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smb

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Everything posted by smb

  1. A question of semantics....Under RONR 11, a motion is before the assembly only after it has been moved, seconded, and stated by the chair. The minutes should include all main motions "made or taken up" and not withdrawn. X rises, makes a motion, and the chair immediately rules the motion out of order. There is no second; there is no appeal of the ruling. Should the motion go into the minutes? I.e., Does the phrase "motions made" refer solely to the first step of someone "making" the motion or has a motion been "made" only after it has been seconded and stated by the chair. Since "make" and "made" are tenses of the same verb, it would seem that a motion immediately ruled out of order should still be included in the minutes. However, by that logic, motions made but not seconded should also be included in the minutes and, as a simple matter of practice, I know of no one who does that. Comments?
  2. Just noticed I never replied to these two responses. Sorry about that....I actually checked the official interpretations before posting. Somehow I managed to overlook it! thanks for pointing it out politely.
  3. CHANGES TO DRAFT MINUTES

    Let's cut to the chase: the members of an imaginary board make a unanimous decision outside a properly noticed meeting. Regardless of whether it is later ratified [or not] does a record need to be made that the action was taken -- even if for no other purpose than to use as evidence in some later disciplinary action or a court suit to have them reimburse the association for their spendthrift ways? If the answer is yes, then what form does that record take? And if we don't call it minutes, what do we call it?
  4. CHANGES TO DRAFT MINUTES

    Sorry for the long delay in responding -- I've been away. But, since I agree with Mssr. Honemann's assertions 1) that this is not an earth shattering discussion, and 2) but we are having fun with it anyway -- I feel the desire to raise a further point: He concludes that "no action was taken by the board since 'a board can transact business only in a regular or properly called meeting …'” and that "there is certainly nothing in RONR which even hints at the notion that minutes should be taken at anything that isn't a regular or properly called meeting", quoting RONR at p. 486 ll. 33-34. But the excerpted quote is incomplete: that sentence in RONR ends with the words "and at which a quorum ...is present." [(RONR, 11th ed., p. 486-487-7, ll. 33-3). We all know that if an assembly loses its quorum there are still actions that RONR permits to be taken in the absence of a quorum. [(RONR, 11th ed., p. 348, ll. 14-23). But if we accept the analysis above, then once the quorum is lost, none of those actions -- including adopting a motion 'to fix the time to which to adjourn' -- would be "board actions" since they would have been taken without a quorum present. I think most of us would agree that an adopted motion to fix the time to which to adjourn is a 'board action' that would go into the minutes of that meeting. If that is correct, then shouldn't the alternative of adopting an urgent motion that can't await the next meeting [with the admonition it must be ratified later] also be entered into those minutes? And if that is the case, then shouldn't a record also be made of the informal action taken by the board later via email? Whether an action was taken at a meeting that was properly convened but then lost its quorum or was taken informally via a later email the result is still the same. An action was taken that does not comply with the quoted language above. So...what is the proper way of recording it? RONR is silent; and perhaps the best answer is that this is not covered by RONR and you just have to punt. I can live with that -- my only objection is to the suggestion that because the vote was taken by email, it was not 'the board' that took action. The Board did take action and some record needs be made of that action. [Whether the action is valid or not is a separate matter.] The only question is how and when that record is most properly made. I'm still having fun.
  5. CHANGES TO DRAFT MINUTES

    Oops....somehow I did miss that answer in the first response. But I think it is somewhat incomplete and I must disagree with the criticism of my response. Mr Brown stated [and Mr. Honemann appears to agree] that the results of the email vote should be recorded in later minutes only if that amendment was properly adopted. So, what if it was NOT properly adopted -- do you simply ignore it? Of course not -- whether or not it was properly adopted it is still an action by the Board that needs to be recorded -- if for no other reason than to provide the factual foundation for whatever needs to happen next. Hence, my suggestion that the emailed action be 'reported' at the next meeting and that report be recorded in those minutes. Above, it was 'presumed' the bylaws don't allow for an emailed vote -- why are we presuming that? Moreover the statement on p 487 of RONR [ll. 4-12] that permits a Board to ratify an emailed [or telephoned] action does not require as a predicate that email be authorized in the bylaws. It's very purpose is to ratify an improper act. And, if this is an incorporated body that is statutorily permitted to take action by unanimous consent via email, that statutory authorization trumps RONR's admonition on p. 487. I realize I am getting into a bunch of speculative non-RONR issues here -- but they are necessary to the point: This board took an action to amend [either expressly or implicitly] an adopted motion; whether or not it was proper and whether or not that action took place in a 'deliberative proceeding' it still needs to be put into the minutes somewhere so that the factual foundation for whatever further action might be necessary is part of the record; that can occur at the next meeting either by ratifying the action or by reporting the action as having been taken and recording that report. I erred earlier by only suggesting the latter.
  6. CHANGES TO DRAFT MINUTES

    Interesting discussion but so far no one has really answered the actual question asked. The minutes of the special meeting should accurately reflect what occurred at the special meeting. Then, the action that occurred afterward should be reported at the next meeting and properly recorded in those minutes. Whether that later action is valid or not is immaterial to the minutes -- it happened and needs to be recorded. The digression of whether that later action is valid or not something that can't really be answered with the limited information we have. If this is an incorporated organization, the codes of many states permit board approval via email if consent is unanimous. Likewise, if the contract is signed by both parties, you may have a valid contract -- even if it may have been improperly authorized. The latter two points are outside the realm of this forum.
  7. More a question of bylaw interpretation, than RONR but I appreciate your leniency and input... The Bylaws provide that committees are appointed by the President with the 'approval of the Executive Committee and ratification by the Board of Directors.' The Board of Directors meets three times per year; the Executive Committee meets monthly. The Executive Committee has full power to 'act for the Board of Directors between meetings of the Board." So....either ratification by the Board is redundant and unnecessary -- or this bylaw gives the Board the ability to reject an appointment, even if approved previously approved by the Exec Comm. The question is, what is the effective date of a committee appointment -- upon approval of the Exec Comm or ratification by the Board? Or is it upon appointment by the President, unless disapproved by the Exec Comm or Board?
  8. I'm sure this has been the subject of a prior thread, but I am unable to find it so apologies for bringing it up again. I'm willing to accept either fresh advice or a link to a prior thread State corporation codes frequently provide default language for certain elements of procedure "unless otherwise provided by the bylaws." So there has always been the lingering question whether a provision in the bylaws stating that RONR is the parliamentary authority satisfies that requirement or whether any override of the statute must be by an express bylaw. Thx
  9. Oops...hit enter too quickly. I am aware we parliamentarians have expressed differing opinions on this question so what I'm looking at the moment is whether anyone has ever found legal authority for the proposition that adopting RONR is sufficient. [recognizing of course that other legal jurisdictions may disagree.'
  10. The Standing Rules for annual conventions were prepared and adopted by the organization's Board of Directors. Some members see a need to suspend one of the rules for this year's convention. There are three options: 1) at the next Board meeting a motion can be adopted to suspend the rule for the upcoming convention; 2) at the next Board meeting there can be a motion authorizing the convention delegates to suspend the rule if they wish to do so; 3) the convention delegates can suspend the rule themselves without board action. Ordinarily, the latter can be done with a majority vote of the delegates. Questions: (a) If the Board wanted to amend or rescind the standing rule without prior notice, it would require a 2/3 vote or majority of the board. Would that also be required to suspend the rule without prior notice, or would a suspension require only a majority vote? RONR authorizes convention delegates to suspend a standing rule by a majority vote; can the Board adopt a motion requiring a 2/3 vote of the delegates instead? Wouldn't that, itself, be a standing rule that the delegates could suspend by a majority vote? [c] Since RONR authorizes convention delegates to suspend a standing rule by a majority vote, can the convention delegates do so even if the previously mentioned motions were made at the Board meeting but failed to receive a majority vote?
  11. It's an unusual set-up. The standing rules for this association's conventions are in the association's policy manual. Per the bylaws, the sole authority for approving, amending, rescinding the policy manual resides in the Board of Directors. The convention delegates have never voted to adopt or amend the convention standing rules -- they are a fait accompli. Delegates have occasionally suspended applicable procedural rules provided by RONR but they have never had occasion to suspend one of their own own standing rules. So the question essentially is whether, under such a scheme, the convention delegates have the authority to suspend a standing rule adopted by the board without prior board authorization to do so or whether the rules from the board should be considered directive. While the situation is somewhat akin to the Bylaws 'directing' that RONR be the parliamentary authority, RONR expressly provides for suspending its own rules. The standing rules adopted by the board do not provide such express authority. So the question, essentially, is whether the delegates need to be given express authority or whether the authority of delegates to suspend a standing rule is implicit. My own opinion is that since RONR allows a body to suspend a procedural rule contained in the bylaws [certainly a 'directive' document], there is no reason it shouldn't be able to do so here as well. Obviously, this cannot be answered by reference to RONR -- so perhaps this is not an appropriate topic for this forum -- just curious to see if others have encountered such a situation before and how it was handled.
  12. Ethics in Parliamentary Law

    I am essentially with Kim on this one. You are neither the parliamentarian nor the chair -- more importantly, unless one is in such a position, you do not surrender your own rights just because you know something about PL. One of those rights is the right to rise to a point of order or NOT. It may be a different situation if there is a ruling by the Chair and now you must decide whether to appeal the ruling or not. Here there is more reason to speak up -- but not because there is an ethical duty; rather it is because the chair's ruling may become a precedent unless set aside and that is the time to set the record, and the rules, straight. But...let us not confuse "doing the right thing", which is admirable, with having an "ethical duty."
  13. The following statement on p. 407 has been the subject of many posts. Sorry to bring it up again, but I don't think this particular question has been addressed. "No member should vote on a question in which he has a direct personal or pecuniary interest not common to other members of the organization. For example, if a motion proposes that the organization enter into a contract with a commercial firm of which a member of the organization is an officer ..." My question is very narrow. What is the meaning of "not common to other members of the organization"? I often see board members unnecessarily abstaining* on votes because they think they have a conflict when, in fact, there is no conflict. The issue may be who to send as a delegate to a conference, fixing the $ amount of stipends or other compensation, etc. The example given on p. 407 suggests that the rule applies only when the pending question relates to a personal or pecuniary interest that is "outside" the organization itself. Is that a correct reading? Suppose we have an organization of web-designers; a member thinks the organization's own website needs to be redesigned but recognizing how much work that entails thinks that they should pay a token amount of $500 to whichever member the Board tasks to do it -- he wants to establish the principle that just because they all have skills, no one should be expected to do the work for free. At this point, we don't know which member will be asked or volunteer to do it -- it could be any of them. So it seems clear to me that all members can vote on this issue with a clear conscience -- they have no conflict and no one need consider abstaining*. Now we change the scenario a bit -- Helen has previously offered to redesign the website; another member now offers the same motion to compensate her for her time. Should she consider abstaining? * We know that even when there is a conflict, one still has the right to vote and no one can be compelled to abstain. The only issue I am concerned with is whether there is even a need to consider doing so. I hope I have not made the issue too simplistic -- my purpose in bringing this up is not to have others simply conclude whether or not Helen should abstain. My purpose is to see how others interpret the meaning 'not common to other members" -- even with other examples -- or to discover if there is already a broader analysis or discussion of the issue that I have somehow overlooked. Thx
  14. Thanks for the comments -- Daniel is such a ubiquitous presence on this board that his conclusion there is apparently no analysis or discussion is good enough for me, and that's mostly what I was looking for. As for Kim's comment, while we should always be aware of state laws on an issue, I chose not use the legal concept of 'self-dealing' as the standard because most state laws define that term very narrowly -- much more narrowly than RONR. I.e., RONR refers to pecuniary interests generally -- the self-dealing principles of California law (for example) apply to only a very small subset of what might be considered pecuniary interests. That's the reason I brought this up -- I see directors of nonprofits frequently abstaining on monetary issues that affect them personally because they think they 'should' do so -- even though corporate law has no concerns. The problem is that corporate law often requires a majority of the board for approval, not those present and voting, so their abstention is equivalent to a 'no' vote.
  15. Discussion

    I think it's a bit more on point further down the page...RONR (11th ed.), p. 34, ll. 19-30.
  16. Just by way of example, this is how California's "Brown Act" covers the situation. Most state 'open meetings' laws have similar provisions.... "Furthermore, a member of a legislative body, or the body itself, subject to rules or procedures of the legislative body, may provide a reference to staff or other resources for factual information, request staff to report back to the body at a subsequent meeting concerning any matter, or take action to direct staff to place a matter of business on a future agenda." GOVT Code 54954.2 (a)(2)
  17. Expanding upon Schmuel's post #3, the reason why ratify it is an incidental motion is practical. The only significant difference between an original main motion and an incidental main motion is that the latter is not subject to 'objection to the consideration of a question' [RONR 11th ed., pp. 102 ll. 4-8, 268 ll. 3-4]. Since the motion to ratify always relates to an action that the society has already taken [sometimes by a prior vote of the assembly itself, but not necessarily), you don't want to allow an objection to prevent the society from either ratifying or expressly rejecting that action.
  18. Methinks this thread has focused too much on what properly goes in the minutes and not enough on what the member is requesting. Without questioning motives, we need to acknowledge that sometimes a request to put something in the minutes that RONR would not ordinarily call is perfectly appropriate. It may be to build a complete historical record in case of potential lawsuit, to avoid ambiguity of purpose, or whatever. The proper method for gaining recognition to do so is to rise to a question of privilege (p. 227-228). Although this motion is frequently misused, this would seem to be a perfect application, especially given RONR's suggestion on p. 227 that the motion can be used to ensure the accuracy of the minutes.
  19. Lifting the secrecy of an Executive Session.

    Oops. Sorry for the larger type in my earlier response. I did not mean to shout.
  20. Lifting the secrecy of an Executive Session.

    I just want to note for the record, that the almost correct answer is not in post #2; it is in post #19. (Both by Mssr. Hohnemann, so I give him full credit.) "The obligation not to divulge anything that occurred in executive session is something having continuing force and effect which was made or created as the result of the adoption of the motion to go into executive session, thus falling clearly within the language found on page 305, lines 28-31." But I would take the analysis a bit further. The authority of the assembly to lift the veil of secrecy is solely as to the content of the minutes of the executive session. Which, as we are all aware, should report what was done, not what was said. The rule protecting the secrecy of what any individual member may have said in debate, with the understanding that his or her comments would not be disclosed, is essentially a rule "protecting a minority of a particular size" that protects the rights of each individual member and would therefore require unanimous consent to lift. [p. 261 l. 15-17] This citation is for a motion to suspend the rules since the motion to amend something previously adopted would technically be out of order -- since it is impossible to undo the guarantee of confidentiality given to those who remained in the room and chose to speak because of that guarantee. [p. 308 l.. 20-24]. The key to the analysis is to parse RONR p. 96 l. 6-14 which indicates that the authority of the assembly to lift the veil of secrecy applies only to the confidentiality of the executive session minutes, not the secrecy of what was said during the meeting. "A member of a society can be punished under disciplinary procedure if he violates the secrecy of an executive session. [Period!] .... The minutes...must be read and acted upon only in executive session, unless that which would be reported in the minutes ....was not secret, or secrecy [of the actions taken during executive session] has been lifted by the assembly." (My emphasis and [comments])
  21. Canceling meetings

    I would like to take us back to the pure essence of the original question -- is there anything in RONR that prohibits you from canceling a meeting? No. And now for my 2c: If there were such a rule, Mr. Spock would consider it illogical. Of course meetings can be canceled. That is why every calendar program and application from Profs to Outlook to Mac Calendar ad infinitum has a function that allows you to cancel a meeting. The only question is who has the authority to do so if the bylaws, standing rules, or parliamentary authority don't address the issue and under what circumstances. (Ok, that's really two questions.) If an assembly previously scheduled a special meeting, it can rescind that action. If the president cancels tomorrow's regular meeting because the meeting room burned down last night, and there is a question about whether he exceeded his/her authority, the assembly can ratify that action later. If a standing rule requires any proposed business to be submitted x days prior to the meeting so it can be noticed in the call to meeting, the President routinely cancels the meeting if nothing has been submitted, and no one has ever objected, then you may have established a custom and practice. Note that my comments do not address what is necessary, or what might happen, if the meeting is canceled over the objections of other members who think it should still proceed. That is a different question. As to the moon: semper necessitas probandi incumbit ei qui agit (the necessity of proof always lies with the person who lays charges.) “usually one who makes an assertion must assume the responsibility of defending it. If this responsibility or burden of proof is shifted to a critic, the fallacy of appealing to ignorance is committed.” (Argumentum ad Ignorantiam) Michalos, Alex (1969). Principles of Logic. Englewood Cliffs: Prentice-Hall. p. 370.
  22. Methinks people are focusing too much on the Chair's participation rather than the validity/invalidity of the meeting itself. Any time the members of an association gather to conduct business it is a 'meeting'. The only question is whether it is a valid meeting or not -- and the simple fact of calling a meeting to order has no effect on that question. Another hypothetical; the President (Chair) refuses to call a special meeting upon request of three members of the board, as the bylaws require, so the Secretary convenes the meeting even though the bylaws do not give the Secretary that authority. Everyone but the President shows up and the President is recalled. Valid meeting? You can come down on either side of that question -- the point is simply that who it was that called the meeting to order is irrelevant. For the question at hand, certainly, the Chair does not NEED to be there -- and some might register their protest by failing to show up. My recommendation is no more than that if the Chair wants to ensure that a complete record is made of what is occurring, he either needs to be there or he needs to have a reliable lieutenant. And if he intends to be there, then he might as well be in charge.
  23. Ok...I'll be the one to take the dissenting view. Yes he should probably attend and call the meeting to order. If he is concerned that doing so will 'legitimize' the meeting, that is going to happen anyway. SOMEONE is going to call the meeting to order and by failing to be there to declare the meeting invalid himself, he is going to let it happen without timely objection. The issue isn't so much whether the meeting is 'legitimated'; the issue is whether any business conducted at an improperly convened meeting is valid. It is somewhat akin to holding a regular meeting without a quorum present -- it's the actions taken that may be invalid -- not the fact that you continued meeting. We also have to note that there are a whole lot of 'believes' in the fact pattern. We don't know exactly what the bylaws provide nor why the Chair 'believes' the meeting to be invalid. Perhaps the Chair is correct; perhaps there is an ambiguity in the bylaws and others disagree. If that is the case, it isn't the Chair's role to decide; it's the Board's responsibility. Perhaps others think some emergency action is necessary and the Chair, for whatever reason, is refusing to call a special meeting. Perhaps they don't care whether the meeting is properly called; they feel they can always ratify any actions taken at a later meeting that is properly convened. [i am adding a bunch of what-ifs' only because we don't really know what is going on here.] If I had full command of the facts, I might recommend showing up; calling the meeting to order; declaring it improperly convened; and adjourning immediately -- pausing of course in case a point of order is raised. If he is truly correct, hopefully the body will sustain him on appeal. If not, the fact that the meeting continued does not validate anything that may subsequently be done in violation of the bylaws or any notice requirements. But by calling the meeting to order, he has the ability not only to rule that no valid business may be conducted, but continue raising points of order as the meeting progresses. Since the minutes must include points of order and the rulings thereon, he will be making the necessary record for any later review. If the body chooses to continue meeting, the Chair can decide whether it makes sense to continue in the role of chair, or to turn the gavel over to another so he has greater freedom to continue to be the gadfly.
  24. The problem here is an ambiguity introduced by the 11th edition. The former rule (10th ed.) was that the names of the makers of "all important" motions be recorded. [p. 452:17] but that the names of seconders were not. [p. 453:29] In the sample minutes cited above, the author of an amendment is included because the fact that the pending amendment adhered to its main motion and was referred to the committee as well rendered the amendment an 'important" motion. ["Important" is not a value judgement on the motion itself; it is 'important' to the context of establishing a clear understanding of the process. I.e., main motions are important because they are the substantive business. Points of Order are important because they establish precedent. Secondary motions not lost or withdrawn are important for completeness or clarity. The current 11th edition deleted the "all important motions" language [p. 469:10] and moved the reference to the maker of "main motions" to the following page and joined it to the former rule against including the name of the seconder. [p. 470:27] The sample minutes were not altered to conform to these changes. [The sample minutes also still show the name of the member who moved that the item be referred.] The implication is that we no longer care who moved secondary motions, important or otherwise, just as we have never cared who seconded. Or was moving "the name of the maker" to p. 470 only intended to clarify that we record the maker of a main motion but not the seconder, and the example implies that we really do still want to know who moved important secondary motions? My suspicion is the former. [Which means the sample minutes are now a bad example that need to be rewritten.] But frankly Scarlet, I don't really care all that much. As others have already stated, these rules are all "shoulds" not "musts" or "shalls" and every organization I have ever worked with developed its own customs and practices about minutes no matter what RONR had to say about the matter. Actually I take that back...while I don't care that much about the 'rule' here, I do care that RONR be consistent. So, here's hoping we see the example rewritten in edition 12. Oh yes, getting back to the original topic... Me too: Common sense should prevail.
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