It’s a Saturday evening and you’re at a bar. One-by-one you notice that some of your favorite fellow board members from the Acme Foundation, where you serve as the Board Secretary, walk in to the room. They notice you as well, along with one another. Just by some amazing coincidence, six of the eleven board members of Acme Foundation happened to decide to spend an evening out at the same bar, at roughly the same time. So you all decide to sit together at the nice table in the corner and catch up on things.

The subject of a recent issue at Acme comes up. You decide that since a majority of the board is already together, and that constitutes a quorum, you could take action right now. You pull out a pen and pad of paper and announce to the table that you’re calling a meeting of the Acme Foundation board to order.

The jukebox makes a big “record scratch” sound and stops playing music. The entire bar goes quiet and everybody in the whole bar turns to make a hard glare at your table. They know what’s up. They know that you’re about to take an ultra vires action.

Dramatic music!

Your bylaws very likely has a section describing a quorum as some percentage of the members of the board. If your bylaws are like most bylaws, a majority of the board makes a quorum. But that’s not all it takes to actually establish a quorum. So to get a better understanding of what just happened in the above scene, let’s first get a proper understanding of these fancy Latin terms, and what they mean in the legal sense.

The first term is ultra vires, which means “beyond the powers.” The group of board members did not have the authority to act as they intended. Calling a meeting to order under the circumstance described in the story was not just merely inappropriate. The inappropriateness of that action should be pretty obvious. But more importantly, had the whole group of board members gone along and held a meeting, any action they took and recorded would not have withstood a legal challenge. The group did not have the authority to make any decisions or take any action.

But why? The answer partly lies in the legal definition for the other Latin term: quorum. From Cornell Law School:

A quorum is the minimum number of members of a group or committee required to be in attendance in order for that group to be able to take official action. Groups that often have quorum requirements include legislative bodies, corporate boards of directors, and corporate shareholder meetings.

Cornell Law School Legal Information Institute

It’s not clearly spelled out in the definition, but you’ll notice the key term here is “in attendance,” not “present.” A majority of board members could find themselves present in the same place at the same time, but if the encounter is by chance — or, worse, if the encounter is the result of a choice made by these members, to the exclusion of the full board — those board members are not actually attending anything.

At this point, if you are a member of your board, you should take a moment to take out a copy of your organization’s bylaws. Look beyond the section about quorum. As a corporate unit, the board cannot legally take any action on behalf of the organization unless it first establishes quorum. No motions can be proposed, no decisions can be made, and no instructions can be given to the organization’s administrative leadership without taking these steps first, in order:

1. Send a proper meeting notice to all board members, making sure to include, at a minimum, all details that are mandated in the bylaws.
2. At the appointed time given in the notice, and no earlier, count the number of board members who are present.
3. Once it is established that quorum has been reached, the meeting can then be called to order, and those members present can be counted as in attendance.

In an emergency situation or other crisis, it can be easy to ignore the importance of following the bylaws and making sure that proper notice is sent. Typically, there may be a clause in your bylaws that allows for notice to be waived. However, you must receive written, uncoerced consent from all board members who are unable to attend. Those board members must expressly waive notice, or else those board members who are in attendance will not legally be able to take action, even if you have enough members present to establish a quorum.

In summary: A single board member’s absence or exclusion from a meeting, with no waiver of notice from that member, kills the board’s ability to establish the quorum required to take action. Check your bylaws to find out what it says about quorum and notice for meetings, and make sure to follow them like every word is sacred.