Richard Brown

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Everything posted by Richard Brown

  1. Well, let's back up here. You said he is "considered ex officio". Well, he either is a member ex officio or he isn't. Being "considered" a member isn't enough unless he actually is a member. Is there a document such as a rule or adopted motion or legislation that actually makes him a member? If not, it seems to me he is not an ex officio member regardless of whether he and/or others "consider" him to be a member.
  2. I concur completely with the comments above by Dr. Stackpole, Mr. Novosielski and Mr. Honemann (who is one of the authors of the 9th, 10th and 11th editions of RONR). I especially wonder where the bylaws committee chairman gets his claimed authority to arbitrarily make "rulings" regarding your bylaws. As others have stated, I would want to see whatever rule he is relying on that gives him that authority. Lacking such a rule, and in the absence of a contrary provision in your bylaws, your local "unit" has the right, per RONR, to interpret its own bylaws. However, in your latest post, you made a reference to the executive committee saying the bylaw amendment cannot be retroactive. This may be a critical point: exactly who (what people and what boards or committees) have told you that the bylaw amendment cannot apply to your newly elected officers? It is one thing for the appropriate board or committee, as official board or committee action, to make a ruling and quite a different thing for one person to be making those pronouncements even if it is the chairman. We need to know exactly who is telling you what and whether it is based on an actual board or committee decision or if it is just that person's individual opinion. BTW , it is undisputed that your bylaw amendments don't take effect until approved by the appropriate state committee. However that is not the issue. Regardless of when a bylaw amendment takes effect, per RONR, once it becomes effective, it absolutely applies to officers then in office and can affect their duties and terms of office. Re-read the provision from RONR that I quoted and highlighted in a previous post. I think that is the point your bylaws chair is missing. Edited to add: Mr. Honemann made his post immediately above while I was typing this post. I concur with those comments, too.
  3. Mr. Novosielski is correct and perhaps I should have added that caveat. I urge caution, though, in assuming that your interpretation of the effect of a motion is the only interpretation that is reasonable. Besides, if your interpretation is so obviously the only reasonable interpretation, what do you have to fear from an appeal? On the other hand, refusing to allow an appeal when others obviously believe your interpretation is wrong could make it appear that you are abusing your power and being dictatorial in order to get your way, thereby injuring your standing as a good, fair and impartial presiding officer. If you know that a problematic motion is coming, I think it is better to be prepared with good arguments as to WHY it violates the bylaws and is out of order and what the consequences of adopting an illegal motion might be. As chair, you do get to speak twice on an appeal.
  4. Guest Guest, I think the fact remains that RONR, in the footnote on page 643, makes it plain that an ordinary motion of censure is not considered disciplinary action and that the "due process" provisions of Chapter XX on discipline do not kick in. Here is the text of the footnote on page 643: "*It is also possible to adopt a motion of censure without formal disciplinary procedures." I think that, unless the motion of censure provides for some sort of discipline, it is not considered discipline pursuant to RONR. I don't think that a bunch of "whereas" clauses preceding the statement of censure necessarily turn it into a disciplinary proceeding. Those same "whereas" statements could be stated in debate on the motion.
  5. The language which you quoted in your first paragraph is still in the 11th edition of RONR, but the wording has been changed slightly. Here is the current wording from the 11th edition: "No main motion is in order that conflicts with the corporate charter, constitution, or bylaws (although a main motion to amend them may be in order; see 35, 57); and to the extent that procedural rules applicable to the organization or assembly are prescribed by federal, state, or local law, no main motion is in order that conflicts with such rules. " So, a motion which conflicts with the bylaws is out of order and you should rule it out of order. If no member raises a point of order, you may rule it out of order on your own. Your ruling is subject to an appeal. You cannot "deny" the appeal. If your ruling is upheld, that's that. If your ruling is overruled, then the motion can be considered and adopted no matter how strongly you believe it is out of order. The assembly will have spoken with its determination of the appeal. The decision of the assembly is final. Note: You don't declare the motion "invalid". You rule that it is "out of order" because it conflicts with the bylaws. Edited to add: Here is the language from the bottom of page 255 and top of page 256 regarding the decision of the assembly in an appeal being final: "By electing a presiding officer, the assembly delegates to him the authority and duty to make necessary rulings on questions of parliamentary law. But any two members have the right to Appeal from his decision on such a question. By [page 256] one member making (or "taking") the appeal and another seconding it, the question is taken from the chair and vested in the assembly for final decision." (Emphasis added)
  6. Guest Guest, I agree with all of the posts above and in particular with Mr. Novosielski's statement that he personally agrees with the first interpretation you were given. Ultimately this seems to be a matter of interpreting your own bylaws and our opinions don't count in that regard. We haven't seen your bylaws provisions regarding bylaws amendments. However, the provisions on pages 597-598 of the 11th edition of RONR might provide some key guidance. Since I don't know if you have a copy of RONR, I am quoting the pertinent text from those two pages. Pay particular attention to the second paragraph which I have bolded: "Time at Which a Bylaw Amendment Takes Effect: An amendment to the bylaws goes into effect immediately upon its adoption unless the motion to adopt specifies another time for its becoming effective, or the assembly has set such a time by a previously adopted motion. While the amendment is pending, a motion can be made to amend the enacting words of the motion to amend by adding a clause such as this: ". . . with the proviso that [or, ". . . provided, however, that"] this amendment shall not go into effect until after the close of this annual meeting." Or, while the amendment is pending, an incidental motion can be adopted that, in the event of the amendment's adoption, it shall not take effect until a specified time. Either method requires only a majority vote. It is a mistake to encumber the bylaws themselves with provisions which have effect for only a limited time. If the mechanics of transition to operation under a revised set of bylaws will be complicated in ways for which the act of adoption must provide temporarily, such provisions can be numbered and attached to the revision draft on a separate sheet headed "Provisos Relating to Transition." The motion to adopt the revision can then be made in this form: "I move the adoption of the revised bylaws with the provisos attached thereto." Amendments to the article on officers may raise difficulties in relation to the time at which adopted changes take effect, unless special care is taken. A society can, for example, amend its bylaws so as to affect the emoluments and duties of the officers already elected, or even to abolish an office; and if it is desired that the amendment should not affect officers already elected, a motion so specifying should be adopted before voting on the amendment, or the motion to amend can have added to it the proviso that it shall not affect officers already elected. There is virtually a contract between a society and its officers, and while to some extent action can be taken by either party to modify or even terminate the [page 598] contract, such action must be taken with reasonable consideration for the other party. It is important to note that, although the time when a bylaw amendment takes effect can be delayed by the assembly, the amendment becomes part of the bylaws immediately upon adoption. If the amended bylaws are printed, a footnote or similar device should indicate that the amended language is not yet in effect and, if language was removed by the amendment, the text of that provision should be given if it is still applicable in the organization." What is important about the bolded paragraph is that since bylaw amendments take effect immediately upon adoption (or, in your case, presumably upon approval), the terms of office for officers already in office can be lengthened or shortened by means of a bylaw amendment adopted while they are in office. Their offices can even be eliminated by means of the adoption of a bylaw amendment eliminating the office. If that is done, and there is no proviso or other "saving" provision, that position ceases to exist the instant the bylaws amendment is adopted. Edit: I see that you just now supplied some of the key bylaws language regarding amendments. As to your question about whether the newly elected officers serve a one year term or a two year term, it is my opinion, based on RONR, that the newly elected officers should serve a two year term. However, only your organization can interpet its own bylaws. We can help explain what RONR says, but we can't interpret your blaws. Perhaps it will help if you point out to the members of the appropriate executive and bylaws committees the language I quoted from pages 597-598 of RONR. Perhaps they are not aware of it.
  7. What, and make Mr. Honemann have to type his answer all over again? Perhaps Guest Guest should have posted the question as a new topic, but it looks to me like it might be a bit late for that now. But, I'll go with the flow either way. For now, though, Guest Guest, a motion of censure (or a censure resolution ) may not necessarily be an allegation against a member's good name. It is essentially nothing more than an expression of disapproval. In its basic form, according to RONR, it is not discipline or an accusation of wrongdoing. Ultimately, in this case, it may turn on a bylaws interpretation question, which is something only your organization can do. Edited to add: btw, Guest Guest , since a motion of censure is a debatable motion, the chair cannot put it to a vote without an opportunity for debate without the rules being suspended or the adoption of a motion limiting debate or the adoption of a motion ordering the previous question. Edited again to add: Guest Guest, I initially thought that the rule which you quoted via a copy andn paste above was from your own bylaws or rules. However, I now realize it is a quote from Chapter XX on Discipline from the 11th edition of RONR. It is in the section on "Investigation and Trial". I think it is clear that in the context in which that statement is made, it is referring to disciplinary action and not an ordinary "non-disciplinary" motion of censure. As Mr. Honemann stated, the person who is the object of the motion of censure has no special rights to speak to the motion. My apologies for thinking that you had quoted a provision from your bylaws or special rule of order. Based on this, I don't see how this is a matter of bylaws interpretation unless your bylaws contain a relevant provision addressing this.
  8. Guest guest, are you telling us that the state bylaws committee chair, all by himself, has rescinded a decision of the executive committee? You did say the executive committee is required to approve bylaws amendments and that the committee approved the change at issue, didn't you? Or was it just the prior bylaws committee chair who did it all by himself? We really need more information as to who and which body did what and exactly what your governing documents require in the way of approval of bylaws amendments. I agree that this is likely a matter bylaws interpretation and that your answer may be in your own rules, but with more precise information we might be able to help you.
  9. A resolution is basically a formal form of a motion that is in writing, usually signed by the president and secretary . It would direct the bank and/or secretary of state to make the appropriate changes in their records. As I said in my first response , the bank will probably give you a copy of the form it likes to use. The bank might even require you to use it. The new board and officers are usually responsible for getting it done because the outgoing officers no longer have any responsibility, but either board and either the old or new officers can usually do it. At a minimum, the former officers should cooperate. If they don't, your association might consider their actions detrimental to the best interests of the association and subject to disciplinary action. If you are still unsure what to do, you should consult an attorney. But go ask the bank for a copy of its corporate resolution form first.
  10. Ms. Erkan, your question is really a legal question and is outside the scope of this forum. RONR has no provisions for dealing with banks. However, I can tell you that your problem is not that unusual. As a practical matter, some banks are much more difficult to deal with than others when it comes to changing signatories on organization bank accounts. And some former officers are more cooperative than others. I have found that small local banks are much easier to deal with in that regard than large banks. I suggest you get a copy of your bank's standard "corporate resolution" for opening accounts and changing signatories. When completely and properly filled out with the information requested by the bank, and accompanied by your minutes showing the new officers, that will often take care of it. Showing that the names of your officers have been changed on the Secretary of State's website also helps. Unfortunately, some banks will do everything they can to try to get the former signatories to sign a form consenting to the change. But, it has been my experience that with the proper documentation and friendly persuasion, they will usually relent and make the changes. If the bank still refuses to do it without the former officers' consent, and if the former officers refuse to cooperate, you may have no choice but to seek legal advice. I imagine that with a little persistence you will be able to get it done without an attorney getting involved. Good luck! Edited to add: Your new officers might put pressure on the former officers to cooperate and your organization might even consider adopting a motion of censure or instituting disciplinary procedures if they continue to refuse to cooperate. Edited again to add: In my opinion, it is actually up to the new officers to make the changes at the bank, but I also believe the former officers have an obligation to cooperate.
  11. Guest Margie, we really need more information in order to answer your question, but, generally, no. If your bylaws ssy the president cannot serve a third consecutive term, then he cannot serve such a term regardless of how he is selected. If this needs more follow up, please ask your questions again by starting a new topic and give us more information on the situation and quote exactly what your bylaws ssy about term limits.
  12. Ron, how can you say that the bylaws and special rules of order are on a par regarding this issue when RONR is clear that certain provisions, in order to be effective, must be in the bylaws? I don't know whether the basis of that statement in RONR is the common parliamentary law or a fundamental principle of parliamentary law or a rule promulgated by the authors of RONR. However, regardless of the origin of the rule, it seems that if it is to be superseded by a special rule of order, such a special rule must, at a minimum, state something to the effect that "Any rules in RONR which require certain provisions to be in the bylaws in order to be effective are hereby superseded and said provisions may instead be provided for in these special rules of order and shall be just as effective as if included in the bylaws". I question, though, whether even that would be effective. I also note that the original poster did not say that their rule permitting email voting is in the special rules of order but rather is in the"policies and procedures". Since the rule seems to be in the nature of a special rule of order, should it be considered as such? If not, this discussion is just hypothetical as to whether the statement in RONR could be superseded by a special rule of order. Edited to add: RONR says on pages 263 and 423 that it is a fundamental principle of parliamentary law. Therefore, I think it is a provision which cannot be superseded by a special rule of order.
  13. I agree. I was responding to the comment by Mr. Lages that you never vote yes or no in an election.
  14. JJ, are you saying, in the bolded portion above, that if an organization has non-voting members (and the bylaws say that those members may not vote), that by a two thirds vote those non-voting members may be allowed to vote?
  15. Bruce, I considered adding a statement along the lines of yours, but if the voting is by voice, a yes/no vote on each candidate is permissible. In fact, according to RONR, that is the way it should be done when the voting is a voice vote. I agree that yes/no votes are not appropriate with a ballot vote. Edited to add: See pages 442-443 of RONR for details on conducting elections by voice votes (Viva-voce elections).
  16. I agree with Mr. Huynh. This is a matter of interpreting your own rules, which is something we cannot do for you. As Mr. Huynh stated, RONR does not even require that officers or nominees be members at all.
  17. Not unless your bylaws contain a provision allowing this or are silent about the manner of voting. Further, if your bylaws require a ballot vote, a vote by secret ballot MUST still be taken even though there is only one candidate. Unless your bylaws provide otherwise, a person must receive a majority vote in order to be elected.
  18. GWCTD, you might read about fundamental principles of parliamentary law on page 263 at lines 15-24 and also on page 423 at lines 17-25. The provisions in RONR about voting being limited to persons who are physically present in a meeting are not just rules conjured up by General Robert which can be superseded by an organization's special rules of order, but are fundamental principles of parliamentary law that cannot be suspended or changed by a special rule of order or a policy and procedures manual, but rather any exceptions to the "in person only" voting requirement must be set out in the bylaws or mandated by state law. Guest Michelle Card's "policies and procedures" manual cannot accomplish that. It must be in the bylaws.
  19. Michelle, some things in parliamentary law, such as provisions which must be in the bylaws in order to be effective, are NOT effective if contained in a lower ranking document such as a policies and procedures manual. The requirement that absentee voting be authorized in the bylaws is one such provision. Putting it in a policies and procedures manual just doesn't cut it. However, you might have a lifeline: if your organization is incorporated or otherwise subject to state law procedural statues, such as a homeowner association, state law MIGHT permit absentee (or email) voting unless prohibited in the bylaws.
  20. No, but being practical and knowing how things actually transpire in meetings, I imagine there would be side conversations going on about someone trying to get copies made while the motion is on the table and the assembly is taking up other business. I think the assembly would be fully cognizant of the fact that they will probably take the budget back up when someone returns with copies... or when the treasurer's only copy has been circulated around the meeting room.
  21. I'm not either, and actually deleted it and then typed it again. I believe it is still an option available to the assembly, especially if the assembly believes there is other pressing business which the assembly wishes to take up first. No, I covered that in option No. 1, which I believe is actually the best option. That's why I listed it first.
  22. No, not technically. Authority to vote by email or by any other means of absentee voting must be authorized in the bylaws. Here is what RONR says about it on page 423: "ABSENTEE VOTING. It is a fundamental principle of parliamentary law that the right to vote is limited to the members of an organization who are actually present at the time the vote is taken in a regular or properly called meeting, although it should be noted that a member need not be present when the question is put. Exceptions to this rule must be expressly stated in the bylaws. Such possible exceptions include: (a) voting by postal mail, e-mail, or fax, and (b) proxy voting."
  23. What, if anything, do your bylaws say about filling vacancies? Are they really silent? If your bylaws are truly silent about filling vacancies, the vacancies will most likely have to be filled by the membership at a special election. Depending on the power given to your executive board by the bylaws, it MIGHT be possible for the board to fill the vacancies. The following language from pages 467-468 of RONR regarding vacancies might be helpful: "The power to appoint or elect persons to any office or board carries with it the power to accept their resignations, and also the power to fill any vacancy occurring in it, unless the bylaws expressly provide otherwise. In the case of a society whose bylaws confer upon its executive board full power and authority over the society's affairs between meetings of the society's assembly (as in the example on p. 578, ll. 11–15) without reserving to the society itself the exclusive right to fill vacancies, the executive board is empowered to accept resignations and fill vacancies between meetings of the society's assembly. For particular vacancies, see page 457, lines 22–30 [page 468] (president-elect), page 458, lines 7–18, and page 575, lines 6–17 (president and vice-presidents). See also page 177 (vacancies in a committee). Notice of filling a vacancy in an office (including a vacancy in an executive board or executive committee) must always be given to the members of the body that will elect the person to fill it, unless the bylaws or special rules of order clearly provide otherwise."
  24. This one is tough and I imagine our regular posters may disagree on some aspects. But, I'll give it a shot. First and foremost, I believe this may ultimately be a question of bylaws interpretation. We cannot interpret bylaws on this forum. That is something only the organization itself can do. Your organization must decide for itself the procedure to be followed. But, having said that, here is the way I look at it. Since the bylaws mention removal for cause but do not specify the procedure for removal, I believe the default disciplinary procedures in Chapter XX of RONR would apply. But, you may have another option. What, exactly, do your bylaws say about the terms of office of board members? Do they specify an exact fixed term, such as "three years", or do they say something such as "three years or until their successors are elected"? Please give us the EXACT wording of that provision. If they use the magic phrase "or until their successors are elected", it may be possible to remove them from office by the adoption of a motion to do so as provided on page 633 at lines 27-34. If the bylaws do not contain the magic phrase "or until their successors are elected", then, according to RONR, you would have to follow the full disciplinary trial process as stated on page 654, lines 4-13. You might also read FAQ No. 20 for more information:
  25. Well, shucks. Mr. Honemann beat me to it by four minutes. Maybe he had his 10th edition handy. It took me a minute to find mine. But, at least we came up with the same citation.