Breach of Continuing Nature

[J. J.]

Rob, there is no disagreement as to whether a breach of the rules has occurred, because a motion that conflicts with a previously adopted motion is not in order. The only question is whether that breach is a continuing one, which it is unless the new motion was adopted by the necessary vote (let's say two-thirds, for the sake of simplicity). Just based on the existing record, there is no apparent evidence one way or the other as to whether such a vote was achieved.

So, what is the standard of proof?

Do you need evidence that the requisite vote threshold was not reached? Do you need only to establish that there is not evidence that the requisite vote threshold was reached?

(I'd probably say the first.)

[Shmuel Gerber]

So, what is the standard of proof?

Do you need evidence that the requisite vote threshold was not reached? Do you need only to establish that there is not evidence that the requisite vote threshold was reached?

(I'd probably say the first.)

I trust Matt, and I think the assembly will too. :-)

But the rule is that there is a continuing breach "unless the subsequently adopted motion was adopted by the vote required to rescind or amend the previously adopted motion" (p. 244). So I think the assembly would have to establish in some fashion that the vote threshold was met if it is not going to sustain the point of order against the later motion, as there is no reason to just assume that it was. That is where the burden of proof lies; however, RONR does not specify what the standard for carrying it is.

[Chris Harrison]

But the rule is that there is a continuing breach "unless the subsequently adopted motion was adopted by the vote required to rescind or amend the previously adopted motion" (p. 244). So I think the assembly would have to establish in some fashion that the vote threshold was met if it is not going to sustain the point of order against the later motion, as there is no reason to just assume that it was. That is where the burden of proof lies; however, RONR does not specify what the standard for carrying it is.

I somehow suspect that the Chair's ruling will end up being Appealed no matter which way it went. So would it be proper for the Chair to put the question to the assembly whether the Point of Order is Well Taken and then the Chair in debate could indicate that he believes that the vote was unanimous and therefore while there technically was a breach the second adopted motion was adopted by a vote high enough to rescind or amend the first adopted motion? Then the assembly will decide for itself.

[Shmuel Gerber]

I somehow suspect that the Chair's ruling will end up being Appealed no matter which way it went. So would it be proper for the Chair to put the question to the assembly whether the Point of Order is Well Taken and then the Chair in debate could indicate that he believes that the vote was unanimous and therefore while there technically was a breach the second adopted motion was adopted by a vote high enough to rescind or amend the first adopted motion? Then the assembly will decide for itself.

Since the question is dependent on the facts as well as the rules, I agree that it would be appropriate for the chair to let the assembly decide, even if he has his own definite opinion of what happened.

[Rob Elsman]

Rob, there is no disagreement as to whether a breach of the rules has occurred, because a motion that conflicts with a previously adopted motion is not in order. The only question is whether that breach is a continuing one, which it is unless the new motion was adopted by the necessary vote (let's say two-thirds, for the sake of simplicity). Just based on the existing record, there is no apparent evidence one way or the other as to whether such a vote was achieved.

That the second main motion was admitted in error by the chair's stating the question is now water under the bridge. The admission of the second main motion for consideration in breach of RONR (10th ed.), p. 106, ll. 26-28, did not constitute a continuing breach under the exception of RONR (10th ed.), p. 244, ll. 12-16, since the mere admission of a motion for consideration was not equivalent to its adoption. Once the question was placed in the control of the assembly (though in error), its valid adoption was not impossible, since the "...unless..." clause of p. 244, ll. 13-16, means that the motion could be validly adopted if the vote was sufficient to adopt a motion to Rescind or Amend Something Previously Adopted.

The controversy now is whether the adoption of the second main motion constitutes a continuing breach under the exception of RONR (10th ed.), p. 244, ll. 12-16. To rule that a Point of Order is well taken, the chairman must have a rational basis to form the opinion that 1) the second main motion was adopted; and, 2) the second main motion conflicts with a main motion previously adopted and still in force; and, 3) the second main motion was not adopted by the vote required to adopt a motion to Rescind or Amend Something Previously Adopted.

The facts seem to indicate that the chairman announced that the second main motion was adopted, though the vote seems not to have been counted or recorded. The working assumption is that the second main motion does, indeed, conflict with a main motion previously adopted and still in force, though we have few facts to establish this for ourselves. However, there seem to be no facts available to indicate whether or not the second main motion was adopted by the vote required to adopt a motion to Rescind or Amend Something Previously Adopted. The minutes just say that the motion was adopted, which would be the ordinary case if the vote was taken by a viva voce vote, an uncounted show of hands, or some other uncounted and unrecorded voting method. Because this is so, the chairman does not have a rational basis to form an opinion that there is a continuing breach of the rules under RONR (10th ed.), p. 244, ll. 12-16. Therefore, he must let the announcement of the result on the second main motion stand by ruling that the Point of Order is not well taken.

To summarize, for the chairman to rule that the adoption of a main motion is in breach of the exception of RONR (10th ed.), p. 244, ll. 12-16, it is necessary that the facts indicate that the motion was not adopted by the vote necessary to adopt a motion to Rescind or Amend Something Previously Adopted. If these facts are entirely lacking, the chairman has no rational basis to form an opinion that a rule has been breached, and he must rule that the Point of Order is not well taken.

[Shmuel Gerber]

That the second main motion was admitted in error by the chair's stating the question is now water under the bridge. The admission of the second main motion for consideration in breach of RONR (10th ed.), p. 106, ll. 26-28, did not constitute a continuing breach under the exception of RONR (10th ed.), p. 244, ll. 12-16, since the mere admission of a motion for consideration was not equivalent to its adoption. Once the question was placed in the control of the assembly (though in error), its valid adoption was not impossible, since the "...unless..." clause of p. 244, ll. 13-16, means that the motion could be validly adopted if the vote was sufficient to adopt a motion to Rescind or Amend Something Previously Adopted.

Ah, the old Stackpole argument.

The conflicting motion could not properly be adopted, and in fact "if adopted [is] null and void" (RONR 10th ed., p. 332, l. 22) -- unless adopted by the vote required to rescind or amend the motion previously adopted. The exception "unless adopted by the vote required ..." is an exception to the timeliness requirement for raising the point of order; it is not in any way an exception to the rule itself.

[Rob Elsman]

Ah, the old Stackpole argument.

The conflicting motion could not properly be adopted, and in fact "if adopted [is] null and void" (RONR 10th ed., p. 332, l. 22) -- unless adopted by the vote required to rescind or amend the motion previously adopted. The exception "unless adopted by the vote required ..." is an exception to the timeliness requirement for raising the point of order; it is not in any way an exception to the rule itself.

The exception "unless adopted by the vote required ..." is an exception to the timeliness requirement for raising the point of order; it is not in any way an exception to the rule itself.

I disagree. If the subsequently adopted main motion is adopted by the vote required to adopt a motion to Rescind or Amend Something Previously Adopted, then there is no breach of the underlying principle of parliamentary law discussed in RONR (10th ed.), p. xlvii, last paragraph.

[Rob Elsman]

I somehow suspect that the Chair's ruling will end up being Appealed no matter which way it went. So would it be proper for the Chair to put the question to the assembly whether the Point of Order is Well Taken and then the Chair in debate could indicate that he believes that the vote was unanimous and therefore while there technically was a breach the second adopted motion was adopted by a vote high enough to rescind or amend the first adopted motion? Then the assembly will decide for itself.

If the chairman is in doubt, he can initially put the question to the judgment of the assembly; however, if he is able to form an opinion based on his reasoning about the applicable rules and facts, I think he has the duty of his office to make a ruling. See RONR (10th ed.), p. 434, ll. 23-26.

[Dan Honemann]

The conflicting motion could not properly be adopted, and in fact "if adopted [is] null and void" (RONR 10th ed., p. 332, l. 22) -- unless adopted by the vote required to rescind or amend the motion previously adopted. The exception "unless adopted by the vote required ..." is an exception to the timeliness requirement for raising the point of order; it is not in any way an exception to the rule itself.

This is certainly correct (Official Interpretation 2006-17 correctly interprets the rules in RONR on this subject), and each member voting to uphold the effectiveness of the challenged motion on the grounds that it was adopted by the vote required to rescind or amend the previously adopted motion should be morally convinced that this was, in fact, the case. This determination may be based upon personal knowledge or upon evidence clearly establishing the fact.

Of greater interest, it seems to me, is the question first raised: "Can the chair rule that a motion from a previous meeting is null and void without a point of order made by a member?" I agree with those who say that he can, but the practical question remains as to how and when he does it. I suppose the answer to this depends upon the specific facts in each particular case.

[David A Foulkes]

Of greater interest, it seems to me, is the question first raised: "Can the chair rule that a motion from a previous meeting is null and void without a point of order made by a member?" I agree with those who say that he can, but the practical question remains as to how and when he does it. I suppose the answer to this depends upon the specific facts in each particular case.

I can see how this would apply in the general, but in this specific case the chair was at the previous meeting (though not in that capacity) and his best recollection is that the motion was adopted unanimously, thus satisfying the requirement for adoption by a vote required to R/ASPA. No other facts available (recording of the vote in the minutes) support an argument to the contrary. Would it then be appropriate for the chair to make a ruling on this at his own initiative since the breach does not appear (to his recollection) to be of a continuing nature?

I tend to agree with Chris H's post that the membership should be advised of the "new rule" in whatever shape it now takes, and perhaps through advising the membership as such, a Point of Order will be raised by another member. But given the "facts" as we have them from the original poster, it would seem the motion (however improperly admitted originally) was adopted by the necessary vote, and thus the breach does not continue. If the chair rules on the Point of Order, and his decision is Appealed, it would of course put it in the hands of the assembly to decide, and that may be the best approach after all.

[Shmuel Gerber]

The exception "unless adopted by the vote required ..." is an exception to the timeliness requirement for raising the point of order; it is not in any way an exception to the rule itself.

Or actually, I suppose it's an exception to an exception to the timeliness requirement.

[Rob Elsman]

This is certainly correct (Official Interpretation 2006-17 correctly interprets the rules in RONR on this subject), and each member voting to uphold the effectiveness of the challenged motion on the grounds that it was adopted by the vote required to rescind or amend the previously adopted motion should be morally convinced that this was, in fact, the case. This determination may be based upon personal knowledge or upon evidence clearly establishing the fact.

Of greater interest, it seems to me, is the question first raised: "Can the chair rule that a motion from a previous meeting is null and void without a point of order made by a member?" I agree with those who say that he can, but the practical question remains as to how and when he does it. I suppose the answer to this depends upon the specific facts in each particular case.

I can't tell from your reply whether you actually agree with Mr. Gerber or misread what he said.

The applicable quotation from 2006-17 is: "However, if it can be clearly established that the motion to make the contribution of $750.00 to the XYZ Charity was, in fact, adopted by the vote required to rescind or amend the rule fixing the limitation on charitable contributions, then the motion to make the contribution is effective, even though it was not in order at the time it was made, considered, and adopted. The adoption of the motion by such a vote may be considered as having the same effect as if the adopted policy had been amended by specifically exempting this particular contribution from its operation and effect. Since the motion was adopted by a voice vote, however, it will probably be impossible to establish clearly that it was adopted by either a two-thirds vote or the vote of a majority of the entire membership.

[Rob Elsman]

I can't tell from your reply whether you actually agree with Mr. Gerber or misread what he said.

The applicable quotation from 2006-17 is: "However, if it can be clearly established that the motion to make the contribution of $750.00 to the XYZ Charity was, in fact, adopted by the vote required to rescind or amend the rule fixing the limitation on charitable contributions, then the motion to make the contribution is effective, even though it was not in order at the time it was made, considered, and adopted. The adoption of the motion by such a vote may be considered as having the same effect as if the adopted policy had been amended by specifically exempting this particular contribution from its operation and effect. Since the motion was adopted by a voice vote, however, it will probably be impossible to establish clearly that it was adopted by either a two-thirds vote or the vote of a majority of the entire membership.

The purpose for making a Point of Order is to correct a breach in the rules. In order for a point to be well taken, it must be established that a rule has been breached--no breach, no point. If there is no rational basis in the applicable rules and facts upon which to form an opinion that a rule has been breached, then the chairman cannot make a ruling that a rule has been breached. He must not make a ruling that a rule has been breached solely on the basis that no one knows whether one was breached or not.

[Dan Honemann]

I can't tell from your reply whether you actually agree with Mr. Gerber or misread what he said.

The applicable quotation from 2006-17 is: "However, if it can be clearly established that the motion to make the contribution of $750.00 to the XYZ Charity was, in fact, adopted by the vote required to rescind or amend the rule fixing the limitation on charitable contributions, then the motion to make the contribution is effective, even though it was not in order at the time it was made, considered, and adopted. The adoption of the motion by such a vote may be considered as having the same effect as if the adopted policy had been amended by specifically exempting this particular contribution from its operation and effect. Since the motion was adopted by a voice vote, however, it will probably be impossible to establish clearly that it was adopted by either a two-thirds vote or the vote of a majority of the entire membership.

I agree with Mr. Gerber and 2006-17.

[Matt Schafer]

Here are the details of the situation:

• Existing Standing Rule 5 states: "Unit funds shall be kept in deposit in Bank X." (Not the real name of the bank, but that isn't relevant to this discussion.)
  
• At our last monthly meeting, a motion was adopted after amendment: "that the unit directs the treasurer to replace the unit's business checking account at Bank X with a new one at another financial institution."
  
• No one raised a point of order that the motion conflicted with the standing rule.
  
• The vote was taken as a voice vote.
  
• I recall that no one voted "No".
  
• The chair's announcement of the result was, "The ayes have it, and the motion is adopted."
  
• The draft minutes state "The motion was adopted after debate and amendment."
  

In my original post, I questioned whether the standing rule had been rescinded. After further thought, I think that if the standing rule was affected, it would be more appropriate to declare it amended by striking "in Bank X" and inserting "at a financial institution".

Of greater interest, it seems to me, is the question first raised: "Can the chair rule that a motion from a previous meeting is null and void without a point of order made by a member?" I agree with those who say that he can, but the practical question remains as to how and when he does it. I suppose the answer to this depends upon the specific facts in each particular case.

In this case, the conflict was noted after the meeting during which the motion was adopted. It makes sense to raise the issue right after the minutes are approved. The previous meeting's actions are fresh in the minds of the members. And the chair can state, "The minutes are approved. The chair notes that the motion to replace the unit's checking account is in conflict with Standing Rule 5 . . ." and then move right into addressing the conflict.

[J. J.]

This is certainly correct (Official Interpretation 2006-17 correctly interprets the rules in RONR on this subject), and each member voting to uphold the effectiveness of the challenged motion on the grounds that it was adopted by the vote required to rescind or amend the previously adopted motion should be morally convinced that this was, in fact, the case. This determination may be based upon personal knowledge or upon evidence clearly establishing the fact.

I think this answers my question.

[Matt Schafer]

I'd like to thank everyone for your insight to this question.

[Gary Novosielski]

I disagree. If the subsequently adopted main motion is adopted by the vote required to adopt a motion to Rescind or Amend Something Previously Adopted, then there is no breach of the underlying principle of parliamentary law discussed in RONR (10th ed.), p. xlvii, last paragraph.

Arguably there was not. But there certainly was a breach of the rules that prevented the motion from being in order in the first place, and the rules that such a motion cannot be properly adopted. So what we are left with is a motion that was out of order, and was improperly adopted, but that is nevertheless in effect.

But had a point of order been raised at the time it certainly would be well-taken. So we are left with the timeliness factor as the only difference.