Brown]

On 12/13/2022 at 8:23 AM, George Mervosh said:

If I recall correctly (please correct me if I'm wrong), RONR used to say that but it no longer does, so I'm not sure I agree with this blanket statement.  

I don’t know, but now that I have the 10th, 11th, and 12th editions in front of me I guess we’re about to find out. I don’t recall that there was any substantive change, but we will know soon.

[George Mervosh]

On 12/13/2022 at 9:32 AM, Richard Brown said:

I don’t know, but now that I have the 10th, 11th, and 12th editions in front of me I guess we’re about to find out. I don’t recall that there was any substantive change, but we will know soon.

I think it was in the 10th and removed from the 11th but please let me know, yes.

[Richard Brown]

On 12/13/2022 at 8:36 AM, George Mervosh said:

I think it was in the 10th and removed from the 11th but please let me know, yes.

The language in 35:6 (b) appears to be identical in the 10th, 11th, and 12th editions. if there was a change in that provision it was further  back than 1970 2000.

Here is the language in 35:6 (b) in the 12th edition:  

“b) When something has been done, as a result of the vote on the main motion, that is impossible to undo. (The unexecuted part of an order, however, can be rescinded or amended.)”

Edited December 13, 2022 at 02:56 PM by Richard Brown
Typographical correction And corrected date of publication of the 10th edition of RONR

[Richard Brown]

On 12/13/2022 at 8:36 AM, George Mervosh said:

I think it was in the 10th and removed from the 11th but please let me know, yes.

George, the language which is in 35:6 (b) is also in the seventh edition, which was the first of the RONR series and was published in 1970. If that language has been changed, it happened more than 50 years ago.

[Dan Honemann]

I think that George is referring to the fact that (c) on page 302 of the 9th edition has been deleted from subsequent editions.

[Josh Martin]

On 12/13/2022 at 8:48 AM, Richard Brown said:

The language in 35:6 (b) appears to be identical in the 10th, 11th, and 12th editions. if there was a change in that provision it was further  back than 1970 2000.

Here is the language in 35:6 (b) in the 12th edition:  

“b) When something has been done, as a result of the vote on the main motion, that is impossible to undo. (The unexecuted part of an order, however, can be rescinded or amended.)”

I don't have a copy of the 9th edition, but I believe this is what George is referring to:

"References to federal, state, and local laws are restricted, wherever appropriate, to procedural rules prescribed by such laws, in recognition of the fact that rules of parliamentary procedure are concerned with the process by which a deliberative assembly arrives at a decision, and not with the wisdom, or even legality, of the decision itself. For similar reasons, the rule prohibiting rescission of a motion which is in the nature of a contract has been eliminated." RONR (10th ed.) pg. xxi

That is, no rule in RONR explicitly or categorically prohibits the adoption of a motion which is in the nature of a contract. Depending upon the particular circumstances of what exactly a given motion provides and what has subsequently occurred, it may well be, however, that rescinding a particular motion is a violation of 35:6(b).

Because we know very little about what specific motion was adopted, I don't think we can say with any degree of certainty whether rescinding the motion would violate 35:6(b).

I think it is correct to say that if the motion was "to approve a contract" and the contract has been approved, then that motion cannot be rescinded. But I am not certain if that is the case.

In regard to the issue of the signatures, I would note that we are not simply told "the contract has not been signed," we are specifically told the contract "has not been signed by one of the majority directors." This seems to imply that the contract has been signed by some persons, but not others. That nuance may (or may not) be relevant. It may well depend upon applicable law and what the organization's rules provide in regard to signing contracts.

On 12/12/2022 at 8:15 PM, Virgil said:

A main motion was previously passed in open-session. Now, the majority members want to rescind the main motion in Executive Session, out of view of the owners.

35:6 (b) seems to apply because a contract has not been signed by one of the majority directors. My question is: Is it out of order to duck into Executive Session to Rescind a Main motion previously adopted in Open-session?

In regard to the specific question which was asked, yes, the assembly can meet in executive session to consider any business it wishes, even if it relates to rescinding a motion which was previously adopted in open session, unless something in the organization's rules or applicable rule provide otherwise.

I think the more important question, however, is whether the motion can be rescinded at all (and whether doing so may have legal consequences). As a parliamentary matter, and particularly in regard to 35:6(b) this will depend upon exactly what motion was adopted and what actions have subsequently been taken to implement the motion. We lack sufficient facts at this time to answer that question.

In addition, since we are told that this involves e a contract, it would also be advisable to consult an attorney on this matter.

Edited December 13, 2022 at 05:56 PM by Josh Martin

[Richard Brown]

On 12/13/2022 at 11:00 AM, Dan Honemann said:

I think that George is referring to the fact that (c) on page 302 of the 9th edition has been deleted from subsequent editions.

Yes, I agree.  George and I were just discussing it privately. George found a thread from 2019 where that point was discussed.  The language which was formerly (c) in the 7th through 9th editions read, "“when the case is in the nature of a contract and the other party has been informed of the vote“.  That has been eliminated in the 10th and subsequent editions. 

Here is a link to the thread where that change was discussed:  https://robertsrules.forumflash.com/topic/34841-rescinding-a-previous-adopted-contract/#comment-206325

My thanks to George Mervosh for finding that thread.

It does seem to me that the prohibition in 35:6(b) would also apply to rescinding the approval of an executed contract, but the language on page xxi of the preface to the 10th edition indicates otherwise.  I agree that as a matter of parliamentary procedure the assembly could vote to cancel the contract, but rescinding the approval of the contract which has been signed by all parties seems like a different situation that would, or could, fall within the prohibition of 35:6(b).  I see a difference between voting to cancel a contract and rescinding (or attempting to rescind) the prior approval of the contract which has been signed based on that approval.

Finally, I agree with Mr. Martin's advice that it is probably wise to consult with an attorney regarding rescinding the prior approval of the contract.  Some things which might be permissible from a parliamentary procedure standpoint can have serious legal ramifications!

[Richard Brown]

On 12/13/2022 at 11:32 AM, Josh Martin said:

"References to federal, state, and local laws are restricted, wherever appropriate, to procedural rules prescribed by such laws, in recognition of the fact that rules of parliamentary procedure are concerned with the process by which a deliberative assembly arrives at a decision, and not with the wisdom, or even legality, of the decision itself. For similar reasons, the rule prohibiting rescission of a motion which is in the nature of a contract has been eliminated." RONR (12th ed.) pg. xxi

I believe that citation should actually be to the 10th edition, not the 12th edition.  I don't believe it appears at all in the 12th edition.

[Josh Martin]

On 12/13/2022 at 11:53 AM, Richard Brown said:

It does seem to me that the prohibition in 35:6(b) would also apply to rescinding the approval of an executed contract, but the language on page xxi of the preface to the 10th edition indicates otherwise.  I agree that as a matter of parliamentary procedure the assembly could vote to cancel the contract, but rescinding the approval of the contract which has been signed by all parties seems like a different situation that would, or could, fall within the prohibition of 35:6(b).  I see a difference between voting to cancel a contract and rescinding (or attempting to rescind) the prior approval of the contract which has been signed based on that approval.

Whether a motion to Rescind violates 35:6(b) depends upon the exact language of the motion which has been adopted and what has subsequently been done to carry out that motion.

The original rule provided that motions to rescind are not in order in any instance in which "the case is in the nature of a contract and the other party has been informed of the vote." That is a much broader category of circumstances than a particular scenario in which the specific motion is "to approve a contract" and the contract has been fully executed.

On 12/13/2022 at 11:57 AM, Richard Brown said:

I believe that citation should actually be to the 10th edition, not the 12th edition.

Yes, that is correct.

[Virgil]

First, I am heartened by all of the responses I have received. Reading through the posts, I agree with many of the responses that there is a need for additional facts that could possibly provide added context. The "Contract" is a letter of engagement by an attorney. The Board President signs "contracts" per the association's By-laws. The motion states:

"I move to hire <name> to advise <name> Community." There was a 2nd and the motion carried with a 7-2 vote. The <name> forwarded their engagement letter for the President to sign, which the President changed their mind. Now, an emergency meeting is called to Rescind the motion to hire <name>.

Virgil 

[Richard Brown]

On 12/13/2022 at 1:36 PM, Virgil said:

"I move to hire <name> to advise <name> Community." There was a 2nd and the motion carried with a 7-2 vote. The <name> forwarded their engagement letter for the President to sign, which the President changed their mind. Now, an emergency meeting is called to Rescind the motion to hire <name>.

This indicates to me that the contract has not been signed and therefore rescinding the motion approving entering into a contract might well be in order.  I interpret your last post to indicate no particular contract was being approved and that in fact no contract (letter of engagement) had yet been drafted or received by the organization.  If instead the motion was to approve a particular contract and authorized and directed the president to sign the contract on behalf of the organization and the president had signed the contract, that would be a different situation.

[Virgil]

Mr. Brown,

Thank you for the reply. In this case, the motion was to "hire" a person, not contingent on signing an engagement letter. A precedent has been set from a previous motion to hire someone for the same purpose.

Best,

Virgil

[Josh Martin]

On 12/13/2022 at 1:36 PM, Virgil said:

First, I am heartened by all of the responses I have received. Reading through the posts, I agree with many of the responses that there is a need for additional facts that could possibly provide added context. The "Contract" is a letter of engagement by an attorney. The Board President signs "contracts" per the association's By-laws. The motion states:

"I move to hire <name> to advise <name> Community." There was a 2nd and the motion carried with a 7-2 vote. The <name> forwarded their engagement letter for the President to sign, which the President changed their mind. Now, an emergency meeting is called to Rescind the motion to hire <name>.

I am in agreement with Mr. Brown that, based upon these additional facts, the motion has not yet been fully carried out and, as a result, may be rescinded (at least as a parliamentary matter).

Edited December 13, 2022 at 09:58 PM by Josh Martin

[Alicia Percell, PRP]

It makes perfect sense that an organization might initially approve the generic concept of hiring person X, but then once the terms of the contract are put into writing, those terms might not be agreeable, thus you might want to change your mind.  In the future, it might be a good idea to have the proposed contract in hand for everyone's review prior to the vote.  It might save you the trouble of having to revisit the question.

[Virgil]

Thank you for your reply. There are several variables to contemplate regarding this issue: 1. The exact wording of the motion and its true meaning. 2. A consideration of precedence should be considered along with the concept of fairness and good faith. (a very similar vote occurred, yielding a different outcome)

Peeling back the layers of this issue will show that there were deeper underlying motivations for attempting to reverse the motion. A vote was taken after my initial post resulting in the majority deciding not to proceed with "rescinding" the motion, instead a member of the majority restated a new main motion to not sign the letter of engagement. This resulted in a conflict between two main motions; 1. a 7-2 vote to "Hire" the person. 2. a 6-3 vote to not sign their engagement letter. 

Regards,

Virgil

[Josh Martin]

On 12/17/2022 at 9:09 AM, Virgil said:

Thank you for your reply. There are several variables to contemplate regarding this issue: 1. The exact wording of the motion and its true meaning. 2. A consideration of precedence should be considered along with the concept of fairness and good faith. (a very similar vote occurred, yielding a different outcome)

Peeling back the layers of this issue will show that there were deeper underlying motivations for attempting to reverse the motion. A vote was taken after my initial post resulting in the majority deciding not to proceed with "rescinding" the motion, instead a member of the majority restated a new main motion to not sign the letter of engagement. This resulted in a conflict between two main motions; 1. a 7-2 vote to "Hire" the person. 2. a 6-3 vote to not sign their engagement letter. 

I suppose, strictly speaking, these motions are not in conflict, as it may be that the board still wished to hire this person, but did not agree with the specific terms of the engagement letter. That is, it could be an attempt to negotiate more favorable terms.

You seem to suggest, however, that it is the board's wish to no longer hire this person. So I do think it would have been preferable to clearly rescind the first motion.

Edited December 17, 2022 at 03:44 PM by Josh Martin

[Richard Brown]

Agreeing with the last two posts immediately  above by Alicia Percell and Josh Martin, it seems to me the organization did, in essence, rescind  the previous motion to hire the attorney since the vote to not sign the contract passed by a 2/3 vote which amounted to rescinding something previously adopted.

[Virgil]

I would agree as well. The main motion to "hire" is affectively lost. 

Thanks again for the rapid follow-up. I appreciate all of your responses and advice.

With much respect,

Virgil