Motion to reconsider or rescind?

[Guest MissyRJC]

Hi all - our PTC budget contained an extraordinary and potentially controversial line item that may be as a result of a conflict of interest.  Additionally, it appears that the budget was voted on when we did not have a quorum (our by laws state a min of 8). To add to the complexity our minutes from this meeting do not indicate who was present and how each officer voted (we do know verbally from people that were in attendance that only 6 officers were present. There was no follow up or ratification with absent officers after the meeting. Based on this I do not think the approval of the proposed budget has any force or effect (per our by laws)

My question is - what motion should I pass to take care of this? I do not think it is a motion to amend something previously adopted, since technically this is not enforceable per above. Is it a motion to reconsider? Or a motion to rescind? 

Any guidance would be appreciated.

Thank you

[Joshua Katz]

On 2/9/2024 at 3:26 PM, Guest MissyRJC said:

My question is - what motion should I pass to take care of this? I do not think it is a motion to amend something previously adopted, since technically this is not enforceable per above. Is it a motion to reconsider? Or a motion to rescind? 

 

You would raise a point of order. Note that the burden is on you to show by clear and convincing evidence that a quorum was not present. Also note that the claimed conflict of interest would not, per RONR, be a reason to invalidate the action - one with a conflict should not vote, but cannot be compelled not to. 

[Gary Novosielski]

On 2/9/2024 at 3:26 PM, Guest MissyRJC said:

Hi all - our PTC budget contained an extraordinary and potentially controversial line item that may be as a result of a conflict of interest.  Additionally, it appears that the budget was voted on when we did not have a quorum (our by laws state a min of 8). To add to the complexity our minutes from this meeting do not indicate who was present and how each officer voted (we do know verbally from people that were in attendance that only 6 officers were present. There was no follow up or ratification with absent officers after the meeting. Based on this I do not think the approval of the proposed budget has any force or effect (per our by laws)

My question is - what motion should I pass to take care of this? I do not think it is a motion to amend something previously adopted, since technically this is not enforceable per above. Is it a motion to reconsider? Or a motion to rescind? 

Any guidance would be appreciated.

Thank you

What evidence do you have that a quorum was not present?  And if you counted heads at the time, why did you not raise a point of order then and there?

You can try raising a Point of Order at the next meeting, but don't be surprised if it's ruled not-well-taken.  Minutes of the meeting need not include the names of present members.  There is no need to follow up or "ratify" anything with absent officers.  They have no veto rights. So based on any of that, no conclusions can be drawn at all.  If there's something in the budget you don't like, you can use the motion to Amend Something Previously Adopted to change it, but if the money has already been spent in accordance with the current budget, that won't have any practical effect.

[Guest MissyRJC]

Thank you, appreciate the guidance.
 

I was not on the board at the time. I cannot comment as to why others did not raise this. Our by laws state that if a quorum is not met business can continue but any motion passed will have no force or effect unless it is subsequently ratified by absent officers so that the number that vote equals or exceeds a quorum.
 

Our minutes from this meeting did not indicate if there was a quorum or not, who was in attendance or who voted and how. The lack of a quorum is anecdotal based on those who did attend stating that there were only 6 present (our by laws require 8 for a quorum). Our organization is acting in public trust and therefore it is difficult to presume a quorum with no record. 
 

The money has not yet been spent, and I am trying to determine the best and most appropriate next steps to amend or address it. 
 

Can I use the motion to amend something previously adopted even if it has no force or effect due to lack of quorum or evidence there of? 

[Atul Kapur]

On 2/9/2024 at 7:18 PM, Guest MissyRJC said:

Our organization is acting in public trust and therefore it is difficult to presume a quorum with no record. 

Under RONR and because it is after the fact, you have show that quorum was not present. The assumption is that quorum was present and you need clear and convincing evidence that there was not.

If your organization has different rules, you will have to refer to them.

[Gary Novosielski]

On 2/9/2024 at 7:18 PM, Guest MissyRJC said:

Our organization is acting in public trust and therefore it is difficult to presume a quorum with no record. 
 

On the contrary, it is not possible to assume the absence of a quorum without clear and convincing evidence.  And all you have is anecdotal recollections with no record to back them up, so that looks like a dead end.  You'll have to proceed on the assumption that the budget was duly adopted and deal with matters that way, 

The quorum rules in your bylaws, if you're paraphrasing them correctly, vary so widely from Robert's Rules that it's difficult to give you any useful advice beyond that already given, i.e., using Amend Something Previously Adopted.  

[Josh Martin]

On 2/9/2024 at 6:18 PM, Guest MissyRJC said:

Our by laws state that if a quorum is not met business can continue but any motion passed will have no force or effect unless it is subsequently ratified by absent officers so that the number that vote equals or exceeds a quorum.

This seems, frankly, like a very bad idea. I'd advise your organization amend their bylaws to cease this practice as soon as possible.

If the problem is that your quorum is too high, then amend the bylaws to reduce the quorum. The quorum exists for a reason. Organizations should not try to come up with clever "workarounds" for the quorum.

"The minimum number of members who must be present at the meetings of a deliberative assembly for business to be validly transacted is the quorum of the assembly. 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. In both houses of Congress, the quorum is a majority of the members, by the United States Constitution. Such a quorum is appropriate in legislative bodies but too large in most voluntary societies. In an ordinary society, therefore, a provision of the bylaws should specify the number of members that shall constitute a quorum, which should approximate the largest number that can be depended on to attend any meeting except in very bad weather or other extremely unfavorable conditions. In the absence of such a provision in a society or assembly whose real membership can be accurately determined at any time—that is, in a body having an enrolled membership composed only of persons who maintain their status as members in a prescribed manner—the quorum is a majority of the entire membership, by the common parliamentary law." RONR (12th ed.) 3:3

"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. If there is important business that should not be delayed until the next regular meeting, the assembly should fix the time for an adjourned meeting and then adjourn. If, instead, the members present take action informally in the absence of a quorum, they do so at their own risk. Although the assembly can later ratify their action (10:54–57), it is under no obligation to do so." RONR (12th ed.) 40:9

On 2/9/2024 at 6:18 PM, Guest MissyRJC said:

Our minutes from this meeting did not indicate if there was a quorum or not, who was in attendance or who voted and how. The lack of a quorum is anecdotal based on those who did attend stating that there were only 6 present (our by laws require 8 for a quorum). Our organization is acting in public trust and therefore it is difficult to presume a quorum with no record. 

But in fact, it is presumed that a quorum was present at a previous meeting, no matter how "difficult" this may be. If a Point of Order regarding the lack of a quorum is raised after the fact, the burden of proof lies with those claiming a quorum was not present.

"Because of the difficulty likely to be encountered in determining exactly how long the meeting has been without a quorum in such cases, a point of order relating to the absence of a quorum is generally not permitted to affect prior action; but upon clear and convincing proof, such a point of order can be given effect retrospectively by a ruling of the presiding officer, subject to appeal (24)." RONR (12th ed.) 40:12

Ultimately, it will be up to the organization itself to determine whether the specific facts and circumstances presented here constitute "clear and convincing proof" that a quorum was not present.

On 2/9/2024 at 6:18 PM, Guest MissyRJC said:

Can I use the motion to amend something previously adopted even if it has no force or effect due to lack of quorum or evidence there of? 

You have it backwards. The motion is, at this time, assumed to be validly adopted, since no one raised a Point of Order regarding the lack of a quorum at the time. This remains the case until the motion is declared null and void by the assembly.

If the motion remains valid, Amend Something Previously Adopted may be applied to it.

If the motion is declared null and void, Amend Something Previously Adopted may not be applied to it.

[Michael Seebeck]

While I understand the concern regarding a burden of proof that in raising a point of order regarding no quorum you have to prove there was no quorum, it should be noted that it is also incumbent upon the presiding officer to determine if a quorum was present (RONR 40:11) and the secretary should have it recorded within the minutes.  Was there a recording of the meeting to check?

The bigger problem is that not following the proper procedures for determining a quorum and recording it in the minutes/records can open up the organization for other problems like legal liabilities. (Not saying that's necessarily the case here, but the bad practices can create that opportunity at some point.)

But there may be a procedural way to raise it and flip it over.

The Point of Order that could be raised is that the presiding officer did not properly determine if a quorum was present per RONR 40:11, and if the point is ruled not well taken, then Appeal from the Ruling of the Chair (see RONR 24).  At that point the concern can be raised that there is no record of a quorum and absent that record, no business can be conducted, and any business conducted without it is null and void (RONR 40:9) unless later ratified (RONR 10:54-57).  They have to have the paper trail.  While absence of proof is not proof of absence, it is not proof of presence, either. You may not be able to prove there was no quorum, but they cannot prove there was a quorum, either, so the body must ultimately decide.  Since the budget motion as enacted is a continuing action by its very nature, it can be argued that the lack of quorum on the vote is a breach of a continuing nature as well since it adheres to the continuing action--it wasn't valid when voted on and it still isn't valid now. RONR 23:6 explains the continuing breach (an invalid budget in this case), and a vote taken with a lack of quorum violates 23:6-e) because there were enough members absent to not have a quorum (RONR 25:10).

It should also be noted that an Appeal from the Ruling of the Chair flips the burden onto the Chair to justify their ruling by argument and rebuttal (and first and last word), because the question on Appeal is, "Should the ruling of the chair be sustained?" and the vote to overturn is a majority in the negative, which is a vote that the Chair did not prove their case.

To quote the "Cathy Ryan Rule": if it's not written down, it didn't happen.

The simplest solution for them is to simply pass the motion again.  Because it's not clear the original passage was valid, it's not dilatory.

[Gary Novosielski]

I'm afraid you are pretty far off base.

RONR has no requirement that the presence of a quorum must be documented in the minutes.  If there was not a quorum, that fact would be noted in the minutes, if only to explain the fact that no business was conducted.

And the burden of proof is solely on the party claiming a lack of a quorum, not on the chair or anyone else.  Without "clear and convincing proof" that a quorum was not present, any point of order to that effect is not well taken.

[Michael Seebeck]

Disagree completely.  You cannot simply assume a quorum without a determination and recording of such quorum in the minutes.  If that were the case, then a lone President absent everyone else can declare a quorum at a phantom meeting and fabricate everything for a meeting, aka fraud--and THAT completely and unquestionably violates the rights of members.  Point of order raised late? Not well taken, too bad so sad, next item of business, objecting again? Dilatory, please remove the objector, etc.

Absent the official record of a quorum, there is not a record of business being properly conducted and there can be no valid assumption of such. Otherwise a rogue board or parts thereof can run roughshod over everyone else.

The paper trail matters. Absence of proof does not indicate proof of presence.  Or to put it another way, -1 ≠ 0 ≠ 1.

I explained it rather clearly and I stand by it.

[Gary Novosielski]

Clearly or not, it isn't me you disagree with, it's RONR.  See the sample minutes at 48:8 and note that there is no notation of a quorum being present.  The only mention of attendance is the fact that the president and secretary are present.  Yet the assumption that a quorum is present is perfectly valid.

Regarding burden of proof, see 40:12, which says in relevant part: 

 Because of the difficulty likely to be encountered in determining exactly how long the meeting has been without a quorum in such cases, a point of order relating to the absence of a quorum is generally not permitted to affect prior action; but upon clear and convincing proof, such a point of order can be given effect retrospectively by a ruling of the presiding officer, subject to appeal (24).

As was explained to me when I was a newbie here, this forum seeks to inform visitors what RONR says, not what we think it should have said.

 

 

[Michael Seebeck]

48:8 lists a model form, not a binding form.  It's a common mistake in thinking that everything in RONR is gospel truth.  When it comes to reports and documents, it isn't; RONR only provides format suggestions. RONR 48 itself is loaded with "should" and not "shall." Ditto RONR 56.

As for 40:12, the Chair can rule the point of order raised as not well-taken on that point, true.  BUT, the Appeal from the ruling of the Chair flips it over, as was previously stated, so that what was lack of proof of a quorum by the person raising the point now becomes the opposite: the Chair must prove a quorum did exist instead.  The nature of an Appeal flips the burden because the vote is in the opposite direction.  If the question on Appeal is "shall the ruling be overturned (not sustained)?" then a majority in the affirmative would do so--which is the equivalent of a majority in the negative on sustaining the ruling.  (And BTW, that would be in perfect alignment with the rest of the motions and votes in RONR, and then the appellant would have to provide that "clear and convincing" (subjective term) proof!) The only reason that vote is the converse of every other motion (save Objection of Consideration of the Question) is because of that flip of burden in the debate, because the Chair has to justify their argument, not the person raising the point of order.

As was explained to me when I was first learning first formal, then technical, then legal writing, what you write and don't write is just as important as how you write it.

 

[Josh Martin]

On 2/14/2024 at 4:09 PM, Michael Seebeck said:

While I understand the concern regarding a burden of proof that in raising a point of order regarding no quorum you have to prove there was no quorum, it should be noted that it is also incumbent upon the presiding officer to determine if a quorum was present (RONR 40:11)

I agree completely.

On 2/14/2024 at 4:09 PM, Michael Seebeck said:

and the secretary should have it recorded within the minutes.

RONR does not require this. An organization is free to record the presence (or absence) of a quorum in the minutes, or even to record specific attendance, if desired. I have no particular objection to this practice.

On 2/14/2024 at 4:09 PM, Michael Seebeck said:

The bigger problem is that not following the proper procedures for determining a quorum and recording it in the minutes/records can open up the organization for other problems like legal liabilities. (Not saying that's necessarily the case here, but the bad practices can create that opportunity at some point.)

There is certainly no doubt that, assuming the organization is, in fact, failing to determine the presence of a quorum (or worse yet, "looking the other way" when it is obvious a quorum is not present) is likely to lead to all sorts of problems.

As noted above, RONR does not specifically require recording the presence or absence of a quorum in the minutes.

As to whether any of this involves legal liability, I defer to attorneys on that question.

On 2/14/2024 at 4:09 PM, Michael Seebeck said:

The Point of Order that could be raised is that the presiding officer did not properly determine if a quorum was present per RONR 40:11, and if the point is ruled not well taken, then Appeal from the Ruling of the Chair (see RONR 24).

I disagree. Such a Point of Order is no longer timely.

To the extent that a member believes a quorum was, in fact, absent, a member is free to raise a Point of Order concerning that fact. Certainly, to the extent it is known that the presiding officer failed to determine whether a quorum was present, this fact could be one piece of evidence presented to the assembly. I do not think this is, in itself, conclusive evidence.

On 2/14/2024 at 4:09 PM, Michael Seebeck said:

At that point the concern can be raised that there is no record of a quorum and absent that record, no business can be conducted, and any business conducted without it is null and void (RONR 40:9) unless later ratified (RONR 10:54-57).  They have to have the paper trail.  While absence of proof is not proof of absence, it is not proof of presence, either. You may not be able to prove there was no quorum, but they cannot prove there was a quorum, either, so the body must ultimately decide.  Since the budget motion as enacted is a continuing action by its very nature, it can be argued that the lack of quorum on the vote is a breach of a continuing nature as well since it adheres to the continuing action--it wasn't valid when voted on and it still isn't valid now. RONR 23:6 explains the continuing breach (an invalid budget in this case), and a vote taken with a lack of quorum violates 23:6-e) because there were enough members absent to not have a quorum (RONR 25:10).

All of this is incorrect. You seem to be reversing what RONR says. RONR is quite clear that, after the fact, the burden of proof lies with those who are claiming a quorum was not present.

"Because of the difficulty likely to be encountered in determining exactly how long the meeting has been without a quorum in such cases, a point of order relating to the absence of a quorum is generally not permitted to affect prior action; but upon clear and convincing proof, such a point of order can be given effect retrospectively by a ruling of the presiding officer, subject to appeal (24)." RONR (12th ed.) 40:12

I wish to be clear - I am not necessarily questioning the OP's determination that a quorum was not present, or suggesting that proof of this determination cannot be obtained. Frankly, with such a small assembly, it doesn't seem very difficult to me to prove that a quorum was not present. I'd probably just start asking the members whether they attended the meeting in question. Assuming the members don't have any intention of committing fraud, this may resolve the matter fairly quickly. Nonetheless, the burden of proof in this matter lies with the members claiming a quorum was not present. The absence of proof that a quorum was present, in and of itself, does not constitute such proof.

On 2/14/2024 at 4:09 PM, Michael Seebeck said:

It should also be noted that an Appeal from the Ruling of the Chair flips the burden onto the Chair to justify their ruling by argument and rebuttal (and first and last word), because the question on Appeal is, "Should the ruling of the chair be sustained?" and the vote to overturn is a majority in the negative, which is a vote that the Chair did not prove their case.

But RONR is clear that, in the case of a Point of Order regarding the absence of a quorum, "clear and convincing proof" must be presented that a quorum was not present.

On 2/14/2024 at 4:49 PM, Michael Seebeck said:

Disagree completely.  You cannot simply assume a quorum without a determination and recording of such quorum in the minutes.  If that were the case, then a lone President absent everyone else can declare a quorum at a phantom meeting and fabricate everything for a meeting, aka fraud--and THAT completely and unquestionably violates the rights of members.  Point of order raised late? Not well taken, too bad so sad, next item of business, objecting again? Dilatory, please remove the objector, etc.

Mr. Seebeck, you are entitled to your opinion, but there is no doubt that under the rules of RONR, the burden of proof is on those who claim a quorum is not present. I don't think this leads to the parade of horribles you suggest. If a President declares he was at a "phantom meeting," and all of the other members look at each other and have no recollection of this meeting, I think they can quite quickly determine that they have "clear and convincing proof" that the President is full of nonsense. If the President starts abusing his authority in this matter, the assembly can swiftly remove him from the chair, and begin procedures to remove him permanently.

I am frankly more concerned with the suggestion that it should be assumed that everything the assembly does is invalid until proven otherwise. (Or perhaps it is only assumed that everything is invalid after one member complains, until proven otherwise. I'm not sure which of these is your position.) If an organization wishes to adopt its own rules on this matter, it is free to do so, but I do not recommend it.

I would also note that part of the reason RONR notes the "difficulty likely to be encountered in determining exactly how long the meeting has been without a quorum" is because attendance can fluctuate throughout a meeting. If there is a notation in the minutes that a quorum was present when the meeting started, this does not "prove" that a quorum continued to be present.

Indeed, the text in question appears to presume a situation in which a quorum was present at the start of the meeting, and members later left, causing the assembly to lose quorum. The authors do not appear to have contemplated a situation in which the members are so corrupt or so incompetent that they conduct an entire meeting without a quorum without anyone raising the issue. Nonetheless, I believe the rule is the same, except that in such egregious cases, proof of the absence of the quorum will likely be easier to obtain.

Edited February 16, 2024 at 03:00 PM by Josh Martin

[Gary Novosielski]

On 2/14/2024 at 6:47 PM, Michael Seebeck said:

It's a common mistake in thinking that everything in RONR is gospel truth.

No, the question is simply whether everything in RONR is in RONR. It is the gospel truth that it contains everything it contains.

Given that, if an organization has adopted RONR as its parliamentary authority, then with the standard exceptions, it governs and is binding upon the organization in all cases to which it may be applied.  The rules must be followed, strong suggestions should be followed, and the remaining words, to the wise, are sufficient.

On 2/14/2024 at 6:47 PM, Michael Seebeck said:

BUT, the Appeal from the ruling of the Chair flips it over, as was previously stated, so that what was lack of proof of a quorum by the person raising the point now becomes the opposite: the Chair must prove a quorum did exist instead.  The nature of an Appeal flips the burden because the vote is in the opposite direction.  If the question on Appeal is "shall the ruling be overturned (not sustained)?" then a majority in the affirmative would do so--which is the equivalent of a majority in the negative on sustaining the ruling.

The Chair need do no such thing.  The chair only needs to show that the burden, which remains squarely upon the doubter of the quorum, has not been met, and is no longer timely, and therefore the presumption should be that a quorum was present.   The assembly should agree, in the absence of "clear and convincing" evidence.

Furthermore, that is not the way the question is actually put, but if it were, it would change nothing.

The term "clear and convincing evidence" is a fairly objective term, and reasonably well defined as such things go, meaning that the party making the assertion can demonstrate that the assertion is reasonably certain or at least highly probable.  It is a more stringent standard than a mere "preponderance of the evidence," but less stringent than "beyond a reasonable doubt."  Merely saying that one recalls that a quorum was not present is not sufficient, and does not shift the burden to anyone else.

 

Edited February 15, 2024 at 09:37 PM by Gary Novosielski
Fix pairing of quotation marks.

[Shmuel Gerber]

In 40:11, RONR states, "Before the presiding officer calls a meeting to order, it is his duty to determine, although he need not announce, that a quorum is present."

And in section 48, the only suggestion that the minutes should explicitly reflect the presence of a quorum is with respect to entering the names of members present during a roll call vote.

And while the form of the minutes is just a sample, I think it would be odd to contend that if these were real minutes taken and approved by the assembly, there cannot be a presumption that the actions were taken in the presence of a quorum because that fact is not noted.

All in all, it seems pretty clear that RONR does not generally require or even suggest that the presence of a quorum be noted in the minutes. 

I am aware that many people are not happy with this fact, but that does not change the fact.