Daniel H. Honemann

Mistake of Law vs Mistake of Fact Revisited

22 posts in this topic

I'm fascinated not so much by what is said in the response to Question 51 on page 43 of the latest NP (Vol. 78, No. 4) as I am by what is not said.

In its response, the Research Team submits that if, in announcing the result of the vote on a motion requiring a two-thirds vote for its adoption, the chair, after announcing the count (which was 33 in favor and 17 opposed), simply stated "the amendment is adopted" or "the affirmative has it and the motion is adopted", and nothing else, a point of order would have to be raised promptly that a two-thirds vote, and not simply a majority vote, was required to adopt the motion. I agree.  

But what if the chair, after announcing the count, had declared that "There are two thirds in the affirmative, and the motion is adopted", thus using the standard form for announcing the result of a counted vote on a motion requiring a two-thirds vote for its adoption rather than one for announcing the result of a counted vote on a motion requiring only a majority vote for its adoption?

In order to avoid going off on some silly tangent about parliamentary law perhaps requiring rounding to whole numbers in votes of this kind (we've seen posts here in this forum actually suggesting such a thing), I would have preferred it if the vote count in Question 51 had been a bit different (say 32 in favor and 18 opposed), and I would suggest that anyone who wants to pursue this further use a count that precludes this sort of sidetracking. 

You all can worry about this for awhile. I'm going fishing.

 

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6 hours ago, Daniel H. Honemann said:

But what if

the chair, after announcing the count, had declared that

"There are two thirds in the affirmative, and the motion is adopted",

thus using the standard form for announcing the result of a counted vote on a motion requiring a two-thirds vote for its adoption rather than one for announcing the result of a counted vote on a motion requiring only a majority vote for its adoption?

 

Viz., "There are 15 in the affirmative, and 10 in the negative. There are two thirds in the affirmative, and the motion is adopted."

Q. How does the extra wording change the question asked? change the answer given?

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1 hour ago, Kim Goldsworthy said:

Viz., "There are 15 in the affirmative, and 10 in the negative. There are two thirds in the affirmative, and the motion is adopted."

Q. How does the extra wording change the question asked? change the answer given?

You mean this topic's title offers no clue?  :)

Some time spent reviewing this thread might help. Or maybe not.

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35 minutes ago, Daniel H. Honemann said:

You mean this topic's title offers no clue?  :)

Some time spent reviewing this thread might help. Or maybe not.

I don't think that the publication of this Q&A in the National Parliamentarian has changed or will change anyone's opinion who had an opinion on your question, so I hope your other fishing expedition proved more bountiful than this one has done so far. :)

Edited to add: Please excuse my not-quite-American grammar; I think I've been watching too many episodes of "Elementary".

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9 minutes ago, Shmuel Gerber said:

I don't think that the publication of this Q&A in the National Parliamentarian has changed or will change anyone's opinion who had an opinion on your question, so I hope your other fishing expedition proved more bountiful than this one has done so far. :)

Edited to add: Please excuse my not-quite-American grammar; I think I've been watching too many episodes of "Elementary".

Well, the Q&A rather artfully avoids the question entirely, which is what I found so fascinating.

And the fishing today wasn't all that great. I like it when I run into a nice school of fish, but this one seemed like it must have been a nursery school. The fish were way too small for my liking.  

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3 minutes ago, Daniel H. Honemann said:

Well, the Q&A rather artfully avoids the question entirely, which is what I found so fascinating.

And the fishing today wasn't all that great. I like it when I run into a nice school of fish, but this one seemed like it must have been a nursery school. The fish were way too small for my liking.  

You're supposed to get the little fish to snitch on the location of the big fish in exchange for their own release. (Or at least I'm told that's how they do it on the Canarsie piers.)

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19 hours ago, Shmuel Gerber said:

I don't think that the publication of this Q&A in the National Parliamentarian has changed or will change anyone's opinion who had an opinion on your question, so I hope your other fishing expedition proved more bountiful than this one has done so far. :)

Yeah not everyone tries to catch the prize fish every time they toss the pole in the water!

18 hours ago, Daniel H. Honemann said:

Well, the Q&A rather artfully avoids the question entirely, which is what I found so fascinating.

I think for good reason it was "artfully" avoided but I can assure you when the draft was initially composed it almost wasn't.  Imagine trying to fit the sum and substance and varying opinions in your linked thread (and I think we even had at least one other thread on this issue) into a few paragraphs.  Not possible.  Now if some intrepid parliamentarian wants to go where other threads have gone before, it's probably better if it's done in a several page article with good examples.  This question was never meant to go there.  Perhaps the next editor will allow the next Q&A team to ramble on for several pages for one question but the very excellent current editor was probably wise not to. :) 

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1 hour ago, George Mervosh said:

I think for good reason it was "artfully" avoided but I can assure you when the draft was initially composed it almost wasn't.  Imagine trying to fit the sum and substance and varying opinions in your linked thread (and I think we even had at least one other thread on this issue) into a few paragraphs.  Not possible.  Now if some intrepid parliamentarian wants to go where other threads have gone before, it's probably better if it's done in a several page article with good examples.  This question was never meant to go there.  Perhaps the next editor will allow the next Q&A team to ramble on for several pages for one question but the very excellent current editor was probably wise not to. :) 

"Sufficient unto the day ..."

But with respect to the question which was answered in this Q&A, it's interesting to note how far the rule allowing suspension of a rule in the bylaws, provided it is clearly in the nature of a rule of order, has evolved since General Robert's day. I suspect he would have answer the question asked in the NP's Q&A 51 differently (see, for example, Q&A 99 on p. 449 of PL).

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8 minutes ago, Daniel H. Honemann said:

"Sufficient unto the day ..."

But with respect to the question which was answered in this Q&A, it's interesting to note how far the rule allowing suspension of a rule in the bylaws, provided it is clearly in the nature of a rule of order, has evolved since General Robert's day. I suspect he would have answer the question asked in the NP's Q&A 51 differently (see, for example, Q&A 99 on p. 449 of PL).

Is his answer there an answer to a question regarding a mistake of parliamentary law, or a mistake of fact or maybe both in this case? There seems to be no doubt about the vote required to adopt the amendment.

Edited by George Mervosh

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16 hours ago, George Mervosh said:

Is his answer there an answer to a question regarding a mistake of parliamentary law, or a mistake of fact? There seems to be no doubt about the vote required to adopt the amendment.

I think his answer there was to a question regarding the proper application of the relevant rules of order contained in the bylaws, and not a mistake or mistakes of fact.

In Q&A 99 on page 449 of PL, we are told that the bylaws provide that they may be amended "by a two-thirds vote of the members present", and that the club accepted the ruling of the chair that a bylaw amendment was adopted by a vote of 12 in favor, 6 opposed, and 2 abstentions. In his response, General Robert tells us not only that the amendment was not adopted, and also that the chair's announcement that it was adopted was null and void. In other words, General Robert tells us, in no uncertain terms, that this rule in the bylaws requiring "a two-thirds vote of the members present" not only means that the vote of two-thirds of the members present is required for adoption (he says the same thing in Q&A 98), but also that such a rule contained in the bylaws cannot be suspended. I suspect that the conventional wisdom today is that a rule in the bylaws specifying the vote required for the adoption of a motion is clearly a rule in the nature of a rule of order, and can be suspended. 

 

 

Edited by Daniel H. Honemann
Added the second paragraph.

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Analogy:
 

Quote

 

In deepest, darkest Africa, there is a tribe of natives.
Their parliamentary rule for adoption is different from Robert's Rules  of Order.

• Under their tribal parliamentary law, "a motion is adopted when the OKAPI [a four-footed mammal with a neck and horns like a GIRAFFE, but with striped legs like a ZEBRA] passes completely behind the chairman."

As it so happens, a meeting is convened.
As it so happens, a motion is pending.

Suddenly, an animal passes completely behind the chairman!
Q. Was it the okapi?

The scribe takes down a vote of the membership present and voting:
  • 33% saw the back half of the animal and said, "Zebra!"
  • 33% saw the front half of the animal and said, "Giraffe!"
  • 34% saw the full profile of the animal and said "Okapi!"

The chair paused, and went with the 34% of the members who said "Okapi!", and ruled that the motion was ADOPTED.

The meeting adjourns. Sine die.

The next day, a skillful village hunter reports back to the tribe.
The animal which had passed behind the chairman was NOT an okapi.

The animal was actually a zebra, with a serious abnormal discoloration, which could have fooled the casual observer into thinking that the animal was an okapi, or perhaps even a giraffe.

Now a parliamentary issue arises.

The chair had announced as "adopted" that which SHOULD HAVE BEEN announced as "rejected" -- if the tribe had only "gotten the facts straight" at that crucial hour!

Q. What shall the tribe do about the motion which was erroneously announced as "adopted"?

The modern parliamentary rule is clear.
The members assembled had every opportunity to correct the chair on A POINT OF PHYSICAL FACT. -- An unsuspendable rule, at that!

But no member spoke up, and thus 100% of the members allowed a FALSE "FACT" to determine the outcome of the motion.

Today, such a  motion would stand as announced by the chair, namely, "adopted".

Q. Can a member argue legitimately, "Continuing breach?" -- A physical fact cannot be suspended, you know.

The 21st Century answer is, "No." -- At that crucial hour, 100% of the members present agreed tacitly with the chair's (erroneous) announcement of the physical fact -- even if they collectively erred on the "true facts" of the threshold necessary for adoption.

Bottom line, 21st century parliamentary law:
  • There is no continuing breach.
  • The motion stands as "adopted".
  • The members present (all, collectively) had interpreted the facts at hand as "one which represents 'adoption' of the pending motion".
  • The fact that no Point of Order was raised in a timely manner is a crucial factor.

###

 

 

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First, I will note that the first line of the answer to Question 49 in incorrect.  It should read "The club does not need to use Amend Something Previously Adopted or Rescind."   A correction should be published in the next issue.

On 7/17/2017 at 2:31 PM, Daniel H. Honemann said:

 I suspect that the conventional wisdom today is that a rule in the bylaws specifying the vote required for the adoption of a motion is clearly a rule in the nature of a rule of order, and can be suspended. 

 

 

I think that your assumption here is correct.

There are any number of questions that Answer 49 did not answer, largely because those questions were not asked.  The question here is not if there is any way for the society to fix its mistake.   It is, can this mistake be fixed by a non-timely point of order.

As I have indicated, PL may not properly describe the current general parliamentary law as it is codified in the current edition of RONR.   I have said that in cases where PL supports a position I hold, so it is not a situational answer.

In both of the PL Questions 98 and 99, there was a ruling either directly by the chair or the chair acquiesced to a statement from a parliamentarian.  That is not the situation given in the question used in the NP.    There was no objection in Question 51, of any type, at the time. 

 

 

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17 minutes ago, J. J. said:

 

In both of the PL Questions 98 and 99, there was a ruling either directly by the chair or the chair acquiesced to a statement from a parliamentarian.  That is not the situation given in the question used in the NP.    There was no objection in Question 51, of any type, at the time. 

 

Yes, and as I said in my initial post, I certainly agree with the answer provided in Question 51.

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4 minutes ago, Daniel H. Honemann said:

Yes, and as I said in my initial post, I certainly agree with the answer provided in Question 51.

Like any question, there can be a number of hypothetical variations, which could change the result.  Speaking for myself, I tried not to answer questions that were not asked, in that format.  I will concede that the answer might have been different had there been a point of order and/or an appeal. 

Some of those can be answered by the next parliamentary research editor and his or her associates.   :)

 

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10 hours ago, Kim Goldsworthy said:

The members assembled had every opportunity to correct the chair on A POINT OF PHYSICAL FACT. -- An unsuspendable rule, at that!

 

Certainly, physical facts cannot be "suspended," whatever that would mean.  But how do we know that the okapi rule may not be suspended (aside from the logistical difficulties involved)?

In any event - what would be your opinion if a zebra passed by, the chair said "since a zebra has walked by, the motion is adopted," and no one objected?

Also, in your scenario, why didn't someone from the majority who said "no okapi" appeal?  

Actually, how does appeal work?  An appeal is stated (assuming their system is similar to ours in this regard) as sustaining the ruling of the chair.  So, in the case of an appeal, no okapi=chair was wrong.  But if the same animal then walks by, we'll have the same issue deciding the appeal.

I think the NAP should take donations to send a team of parliamentarians and help them to adopt parliamentary principle which better suit the fundamental principles.

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4 hours ago, Joshua Katz said:

Also, in your scenario,

why didn't someone from the majority who said "no okapi" appeal

Because you can only appeal a RULING of the chair.

You cannot appeal physical facts, mathematical facts, logical facts.

You cannot appeal the vision of the chair, nor the hearing of the chair, nor the taste, smell, touch, of the chair.

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4 hours ago, J. J. said:

Like any question, there can be a number of hypothetical variations, which could change the result.  Speaking for myself, I tried not to answer questions that were not asked, in that format.  I will concede that the answer might have been different had there been a point of order and/or an appeal. 

Some of those can be answered by the next parliamentary research editor and his or her associates.   :)

 

There are several possible variations.

 

1.  What if, before the vote, a member moved "to suspend the rules that require the amendment to be adopted by a two thirds vote?"   What if that motion was subject to a point of order and an appeal at the time?

2.  What if, after the adoption of an amendment a member raised a Point of Order that a 2/3 vote was needed, but, after appeal, the Point is determined not well taken? 

3.  What if someone wants the vote recapitulated, or recalculated (the next meeting being within the quarterly time interval)?  What if the meeting is being video taped and video records who stood?

Certainly, there were more questions that the could answer, but those were not asked.   Personally, I am not for writing expansive answers and trying to establish a global principle.  .

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11 minutes ago, Kim Goldsworthy said:

Because you can only appeal a RULING of the chair.

You cannot appeal physical facts, mathematical facts, logical facts.

You cannot appeal the vision of the chair, nor the hearing of the chair, nor the taste, smell, touch, of the chair.

How do we "know" an okapi was present?  Because the chair ruled that an okapi was present.  It wouldn't be an appeal of the presence of the okapi.  It would be an appeal of the chair's ruling that it was an okapi.  

Anyway, suppose you're chairing, and they try.  You say "you can't appeal physical facts."  That is certainly a ruling, isn't it, which they can appeal?

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What if . . .

***

On a certain Date D1, the chair takes a vote.

The assembly hears the chair announce numbers N1 and N2 and say,

"There is not two-thirds in the affirmative. The motion is rejected."

And the meeting continues onward toward adjournment.

***

On a certain Date D2, the chair takes a vote.

The assembly hears the chair announce numbers N1 and N2 (exact same two numbers as were heard and counted on Date D1!) and say,

"There are two-thirds in the affirmative. The motion is adopted."

And the meeting continues onward toward adjournment.

***

Q. Without telling you the values of N1 and N2, does the reader agree that both actions (viz., adoption on D1, rejection on D2) stand as announced by the chair?

 

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16 hours ago, Kim Goldsworthy said:

What if . . .

***

On a certain Date D1, the chair takes a vote.

The assembly hears the chair announce numbers N1 and N2 and say,

"There is not two-thirds in the affirmative. The motion is rejected."

And the meeting continues onward toward adjournment.

***

On a certain Date D2, the chair takes a vote.

The assembly hears the chair announce numbers N1 and N2 (exact same two numbers as were heard and counted on Date D1!) and say,

"There are two-thirds in the affirmative. The motion is adopted."

And the meeting continues onward toward adjournment.

***

Q. Without telling you the values of N1 and N2, does the reader agree that both actions (viz., adoption on D1, rejection on D2) stand as announced by the chair?

 

What's the point in simply asking the same question initially raised once again, but in a different fashion? Upping the post count? 

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