Interpretation of Bylaws timing

[Guest Terp Questioner]

We have a Bylaws which has been interpreted for years to allow in-person voting either by casting your own ballot or by bringing in another person's sealed ballot (access issues of members make it difficult for many to attend meetings). I believe it is permissible for an Election Committee to attempt to provide a different interpretation of the Bylaws. However, if they do so, are they obliged to tell the membership or candidates before the election starts? Ever? If so, where in RRoO does it say this with reference to rulings (rather than the Bylaws itself)?

 

Yes, I know it would be better if the Bylaws said things specifically but it is what it is.

 

Thanks

[Josh Martin]

We have a Bylaws which has been interpreted for years to allow in-person voting either by casting your own ballot or by bringing in another person's sealed ballot (access issues of members make it difficult for many to attend meetings). I believe it is permissible for an Election Committee to attempt to provide a different interpretation of the Bylaws. However, if they do so, are they obliged to tell the membership or candidates before the election starts? Ever? If so, where in RRoO does it say this with reference to rulings (rather than the Bylaws itself)?

 

Yes, I know it would be better if the Bylaws said things specifically but it is what it is.

 

I don't think the Election Committee does have the authority to provide a different interpretation, which makes the other questions moot.

 

"In some organizations, a particular practice may sometimes come to be followed as a matter of established custom so that it is treated practically as if it were prescribed by a rule. If there is no contrary provision in the parliamentary authority or written rules of the organization, the established custom should be adhered to unless the assembly, by a majority vote, agrees in a particular instance to do otherwise. However, if a customary practice is or becomes in conflict with the parliamentary authority or any written rule, and a Point of Order (23) citing the conflict is raised at any time, the custom falls to the ground, and the conflicting provision in the parliamentary authority or written rule must thereafter be complied with. If it is then desired to follow the former practice, a special rule of order (or, in appropriate circumstances, a standing rule or a bylaw provision) can be added or amended to incorporate it." (RONR, 11th ed., pg. 19)

[Guest Guest]

Fascinating. So a couple of questions for clarification. Why can the Election Committee not take a Ruling on the Bylaws?

 

Second, let's just wander down that path and assume it is conflict with a parliamentary authority. If there was a conflict, the rule falls. Doesn't the Election Committee or parliamentary authority have to tell someone that it's falling before the election begins? Or can they just surprise people at an arbitrary point during the election when someone breaks the parliamentary authority's "ruling" that no one knows about? Can you cite the RRoO section for this too?

[Richard Brown]

Fascinating. So a couple of questions for clarification. Why can the Election Committee not take a Ruling on the Bylaws?

 

Second, let's just wander down that path and assume it is conflict with a parliamentary authority. If there was a conflict, the rule falls. Doesn't the Election Committee or parliamentary authority have to tell someone that it's falling before the election begins? Or can they just surprise people at an arbitrary point during the election when someone breaks the parliamentary authority's "ruling" that no one knows about? Can you cite the RRoO section for this too?

The election committee does not have the authority to issue rulings interpreting the bylaws unless the bylaws give it that authority.   The election committee must abide by the bylaws, any applicable special rules of order, the rules in the parliamentary authority (presumably RONR) and by any valid motions pertaining to the conduct of the election.

 

I'm not sure from your comments that you understand what a "parliamentary authority" is.  It is the manual of parliamentary procedure which your organization uses, normally Robert's Rules of Order Newly Revised, 11th edition, abbreviated RONR.  The parliamentary authority is not a person making rulings.  It is your book of rules that your organization has agreed to go by.

 

What RONR says, and what I believe Mr. Martin was trying to tell you in post # 2, is that a CUSTOM must fall to the ground if it is pointed out that it is in conflict with a written rule.  That written rule can be in your bylaws, a special rule of order, your parliamentary authority (RONR) or a standing rule.  It could also be a state law of a bylaw of a parent organization.   Since the rule is written, it should hardly be a rule that nobody knows about.

 

All that is necessary for the custom which violates the written rule to fall to the ground is for a member...any member... to raise a point of order that the custom violates a written rule.  It is then the duty of the presiding officer to rule on whether the custom conflicts with a written rule.  If it does conflict, he should rule that it does.  His ruling can be appealed to the assembly, but not to the election committee unless your bylaws give the election committee some very unusual powers.  The election committee is subject to the orders of the assembly, not the other way around.

 

Finally, all votes must be cast by members who are physically present at a meeting.  Absentee voting and voting by proxy in any form are strictly forbidden by RONR unless your bylaws authorize it or state law requires it.  Having a member who is present turn in the ballot of a member who is not present is a form of absentee voting.

[Guest Terp Questioner]

Ah, yes, I was confused at the difference between "parliamentary authority" and Parliamentarian. Thank you. For us the parliamentary authority would be RRoO. That is clearly stated in our bylaws.

 

Following your clarification, so how would a member raise such a point of order? The only points of order I am familiar with come in meetings. No Point of Order was raised during a meeting about this custom. Does this then mean that the custom stands until, as you say, a Point of Order is raised by a member during a meeting and the presiding officer rules it valid? I assume this would then come under the standard Point of Order for meetings (citation in RRoO please so I can find and fully understand what you are referencing)?

 

Thanks for unconfusing me.

[Josh Martin]

Fascinating. So a couple of questions for clarification. Why can the Election Committee not take a Ruling on the Bylaws?

I think the chair of the Electon Committee could make a ruling on the bylaws, subject to Appeal, but neither the chair of the committee nor the committee itself can interpret the bylaws in a way which conflicts with the interpretation of the society.

If the society's longstanding interpretation of this rule is mistaken (which may well be the case), that is a decision to be made at a meeting of the society, not at a meeting of a subordinate committee. The best the Election Committee could do is to inform the society that, in the committee's opinion, the interpretation is incorrect and should be changed.

Second, let's just wander down that path and assume it is conflict with a parliamentary authority. If there was a conflict, the rule falls. Doesn't the Election Committee or parliamentary authority have to tell someone that it's falling before the election begins? Or can they just surprise people at an arbitrary point during the election when someone breaks the parliamentary authority's "ruling" that no one knows about? Can you cite the RRoO section for this too?

Even if the interpretation conflicts with the parliamentary authority or the organization's own rules, the committee is not the proper body to make this decision, so the other questions are moot.

Following your clarification, so how would a member raise such a point of order? The only points of order I am familiar with come in meetings.

Exactly.

Does this then mean that the custom stands until, as you say, a Point of Order is raised by a member during a meeting and the presiding officer rules it valid?

Yes.

I assume this would then come under the standard Point of Order for meetings (citation in RRoO please so I can find and fully understand what you are referencing)?

Yes. See RONR, 11th ed., pgs. 247-255.

[Guest Terp Questioner]

I love you Josh :-) Thank you SOOO much to you and Richard for helping me to understand. This is EXACTLY what I needed.

[SaintCad]

Suppose though the interpretation apparently contradicts that bylaws, like "all ballots must be sealed before submitted for counting."  and is interpreted as any sealed vote is valid no matter where it came from.  I'm thinking of two scenarios.

 

1)  The interpretation was voted on and is official.  The election committee believes this interpretation is in error and renders the vote invalid.  How do they know you didn't seal up a vote in the parking lot and the absentee "voter" has no way of knowing someone is stealing their vote.  What would the election committee do?

 

2)  The interpretation is unofficial - it's the way we always did it. Why can't the Election Committee come up with its own unofficial interpretation and see how the membership reacts?

[Josh Martin]

1) The interpretation was voted on and is official. The election committee believes this interpretation is in error and renders the vote invalid. How do they know you didn't seal up a vote in the parking lot and the absentee "voter" has no way of knowing someone is stealing their vote. What would the election committee do?

The Election Committee would respectfully recommend to the assembly that, in the Election Committee's opinion, the assembly's previous interpretation of this subject is incorrect and conflicts with the bylaws. A member of the Election Committee could raise a Point of Order, followed by an Appeal if necessary, if he wished to force the issue. The precedent on the subject could be overturned by the presiding officer's ruling and/or by the assembly's decision on appeal.

2) The interpretation is unofficial - it's the way we always did it. Why can't the Election Committee come up with its own unofficial interpretation and see how the membership reacts?

While an assembly's custom has less force than a precedent, an assembly's custom is nevertheless binding upon subordinate committees unless and until the custom is declared invalid by a Point of Order (and an Appeal, if necessary) at a meeting of the assembly. The appropriate course of action for the committee is the same in either event.

[Guest Terp Questioner]

That makes complete sense and prevents an out of control Election Committee from rendering judgements without the membership being able to consider and potentially overrule them. Once again RoNR shows it's wisdom.

[Guest Terp Questioner]

What is the difference between a precedent and a custom?

[Hieu H. Huynh]

A custom is a practice followed by an assembly that is like an unwritten rule. A precedent is a ruling by the chair on a point of order that is recorded in the minutes.

[Guest Terp Questioner]

Thanks.

[Richard Brown]

While an assembly's custom has less force than a precedent, an assembly's custom is nevertheless binding upon subordinate committees unless and until the custom is declared invalid by a Point of Order (and an Appeal, if necessary) at a meeting of the assembly. The appropriate course of action for the committee is the same in either event.

 

What is the difference between a precedent and a custom?

 

A custom is a practice followed by an assembly that is like an unwritten rule. A precedent is a ruling by the chair on a point of order that is recorded in the minutes.

I would say that Hieu's statement is one definition of precedent, but it's not the only definition.  Precedent can also by the start of a custom.  Some might even say they mean the same thing.  Regardless of whether they are the same, a custom certainly gets started by precedent:  Once the assembly has done something a certain way, they have established a precedent.  When the same situation comes up again, someone says, "well, we had this come up last month (or last year) and this is the way we handled it.  So, they do it that way again.  At some point, whether it is the first time the assembly does it that way, or the second time, or the third time, or the fifth time, the assembly has in fact established a custom based on precedent.  Some would say it's the same thing. 

[Josh Martin]

I would say that Hieu's statement is one definition of precedent, but it's not the only definition.  Precedent can also by the start of a custom.  Some might even say they mean the same thing.  Regardless of whether they are the same, a custom certainly gets started by precedent:  Once the assembly has done something a certain way, they have established a precedent.  When the same situation comes up again, someone says, "well, we had this come up last month (or last year) and this is the way we handled it.  So, they do it that way again.  At some point, whether it is the first time the assembly does it that way, or the second time, or the third time, or the fifth time, the assembly has in fact established a custom based on precedent.  Some would say it's the same thing. 

 

"Custom" and "precedent" may well be used synonymously in common usage, but they are not the same thing in parliamentary law.

[Richard Brown]

"Custom" and "precedent" may well be used synonymously in common usage, but they are not the same thing in parliamentary law.

That may or may not be true, but custom almost always (and perhaps always) becomes a custom because of precedent:  having done it that way previously.  After a few times, it becomes a custom. 

 

Note that *I* did not say they are the same thing.  I said "Some might even say they mean the same thing".  Precedent has a common meaning and a legal meaning.

[Shmuel Gerber]

I think the chair of the Electon Committee could make a ruling on the bylaws, subject to Appeal, but neither the chair of the committee nor the committee itself can interpret the bylaws in a way which conflicts with the interpretation of the society.

If the society's longstanding interpretation of this rule is mistaken (which may well be the case), that is a decision to be made at a meeting of the society, not at a meeting of a subordinate committee. The best the Election Committee could do is to inform the society that, in the committee's opinion, the interpretation is incorrect and should be changed.

Even if the interpretation conflicts with the parliamentary authority or the organization's own rules, the committee is not the proper body to make this decision, so the other questions are moot.

 

 

I think it depends how this "interpretation" came about. If the assembly has directly decided a legitimate question of interpretation, then of course a subordinate committee cannot simply decide on its own that the assembly's decision was not correct. However, if it is simply that the organization has in the past conducted business in a certain way that clearly conflicts with the written rules, I don't think the committee, in carrying out the duties it has been charged with, should defer to the custom in preference to the written rules.

[Josh Martin]

That may or may not be true, but custom almost always (and perhaps always) becomes a custom because of precedent: having done it that way previously. After a few times, it becomes a custom.

Note that *I* did not say they are the same thing. I said "Some might even say they mean the same thing". Precedent has a common meaning and a legal meaning.

A precedent in parliamentary law arises from a Point of Order and any subsequent Appeal. A custom does not necessarily have any connection to these things.

I think it depends how this "interpretation" came about. If the assembly has directly decided a legitimate question of interpretation, then of course a subordinate committee cannot simply decide on its own that the assembly's decision was not correct. However, if it is simply that the organization has in the past conducted business in a certain way that clearly conflicts with the written rules, I don't think the committee, in carrying out the duties it has been charged with, should defer to the custom in preference to the written rules.

What if the rules on the subject are ambiguous?

[Shmuel Gerber]

What if the rules on the subject are ambiguous?

 

If the rules are ambiguous, then I agree the committee should probably interpret them in a way that is compatible with the organization's customary practices. I say "probably" because it may depend on the degree of ambiguity. A lot of language is ambiguous to some extent, yet one interpretation is overwhelmingly more reasonable than any other.

[Dan Honemann]

 A lot of language is ambiguous to some extent, yet one interpretation is overwhelmingly more reasonable than any other.

 

Yes, mine.

[Gary Novosielski]

Note that *I* did not say they are the same thing.  I said "Some ^[who?] might even say they mean the same thing".  Precedent has a common meaning and a legal meaning.

 

I would have to count myself among those who might not say that.

[Guest Leida]

One person's perceived ambiguity may be another's perceived clarity. It seems that the requirement for the Point of Order allows the Chair, and subsequently the membership, to confirm or deny the Election Committee or any member's perception, thus keeping the checks and balances of the meeting which seems integral to RONR. To do otherwise could allow an election to proceed without the membership knowing of such a ruling and, perhaps, bumping into it only when actions cannot be reversed.

[Gary Novosielski]

I think... wait, what?

[Shmuel Gerber]

One person's perceived ambiguity may be another's perceived clarity. It seems that the requirement for the Point of Order allows the Chair, and subsequently the membership, to confirm or deny the Election Committee or any member's perception, thus keeping the checks and balances of the meeting which seems integral to RONR. To do otherwise could allow an election to proceed without the membership knowing of such a ruling and, perhaps, bumping into it only when actions cannot be reversed.

 

If you're saying that the elections committee should, whenever possible, inform the membership of its procedures well enough in advance to allow the assembly an opportunity to raise and resolve any objections, then I think all of us here would agree that's a good idea. If you're saying that the elections committee can never make any decisions on its own, then I disagree. And while different people may perceive written rules in different ways, they certainly may also have different perceptions of whether a particular custom has been established or how well it has been established. But the written rules -- which, after all, were also adopted by the assembly at some point -- still take precedence.

[Guest Leida]

Schmuel, if you take your logic literally, you could have a devious Election Committee who made decisions while an election is in progress that the electorate didn't know about and which would disenfranchise many votes the voters who were never informed of such a change. I see no support for this in RONR. The process Josh et al above specify of using a Point of Order is consistent with RONR and allows the Chair and the members to weigh in on rulings. That process ensures that rulings have the agreement of the body and become precedent.

 

While written rule is best, RONR allows for custom that has effectively become written rule to hold significant weight. The  question here seems to be what happens if an Election Committee perceives the custom to contradict RONR (which may or may not be their correct interpretation). Allowing them effectively "secret" rulings which is inconsistent with RONR.