Quorum, null and void business transacted, and ratifying transacted business

[Michael Seebeck]

This question came up the other night in a discussion.

40:6 states that “In the absence of a quorum, any business transacted (except for the procedural actions noted in the next paragraph) is null and void.”

40:7 states that “Even in the absence of a quorum, the assembly may fix the time to which to adjourn (22), adjourn (21), recess (20), or take measures to obtain a quorum. Subsidiary and incidental motions, questions of privilege, motions to Raise a Question of Privilege or Call for the Orders of the Day, and other motions may also be considered if they are related to these motions or to the conduct of the meeting while it remains without a quorum.”

But 10:54 states (paraphrasing) that a motion to ratify is applicable in the case where “action improperly taken at a regular or properly-called meeting at which no quorum was present (cref 40:6-10).”

Also, 10:55 repeats the idea that a “provision for a quorum in the bylaws does not prevent it from ratifying action taken at a meeting when no quorum was present.”

So (not counting the 40:7 exceptions) if business was transacted without quorum to transact business, under 40:6 it is considered null and void, then it never actually was transacted.

So here’s where I’m having trouble understanding what I think appears to be a conflict between these two sections.

How can business that was never transacted per 40:6 be ratified as having been transacted per 10:54?

Conversely, if the business was transacted so it can be ratified per 10:54, then how can it be null and void per 40:6?

And if action to transact business can be taken without quorum and then ratified later, then what is the point of having a quorum at all?--since in the second meeting without a quorum, the body can just ratify the transacted business of the previous meeting without a quorum, and the third one after that can do the same thing for the ratification vote from the second meeting, and so on, in a repeating and possibly endless cycle of built-up ratification actions that all adhere to the original transacted business, without ever being ratified.  The ab initio gets buried under a pile of ex post facto.  Somehow I don’t think that’s the intention, but it appears that kind of exploitation could happen.

I feel like I’m missing something here, but I’m not seeing what it is.

Thank you in advance.

Edited June 24, 2024 at 08:07 PM by Michael Seebeck
fix spacing

[Richard Brown]

On 6/24/2024 at 3:07 PM, Michael Seebeck said:

So here’s where I’m having trouble understanding what I think appears to be a conflict between these two sections.

How can business that was never transacted per 40:6 be ratified as having been transacted per 10:54

Because 10:54 says expressly that "The motion to ratify (also called approve or confirm) is an incidental main motion that is used to confirm or make valid an action already taken that cannot become valid until approved by the assembly."  (Emphasis added).  Section 10:54 expressly enables an assembly to ratify or "make valid" something that would otherwise remain invalid.  A search of this topic on the forum will also show that the consensus is that the act of ratification usually relates back to the time of the original adoption of the motion being ratified.  I

In short, we can do it because RONR specifically says we can do it.

Edited June 24, 2024 at 08:38 PM by Richard Brown
Typographical correction

[Josh Martin]

On 6/24/2024 at 3:07 PM, Michael Seebeck said:

How can business that was never transacted per 40:6 be ratified as having been transacted per 10:54?

"The motion to ratify (also called approve or confirm) is an incidental main motion that is used to confirm or make valid an action already taken that cannot become valid until approved by the assembly.

 action improperly taken at a regular or properly called meeting at which no quorum was present (40:6–10);" RONR (12th ed.) 10:54

Perhaps your quibble is with the use of the word "action" in this context. But RONR does not say that no "action" has occurred whatsoever when action is improperly taken at an inquorate meeting. Rather, it says that the "action" which has been taken is an action by the members present, not by the assembly itself. It is for exactly this reason why the action requires ratification, at a regular or properly called meeting of the assembly with a quorum present, 

"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, emphasis added

Indeed, I would note that many (but not all) of the actions requiring ratification involve action taken by persons other than the assembly, such as action "taken by officers, committees, delegates, subordinate bodies, or staff in excess of their instructions or authority".

On 6/24/2024 at 3:07 PM, Michael Seebeck said:

Conversely, if the business was transacted so it can be ratified per 10:54, then how can it be null and void per 40:6?

Because the business which was transacted was transacted by the individual members present, not by the assembly.

On 6/24/2024 at 3:07 PM, Michael Seebeck said:

And if action to transact business can be taken without quorum and then ratified later, then what is the point of having a quorum at all?--since in the second meeting without a quorum, the body can just ratify the transacted business of the previous meeting without a quorum, and the third one after that can do the same thing for the ratification vote from the second meeting, and so on, in a repeating and possibly endless cycle of built-up ratification actions that all adhere to the original transacted business, without ever being ratified.  The ab initio gets buried under a pile of ex post facto.  Somehow I don’t think that’s the intention, but it appears that kind of exploitation could happen.

An assembly which itself does not have a quorum cannot ratify actions taken in the absence of a quorum. There is no "infinite chain" here. The ratification can occur only at a regular or properly called meeting with a quorum present.

To be clear, the reason why the option of ratifying actions taken in the absence of a quorum exists is not to suggest that it is an acceptable option to take action without a quorum present. Nor does what is said in the section on ratification suggest that it is acceptable for officers to take action in excess of their authority. But supposing these things do nonetheless occur, the assembly, at a regular or properly called meeting with a quorum present, may ratify these actions. The assembly may also, of course, refuse to ratify the actions.

Edited June 25, 2024 at 01:26 PM by Josh Martin

[Gary Novosielski]

On 6/24/2024 at 4:07 PM, Michael Seebeck said:

This question came up the other night in a discussion.

40:6 states that “In the absence of a quorum, any business transacted (except for the procedural actions noted in the next paragraph) is null and void.”

40:7 states that “Even in the absence of a quorum, the assembly may fix the time to which to adjourn (22), adjourn (21), recess (20), or take measures to obtain a quorum. Subsidiary and incidental motions, questions of privilege, motions to Raise a Question of Privilege or Call for the Orders of the Day, and other motions may also be considered if they are related to these motions or to the conduct of the meeting while it remains without a quorum.”

But 10:54 states (paraphrasing) that a motion to ratify is applicable in the case where “action improperly taken at a regular or properly-called meeting at which no quorum was present (cref 40:6-10).”

Also, 10:55 repeats the idea that a “provision for a quorum in the bylaws does not prevent it from ratifying action taken at a meeting when no quorum was present.”

So (not counting the 40:7 exceptions) if business was transacted without quorum to transact business, under 40:6 it is considered null and void, then it never actually was transacted.

So here’s where I’m having trouble understanding what I think appears to be a conflict between these two sections.

How can business that was never transacted per 40:6 be ratified as having been transacted per 10:54?

Conversely, if the business was transacted so it can be ratified per 10:54, then how can it be null and void per 40:6?

And if action to transact business can be taken without quorum and then ratified later, then what is the point of having a quorum at all?--since in the second meeting without a quorum, the body can just ratify the transacted business of the previous meeting without a quorum, and the third one after that can do the same thing for the ratification vote from the second meeting, and so on, in a repeating and possibly endless cycle of built-up ratification actions that all adhere to the original transacted business, without ever being ratified.  The ab initio gets buried under a pile of ex post facto.  Somehow I don’t think that’s the intention, but it appears that kind of exploitation could happen.

I feel like I’m missing something here, but I’m not seeing what it is.

Thank you in advance.

You're not ratifying the business improperly transacted, which, as you noted is still null and void.  What you're ratifying (presuming you have the votes to do so) are actions taken in spite of the now null and void transactions.

If the process is abused, then one of these days the motion to Ratify will be voted down (leaving the abusers on the hook for the consequences), or at least accompanied by a motion of Censure, as a way to say "Cut it out."

Edited June 25, 2024 at 01:48 AM by Gary Novosielski

[Richard Brown]

On 6/24/2024 at 8:47 PM, Gary Novosielski said:

You're not ratifying the business improperly transacted, which, as you noted is still null and void.  What you're ratifying (presuming you have the votes to do so) are actions taken in spite of the now null and void transactions.

I would say instead, as Josh Martin explained it, that what you are ratifying is the action taken by the members at the inquorate meeting who voted to do something that is invalid due to the absence of a quorum. You are ratifying the action(s) of those members. 

[Michael Seebeck]

"Transacted business" is a subset of "actions" by definition, but not all "actions" are "transacted business."  Hence the focus on "transacted business," not the superset of "actions."  As I pointed out by mentioning 40:7, not all "actions" when inquorate are null and void, and that is understandable.

The question and conflict was regarding transacted business that per 10:54 was never valid to begin with (because it didn't exist) can be ratified as valid.  How can a nonexistent action be ratified as a valid action when it never existed in the first place???

And the quibble is not with the term "action."  To repeat: the issue is that if an action (specifically, transacted business) is determined to be null and void (Robert's words in 40:6 but not defined in Robert's, elsewhere defined by other sources as being it never happened), it is impossible to ratify an action that never existed.  THAT is the problem I'm having: Schroedinger's actions; it either happened or it didn't, but not both.  Since it never existed, it cannot be ratified, and such action would have to be NEW business because it hasn't yet happened.  If it is to be ratified, then it did exist, and it was not null and void.  That's where I see the conflict.

Also, just because Robert's says it can be done doesn't mean Robert's is correct.  For example, Robert's also says that bylaws cannot be suspended, yet Robert's also says the body determines the meaning of its bylaws and it certainly can suspend them by means of adopting a self-executing time-expiration proviso on an amendment to delete. ("Proviso: This amendment will expire upon adjournment sine die, at which point the prior wording shall regain effect.")  The latter workaround clearly contradicts the former while being perfectly valid process, even if it is condensed in terms of time in that it occurs all in one session and is not spread across multiple sessions.  But that's a different discussion. 

Edited June 25, 2024 at 07:49 PM by Michael Seebeck

[Michael Seebeck]

On 6/24/2024 at 3:39 PM, Josh Martin said:

An assembly which itself does not have a quorum cannot ratify actions taken in the absence of a quorum. There is no "infinite chain" here. The ratification can occur only at a regular or properly called meeting with a quorum present.

Sure they can.  That's transacted business by definition.  Transacted Business A by main motion, done inquorate, is ratified by Transacted Business IMM Ratification Motion B, done inquorate, then B ratified by Transacted Business IMM Ratification Motion C, done inquorate, then C is ratified by Transacted Business IMM Ratification Motion D, done with quorum, which cleans out the stack: D ratifies C, which then ratifies B, which then ratifies A.  That's according to the current wording of Robert's as cited above, because a motion to ratify is not included in the exceptions list in 40:7.

Edited June 25, 2024 at 05:03 PM by Michael Seebeck

[Michael Seebeck]

Quote

Indeed, I would note that many (but not all) of the actions requiring ratification involve action taken by persons other than the assembly, such as action "taken by officers, committees, delegates, subordinate bodies, or staff in excess of their instructions or authority".

But that's not what I'm referring to.  I'm referring to business transacted by the assembly inquorate, not actions of individuals outside of it.

[Michael Seebeck]

On 6/24/2024 at 3:39 PM, Josh Martin said:

But RONR does not say that no "action" has occurred whatsoever when action is improperly taken at an inquorate meeting. Rather, it says that the "action" which has been taken is an action by the members present, not by the assembly itself. It is for exactly this reason why the action requires ratification, at a regular or properly called meeting of the assembly with a quorum present, 

The term "null and void" as used in 40:6 (not to mention 23:6, 23:9, 39:5 and 49:7) indicates that no action occurred by the very definition of "null and void."

Members present are part the assembly, whether they have a quorum or not. (1:4)  10:54 indicates "actions" but does not indicate by whom those actions are taken, so they can include transacted business by an inquorate assembly--which is what I'm referring to.

Thinking it though further, the problem appears to be that Robert's uses the term "null and void" incorrectly in this case, without definition, when the correct term may be "ineffective," or "inactive until ratified" or similar better language.

Edited June 25, 2024 at 06:32 PM by Michael Seebeck

[Michael Seebeck]

On 6/24/2024 at 3:37 PM, Richard Brown said:

Because 10:54 says expressly that "The motion to ratify (also called approve or confirm) is an incidental main motion that is used to confirm or make valid an action already taken that cannot become valid until approved by the assembly."  (Emphasis added).  Section 10:54 expressly enables an assembly to ratify or "make valid" something that would otherwise remain invalid.  A search of this topic on the forum will also show that the consensus is that the act of ratification usually relates back to the time of the original adoption of the motion being ratified.  I

In short, we can do it because RONR specifically says we can do it.

But per 40:6 such transacted business was "null and void" and never existed in the first place.  How can a nonexistent action of a business transaction be ratified?

Also, argument to consensus is a fallacy.

[J. J.]

On 6/25/2024 at 12:54 PM, Michael Seebeck said:

But per 40:6 such transacted business was "null and void" and never existed in the first place.  How can a nonexistent action of a business transaction be ratified?

Also, argument to consensus is a fallacy.

Just because something is null and void at one point in time does not mean that it remains null and void. 

As I am sure you are aware, for a large potion of the history of the US, a tax on income was "null and void."  Something changed, the 16th Amendment to the Constitution, determining that it was no longer void. 

[Michael Seebeck]

On 6/25/2024 at 12:10 PM, J. J. said:

Just because something is null and void at one point in time does not mean that it remains null and void. 

As I am sure you are aware, for a large potion of the history of the US, a tax on income was "null and void."  Something changed, the 16th Amendment to the Constitution, determining that it was no longer void. 

That's a bad example, even discounting the historical controversy over its ratification.

The 16th Amendment, like every constitutional amendment, was not in effect until it was properly ratified.  Until that point, it did not exist in law. But its process did not include passage by an assembly inquorate, either.  (Ratification by the states is a different question.) And in the case of the income tax, prior legislative attempts were thrown out by the courts, made null and void as a violation of the Constitution, which is why the amendment was proposed in the first place.  They had to get the process correct and follow it properly.

In order for something to not remain null and void, it would have to have that status overridden by proper process.  The issue I have is that a ratification is NOT that proper process.  Treating it as new business is proper process, because until that point, it doesn't exist.

Edited June 25, 2024 at 05:24 PM by Michael Seebeck

[J. J.]

On 6/25/2024 at 1:18 PM, Michael Seebeck said:

That's a bad example, even discounting the historical controversy over its ratification.

The 16th Amendment, like every constitutional amendment, was not in effect until it was properly ratified.  Until that point, it did not exist in law. But its process did not include passage by an assembly inquorate, either.  And in the case of the income tax, prior legislative attempts were thrown out by the courts, made null and void as a violation of the Constitution, which is why the amendment was proposed in the first place.  They had to get the process correct and follow it properly.

In order for something to not remain null and void, it would have to have that status overridden by proper process.  The issue I have is that a ratification is NOT that proper process.  Treating it as new business is proper process, because until that point, it doesn't exist.

You just made my point.  At some point, i.e. ratification, the action became valid. 

[Michael Seebeck]

On 6/25/2024 at 12:26 PM, J. J. said:

You just made my point.  At some point, i.e. ratification, the action became valid. 

No.  In that case, ratification was part of the full process of putting the action (the amendment) into effect, not changing its status from nonexistent or invalid to valid.  As another example, the 27th Amendment was not in effect until Michigan ratified it 203 years after it was passed out of Congress.  It was not invalid during that time, nor was it nonexistent.  It was valid constitutional law that had not yet completed the process to be placed into effect.  It was, effectively, "in the pipe."  In contrast, the Equal Rights Amendment did not complete the process and was not placed into effect because the clock ran out on the process before it could be ratified. In both cases, ratification is part of the process of placing it into effect, not making an invalid action valid.

In this case, ratification is not part of that process regarding transacted business inquorate, because something that is nonexistent cannot be ratified.  It's not "in the pipe." And that's where the "null and void" language causes problems.

[Richard Brown]

On 6/25/2024 at 12:18 PM, Michael Seebeck said:

In order for something to not remain null and void, it would have to have that status overridden by proper process.  The issue I have is that a ratification is NOT that proper process.  Treating it as new business is proper process, because until that point, it doesn't exist.  (Emphasis added)

Well, like it or not, ratification *IS* the proper process. And, if I’m not mistaken, it IS done as new business. I don’t think it qualifies as unfinished business, but it might. That’s an interesting question. I can see how ratification of a particular action could possibly come under unfinished business, depending on the exact circumstances.

Maybe you think ratification should not be the proper process, but the people who wrote the rules say it is the proper process. When you publish Michael’s Rules of Order, you can provide for a different process. 😊

BTW, Demeter’s Manual of Parliamentary Law and the current AIP Standard Code of Parliamentary Procedure (second edition) both treat ratification pretty much the same way that RONR does. It’s covered in sections 13:14 – 23 in The Standard Code. It’s covered on several different pages in Demeter.

[J. J.]

On 6/25/2024 at 2:30 PM, Michael Seebeck said:

No.  In that case, ratification was part of the full process of putting the action (the amendment) into effect, not changing its status from nonexistent or invalid to valid.  As another example, the 27th Amendment was not in effect until Michigan ratified it 203 years after it was passed out of Congress.  It was not invalid during that time, nor was it nonexistent.  It was valid constitutional law that had not yet completed the process to be placed into effect.  It was, effectively, "in the pipe."  In contrast, the Equal Rights Amendment did not complete the process and was not placed into effect because the clock ran out on the process before it could be ratified. In both cases, ratification is part of the process of placing it into effect, not making an invalid action valid.

In this case, ratification is not part of that process regarding transacted business inquorate, because something that is nonexistent cannot be ratified.  It's not "in the pipe." And that's where the "null and void" language causes problems.

The 27th Amendment was not valid until it was ratified, then it was. 

[Michael Seebeck]

On 6/25/2024 at 1:32 PM, Richard Brown said:

Well, like it or not, ratification *IS* the proper process. And, if I’m not mistaken, it IS done as new business. I don’t think it qualifies as unfinished business, but it might. That’s an interesting question. I can see how ratification of a particular action could possibly come under unfinished business, depending on the exact circumstances.

Maybe you think ratification should not be the proper process, but the people who wrote the rules say it is the proper process. When you publish Michael’s Rules of Order, you can provide for a different process. 😊

BTW, Demeter’s Manual of Parliamentary Law and the current AIP Standard Code of Parliamentary Procedure (second edition) both treat ratification pretty much the same way that RONR does. It’s covered in sections 13:14 – 23 in The Standard Code. It’s covered on several different pages in Demeter.

I definitely agree that it is not unfinished business, because it was never business to begin with, because it was null and void.

The snark isn't appreciated.  It's unnecessary.

Edited June 25, 2024 at 06:45 PM by Michael Seebeck

[J. J.]

You can also look at it this way.  By ratifying some act not taken at a quorate meeting, the assembly is effectively prohibiting a point of order from being raised on the ground that the act was not taken at a quorate meeting. 

[Michael Seebeck]

On 6/25/2024 at 1:37 PM, J. J. said:

The 27th Amendment was not valid until it was ratified, then it was. 

It was not in effect until it was ratified.  But it was perfectly valid.  Had it been invalid, it would have been ruled so by the courts.  In fact, they ruled the opposite in Coleman v. Miller, 307 U.S. 433 (1939) when it was determined that a lack of a deadline did not invalidate such an amendment but made the ratification pending, which means perfectly valid.

[Michael Seebeck]

On 6/25/2024 at 1:42 PM, J. J. said:

You can also look at it this way.  By ratifying some act not taken at a quorate meeting, the assembly is effectively prohibiting a point of order from being raised on the ground that the act was not taken at a quorate meeting. 

True.  But that is properly accomplished as new business as a new main motion, not an IMM to ratify something that doesn't exist.

Again it goes back to improper use of "null and void."  That's the core problem.

Edited June 25, 2024 at 06:46 PM by Michael Seebeck

[J. J.]

On 6/25/2024 at 2:43 PM, Michael Seebeck said:

It was not in effect until it was ratified.  But it was perfectly valid.  Had it been invalid, it would have been ruled so by the courts.  In fact, they ruled the opposite in Coleman v. Miller, 307 U.S. 433 (1939) when it was determined that a lack of a deadline did not invalidate such an amendment but made the ratification pending, which means perfectly valid.

When did the courts determine that Congress could not raise its salary until after the next House election? 

[Dan Honemann]

I really don't understand what the fuss is all about.  Parliamentary law for over a century has provided that action taken at a meeting at a time when no quorum is present can subsequently be ratified at a quorate meeting.

[J. J.]

On 6/25/2024 at 2:44 PM, Michael Seebeck said:

True.  But that is properly accomplished as new business as a new main motion, not an IMM to ratify something that doesn't exist.

Again it goes back to improper use of "null and void."

Why, the assembly, at some level, has dealt with the action?

 

[Michael Seebeck]

On 6/25/2024 at 1:46 PM, J. J. said:

When did the courts determine that Congress could not raise its salary until after the next House election? 

Only once has the 27A ever come up in court, in Shaffer v. Clinton, 54 F. Supp. 2d 1014 (D. Colo. 1999).  In that case COLAs for Congress were challenged as violating the 27A.  It was dismissed with prejudice for various reasons, primarily lack of standing and an established precedent regarding COLAs that predated the 27A.

[Dan Honemann]

On 6/25/2024 at 2:57 PM, Michael Seebeck said:

Only once has the 27A ever come up in court, in Shaffer v. Clinton, 54 F. Supp. 2d 1014 (D. Colo. 1999).  In that case COLAs for Congress were challenged as violating the 27A.  It was dismissed with prejudice for various reasons, primarily lack of standing and an established precedent regarding COLAs that predated the 27A.

Let's stick with Robert's Rules of order.

I say again, I really don't understand what the fuss is all about.  Parliamentary law for over a century has provided that action taken at a meeting at a time when no quorum is present can subsequently be ratified at a quorate meeting.