Burke Balch, PRP

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About Burke Balch, PRP

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    Fredericksburg, Virginia
  1. It is important, I think, to distinguish between the rule governing the motion to ratify and examples of its application. The rule states only, "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." RONR (11th ed.), p. 124, ll. 24-27. It is true that "Cases where the procedure of ratification is applicable include: . . . action improperly taken at a regular or properly called meeting at which no quorum was present . . . ." Id. ll. 27-31 (emphasis added). But so far as I can see there is no implication that the items given as examples are meant to constitute an exclusive list, just illustrations of when the motion might be appropriate. Consequently, so long as the caveats on p. 125, ll. 6-14 do not apply, I see no reason why it would be improper to ratify an action taken at, or allegedly authorized by, a meeting that was neither regular nor properly called. Perhaps it might be argued that the statement that an assembly cannot ratify anything done in violation of its own bylaws "except that provision for a quorum in the bylaws does not prevent it from ratifying action taken at a meeting when no quorum was present", id. p. 125, ll. 10-14, implies that the existence of provisons in the bylaws establishing what is required to properly call a meeting means that nothing done at a meeting held in violation of those call requirements may be ratified. I doubt that such an argument should carry the day, however, because it is the action taken or authorized that is sought to be retrospectively validated, not the holding of an improperly called meeting as such.
  2. The exact language is "[A]n election may be contested . . . by raising a point of order. The general rule is that such a point of order must be timely . . . . [E]xceptions to the general timeliness requirement are those that come within the five categories listed on page 251,lines 9-23, in which cases a point of order can be made at any time during the continuance in office of the individual declared elected. For example: . . . If there was a previously valid election for the same term, the subsequent election of another is the adoption of a main motion that conflicts with the bylaws." RONR (11th ed.), p. 445, ll. 8-25. Now, it is true that p. 241, ll. 11-15 refers to "a main motion has been adopted that conflicts with a main motion previously adopted and still in force, unless the subsequently adopted motion was adopted by the vote required to rescind or amend the previously adopted motion." However, in the context of an election , this must be read together with the language on pp. 653 regarding "Removal from Office". That language contrasts the situation in which "the bylaws provide that officers shall serve 'for __ years or until their successors are elected'," in which case an officer can be removed from office by the same vote as that required to rescind or amend the previously adopted motion, with a situation in which "the bylaws provide that officers shall serve only a fixed term" in which case "an officer can be removed from office only for cause . . . in accordance with the procedures described in 63; that is, an investigating committee must be appointed, charges must be preferred, and a formal trial must be held." If, instead of Frank having died, the organization acted to remove him from office by conducting a new election after a vote that was equivalent to that required to rescind or amend the previously adopted motion (the election of Frank), and proceeded to elect someone else, I think there is no doubt that a point of order that the later election was invalid would be well taken. "A general statement of a rule is always of less authority than a specific statement or rule and yields to it." P. 589, ll. 17-18. Here, of course, the proposal is not to remove Frank from office (since he cannot assume it, having died) but to conduct a new election. Nevertheless, I do not see how conducting a new election can be justified now, any more than it could be justified if Frank had died in office. It is significant here that the example given of when a point of order against an election need not be timely on p. 445, ll. 23-25-- "If there was a previously valid election for the same term" omits the qualification that the later election was adopted by the vote required to rescind or amend something previously adopted. Thus, as the duly elected vice president, Vincent becomes president.
  3. 1. 'Tis a consummation devoutly to be wished, but don't hold your breath . . . 2. The American College of Parliamentary Lawyers http://www.parliamentarylawyers.org/ , it is hoped, will be of some use in educating parliamentarians about procedural law - as well as in explaining parliamentary law to lawyers! Presentations to the Maryland Lawyers Unit have identified when and how that state's nonprofit statutes override RONR. The National Parliamentarian has published detailed articles by Michael Malamut explaining the applicable procedural law under the new DC Nonprofit Code. Attorney-parliamentarians in the various states can do a real service by preparing similar educational materials about pertinent state law for parliamentarians -- with the caveat that it is crucial to update these materials regularly to take account of changes in the governing statutes, or in interpretations of them by the courts. With the exceptions such as those I've previously mentioned (e.g., the organization has an attorney or litigation is a real possibility) parliamentarians could in most cases legitimately rely on such information in advising clients on matters on which the procedural law appears quite clear. 3. This is indeed a serious problem. Obviously, what the parliamentarian can successfully do when the lawyer clearly misunderstands parliamentary procedure depends a lot on the relationship the two have, the persuasiveness of the parliamentarian, and the receptivity of the attorney -- not to mention the time available. (This is one good reason to do one's best to think through contingencies in advance of the meeting, and confer with the attorney regarding them, so as to minimize unexpected issues arising during the course of the meeting itself.) I think the parliamentarian ought to do his or her best prudently to educate the attorney. I and other parliamentarians I know have on occasion been successful in doing so. In the end, however, if the organization's attorney -- rightly or wrongly -- gives an opinion regarding the application of the governing law to the procedural situation, it is not the parliamentarian's place to do other than defer to it. 4. These are theoretically apt questions. Of course much depends on the actual language of the statute. As a lawyer as well as a parliamentarian, I will simply say that in my experience the nonprofit corporation statutes that are applicable tend to state a minimum requirement for board action -- i.e., the vote that is required, but not necessarily sufficient, for adoption of what amounts to a main motion. Thus a secondary motion, such as an amendment, would be adoptable by a majority of the votes cast, while adoption of the main motion, as it may or may not have been amended, would require a majority of those present to adopt. I hasten to add that this generalization should not be relied upon for the application of any particular state's law; for that see my # 2 above. I mention it only in support of the proposition that in practice there are likely to be some points of procedural law on which there is little dispute and reasonable clarity. To draw an analogy, what about the law that one must stop at a red light? One can certainly imagine potential legal exceptions or complexities concerning that requirement. What if one is a firefighter or ambulance driver? Suppose you are driving someone in active labor to the hospital? What if you've been rear-ended at the light and you reasonably believe thieves--or worse-- in the car ramming yours are about to attack you? The law may well address these either in statutory exceptions or in case law applying the doctrine of necessity. Yet does this mean a driving instructor had better not tell students they need to stop at a red light without bringing in an attorney to lecture on the question? My point is that parliamentarians advising clients subject to laws that impact parliamentary procedure ought to take reasonable steps to inform themselves concerning the applicable law (again, see # 2) and then to apply prudence and common sense in individual cases to judge whether it is necessary to push the client to consult an attorney or whether it is reasonable simply to advise the client concerning the proper parliamentary procedure as modified by the applicable law.
  4. A certain amount of common sense is necessary here. Consider: 1. Non-lawyers routinely provide basic information to others about what the law requires. When a parent tells a child not to cross the street when the sign says "Don't Walk" , or when a driving instructor tells a student what a "Yield" sign means, it is hardly likely that either will get in trouble for "practicing law without a license." 2. "Ignorance of the law is no excuse." Parliamentarians, as well as others, are required to abide by the law, and that includes when advising clients. A given organization may have adopted RONR as parliamentary authority in its bylaws, but also be incorporated under a nonprofit state statute. RONR (11th ed.), p. 400, ll, 5-12 provides that "the basic requirement for approval of an action or choice by a deliberative assembly, except where a rule provides otherwise, is a majority vote . . . [which] means more than half of the votes cast by persons entitled to vote, excluding blanks or abstentions, at a regular or properly called meeting." Suppose that the statute applicable to the organization's board provides that for its actions to be valid requires a majority of board members present to vote in favor. If the parliamentarian, because she or he either is unfamiliar with the statute or is strenuously attempting to avoid "unauthorized practice of law," advises the chair to declare adopted a motion that received a majority of votes cast but less than a majority of board members present, that parliamentarian is advising that the organization break the law. Moreover, in most such cases, it would be silly for the parliamentarian to urge the chair to recess the meeting so as to call up an attorney to advise concerning so clear and straightforward a point, instead of simply accurately advising the chair that the motion was not adopted. 3. The reality is that because the law regulates virtually every aspect of contemporary life, there are numerous professions that require a knowledge of the law regulating that profession and require professionals to take that law into account in order accurately to advise their clients. These include realtors, accountants, and financial advisers among many others. It would be absurd for a financial adviser counseling a client about investments not to point out the tax advantages of a Roth IRA vs. a traditional IRA, or of municipal as opposed to corporate bonds, or in every case to urge the client to consult a tax lawyer instead of answering client questions about the well-settled and widely-known tax consequences of different investments. 4. Balancing the need oneself to comply with the law while avoiding unauthorized practice of the law is a matter, as I said at the outset, of exercising common sense. When the procedural law in question is complex or unclear, or when divisions within an organization make litigation regarding meeting procedure a distinct possibility, the wise parliamentarian will urge the client to consult an attorney regarding proper interpretation of the governing law. Large and well-funded organizations will often have in-house counsel, or outside counsel on a retainer, and in such cases the parliamentarian should take care to consult with the attorney(s) concerning the applicability of governing procedural law. On the other hand, parliamentarians advising organizations to which procedural law is typically applicable, such as those that are incorporated or that operate in a highly regulated field (like labor unions), need to have a basic familiarity with the governing procedural law, and in straightforward cases must apply it in the advice they give clients, especially those that do not routinely consult a lawyer and when litigation appears to be no more than a remote possibility. 5. Before the 10th edition, RONR (9th ed.), p. 108, provided, "No main motion is in order which conflicts with national, state, or local law." On its face, this seemed to provide as a matter of parliamentary procedure that, e. g., a motion relating to a financial transaction should be ruled out of order if it violated the tax laws -- seemingly requiring a parliamentarian advising the presiding officer to know and be prepared to advise concerning applicable tax legislation. The 10th edition (p.106, ll. 23-25) altered this rule to one stating, "to the extent that procedural rules applicable to the organization or assembly are prescribed by federal, state, or local law, no main motion is in order that conflicts with such rules." (The same language is retained in the 11th edition, p. 111, ll. 6-10.) This change makes clear that the provisions of substantive law are outside the bounds of parliamentary procedure, so that a parliamentarian is not properly called upon to advise concerning the applicability of substantive law to a pending main motion. On the other hand, it recognizes that procedural law does indeed affect parliamentary procedure, and that such law of course supersedes conflicting provisions in the organization's governing documents and parliamentary authority. Accordingly, it behooves parliamentarians, in order to be competent in the practice of their profession, to become familiar with -- and comply with -- the basic provisions of procedural law that may be applicable to a client -- just as a realtor must be basically familiar with real estate law, a driving instructor with the laws governing use of the roads, and a financial adviser with the basic laws governing investments. This emphatically does not mean that parliamentarians should presume to the same level of expertise as lawyers or act as such. Instead, common sense and experience should enable parliamentarians to judge when uncertainty or dispute about the application of procedural law rises to a level at which it is desirable or essential to advise the client to consult an attorney and to refrain from oneself attempting to interpret the law. To repeat, this is the same sort of judgment that competent realtors, accountants, and financial advisers must regularly make. In short, it is possible to fall off either side of the horse -- either to fail to abide by the law by failing accurately to advise a client concerning the applicability of clear provisions of procedural law, or to improperly attempt to interpret complex or disputed applications of procedural law that should be left to attorneys. There is no mechanical "bright line" that can be invoked to delineate the line that should not be crossed; instead, common sense and experience must be relied upon regarding parliamentarians' advising clients regarding the application of procedural law just as is true of many other professionals advising their clients regarding matters governed by other sorts of law.
  5. May I go back to the original issue? On any question, it may be possible to retake a vote. RONR (11th ed.) p. 285. For example, after after a vote has been taken by voice, it would be in order to move that it be taken by a counted vote. Would anyone suppose that, without suspending the rules, debate could be re-opened on the question after the body had voted to take a counted vote but before the counted voting had actually begun? It seems to me that the answer to this should be no different in a situation in which, after taking a voice vote, a motion is adopted to take a ballot vote. Now, in the case of a ballot that fails to decide an issue (which could be an election or could be a vote on some other motion, such as selecting a city for a convention), another ballot is required to follow. What would be the basis for assuming that debate on the question could be resumed between ballots? The book is clear that between ballots a candidate may withdraw. RONR (11th ed.), p. 441, ll. 5-8. Similarly, it states, "When for any reason it is desired to reopen nominations, this can be done by majority vote". Id. p. 289, ll. 7-8. Presumably privileged motions, such as to Recess, could be made and voted on. But I can see no other basis, without suspending the rules, for a motion to re-open debate between ballots, any more than to re-open debate between a voice vote and a counted vote.
  6. Since reference has been made to other members of the authorship team, for whatever it is worth this member of that body agrees entirely with Dan Honemann's analysis, which if I understand it correctly may be summarized as follows: 1. Since an assembly can give instructions to one or more of its committees by majority vote, it only requires such a vote to authorize a committee (or all existing committees) to employ the Previous Question (or in different specified ways to vary from what otherwise would be the default parliamentary rules governing consideration of matters in committees). 2. If, however, a rule is proposed, varying the extant parliamentary rules, that applies to the assembly, such as that all committees of the assembly (including any to be created in the future) are authorized to employ the Previous Question, such a rule is a special rule of order and for adoption requires either (a) previous notice and a 2/3 vote or ( b ) a vote of a majority of the entire membership of the assembly. 3. This analysis is equally applicable whether or not the committee being instructed that it may employ the Previous Question has any authority which must be granted by special rule of order (such as business automatically being referred to it, or the power to investigate something of its own initiative) -- although if the same motion grants it authority which must be granted by special rule of order and authorizes it to employ the Previous Question, then obviously the higher vote/notice required for a special rule of order is required to adopt that undivided motion.
  7. This thread provides additional evidence for the soundness of the statement in RONR (11th ed.), p. 403, ll. 13-1, that "Voting requirements based on the number of members present . . . while possible, are generally undesirable." It is perhaps worth observing that the "intrinsically irrelevant" exception on page 45 is an exception to the rule that "The chair must always call for the negative vote . . . ."(emphasis added). If the chair chooses to call for the negative vote in such a circumstance, I doubt that a point of order against calling for the negative vote would be well taken. (On the other hand, it is certainly true that if the chair does not call for the negative vote when the voting requirement is based on the number of members present, a point of order that the chair should do so to preserve the possibility of reconsideration would also not be well taken. In context, what the "negative vote is intrinsically irrelevant" to is determining whether the motion in question is or is not adopted.)
  8. In light of my last post, I should perhaps clarify that I do not mean to disagree with Shmuel's statement above; if a trial was NOT held in executive session and resulted in a member's expulsion (or other disciplinary sanction), a point of order could be raised that the failure to preserve secrecy invalidated the trial. Whether the ruling on that point of order should indeed invalidate the trial's result might well depend on the specific facts; under some circumstances it might appropriately be deemed what in law is called "harmless error" -- that is, an action that did indeed violate the rules but could not reasonably been held to have affected the outcome of the proceeding. Cf. RONR (11th ed.), p. 252, ll. 20-27.
  9. Yes, yes, and no. Only the last answer should require any further explanation. The breach here is of the basic right of the accused member to have the disciplinary proceeding conducted in executive session so as not to make public any disparaging information about him or her (beyond the fact of expulsion if that occurs). Obviously once the information is made public, that harm cannot directly be remedied; you can't put the toothpaste back in the tube -- and it certainly wouldn't be remedied by subjecting the harmed member, who nevertheless was found not guilty, to another trial for the same alleged offenses. The only remediable "continuing breach" would be the member being deprived of his or her membership by a disciplinary proceeding conducted in violation of his or her basic rights. If the member was not deprived of membership (or otherwise punished), then there would be no continuing breach to be reversed by holding an untimely point of order well taken.
  10. A member might well be expelled, based on the sort of evidence and lower standard of proof applicable in an organization's disciplinary proceeding, yet be found "not guilty" in a trial to which legal rules of evidence and a different burden of proof apply. That a member may be under indictment or public criticism does not free an organization operating under Robert's Rules from the obligation not to disclose publicly disparaging information beyond the fact of expulsion or removal. RONR contains no exception to the rule requiring that disciplinary proceedings be conducted in executive session applicable whenever some disparaging information about the accused is public from other sources.
  11. This member of the authorship team agrees with Shmuel that the rule requiring a disciplinary trial to be in executive session may not be suspended without the consent of the accused. RONR (11th ed.), p. 261, ll. 15-17 (SDC 7) states, "[N]o rule protecting a minority of a particular size may be suspended in the face of a negative vote as large as the minority protected by the rule." As has already been pointed out in this thread, the society does not have "the right to make public the charge of which an officer or member has been found guilty, or to reveal any other details connected with the case [except the result that the member is expelled or the officer is removed from office]." Id. p. 655, ll. 12-19. This rule protects the accused (a minority of one) from having disparaging information about him or her made public. Conduct of disciplinary proceedings outside executive session would of course have the effect of making all of the prohibited disparaging information public. It may be objected that the resolution preferring charges may suspend the rights of the accused and that such a suspension may mean that the accused would be unable to vote against the proposed suspension of the rules requiring the trial to be in executive session. However, id. p. 659, ll. 6-7 says the resolution may be one "if desired, suspending the rights of the accused, as in the following example" (emphasis added) and the example provides "all of Mr. N's rights as a member (except as relate to the trial) are suspended pending disposition of the case." Id. p. 660, 22-24. Since the rule protecting the accused against the public circulation of disparaging information (other than the mere fact of expulsion, if it occurs) obviously relates to the trial, the accused may defeat such a motion. As an alternative or supplemental rationale, there are compelling arguments that the rights RONR accords to the accused in a disciplinary proceeding (including that of secrecy) are among those "concomitant" basic rights referred to on page 3, making applicable the rule that "Rules protecting a basic right of the individual member cannot be suspended. . . . These basic rights can be curtailed only through disciplinary proceedings." Id., p. 264, ll. 6-13. After listing " the right to attend meetings, to make motions, to speak in debate, and to vote," the text states, "No member can be individually deprived of these basic rights of membership--or of any basic rights concomitant to them, such as the right to make nominations or to give previous notice of a motion--except through disciplinary proceedings." Id. p. 3, ll.3-9 (emphasis added). The words "such as" make clear that the list given is not meant to be exhaustive. If the right of an accused to secrecy in disciplinary proceedings can be suspended, why not any other of the accused's rights in a disciplinary proceeding, such as the rights to notice of the charges, time to prepare a defense, the ability to call and cross-examine witnesses, and the like? Surely it is obvious this would be an absurd result, making the rule against suspending a member's basic rights except through a disciplinary proceeding meaningless. To deprive the accused of the rights she or he is given by the rules governing a disciplinary proceeding would be to make it a "disciplinary proceeding" in name only, potentially like a Stalinesque "show trial." Indeed, it would be tantamount to arguing that although a rule prohibits suspending a member's basic rights except through disciplinary proceedings, that rule could itself be suspended so as to allow suspending a particular members' basic rights without disciplinary proceedings! No, the rule mandating that disciplinary proceedings be conducted in executive session may be waived only by concurrence of both the accused and the assembly.
  12. It will come as no surprise, I am sure, that there are on occasion some slight differences in interpretive opinion even among members of the RONR Authorship Team. I have, of course, the greatest respect for the distinguished moderator, who is senior to me on the authorship team, and for his views on this as on all parliamentary questions; I have no intent of challenging them here. I note only that as a member of the Parliamentary Research Team that authored the National Parliamentarian Q&A 16 "Compel a Vote," I personally continue to believe its interpretation of the relevant language in the current 11th edition to be correct.
  13. Not so. The footnote added in the 11th Edition, found on page 500, states: "*If a member abuses his privilege of speaking an unlimited number of times in debate in order to obstruct the business of the committee, such dilatory behavior should be reported to the committee's parent, which may then remove that member from the committee, adopt an order limiting or closing debate in the committee, or take such other action as it deems advisable. However, if there will be no opportunity for this to occur within the time needed to effectively resolve the problem, it is the duty of the committee chairman to deny such a member any further recognition to speak in debate on the pending question." If a motion were made in committee to apply to the committee's parent to "adopt an order limiting or closing debate in the committee," it is true that the motion would itself be debatable. However, its adoption could not be prevented by an indefinite filibuster, because if one or more of the committee minority attempted one, the committee chairman could deny such a member or members "any further recognition to speak in debate on the pending question." Since the ten-minute limit on any one speech applies in committee as in the assembly (the applicable "small board rules" remove the standard limit on the number of times a committee member may speak, not the limit on the amount of time permitted for each speech -- see p. 488, ll. 2-3), denial of "further" recognition to speak would limit the amount of time the obstructive member or members could delay adoption of the motion through debate.
  14. With respect, I disagree. When employing quasi committee of the whole, the assembly is acting "as if" in committee of the whole, and the recommendations it adopts are treated by the assembly just as if they had emanated from a committee of the whole or any other committee. That is to say, they are subject to full debate, amendment, and vote (and disposal by other means such as postponement or postpone indefinitely). The assembly's hands are not tied in the way they would have been had the deliberation in quasi committee of the whole taken place in the assembly acting as the assembly -- for example, amendments that raise the same question of content and effect as those dealt with in quasi committee are in order (cf. RONR [11th ed.], p. 139, ll. 25-29). The requirement of previous notice protects absentees. Id. p. 236, l. 29 to p. 237, l. 5. A board member absent from consideration of the bylaws amendments in quasi committee of the whole who attended the subsequent, post-notice, board meeting, had just as full an opportunity to debate, offer amendments and other motions regarding, and vote on the bylaws amendments as would a board member who had been absent from their consideration in committee of the whole or, for that matter, a Bylaws Committee. Sure. Just go to Google Advanced Search and type in "quasi committee of the whole". I just did, and got "about 73,500" search results. True, the first few webpages of results are dominated by references that explain the meaning or give the rules governing it, but thereafter you will find thousands of references to web-published minutes and other accounts of specific instances of consideration of matters in quasi committee of the whole in non-legislative assemblies. It just requires the patience to go through page after page after page . . . .
  15. Perhaps I can supply one. I serve as parliamentarian for an organization with a large board (representatives from each state federation as well as national officers) that normally meets only once or twice a year, in person, and which has the power to amend its bylaws. A couple of years ago, through an oversight, notice of some important bylaw amendments was not sent out in sufficient time before a board meeting. In discussing the situation, it was noted that a committee of the board could certainly debate proposed amendments for the purpose of making recommendations to the board without the amendments having been noticed before the committee meeting; Bylaws Committees do so all the time. Consequently, the lack of notice would be no bar to considering the proposed amendments in committee of the whole; however, the preference was for the assembly's regular presiding officer to preside over the situation, so quasi committee of the whole was preferred. At the meeting, the board agreed to go into quasi committee of the whole to consider and debate the proposed amendments. After the proposed amendments had been debated and amended, the quasi committee of the whole voted to recommend them, in their amended form, for consideration by the board. That board meeting adjourned without, of course, itself considering the recommended amendments since proper notice had not been given. Thereafter another meeting of the board was called to be conducted by conference call, and the amendments, in the form recommended by the quasi committee, were properly noticed in advance of it. The board during its brief conference call meeting then voted to adopt the amendments as recommended by the quasi committee of the whole with little debate and without further amendment. The result was that, without the expense and time commitment of holding another in-person board meeting, it was possible to adopt the desired bylaw amendments, while having used the device of quasi committee of the whole to allow thorough consideration of them by all the board members during the regularly scheduled in-person meeting. It may be of interest to forum participants to know that during deliberations on the current 11th edition of RONR, members of the authorship team briefly considered eliminating coverage of quasi committee of the whole, assuming that it had fallen into desuetude. Much to our surprise, however, an internet search discovered thousands of references to quasi committee of the whole in ordinary assemblies, that is, outside of legislative proceedings. Its use appears to be particularly common in college faculty meetings. In light of that, we decided to retain quasi committee of the whole in the current edition.