FALSE: “No Quorum, No Meeting”

Earlier in 2021 I was attending an educational event put on by my association’s management company. A well-respected attorney was slated to “review all things about being a Board member.” Listed at the bottom of a list of 5 topics was “Parliamentary Procedure”. Unfortunately, most attorneys don’t know much about that topic, and often say things that are just not right.

During this session, after a brief discussion about Arizona’s statutes regarding quorum for an association’s annual member meeting, the attorney made this erroneous statement when asked “What happens if you don’t have a quorum?”:

No quorum, no meeting.

— Bad parliamentary advice from an attorney

I wrote an email to the attorney and presented the parliamentarian’s view of a “no quorum” situation:

I was particularly interested in your discussion of quorum last night.  Robert’s Rules of Order – now Robert’s Rules of Order Newly Revised (RONR) 12th Edition – was published in September 2020 with a number of smallish changes throughout from the 11th Edition of 10 years ago, but no changes in the area of quorum.  The general rule in RONR has been well established over the years (RONR 40:6-9 – the new references in 12th Ed. are to section and paragraph numbers), quoted here for your reference (my italics):

Proceedings in the Absence of a Quorum. In the absence of a quorum, any business transacted (except for the procedural actions noted in the next paragraph) is null and void. But if a quorum fails to appear at a regular or properly called meeting, the inability to transact business does not detract from the fact that the society’s rules requiring the meeting to be held were complied with and the meeting was convened—even though it had to adjourn immediately.

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.

A motion that absent members be contacted during a recess would represent a measure to obtain a quorum. A motion to obtain a quorum may be moved as a main motion when no business is pending, or as a privileged motion that takes precedence over a motion to Recess (20). Such motions are out of order when another has the floor; must be seconded; are debatable except when privileged; are amendable; require a majority vote; and can be reconsidered. Motions to obtain a quorum are similar to a Call of the House, which can be ordered in assemblies having the power to compel attendance (see below).

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.

So I wholeheartedly agree with your statements about not being able to conduct business, but I think your characterization that “quorum is the lowest number of people that are voting that constitutes an actual meeting” and “if you don’t have a quorum, there is no meeting” is potentially misleading, and could potentially lead to issues.  A brief training session online of 20-30 minutes with a simple “meeting script” and sample minutes would be valuable resource for the many associations that struggle to obtain a quorum for annual meetings.

— Excerpt of an email from HOA Coach to an attorney, after an educational session

The main point here, of course, is this:

…if a quorum fails to appear at a regular or properly called meeting, the inability to transact business does not detract from the fact that the society’s rules requiring the meeting to be held were complied with and the meeting was convened

— Quote from RONR 40:6

Like many nuances in parliamentary and legal issues, the issue is trivial, until it isn’t. “Nobody cares,” you might say. What if, for example, you have an excited member of your association that really wants to force you to “have a meeting”? Remember: in her view — and our attorney’s view — there was no meeting!

For you fellow Arizonans, ARS 10-3703 says this:

A. The court in the county where a corporation’s principal office is located, or if the corporation has no principal office in this state, the court in the county where the corporation’s known place of business is located, may summarily order a meeting to be held on application by any of the following:

1. Any member, if an annual meeting was not held within fifteen months after its last annual meeting.

— Excerpt from ARS 10-3703(A) under the topic “Court ordered meeting”. Title 10 is “Corporations and Associations”, and Chapter 30 where this statute is located is entitled “Members’ Meetings and Voting — Nonprofit Corporations”.

If you are in an unincorporated association, this wouldn’t apply. But there are about 10,000 homeowner associations on file with the Arizona Corporation Commission… so this probably applies to the vast majority of you!

This statute essentially says that if you have not had an annual meeting in the last 15 months, “any member” (just one!) can ask a judge to order a meeting to be held. And judges can also rule that the normal quorum requirements be reduced for the purposes of getting business done.

Hopefully if this occurs in your association, you are informed in advance, and can appear at the hearing. But what are you going to say? “I’m sorry, your honor. We tried to have a meeting, but we didn’t have quorum.” Guess what — most judges also don’t know parliamentary rules, and they will likely take your statement at face value, ruling that the member is in his rights to have a meeting compelled.

But it doesn’t have to be like this. No quorum? Here’s what the dialog should be:

Okay, everyone. Thank you for coming. I’m Chuck Dunkle, president of Desert Turtle Homeowner’s Association. Let’s call the Annual Member Meeting to order here at 7:03pm.

I’m told by our community manager that she has received 13 absentee ballots. How many of you in attendance tonight have not yet voted? [Pause, count] Okay, so there are 3 of you that are still eligible to vote. That makes the number of attendees for the purpose of quorum to be 16. With 290 homes here at Desert Turtle, and our bylaws say we need ten percent for quorum, that would be 29, and we are shy of that number by 13.

If we were a good bit closer to quorum, we could consider adjourning this meeting and reconvening a continued meeting, perhaps this Saturday, in the hopes of then having a quorum. But unless there’s an objection, we’ll pass on that option.

So, with no quorum, we cannot conduct business — and that includes the tallying of ballots for an election — so I’ll mention here that our bylaws state that directors remain in office until their successor is elected, and given that there is no election, the current complement of directors will continue to serve for the coming year.

Unless there’s an objection, this annual member meeting is adjourned at 7:07pm.

— Association president at the annual meeting which does not have a quorum

You’re not done yet! Now you need to create minutes of the meeting. I’ll cover this in a future post.