Found-09072024-MW-AG - Advice Letter Re Motion To Reconsider
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kmonclaFound-09072024-MW-AG - Advice Letter Re Motion To Reconsider
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kmonclaGEORGIA DEPARTMENT OF LAW
40 Capitol Square SW
Atlanta, Georgia 30334-1300
CHRISTOPHER M. CARR www.law.ga.gov
ATTORNEY GENERAL (404) 458-3600
Writer’s Direct: 404-458-3682
[email protected]
ATTORNEY-CLIENT PRIVILEGED COMMUNICATION
June 13, 2024
John Fervier
State Election Board, Chair
Sent by email: [email protected]
RE: Request for Advice on Whether the Board May Take Up a Motion to
Reconsider a Motion Adopted at a Previous Meeting
Mr. Fervier:
This correspondence is in response to your request on behalf of the State
Election Board (“SEB” or “Board”) for advice regarding whether the Board may hear
a motion to reconsider a prior motion in SEB Case No. 2023-025. For the reasons set
forth below, the Board cannot take up such a motion to reconsider at a future Board
meeting.
On May 7, 2024, the Board voted 2-1 to approve a motion to resolve the case
by issuing a letter of reprimand and directing the appointment of independent
monitors, in consultation with the county, for the 2024 General Election. At the May
8, 2024, meeting, which had a separate agenda, one of the Board members who was
absent from the Board at the time of the vote on SEB Case No. 2023-025 moved to
reconsider the motion. His motion was ruled out of order. Immediately afterwards,
a Board member who voted on the losing side of the final decision in SEB Case No.
2023-025 moved to reconsider the motion. Her motion was likewise ruled out of order.
As a preliminary matter, there is nothing within the statutory authority of the
Board, either generally under the Administrative Procedure Act (Chapter 13 of Title
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50 of the Official Code of Georgia) or specifically under the powers and authority of
the Board delineated in the State Election Code (Chapter 2 of Title 21 of the Official
Code of Georgia), which authorizes the Board to reconsider, reverse, or otherwise
modify a final decision of the Board in a contested case which has been adopted by
the Board in an official action. That lack of statutory authority is, for all practical
purposes, the end of the inquiry in terms of whether the Board can revisit a final
decision that has previously been adopted.
The conclusion that the Board lacks any authority to reconsider its final
decision in SEB Case No. 2023-025 is buttressed by a consideration of the authority
of the Board, even were it not constrained by the lack of statutory authority to disturb
a properly adopted final decision in a contested case, to reconsider a prior vote on any
other matter before the Board. The Board has not adopted its own procedural
paradigm governing the conduct of its business. See, e.g., Rules, Ethics, and Decorum
of the House of Representatives 2023-2024 Biennium, adopted January 11, 2023,
available at: www.legis.ga.gov/api/document/docs/default-source/house-members-
document-library/house-rules.pdf. Neither has the Board adopted a non-current
version of Robert’s Rules of Order governing the procedures for organizations that
would override the default reliance on the latest version of Robert’s Rules of Order.
See, e.g., Georgia R. & Reg. r. 45-2-.01 (providing that proceedings of the Georgia
Council on American Indian Concerns shall be governed by Robert's Rules of Order,
10th edition). As a result, proceedings of the State Election Board, to the extent that
there is not a statute or previously adopted rule in conflict, have historically been and
currently are to be governed by the most current version of Robert’s Rules of Order
(“RONR”), which in this case is the 12 Edition published in 2020. No on-point rule or
statute can be found after a careful analysis of the rules adopted by the Board, as
well as the statutes applicable to the Board, so RORN1 governs the proceedings of the
Board in relation to any previously adopted final decision of the Board.
In both cases, the motions were properly considered out of order on May 8,
2024, because neither motion was made by a member who voted with the prevailing
side. “[A] motion to reconsider may only be made by a member who voted with the
prevailing side.” RONR 37:10. Here, the underlying motion was adopted on May 7,
2024; thus, only the members who voted in favor of the motion could move to
reconsider it. However, neither of the members who voted on the prevailing side have
moved to reconsider. Accordingly, the motions to reconsider were properly held to be
out of order at the May 8, 2024, hearing.2
1 Unless expressly stated otherwise, all references to Robert’s Rules of Order herein,
including the use of the referential acronym RONR, refer to the 12th Edition of
Robert’s Rules of Order.
2 This particular rule is limited to boards; in standing and special committees, there
is no such restriction on which members may move to reconsider. See RONR 37:10.
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Further, any future motions to reconsider made at subsequent meetings would
similarly be out of order. Motions to reconsider are subject to certain time limits. A
motion to reconsider must be made either the same day the vote to be considered was
taken, or, in the event there is a session of more than one day, on the next succeeding
day within the session where a meeting was held. RONR 37:10(b). However, here,
the motions to reconsider were not properly made within the time limit prescribed for
motions to reconsider. This therefore prevents a motion to reconsider from being
considered at any subsequent meetings. Cf. RONR 37:15 (a motion to reconsider may
be called up to be acted upon at a meeting in the next session, but the motion to
reconsider itself must have been previously properly made and seconded).
Thus, for the preceding reasons, the Board lacks the statutory authority to
reconsider a final decision properly adopted in a contested case. Even were that not
the case, the procedural rules that govern the Board dictate that the Board can no
longer take up a motion to reconsider the motion to issue a letter of reprimand to
Fulton County and appoint independent monitors, in consultation with the county,
for the 2024 General Election.
Sincerely,
/s/ Danna Yu
Danna Yu
Assistant Attorney General
However, the Board here is not a committee. A committee is generally not considered
to be a form of deliberative assembly. See RONR 50:1; cf. RONR 1:9 (listing a board
as a deliberative assembly). The Board here is such a deliberative assembly. See
RONR 1:22. Further, a committee as denoted here refers to a sub-part of the entity
as a whole; this matter concerns an issue that was taken up by the entire Board in
the normal discharge of its duties.
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