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Executive Director


Guest Michelle Card

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1 hour ago, Transpower said:

JJ, the bylaws and any special rules of order are on a par in regards to the present issue and similar issues--I didn't say "in general."  Now, would the OP please tell us whether the provision for e-mail voting was adopted by 2/3 vote or only by majority vote?

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 However, regardless of the origin of the rule, it seems that if it is to be superseded by a special rule of order, such a special rule must, at a minimum, state something to the effect that "Any rules in RONR which require certain provisions to be in the bylaws in order to be effective are hereby superseded and said provisions may instead be provided for in these special rules of order and shall be just as effective as if included in the bylaws".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 If not, this discussion is just hypothetical as to whether the statement in RONR could be superseded by a special rule of order.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 Therefore, I think it is a provision which cannot be superseded by a special rule of order.

Edited by Richard Brown
Added last paragraph
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8 hours ago, Daniel H. Honemann said:

I'm afraid you've lost me here. I didn't think those two quotes were related in any way to the existence or nonexistence of any statute.

Michelle Card, the original poster, quoted the bylaws, which make RONR the adopted parliamentary authority. (Well, sort of; we'll overlook the fact that they say "Meetings of members and meetings of the Board of Directors shall be governed by ..." rather than the wording suggested in RONR.)

Richard Brown pointed out that if e-mail voting is to be allowed, it must be provided for in the bylaws, but added:

"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."

To this, Gary Novosielski replied:

I think it could be argued that adopting RONR as the parliamentary authority is effectively a prohibition against e-mail voting unless elsewhere permitted in the bylaws.

and he later said he was assuming that the adoption of RONR would normally be done in the bylaws. So I took his original comment as an attempt to revoke the "lifeline" that Richard said may exist by statute, and that's why I said this branch of the discussion may not be relevant and couldn't be resolved here.

And since in this case the bylaws are where RONR is adopted, the question whether e-mail voting could be authorized by a special rule of order if RONR is adopted apart from the bylaws is also moot. However, that is certainly something more amenable to discussion in the forum than the question about statutes that authorize e-mail voting unless prohibited in the bylaws.

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11 hours ago, Shmuel Gerber said:

Michelle Card, the original poster, quoted the bylaws, which make RONR the adopted parliamentary authority. (Well, sort of; we'll overlook the fact that they say "Meetings of members and meetings of the Board of Directors shall be governed by ..." rather than the wording suggested in RONR.)

Richard Brown pointed out that if e-mail voting is to be allowed, it must be provided for in the bylaws, but added:

"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."

To this, Gary Novosielski replied:

I think it could be argued that adopting RONR as the parliamentary authority is effectively a prohibition against e-mail voting unless elsewhere permitted in the bylaws.

and he later said he was assuming that the adoption of RONR would normally be done in the bylaws. So I took his original comment as an attempt to revoke the "lifeline" that Richard said may exist by statute, and that's why I said this branch of the discussion may not be relevant and couldn't be resolved here.

And since in this case the bylaws are where RONR is adopted, the question whether e-mail voting could be authorized by a special rule of order if RONR is adopted apart from the bylaws is also moot. However, that is certainly something more amenable to discussion in the forum than the question about statutes that authorize e-mail voting unless prohibited in the bylaws.

You're absolutely right. I'm afraid that I had completely forgotten about the fact that Mr. Brown had introduced the possibility that there may be some applicable statute which must be taken into consideration. Such a statute might give the board blanket authorization to act by unanimous written consent (including by electronic transmission), which would put an end to the matter.

However, such a statute might grant such authorization only if such voting is not prohibited in the bylaws, as Mr. Brown suggested. In this case, if the bylaws adopt RONR as the organization's parliamentary authority using language such as that recommended on page 580 (and especially if the language suggested in the footnote on that page is included), the rule found on page 423, lines 17-23, prevents voting by e-mail. This is because the intent, and therefore the effect, of including the suggested parliamentary authority language into the bylaws is to incorporate the rules in RONR into the bylaws as a part thereof. This is, of course, the reason why RONR says what it does on page 429, lines 10-14.

I think this is very sound parliamentary law. I also happen to think it is sound contract and corporation law as well, but I agree with you that this is the sort of question which can't be resolved here.

In an excess of caution, I will note that bylaws can be written in very different ways, and I don't doubt but that there will be particular instances in which the bylaws, even although they adopt RONR with the recommended language, when read in their entirety evidence an intent that the rules in RONR should not be regarded as being incorporated into the bylaws as a part thereof. 

 

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On 9/17/2017 at 10:17 AM, Transpower said:

JJ, the bylaws and any special rules of order are on a par in regards to the present issue and similar issues--I didn't say "in general."  Now, would the OP please tell us whether the provision for e-mail voting was adopted by 2/3 vote or only by majority vote?

A simple "no" to the bolded part.

Bylaws are superior, by their nature, to any special rule.

Let's take a fairly simple rule in a hypothetical dog club:  Each member may speak once for five minutes on motions regarding the standards of the breed.  The parliamentary authority for the society that has this rule is RONR.  I will refer to this as the "five minute rule."

That five minute rule could a special  rule, in general (p. 16, ll. 1-5).  It would supersede RONR's rules on the length of debate.

That five minute rule could also be included the bylaw (p. 17, ll. 11-17).  That would also supersede RONR's rules on the length of debate (p. 14, ll. 17-22).

However, it there some different limitation on debate in the bylaws, e.g. Each member can speak twice in debate for two minutes, it could not adopt the "five minute rule" as a special rule, because that special rule would violate the bylaws.  

The bylaws and special rules are never "on par" with each other.  The special rule is inferior to the bylaws and will be superseded by the bylaws, if they conflict. 

You will have to get past that point before continuing on with the question.

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On 9/17/2017 at 11:03 AM, Richard Brown said:

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.

I agree that something "in the nature of a rule of order" should be treated as a rule of order, provided that it:

A.  Was adopted by the vote needed to adopt a special rule of order.

B.  Was properly incorporated into a set of rules of some type, e,g. bylaws, that supersede a rule of order.

I also agree that this is a fundamental principle of parliamentary law.  That said, you answer gives the implication that if something is a fundamental principle of parliamentary law, it can only be superseded by a bylaw (or higher level rule).    I disagree with that implication in the general case, though I agree that, in this parlicular case, it would.  . 

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