Breach of Continuing Nature

[Matt Schafer]

In the last meeting of our society, a motion was adopted that is in conflict with one of our standing rules. No one, including me, remembered that we had the standing rule when we were debating the motion. The vote was taken as a voice vote, and if I remember correctly, no one voted "No." (The draft minutes simply note that "the motion was adopted".) Our next meeting will be the first in my term as president, so I have a couple of questions to help me handle this properly.

1. Can the chair rule that a motion from a previous meeting is null and void without a point of order made by a member?
   
2. Is the assembly's recollection that the vote was unanimous (assuming that they recollect the same way I do) sufficient to rule that the standing rule was rescinded?
   

[Kim Goldsworthy]

In the last meeting of our society, a motion was adopted that is in conflict with one of our standing rules. No one, including me, remembered that we had the standing rule when we were debating the motion.

The vote was taken as a voice vote, and if I remember correctly, no one voted "No."

(The draft minutes simply note that "the motion was adopted".)

Our next meeting will be the first in my term as president, so I have a couple of questions to help me handle this properly.

1. Can the chair rule that a motion from a previous meeting is null and void without a point of order made by a member?
   
2. Is the assembly's recollection that the vote was unanimous (assuming that they recollect the same way I do) sufficient to rule that the standing rule was rescinded?
   

1.) "Yes" but "no" -- a chair can rule a motion from a previous meeting as being null and void; but a point of order would need to be raised.

No chair, willy nilly, announces X being null and void without a context.

A point of order provide the context.

2.) Yes. If the rule was an "ordinary act of the society", and if the vote was at least two-thirds (as a unanimous voice vote would indeed be), then the old rule would be rescinded, either in whole or in part, depending on the overlap of the two rules.

(The overlap might not be nice and easily discernible.)

[Chris Harrison]

1.) "Yes" but "no" -- a chair can rule a motion from a previous meeting as being null and void; but a point of order would need to be raised.

No chair, willy nilly, announces X being null and void without a context.

A point of order provide the context.

Though RONR pp. 242-243 says "If the chair notices a breach, he corrects the matter immediately" which suggests to me that the Chair could rule the adopted motion null and void without raising a Point of Order. Also, if the Chair is a member of the assembly he could raise a Point of Order of his own volition though I am not sure it would be necessary to go through the whole process of raising the Point of Order and then ruling on it when he in effect is making the Point of Order to himself.

[David A Foulkes]

Though RONR pp. 242-243 says "If the chair notices a breach, he corrects the matter immediately" which suggests to me that the Chair could rule the adopted motion null and void without raising a Point of Order. Also, if the Chair is a member of the assembly he could raise a Point of Order of his own volition though I am not sure it would be necessary to go through the whole process of raising the Point of Order and then ruling on it when he in effect is making the Point of Order to himself.

I may be wrong here (won't be the first time, eh?) but I believe I recently glanced over a sentence that suggested the Chair can essentially come in to the subsequent meeting and make a ruling, without apparently first raising his own point of order. I'm thumbing through and not finding it (and that may speak volumes - ha ha), but the bells are ringing.

[Chris Harrison]

I may be wrong here (won't be the first time, eh?) but I believe I recently glanced over a sentence that suggested the Chair can essentially come in to the subsequent meeting and make a ruling, without apparently first raising his own point of order. I'm thumbing through and not finding it (and that may speak volumes - ha ha), but the bells are ringing.

It would be nice if there was a more on point citation but even if there isn't I think the one I gave would suffice because if the breach is continuing then the Chair should seal that breach whenever he notices it (doing so at a properly called meeting of course).

[David A Foulkes]

It would be nice if there was a more on point citation but even if there isn't I think the one I gave would suffice because if the breach is continuing then the Chair should seal that breach whenever he notices it (doing so at a properly called meeting of course).

However, I think 244(b ) applies here. Assuming the standing rule was adopted as a main motion and is still in force, and the recent vote "conflicting" with it was enough to Rescind it (which seems the case here with a "unanimous vote" [i.e. no one voted no]), then the standing rule has been rescinded and there is no continuing breach.

Since the meeting is apparently over, it's too late for the chair to correct "the matter immediately."

[Chris Harrison]

However, I think 244(b ) applies here. Assuming the standing rule was adopted as a main motion and is still in force, and the recent vote "conflicting" with it was enough to Rescind it (which seems the case here with a "unanimous vote" [i.e. no one voted no]), then the standing rule has been rescinded and there is no continuing breach.

Since the meeting is apparently over, it's too late for the chair to correct "the matter immediately."

I agree. I was merely responding to the response to the OP's first question generally without regard to the specific circumstances.

[David A Foulkes]

I agree. I was merely responding to the response to the OP's first question generally without regard to the specific circumstances.

Okey-doke.

[Matt Schafer]

Though RONR pp. 242-243 says "If the chair notices a breach, he corrects the matter immediately" which suggests to me that the Chair could rule the adopted motion null and void without raising a Point of Order.

Thank you for the reference, Chris. This seems to me that the chair can correct the problem without a point of order from a member. Now for a question of practicality: When during the next meeting should I make this ruling? (We use the standard order of business shown on page 342 of RONR.) I'm inclined to wait until after the minutes are approved and before the reports of officers and standing committees. (Reasoning: It should probably be done early enough in the meeting for members to make motions to correct the situation after the chair's ruling, and it should be after the minutes are approved just in case the assembly amends the minutes in a way that changes the chair's judgment of the situation.) Does that sound about right? If you were chair, when would you do it?

2.) Yes. If the rule was an "ordinary act of the society", and if the vote was at least two-thirds (as a unanimous voice vote would indeed be), then the old rule would be rescinded, either in whole or in part, depending on the overlap of the two rules.

(The overlap might not be nice and easily discernible.)

It seems that folks are agreed that a simple voice vote that was unanimous is sufficient. I suppose if any member disagrees that there were enough people who voted in the affirmative, he can appeal and state his case during debate on the appeal.

I'll be sure to go over the exact wording of the standing rule and the adopted motion to determine whether the appropriate ruling is rescission of the standing rule or amendment.

[Chris Harrison]

I'm inclined to wait until after the minutes are approved and before the reports of officers and standing committees. (Reasoning: It should probably be done early enough in the meeting for members to make motions to correct the situation after the chair's ruling, and it should be after the minutes are approved just in case the assembly amends the minutes in a way that changes the chair's judgment of the situation.) Does that sound about right? If you were chair, when would you do it?

Not knowing the specifics of the two motions your inclination seems to be as a good time as any.

[David A Foulkes]

Thank you for the reference, Chris. This seems to me that the chair can correct the problem without a point of order from a member. Now for a question of practicality: When during the next meeting should I make this ruling? (We use the standard order of business shown on page 342 of RONR.) I'm inclined to wait until after the minutes are approved and before the reports of officers and standing committees. (Reasoning: It should probably be done early enough in the meeting for members to make motions to correct the situation after the chair's ruling, and it should be after the minutes are approved just in case the assembly amends the minutes in a way that changes the chair's judgment of the situation.) Does that sound about right? If you were chair, when would you do it?

I think it's all to late for this now. The reference on page 242-243 refers to the time at which the breach occurs. That was last meeting. At that time the chair could rule the motion out of order. You can't open another meeting and offer a ruling on this out of the gate.

It seems that folks are agreed that a simple voice vote that was unanimous is sufficient. I suppose if any member disagrees that there were enough people who voted in the affirmative, he can appeal and state his case during debate on the appeal.

I'll be sure to go over the exact wording of the standing rule and the adopted motion to determine whether the appropriate ruling is rescission of the standing rule or amendment.

Without an actual count of votes (as a voice vote does not provide), it would be difficult to prove that the affirmative vote was not sufficient. If your recollection is accurate, a voice vote with no "no" votes is adequate to adopt a motion that even requires a 2/3 vote, such as "Rescind/Amend Something Previously Adopted" which seems to be what happened here. But I think at this point the "old" standing rule has been either rescinded or amended, depending on the wording of the motion and the rule.

It might be that the next step is to follow proper procedures for amending the standing rules and make it right.

[Chris Harrison]

I think it's all to late for this now. The reference on page 242-243 refers to the time at which the breach occurs. That was last meeting.

I think those pages would apply because it seems like this is a p. 244 issue in that although the 2nd motion is not null and void it did have the votes necessary to Amend/Rescind the first motion. Something needs to be said about it because although it was done inadvertently they either did away with the first motion or part of the first motion went away because it was rescinded by the 2nd motion and the members need to be advised of the current parliamentary situation.

[David A Foulkes]

I think those pages would apply because it seems like this is a p. 244 issue in that although the 2nd motion is not null and void it did have the votes necessary to Amend/Rescind the first motion. Something needs to be said about it because although it was done inadvertently they either did away with the first motion or part of the first motion went away because it was rescinded by the 2nd motion and the members need to be advised of the current parliamentary situation.

Page 244 details circumstances when a Point of Order need not be timely (i.e. continuing breach). 244 would apply, and allow for an "untimely" Point of Order if the 2nd motion passed with less than a 2/3 vote, which is not the case here based on Matt's recollection of only affirmative votes being cast.

[Chris Harrison]

Page 244 details circumstances when a Point of Order need not be timely (i.e. continuing breach). 244 would apply, and allow for an "untimely" Point of Order if the 2nd motion passed with less than a 2/3 vote, which is not the case here based on Matt's recollection of only affirmative votes being cast.

Then how would you suggest that the members be advised that there was a standing rule that the 2nd motion conflicted with and that there were enough votes in favor of adopting the 2nd motion that the 1st motion was Rescinded completely or in part? I believe it to be the Chair's duty to present the members with an accurate evaluation of the current parliamentary situation and not saying anything would leave the members with an incorrect perception of what the parliamentary situation is.

[Dan Honemann]

Page 244 details circumstances when a Point of Order need not be timely (i.e. continuing breach). 244 would apply, and allow for an "untimely" Point of Order if the 2nd motion passed with less than a 2/3 vote, which is not the case here based on Matt's recollection of only affirmative votes being cast.

Oh, I think the point of order can be raised. The question that the assembly will then need to decide is whether or not the conflicting motion was adopted by the vote required to amend or rescind the previously adopted motion. I doubt that this can be established if the vote was not counted and the count reported in the minutes, but it remains a question that the assembly will need to decide.

[David A Foulkes]

Understood.

[J. J.]

Oh, I think the point of order can be raised. The question that the assembly will then need to decide is whether or not the conflicting motion was adopted by the vote required to amend or rescind the previously adopted motion. I doubt that this can be established if the vote was not counted and the count reported in the minutes, but it remains a question that the assembly will need to decide.

What would be the standard of proof?

Would the member raising the point of order need to prove that less than 2/3 or an MEM voted in favor of the proposal? Would the chair rule in favor of the POO on the basis that their was not proof 2/3 or an MEM voted in favor of the proposal?

[Rob Elsman]

What would be the standard of proof?

Would the member raising the point of order need to prove that less than 2/3 or an MEM voted in favor of the proposal? Would the chair rule in favor of the POO on the basis that their wasn't proof 2/3 or an MEM voted in favor of the proposal?

My own sense is that the chair would have to rule the point not well taken unless it were clearly evident from the facts available that the motion was not adopted by a vote required to adopt Rescind or Amend Something Previously Adopted.

[Gary Novosielski]

My own sense is that the chair would have to rule the point not well taken unless it were clearly evident from the facts available that the motion was not adopted by a vote required to adopt Rescind or Amend Something Previously Adopted.

But that turns the standard outlined in OI 2006-17 on its head.

The point need not be timely, and is well taken unless it can be clearly established that the vote was sufficient to Amend the Previously Adopted rule. Since the vote was by voice, the minutes will not record the vote, and as the OI says, it will probably be impossible to establish clearly.

The chair should advise the assembly that the motion which conflicted with the older rule should have been ruled out of order at the time, and created a continuing breach, so that the point of order need not be timely. He should also inform the assembly that if the vote was 2/3 or MEM, that the adoption of the motion would stand, as that vote would have been sufficient to Amend the rule.

But I think it is a stretch to ask the chair, in the absence of evidence in the minutes to presume the right to judge what the vote was. The memory of the chair is not enough to clearly establish the vote. So I think the chair should rule that the point is well-taken. But having pointed out the standard, and believing as he does that the vote was sufficient (and is likely to be so remembered by the assembly), he may invite an Appeal and allow the assembly to decide.

Alternatively, he may explain the standard, and state that he is in doubt on the matter of the vote, and submit to the assembly the question of whether the vote was, in fact, unanimous. While the memory of the chair alone does not, in my view, suffice, the memory of the assembly as a whole probably would. This would be especially true in a small assembly where audible dissent during voice votes is unusual.

[David A Foulkes]

This would be especially true in a small assembly where audible dissent during voice votes is unusual.

I was fine up to this point. It sounds like you're saying in a voice vote in a small assembly, a no vote is rarely cast. I can make sense out of "inaudible", if that's what you meant.

[Rob Elsman]

But that turns the standard outlined in OI 2006-17 on its head.

The point need not be timely, and is well taken unless it can be clearly established that the vote was sufficient to Amend the Previously Adopted rule. Since the vote was by voice, the minutes will not record the vote, and as the OI says, it will probably be impossible to establish clearly.

The chair should advise the assembly that the motion which conflicted with the older rule should have been ruled out of order at the time, and created a continuing breach, so that the point of order need not be timely. He should also inform the assembly that if the vote was 2/3 or MEM, that the adoption of the motion would stand, as that vote would have been sufficient to Amend the rule.

But I think it is a stretch to ask the chair, in the absence of evidence in the minutes to presume the right to judge what the vote was. The memory of the chair is not enough to clearly establish the vote. So I think the chair should rule that the point is well-taken. But having pointed out the standard, and believing as he does that the vote was sufficient (and is likely to be so remembered by the assembly), he may invite an Appeal and allow the assembly to decide.

Alternatively, he may explain the standard, and state that he is in doubt on the matter of the vote, and submit to the assembly the question of whether the vote was, in fact, unanimous. While the memory of the chair alone does not, in my view, suffice, the memory of the assembly as a whole probably would. This would be especially true in a small assembly where audible dissent during voice votes is unusual.

I understand what you are saying, Gary. As a practical matter, though, the only evidence seems to be what the chair ruled at the time the vote was taken, since the vote was taken by a viva voce vote. I would be hesitant to agree that the original announcement of the chair should be reversed because it cannot be proven that the chair was in error.

[Dan Honemann]

I understand what you are saying, Gary. As a practical matter, though, the only evidence seems to be what the chair ruled at the time the vote was taken, since the vote was taken by a viva voce vote. I would be hesitant to agree that the original announcement of the chair should be reversed because it cannot be proven that the chair was in error.

But the chair was taking the vote on an ordinary main motion, not on a motion to Rescind or Amend Something Previously Adopted, and so the chair's announcement, presumably, was simply that "the ayes have it" and not that "there are two thirds in the affirmative and the motion is adopted." The chair was not in error as to the vote required for adoption of the motion being voted on. The chair was in error in permitting the introduction and consideration of a motion which was not in order.

[Rob Elsman]

But the chair was taking the vote on an ordinary main motion, not on a motion to Rescind or Amend Something Previously Adopted, and so the chair's announcement, presumably, was simply that "the ayes have it" and not that "there are two thirds in the affirmative and the motion is adopted." The chair was not in error as to the vote required for adoption of the motion being voted on. The chair was in error in permitting the introduction and consideration of a motion which was not in order.

I'm sorry, but I'm not sure from your reply what conclusion you are making.

[Rob Elsman]

I'm sorry, but I'm not sure from your reply what conclusion you are making.

By the very nature of a Point of Order, the chair cannot rule that a point is well taken if there is not a rational basis for forming an opinion that a breach of the rules has occurred. As I understand the matter, there are no facts at hand other than the announcement of the chair to indicate by what margin the motion was, or should have been, adopted or lost. If this is all there is, then I cannot see on what rational basis the chair can form an opinion that the rules were breached; therefore, in my opinion, he must let the original announcement of the vote stand by ruling that the point is not well taken.

[Shmuel Gerber]

By the very nature of a Point of Order, the chair cannot rule that a point is well taken if there is not a rational basis for forming an opinion that a breach of the rules has occurred. As I understand the matter, there are no facts at hand other than the announcement of the chair to indicate by what margin the motion was, or should have been, adopted or lost. If this is all there is, then I cannot see on what rational basis the chair can form an opinion that the rules were breached; therefore, in my opinion, he must let the original announcement of the vote stand by ruling that the point is not well taken.

Rob, there is no disagreement as to whether a breach of the rules has occurred, because a motion that conflicts with a previously adopted motion is not in order. The only question is whether that breach is a continuing one, which it is unless the new motion was adopted by the necessary vote (let's say two-thirds, for the sake of simplicity). Just based on the existing record, there is no apparent evidence one way or the other as to whether such a vote was achieved.