Does a report of the nominating committee contain an implied motion?

[SilentJ]

Our organization has a bylaws requirement for the NomCom's report to be published to the voting members prior to the annual meeting.  Specifically, the bylaws state:

     "The director shall submit the nominating committee report to the members of the district council at least four weeks prior to the annual meeting."

For the first time in our 50+ year history, this notice requirement was not met.  I understand from previous posts that the prevailing wisdom on this scenario is that the "report" of the NomCom is "invalidated" at the annual meeting.  My naive conceptualization of a NomCom report is that it is functionally consists of two parts:  a] an informational report consisting of summary of the committee's work and 'recommendations' (e.g. nominations) much like any report and b] an implied  incidental main motion to actually place the slate into nomination (I theorize that it is implied because the report affects this outcome despite no explicit motion being made).  Questions:

1. Is this a correct understanding?
2. If so, should not the 'invalidation' only apply to the implied motion and not the whole report? (i.e. the report can be given but the committee cannot place names into nomination)
3. If not, how can a procedural provision of the bylaws silence the work of a whole committee who has correctly executed their duty?
4. Speaking of procedural provisions... would this notice requirement be exempt from being overridden by suspending the rules?

What has been proposed is to have the NomCom report that they nominated X, Y, Z candidates but that the lack of notice prevents these people from being nominated by the committee and, thus, they are merely recommendations.  (Our election protocol includes a section that requires the NomCom Chair's report to include the oral reading of each office and each candidate(s).) Then, we would proceed with taking nominations from the floor - including those people who would otherwise have been nominated by the committee.  Does this make sense?

Any other thoughts, input, or ideas?  I, as relatively new parliamentarian, will likely have to help the Chair with many questions from an unhappy crowd.  I'd like to be fully prepared as well as having an easily understandable explanation for a membership not versed in parli pro.

Thanks, in advance, for any thoughts, advice, and help. 

[Hieu H. Huynh]

All candidates could be nominated from the floor.

[SilentJ]

I understand that they can be nominated from the floor; we intend to do that.  My question relates more to the report itself.

[Dan Honemann]

As far as RONR is concerned, this is what constitutes the report of a nominating committee:

NOMINATING COMMITTEE CHAIRMAN: Mr. President, the Nominating Committee submits the following nominations: For President, Mr. A [or "John A"]; for Vice President, Mr. B; for Secretary, Mr. C; . . . [and so on for each office to be filled, naming the nominees in the order in which the offices are listed in the bylaws].

If your rules prohibit the making of this report at the election meeting because it wasn't submitted "to the members of the district council at least four weeks prior to the annual meeting", then so be it. I don't know if this is the case because I haven't read your rules, and I know nothing about your organization. If it is the case, however, it seems rather silly, since it appears that nothing in your rules prevents nominations from being made from the floor at the election meeting.

[Richard Brown]

Could the rules be suspended to permit the report of the nominating committee at the election meeting?  That rule, even if in the bylaws, seems to me to be in the nature of a rule of order.   On the other hand, the rule does contain a rather strange "notice" provision.  Does that provision amount to a requirement of previous notice which cannot be waived or suspended?  Elections are going to be held  at the election meeting with or without the report of the nominating committee.  It does seem rather silly not to permit the report, even if late.

If it is a rule that cannot be suspended, would the workaround suggested by the original poster, i.e., to report "recommendations" of the nominating committee without formal nominations, be a viable option?

Final question:  Can somebody (guest SilentJ ?) give us a cite for a thread in the forum which says that the report of the nominating committee in a case like this is barred?

[Dan Honemann]

As you know, rules protecting absentees cannot be suspended, and, ordinarily, a rule requiring previous notice of something is a rule protecting absentees. I have no idea what purpose the rule in the instant case is designed to serve, and hence I'm not willing to express an opinion as to whether or not it can be suspended.

We are told that the bylaws state that "The director shall submit the nominating committee report to the members of the district council at least four weeks prior to the annual meeting." This doesn't tell us much at all, and I suspect that it is more meaningful when read in context.

We are also told that "Our election protocol includes a section that requires the NomCom Chair's report to include the oral reading of each office and each candidate(s)." I suspect that this too will be more meaningful when read in context.

The "workaround" business appears to me to be just more silliness.

 

 

[SilentJ]

6 hours ago, Richard Brown said:

Final question:  Can somebody (guest SilentJ ?) give us a cite for a thread in the forum which says that the report of the nominating committee in a case like this is barred?

I'm new on the forums, but before I posted I did a pretty thorough search but found only a small handful of posts that dealt with the issue.  The only one I could quickly find again is here - it has Josh Martin and Kim Goldsworthy taking different views on the subject. 

[Dan Honemann]

7 minutes ago, SilentJ said:

I'm new on the forums, but before I posted I did a pretty thorough search but found only a small handful of posts that dealt with the issue.  The only one I could quickly find again is here - it has Josh Martin and Kim Goldsworthy taking different views on the subject. 

Oh well, whenever this occurs I suggest you go with Mr. Martin. 

[SilentJ]

16 minutes ago, Daniel H. Honemann said:

Oh well, whenever this occurs I suggest you go with Mr. Martin. 

Thank you for your reply.  I have posed a couple of your questions/issues to our parent organization so that I can respond to your post more intelligently.  There are a lot of members who are not happy with this - silly or not (and I do see the silliness in it) - so I do want to make sure I can stand up to (via the chair) a grilling.

One question that has not been answered yet:  is my conceptualization of a report of the nominating committee containing an implied motion correct?

[Richard Brown]

46 minutes ago, SilentJ said:

I'm new on the forums, but before I posted I did a pretty thorough search but found only a small handful of posts that dealt with the issue.  The only one I could quickly find again is here - it has Josh Martin and Kim Goldsworthy taking different views on the subject. 

Thank you for posting the link.  Very interesting discussion in that thread!   I understand the rationale regarding "notice", but I'm not yet completely convinced that failure of the nominating committee to report on time in your case (or in the case mentioned in that other thread) is a fatal flaw that prohibits the report and the nominations it contains from being presented or considered.  I do agree that this is largely a matter of bylaws interpretation.

I also see workarounds that make a prohibition against receiving the report seem pretty silly. Unlike most notice requirements, nothing stops the nominees of the nominating committee from being nominated from the floor by others.... without any notice whatsoever and with the same vote to elect them that it would take if the nominating committee report had been considered.  It seems to me that in a case like this, late notice is better than no notice at all.

[Dan Honemann]

13 minutes ago, SilentJ said:

Thank you for your reply.  I have posed a couple of your questions/issues to our parent organization so that I can respond to your post more intelligently.  There are a lot of members who are not happy with this - silly or not (and I do see the silliness in it) - so I do want to make sure I can stand up to (via the chair) a grilling.

One question that has not been answered yet:  is my conceptualization of a report of the nominating committee containing an implied motion correct?

No. It is, in effect, a proposal to fill a blank. (RONR, 11th ed., p. 430)

[SilentJ]

16 minutes ago, Richard Brown said:

Thank you for posting the link.  Very interesting discussion in that thread!   I understand the rationale regarding "notice", but I'm not yet completely convinced that failure of the nominating committee to report on time in your case (or in the case mentioned in that other thread) is a fatal flaw that prohibits the report and the nominations it contains from being presented or considered.  I do agree that this is largely a matter of bylaws interpretation.

I also see workarounds that make a prohibition against receiving the report seem pretty silly. Unlike most notice requirements, nothing stops the nominees of the nominating committee from being nominated from the floor by others.... without any notice whatsoever and with the same vote to elect them that it would take if the nominating committee report had been considered.  It seems to me that in a case like this, late notice is better than no notice at all.

If the bylaws clearly state that it must be done, where do you see an ambiguity or room for interpretation?  Is there something I'm overlooking or should I be viewing this through a different lens?  (I can post the whole bylaws paragraph on the nominating committee, but it merely proscribes dates that a chair and members must be appointed, the number of members required, that it must follow our organizational policy, and that the report must be submitted to the director six weeks prior to the meeting and the director must submit it to the membership four weeks prior to the meeting.)

The goal of my workaround is to inform the members on the result of the lengthy vetting process the NomCom underwent so voters would have the benefit of that knowledge.  Those selected by the NomCom would not be nominated by thy the committee but would be nominated from the floor (with any other desirous candidates).  I, too, think late notice is better than no notice.

I have asked our parent organization for the purpose of the four week requirement and if it is meant to protect the absentees.  Personally, I do not think it is designed to protect absentees as they are well aware that voting will be held at this meeting and that any eligible person can run from the floor.  How would knowing the slate of nominees protect an absentee when any person could run for any position?

[Richard Brown]

1 minute ago, SilentJ said:

If the bylaws clearly state that it must be done, where do you see an ambiguity or room for interpretation? 

It's a bit more complicated than that, as you can tell from the comments and differing opinions in this thread and the other thread.

First, there is the bylaws interpretation question as to whether the quoted provision is intended to be in the nature of a rule requiring previous notice of something before it can be done.   I'm not at all sure it is.  Rules in the nature of "notice" provisions usually cannot be suspended or waived.

Second, rules in the bylaws which are in the nature of rules of order, which this appears to be, can be suspended.  The problem with doing that in your case is whether the provision is also in the nature of a "notice" provision which cannot be suspended or waived. 

Third, just because the bylaws say that something is to be done, or that it is to be done at a certain time, such as at a certain meeting, doesn't mean that it cannot  be done at all if that requirement is not complied with.  A common example is when the bylaws require that something be done at an annual meeting, such as appointing an auditing committee or electing officers.  If for some reason, whether by oversight, lack of willing nominees, or a fire in the building requiring immediate evacuation, you just do whatever it was you didn't get done at the next meeting.  If the group failed to elect officers or appoint a certain committee at the specified meeting, no problem, you just do it asap, usually at the next meeting.  You don't lose the right to do it just because you didn't do it  at the time the bylaws specify.

 

[Gary Novosielski]

9 hours ago, SilentJ said:

If the bylaws clearly state that it must be done, where do you see an ambiguity or room for interpretation?  Is there something I'm overlooking or should I be viewing this through a different lens?  (I can post the whole bylaws paragraph on the nominating committee, but it merely proscribes dates that a chair and members must be appointed, the number of members required, that it must follow our organizational policy, and that the report must be submitted to the director six weeks prior to the meeting and the director must submit it to the membership four weeks prior to the meeting.)

This is a bit different from the original question in that other thread, which was:

 

Quote

 

If the bylaws provide that a nominating committee must post notice of its slate of candidates at a specific time before the meeting/election, but also allow nominations at the election, what happens if you get to the meeting and the committee failed to satisfy the notice candidate? Is there any prohibition against then considering those candidates nominations from the floor and then voting on them?

 

In that thread, the bylaws said that the committee must post notice, which is a term of art.  When an action requires previous notice, it cannot happen without that notice.  Requiring notice is not the same as just telling people something in a report that's due on a given date..  Then again, that question contains just a paraphrase of the bylaws.  Since we don't know the exact language, it's not certain whether it is a formal requirement for previous notice, or not.

The rule in your bylaws, on the other hand, though also paraphrased, appears more like a requirement for a report that's due on a certain date.  In that case, although the bylaws clearly state that it must be done, missing the deadline does not make it impossible, it just makes it late.  The nominating committee or the director could be reprimanded for missing the deadline, but that would not necessarily invalidate the report itself.

The important thing is that the answer to the final question is the same:  Whether the report was on time, late, invalid, lost in transit, or destroyed by fire, that does not prohibit any names from being nominated from the floor, if need be.

[Dan Honemann]

14 hours ago, SilentJ said:

The goal of my workaround is to inform the members on the result of the lengthy vetting process the NomCom underwent so voters would have the benefit of that knowledge.  Those selected by the NomCom would not be nominated by thy the committee but would be nominated from the floor (with any other desirous candidates).  I, too, think late notice is better than no notice.

I have asked our parent organization for the purpose of the four week requirement and if it is meant to protect the absentees.  Personally, I do not think it is designed to protect absentees as they are well aware that voting will be held at this meeting and that any eligible person can run from the floor.  How would knowing the slate of nominees protect an absentee when any person could run for any position?

Some time ago, I posted for you how the report of a nominating committee is to be presented according to RONR (11th ed., p. 434). It consists of nothing at all except submission of the committee's nominations. 

You have referred (I think perhaps on more than one occasion) to this lengthy vetting process which your committee undertakes before determining who it will nominate, but you haven't yet said whether or not a description of this process is ordinarily included in the nominating committee's report. You have said, however, that your bylaws require that the nominating committee's report be submitted to the membership at least four weeks prior to the election meeting.

Regardless of whether or not anything is included in your nominating committee's report about this vetting process, isn't it possible that this four-week advance notice is required in order to give members an opportunity to learn for themselves something about the persons who the committee will nominate and have supposedly vetted at such great length? An opportunity to level the playing field, so to speak?

 

[SilentJ]

20 hours ago, Daniel H. Honemann said:

Regardless of whether or not anything is included in your nominating committee's report about this vetting process, isn't it possible that this four-week advance notice is required in order to give members an opportunity to learn for themselves something about the persons who the committee will nominate and have supposedly vetted at such great length? An opportunity to level the playing field, so to speak?

 

I believe you hit the proverbial nail on the head, Mr. Honemann.  One of your earlier posts prompted me to ask this question to the parent organization who replied:

I am unsure of the firm reasons behind the purpose of the minimum of 4 weeks prior to the business meeting. However, if I were to take a look from what I have seen in the past few years then it would be mainly to allow time for those candidates to continue to campaign as nominated candidates, get in additional time at candidate corner’s, and to allow members to interview any members who have been nominated or are running from the floor to make their final decisions. Since Protocol 9.0 allows a second campaign mailing to be sent once the nominating committee report has been released to the membership, this is critical time for the candidates to gain more exposure and traction with the members.

However, it should be clarified that nominated candidates do not get any special rights or privileges over those candidates running from the floor.  That is, both nominated and floor candidates are allowed the same space at a candidates corner (booth) and the same rights to mailings to the voting members.  It is true that the lack of notice has prevented candidates from, potentially, sending one campaign mailing; however, that applies equally to all candidates.  However, candidates do not need to wait for the report to begin campaigning, thus I think the argument that the report allows members to do due diligence is a bit weak.

As to the content of the NomCom report, we are required by protocol to list the membership, we typically also include that we met multiple times, and then we present the names of the nominees.  We are, in fact, broadly barred by policy in discussing anything that happens in the committee - including the procedure, criteria, etc..  

As Mssrs. Brown and Novosielski point out, this does appear to be a rule pertaining to the deadline of the report and not one of notice, does it not?  Further, I cannot see how it protects absentees, the minority, fundamental principles, basic rights, or otherwise would be prohibited from suspension.  Would this not be suspendable?

[Josh Martin]

11 hours ago, SilentJ said:

 As Mssrs. Brown and Novosielski point out, this does appear to be a rule pertaining to the deadline of the report and not one of notice, does it not?  Further, I cannot see how it protects absentees, the minority, fundamental principles, basic rights, or otherwise would be prohibited from suspension.  Would this not be suspendable?

Why does it matter?

Suppose, for the sake of argument, that the rule may be suspended (or as Mr. Brown and others have suggested, the rule may simply be violated without any need for a formal suspension). The committee gives its report. The individuals in question are nominated.

On the other hand, suppose, for the sake of argument, that the rule cannot be suspended. The committee does not give its report. Instead, an individual member makes the nominations from the floor, also making a brief statement that these are the nominations the committee would have made if it had been able to do so. The individuals in question are nominated.

In your most recent post, you have suggested that there is no practical difference between a member nominated by the committee and a member nominated from the floor. Based on these facts, my own preference would be for a member of the committee to make the nominations from the floor, so that there is no question of any impropriety. You might be able to win an argument that the rule could be suspended and the committee could formally give its report, but would it be worth the time and effort?

[SilentJ]

6 hours ago, Josh Martin said:

You might be able to win an argument that the rule could be suspended and the committee could formally give its report, but would it be worth the time and effort?

As odd as it sounds, I think it would be.  I know that to many looking in, this situation seems like a matter of semantics and not worth the time and effort to parse it out because, ultimately, everybody can be nominated from the floor.  However, from the inside, for this group of people, it is a very big deal - there are a lot of people who are, rightfully, upset about the lack of notice and a lot of people upset that the nominees cannot be nominated as they 'deserve' to be.  I believe there would be little resistance to suspending the rules in this instance, but I want to make sure that I am 'in the right' for that to happen.

 

[Dan Honemann]

7 hours ago, SilentJ said:

As odd as it sounds, I think it would be.  I know that to many looking in, this situation seems like a matter of semantics and not worth the time and effort to parse it out because, ultimately, everybody can be nominated from the floor.  However, from the inside, for this group of people, it is a very big deal - there are a lot of people who are, rightfully, upset about the lack of notice and a lot of people upset that the nominees cannot be nominated as they 'deserve' to be.  I believe there would be little resistance to suspending the rules in this instance, but I want to make sure that I am 'in the right' for that to happen.

 

The problem is that there appears to be a lot going on here that we know nothing about.

It has been suggested that the four-week notice is "to allow time for those candidates to continue to campaign as nominated candidates, get in additional time at candidate corner’s, and to allow members to interview any members who have been nominated or are running from the floor to make their final decisions", and you tell us that "both nominated and floor candidates are allowed the same space at a candidates corner (booth) and the same rights to mailings to the voting members. There have also been references to applicable "Protocols" (apparently there are quite a number of them) which we know nothing about.

I, for one, have been assuming that nominations from the floor are made at the election meeting, and the election takes place as soon as nominations have been closed. Obviously, this is not the case.

A few days ago, I referred to the fact that rules protecting absentees cannot be suspended, and that, ordinarily, a rule requiring advance notice of something is a rule protecting absentees. I still do not know what purpose the four-week notice rule in the instant case is designed to serve, and hence I'm not willing to express an opinion as to whether or not it can be suspended.

 

 

[Josh Martin]

8 hours ago, SilentJ said:

As odd as it sounds, I think it would be.  I know that to many looking in, this situation seems like a matter of semantics and not worth the time and effort to parse it out because, ultimately, everybody can be nominated from the floor.  However, from the inside, for this group of people, it is a very big deal - there are a lot of people who are, rightfully, upset about the lack of notice and a lot of people upset that the nominees cannot be nominated as they 'deserve' to be.  I believe there would be little resistance to suspending the rules in this instance, but I want to make sure that I am 'in the right' for that to happen.

Well, if you insist. I've given this some more thought.

As others have suggested, it really comes down to whether the distribution of the report is intended as a previous notice requirement, in which case the rule cannot be suspended, or something else, in which case it can be suspended.

I think that question is ultimately up to the society to answer, but I would tentatively lean toward "something else," based on your most recent post, which suggests the rule is intended for the benefit of the candidates, not the members.

[SilentJ]

4 hours ago, Daniel H. Honemann said:

I, for one, have been assuming that nominations from the floor are made at the election meeting, and the election takes place as soon as nominations have been closed. Obviously, this is not the case.

Actually, the procedure we use for floor nominations mirrors RONR pp. 435-436 almost exactly.  

I feel I've used up a lot of time on something that is, in the grand scheme of things, relatively minor (even if our group sees it differently).  I want to thank everybody who has provided input - I truly appreciate it.  I will, no doubt, spend more time in the forums learning more of the nuances of RONR - I'm glad I found it.

I still welcome any feedback, comments, suggestions - I will be checking the post up to vote tomorrow.

[Richard Brown]

It was an interesting conversation, SilentJ.   Keep in mind that your rule ultimately means whatever the assembly decides it means by way of a vote on an appeal of a ruling on a point of order.  Or, if there is no appeal, then it is whatever the chair says it is by his ruling on a point of order. Those issues have a way of working themselves out.

Personally, I would like to know how the issue ultimately gets decided.  Please let us know.

[Dan Honemann]

4 hours ago, Daniel H. Honemann said:

I, for one, have been assuming that nominations from the floor are made at the election meeting, and the election takes place as soon as nominations have been closed. Obviously, this is not the case.

 

7 minutes ago, SilentJ said:

Actually, the procedure we use for floor nominations mirrors RONR pp. 435-436 almost exactly.  

If this is the case, I don't see how the four-week notice requirement can possibly "allow members to interview any members who have been nominated or are running from the floor to make their final decisions", or how it is that "both nominated and floor candidates are allowed the same space at a candidates corner (booth) and the same rights to mailings to the voting members."

[SilentJ]

3 hours ago, Daniel H. Honemann said:

If this is the case, I don't see how the four-week notice requirement can possibly "allow members to interview any members who have been nominated or are running from the floor to make their final decisions", or how it is that "both nominated and floor candidates are allowed the same space at a candidates corner (booth) and the same rights to mailings to the voting members."

Essentially, any candidate - those nominated by the committee or those declaring themselves floor candidates - can begin campaigning months in advance.  They can set up "candidates corner" campaign booths, distribute literature, and stand up and announce their candidacy at any of the 35, or so, events preceding the election.  Either candidate can send a mailing to all voting members once in the first quarter of the year and again after the announcement of the NomCom report (assuming that happens).  Either candidate can have a website and social media pages to promote their candidacy.  Neither type of candidate can be endorsed by any elected or appointed leader - excepting the implied endorsement of the NomCom.  Nominations from the floor are solicited, office by office, after the NomCom report is presented and if a position is contested, each candidate can give a two-minute speech prior to a vote occurring.  Essentially, the only difference in rights/opportunities is that a nominated candidate can say they are nominated.

I understand how our parent organization can claim that the report of the NomCom can help to provide traction for the election as, customarily, it is when the NomCom's slate is announced that candidates - nominated and floor candidates (if there are any) - typically pick up the pace of their campaigning.  However, I fail to see how this has any impact on the rights or activities of candidates aside from the nominated candidates being able to say they are nominated candidates.  There is the issue of the campaign mailing that couldn't occur but that impacts all candidates equally and, as I see it, is irrelevant to whether the NomCom places the candidates into nomination or whether they are nominated from the floor. 

In this discussion, I've gotten a much better appreciation for the multitude of variables to be considered - even in a relatively "simple" scenario.  You are correct that we do, in fact have a healthy amount of policies and protocols - is there something that I've omitted that would shed more light on this or is there a different lens I should be looking at this?

Thanks again for all the help.

[Hieu H. Huynh]

SilentJ, I sent you a private message.