Retroactivity Cynthia J. Mills, PRP, and Jonathan M. Jacobs, PRP

RetRoactivity

By C. J. Mills, PRP, and Jonathan M. Jacobs, PRP

The current COVID-19 pandemic has created perhaps the ultimate problem for deliberative assemblies. One of the basic characteristics of a deliberative assembly, as enumerated in Robert’s Rules of Order Newly Revised, 12th edition (RONR 12th ed.), is that a group of people “…meets in a single room or area or under equivalent conditions of opportunity for simultaneous aural communication among all participants.” RONR (12th ed.) 1:1. In meetings that fail to adhere to this criterion, business cannot be transacted. How can an organization conduct business without a meeting conducted according to RONR (12th ed.)?

It is possible for a meeting having the characteristics of a deliberative assembly to authorize some previous actions. There are two methods to accomplish this. The first method is by using the motion to ratify. The second method, which is a more powerful method by far, is to retroactively authorize the action in the bylaws. Both methods can ultimately authorize something after the fact. Both, however, come with risks.

Ratify

Ratify is an incidental main motion that functions exactly like any other main motion. It can be used to “…confirm or make valid an action already taken that cannot become valid until approved by the assembly.” RONR (12th ed.) 10:54. RONR then gives some examples of what the motion to ratify can do retroactively1 . Ratify can “make valid” action taken at an inquorate meeting (no quorum present). It can “make valid” action taken at a special meeting. It can “make valid” action taken “by officers, committees, delegates, or subordinate bodies in excess of their instructions or their authority (ibid.).” Note that, in these examples, the action has already been taken. In the case of most main motions, the motion is made, adopted by the assembly, and then the action it authorizes taken. In the case of ratification, the action is taken without valid authorization by the assembly, and then the assembly authorizes it.

For example, assume that there is a main motion, “To contribute five hundred dollars to James Thornton’s campaign.” This motion is considered at a quorate meeting and adopted. Only at that point would the money be contributed. If the motion were adopted at a meeting without a quorum, the money would be contributed, and at a future meeting where a quorum was present, the assembly would then authorize the payment. This would authorize the contribution.

RONR (12th ed.) also notes some things that cannot be approved by a motion to ratify. It can only be used to ratify something that the society could authorize in advance at a meeting. RONR (12th ed.) 10:55. Ratify could not be used to make a meeting conducted by some electronic means valid, for example, when such meetings are not authorized, though it could make the action taken at the electronic meeting valid. Unless the society’s bylaws permit electronic meetings, an electronic meeting cannot be held. Thus, the society could not take a vote at a physical meeting to have an electronic meeting. A society could not meet electronically to amend its bylaws to permit electronic meetings, since the society could not amend its bylaws in advance. This particular issue is one facing many groups today.

In presentations by Thomas “Burke” Balch and Steve Bolen2 at the 2020 NAP Training Conference, the prevailing advice was that both motions—the motion to ratify the action and then a motion to adopt the decisions—are required in dealing with this issue. For example:

The Association conducts an electronic meeting in October 2020. This electronically conducted meeting is not authorized in the bylaws. Decisions made at this meeting were: 1. The members amended the bylaws to authorize electronic meetings. 2. The members approved a new budget. 3. The members elected new officers by a voice vote, even though the bylaws require a ballot.

In June 2021, at an in-person meeting, the members may or may not ratify the actions taken at the unauthorized electronic meeting. If they do ratify the motions, they then must adopt these three decisions made at that meeting as if the motions were made for the first time. The bylaw amendment authorizing electronic meetings could be adopted retroactively to September 2020. The budget could be adopted, or amendments proposed. As for the election of officers, the members must vote again by ballot. It is possible the voting results will be different.

Retroactive Authorization

There are some situations where the lack of a meeting may be a problem in itself. Certain activities may only be permitted at particular meetings. For example, the bylaws may contain a clause that the bylaws may only be amended at a specific meeting. The bylaws may have certain attendance requirements in order for a member to be elected to office. Some organizations may require members to attend a specific number of meetings in order to retain voting rights. Ratify is useless in these situations.

There is a method for dealing with these types of situations. The society may amend its bylaws so

the amendment’s effects will be retroactive. In that way the bylaws would be sufficient to approve any action that has been taken. In the case of the example, a bylaw could be adopted at the regular meeting of June 2021 stating, “Electronic meetings shall be permitted, provided that such meetings permit simultaneous aural communication between all participants.3 This amendment shall be effective as of September 1, 2020.”

A bylaw that has a retroactive effect in reality has one procedural effect. It prevents a point of order from being successfully raised about the past action. Something specifically authorized in the bylaws cannot be subject to a successful point of order.

There are several methods for incorporating retroactive action into a bylaw.

1. Retroactive Authorization

This is to authorize something permanently, but to authorize it from some past point. An example of this is:

“Electronic meetings shall be permitted, provided that such meetings permit simultaneous aural communication between all participants. This amendment shall be effective as of March 1, 2020.”

The last clause, when the amendment takes effect, also can be handled as a proviso. For example, the proposed amendment would be worded:

“Electronic meetings shall be permitted, provided that such meetings permit simultaneous aural communication between all participants.”

The proviso, adopted along with the amendment, would read:

“Proviso related to Electronic Meetings Amendment: ‘This amendment shall be effective as of September 1, 2020.’”

2. Establishing an End of Effect Date

A second option is to have a bylaw with not only a retroactive effect, but an end of effect date. The wording here would be:

“Electronic meetings shall be permitted, provided that such meetings permit simultaneous aural communication between all participants. This amendment shall be in force between September 1, 2020 and April 1, 2021.”

RONR (12th ed.) does envision situations where the effect of a motion will include a clause ending its effect. RONR (12th ed.) 10:26n3.

This process of approving action after the fact, especially in a time when there is massive disruption in the ability for an assembly to conduct business normally, can be very useful. It can also have serious drawbacks. There is no guarantee that an assembly will approve action after the fact.

The members may not approve the action, even if agreed to outside of a meeting. A motion to ratify is fully debatable (RONR, (12th ed.), t26(76)); so is a bylaw amendment (t8 (12)). That debate can change members’ minds. The members, for

example, may have been strongly in favor of permitting electronic meetings, but did not agree with some action taken at an unauthorized meeting; those members could then defeat a bylaw amendment just so the action could not be made valid. RONR (12th ed.) notes that, in the case of most4 actions taken in the absence of a quorum, the members taking the action are responsible for it, not the assembly as a whole. RONR (12th ed.) 40:9. In short, this may not be an appropriate remedy for a contentious society or for some very controversial action.

There may be questions about the legality of the retroactive effect of a bylaw. This would happen, however, only in cases where some statute or case law would apply to the organization. That is a legal question, not a procedural one.

Taking action retroactively is perhaps one of the few things that permit an assembly to conduct business during the pandemic. It might mean that the business of the assembly will be approved, eventually. Like anything else, especially in today’s world, it has risks. NP

ENDNoTES

1 Ratify is used in other situations as well. See RONR (12th ed.) 10:54. 2 On 8/28/20 and 8/30/20, respectively. 3 This wording is based upon the wording found at RONR (12th ed.) 9:33.

4 Motions that may be legitimately adopted at an inquorate meeting are found at RONR (12th ed.) 40:7-8.

WoRk CiTED

Robert, Henry M., Robert’s Rules of Order Newly Revised, 12th Edition, Eds. Sarah Corbin Robert, Henry M. Robert III, William J. Evans, Daniel H. Honemann, Thomas J. Balch, Daniel E. Seabold, Shmuel Gerber, New York: Public Affairs, 2020.

Cynthia J. Mills (C J) became a member of NAP in 2011, and PRP in 2018. She is currently parliamentarian for the Pennsylvania Association of Parliamentarians and a charter member of the Parliamentarians of Philadelphia Pennsylvania. C J is a graduate of Hampton (Institute) University with a BA in Political Science, and The George Washington University with a MA in Paralegal Studies. At the time of this writing, she is the parliamentarian of the Rho Theta Omega Chapter of Alpha Kappa Alpha Sorority, Inc. This is her first contribution to National Parliamentarian.

Jonathan M. Jacobs, PRP, CPP is the former president and former parliamentarian of the Pennsylvania Association of Parliamentarians, Inc. He is also, at the time of writing, secretary of the Delaware Valley Unit. He is also the former president of that unit.