The effect of a Background statement in presenting/adopting a resolution

[smb]

A committee presents a written 'resolution' to the Board asking it to adopt the recommended action.  The resolution contains no Whereas clauses, but it does contain a  BACKGROUND statement briefly summarizing the purpose of the resolution.  The Board adopts the recommended action; the minutes include neither the text nor a summary of the background statement.  Those charged with implementing the resolution have chosen to do so in a way that fails to address one of the items stated in the Background statement.  A dispute has arisen whether they must do so.

Just to make this clear:  the resolution provides funding for construction of a new multi-story building.  The background statement briefly describes the project and states that access to the floors is to be provided by stairways, ADA-compliant ramps, escalators, and elevators.   The building committee now believes that escalators are an unnecessary expense given the elevators and ramps, so has omitted them from the building plans.   Escalator fans are upset! Must the committee give effect to the Background statement and provide for all four methods of access?

RONR doesn't really address such an issue...the closest it comes is below, but it addresses the reasons for a motion, not really applicable to this situation.    Also note that the committee presented the Board only with its recommended action and a brief background statement.  There was no 'report' presented for adoption and the Board adopted only the recommended action which did no more than approve the project funding.

"It is usually inadvisable to attempt to include reasons for a motion's adoption within the motion itself. To do so may encumber the motion and may weigh against its adoption—since some members who approve of the action it proposes may dislike voting for it if it states reasons with which they disagree. When special circumstances make it desirable to include a brief statement of background, the motion should be cast in the form of a resolution, with the background or reasons incorporated in a preamble that is placed before the resolving clauses. RONR (12th ed.) 10:16]

Thoughts?   [Obviously the board can resolve the matter, but the project is due to be advertised for bid prior to the board's next meeting.]

[Gary Novosielski]

So far, your biggest problem appears to be that the resolution was never recorded in the minutes.  That's a disaster waiting (only briefly) to happen.  Immediately correct the minutes to include the text of the resolution.  I'm not at certain from your description whether the background statement is actually a part of the resolution.  Does the word Resolved actually appear in the resolution?  What follows that is the actual resolution.  I would expect a background statement to include reasons favoring the adoption of the resolution, but I don't think any instructions about how the action(s) should be carried out would be found in a background statement.

At this point, it appears that you have a committee implementing the project, and it appears to be doing things that the board (to which presumably the committee reports) does not like.  This may or may not be due to the fact that the actual instructions given to the committee were incomplete, ambiguous, or improperly understood.

Whatever the reasons, if the board does not like the way the project is going it should move to give subsequent instructions the committee on how things should be done.  [RONR (12th ed.) 13:22]  The original referral is not the last word for all time.

 

[Josh Martin]

On 2/8/2024 at 11:38 PM, smb said:

Must the committee give effect to the Background statement and provide for all four methods of access?

No.

It's not entirely clear to me whether the background statement was, in fact, part of the resolution or not. If it was not, it's clearly not binding. In such cases, it's essentially just debate that happens to be written down.

Supposing for the sake of argument it was part of the resolution, similar to a "whereas" clause, it still would not be binding. The "whereas" clauses simply contain rationale and background. The actual actions instructed by the assembly are in the "resolved" clauses. If the board wished to provide that all four methods of access must be used, it should have done so. Since this was not done, my presumption would be that the board intended to give the committee flexibility in this matter.

With that said, if there is some understanding that it was the board's wish that all four methods of access be used, even if this was not strictly stated, it may well be prudent for the implementers to take those wishes into account. But that is more of a political consideration than a parliamentary one. I have no idea whether there is, in fact, such an understanding - the members of the organization should be in a better position to make that determination.

On 2/8/2024 at 11:38 PM, smb said:

Thoughts?   [Obviously the board can resolve the matter, but the project is due to be advertised for bid prior to the board's next meeting.]

If there are especially strong feelings on this from some board members, they can call a special meeting, if possible. Otherwise, it seems to me this is up to the implementers to use their best judgment in this matter.

On 2/9/2024 at 12:02 AM, Gary Novosielski said:

At this point, it appears that you have a committee implementing the project, and it appears to be doing things that the board (to which presumably the committee reports) does not like.

Well, I don't know that we in fact know that the committee is doing things "the board" does not like. It would appear that at least certain members of the board are upset about this decision, but I do not know whether they represent the majority.

On 2/8/2024 at 11:38 PM, smb said:

RONR doesn't really address such an issue...the closest it comes is below, but it addresses the reasons for a motion, not really applicable to this situation.    Also note that the committee presented the Board only with its recommended action and a brief background statement.  There was no 'report' presented for adoption and the Board adopted only the recommended action which did no more than approve the project funding.

It is somewhat striking to me that no report was presented in this matter, however, I don't know that it would change the answer for this particular question. Even if this language had been included in the report, it is the motion, not the report, which is adopted, and the information contained within the report would not be binding.

 

[smb]

Thanks for the input.   Just to clarify: The RESOLVED clause with a brief BACKGROUND statement below it were presented in a one-page resolution submitted by the committee chair.  The RESOLVED clause simply authorizes the committee to proceed with the project and provides the funding; the BACKGROUND statement is just a brief summary of the project -- It's possible there was a more detailed oral report, but the minutes do not state.  My understanding is that the Board had been more fully briefed about the nature of the project at a prior meeting -- this meeting simply gave the order to proceed. The adopted RESOLVED clause was included verbatim in the minutes; the Background statement was not.

The crux of the matter is whether the committee was free to exercise its judgment or had to adhere to the project details given in the background statement. Clearly, a special meeting of the Board could have addressed the matter -- but that didn't happen. I am looking at this issue in the past tense for a training exercise to address how this tzimmes could have been avoided.

 

[Josh Martin]

On 2/9/2024 at 11:19 AM, smb said:

Thanks for the input.   Just to clarify: The RESOLVED clause with a brief BACKGROUND statement below it were presented in a one-page resolution submitted by the committee chair.  The RESOLVED clause simply authorizes the committee to proceed with the project and provides the funding; the BACKGROUND statement is just a brief summary of the project -- It's possible there was a more detailed oral report, but the minutes do not state.  My understanding is that the Board had been more fully briefed about the nature of the project at a prior meeting -- this meeting simply gave the order to proceed. The adopted RESOLVED clause was included verbatim in the minutes; the Background statement was not.

The crux of the matter is whether the committee was free to exercise its judgment or had to adhere to the project details given in the background statement. Clearly, a special meeting of the Board could have addressed the matter -- but that didn't happen. I am looking at this issue in the past tense for a training exercise to address how this tzimmes could have been avoided.

I think how it can be avoided is if the board intends for portions of the "background" statement to be instructions to the committee, those portions should also be included in the RESOLVED clauses. If the current practice is that the RESOLVED clause "simply authorizes the committee to proceed with the project and provides the funding," this seems to give the committee a great deal of latitude.

[Atul Kapur]

On 2/9/2024 at 12:19 PM, smb said:

The RESOLVED clause with a brief BACKGROUND statement below it were presented in a one-page resolution submitted by the committee chair.  The RESOLVED clause simply authorizes the committee to proceed with the project and provides the funding; the BACKGROUND statement is just a brief summary of the project

I do not see a significant difference between a Whereas clause preceding the Resolved clause or a Background statement following it. Neither are part of what the board adopted, which is the Resolved clause.

The situation would be the same if the background statement gave an estimated budget for the project but the motion didn't specify the maximum cost.

The lesson for the training exercise is, as Josh said, for any necessary details, instructions, or specifications to be included in the actual motion that is adopted.

 

[Gary Novosielski]

On 2/9/2024 at 8:01 AM, Josh Martin said:

It would appear that at least certain members of the board are upset about this decision, but I do not know whether they represent the majority.

We would presumably find out when a motion to instruct came to a vote. 😇

[Gary Novosielski]

On 2/9/2024 at 12:19 PM, smb said:

The crux of the matter is whether the committee was free to exercise its judgment or had to adhere to the project details given in the background statement. Clearly, a special meeting of the Board could have addressed the matter -- but that didn't happen. I am looking at this issue in the past tense for a training exercise to address how this tzimmes could have been avoided.

Well, have a look at:

49:12
As a general principle, a board cannot delegate its authority —that is, it cannot empower a subordinate group to act independently in its name—except as may be authorized by the bylaws (of the society) or other instrument under which the board is constituted; but any board can appoint committees to work under its supervision or according to its specific instructions. Such committees of the board always report to the board. 

Unless your bylaws say otherwise, the board ought to be supervising the committee, and its instructions to the committee should be specific.  That would go a long way toward mitigating the kerfuffle.