Motion in Conflict with Law

[Richard Tatara]

Several years ago my religious organization ended an employment relationship with a professional church worker. The personnel committee, organized as a sub-committee of the general assembly, was responsible for overseeing the matter. This sub-committee sent correspondence to the synodical church leadership concerning the employee relationship that may have had an impact on that persons employment opportunities in sister churches. We believe all of this correspondence falls under the protection of state and federal privacy laws relating to employers/employees, so there was no report regarding this correspondence given to the general assembly. 
Recently, a member of our assembly became aware of the existence of some of the correspondence. This member firmly believes the nature and content of some of the correspondence should have been shared with the general assembly. Therefore, the member created a motion seeking this correspondence be released to the assembly. This motion was first presented to a sub-committee of the assembly, but failed to progress due to lack of a second. Now the member seeks to present his motion to the entire assembly. To do this, the member will first have to get approval from the assembly to add a new business item not on the adopted agenda for the assembly meeting; our agenda is fixed by our constitution and bylaws, so this business would be considered a changed agenda. If the assembly approves (two-thirds majority required), then the member would present their motion.
But we now believe the motion this member seeks is in conflict with state or federal privacy laws, and therefore is out of order. We feel that raising this topic in any form in the general assembly puts the organization at risk for lawsuit from the aggrieved employee due to breach of privacy.
My question now is: when does the Chairman have the responsibility to declare the motion is out of order? For example, when the member comes forward to move to change the agenda, it is reasonable to expect that he/she will need to say something about the business they would like to add to the agenda. We cannot say for certain in advance exactly how the member may characterize the new business he wants to bring forth. Therefore, must we wait until he/she has said something about requesting information that would be considered violating the privacy law? And is it reasonable for the Chairman to interrupt the member mid-sentence to declare the motion out of order and prevent the member from making statements that could potentially put the organization at risk of privacy violation? Can we stop the business from moving forward even at the "change the agenda" stage, versus potentially waiting until the entire motion is read (assuming the change-the-agenda motion is successful)? 

[Joshua Katz]

37 minutes ago, Richard Tatara said:

But we now believe the motion this member seeks is in conflict with state or federal privacy laws, and therefore is out of order.

This is incorrect.  Well, maybe not the first part (I have no idea, and we don't give legal advice), but the second part.  The laws you believe conflict with this are privacy laws, which are substantive laws.  A motion is only out of order, though, when it conflicts with an applicable procedural law.  It is not out of order to move to contract for a murder, although it's a bad idea.  More to the point, it wasn't out of order for civil rights organizations to adopt motions to hold civil disobedience events, or sit-ins.  

 

40 minutes ago, Richard Tatara said:

We feel that raising this topic in any form in the general assembly puts the organization at risk for lawsuit from the aggrieved employee due to breach of privacy.

The appropriate motion would be, I think, object to consideration.  It can only be made to the motion, though, not to the incidental motion to amend the agenda.  In any case, why not just vote down the agenda amendment?  If, on the other hand, you don't have the votes to do that, then it would seem that 2/3 of the body disagrees that this motion is so awful that it should not be considered.  Who is "we," by the way?  The board?

On another note, the motion may turn out to be out of order for other reasons, such as violating your own rules.  In that case:

43 minutes ago, Richard Tatara said:

My question now is: when does the Chairman have the responsibility to declare the motion is out of order? For example, when the member comes forward to move to change the agenda, it is reasonable to expect that he/she will need to say something about the business they would like to add to the agenda. We cannot say for certain in advance exactly how the member may characterize the new business he wants to bring forth. Therefore, must we wait until he/she has said something about requesting information that would be considered violating the privacy law?

If it's out of order because it conflicts with your own rules, I don't think the motion to amend the agenda is out of order.  You'd need to raise a point of order when the business item is moved.

44 minutes ago, Richard Tatara said:

And is it reasonable for the Chairman to interrupt the member mid-sentence to declare the motion out of order and prevent the member from making statements that could potentially put the organization at risk of privacy violation?

I think so, but stay tuned for other answers.

 

44 minutes ago, Richard Tatara said:

Can we stop the business from moving forward even at the "change the agenda" stage, versus potentially waiting until the entire motion is read (assuming the change-the-agenda motion is successful)? 

I don't think so.  Something isn't out of order until you know what it is.  Often these types of back-room discussions, for instance, result in the member bringing a different motion to the floor.

[Greg Goodwiller, PRP]

You really need to be in touch with an attorney - one who is licensed in your state, knows employment law, and is familiar with your church law. It sounds as though your local congregation is part of a national body with a constitution. If so, your denominational office might well have legal counsel who can help you as well.

 

[Shmuel Gerber]

22 minutes ago, Joshua Katz said:

A motion is only out of order, though, when it conflicts with an applicable procedural law.  It is not out of order to move to contract for a murder, although it's a bad idea. 

This is kind of a silly example. I suppose it would depend on whether the target of the hit is a member or a non-member. Members, after all, can be killed only after due process of discipline.

25 minutes ago, Joshua Katz said:

More to the point, it wasn't out of order for civil rights organizations to adopt motions to hold civil disobedience events, or sit-ins.  

That is neither more to the point nor less to the point, as both examples are beside the point, which is that the chair of an assembly is empowered and has the duty to enforce the assembly's own rules and the applicable rules of parliamentary procedure, but the chair is not empowered to decide whether the assembly's actions are good or bad, legal or illegal.

It is irrelevant to say that this makes it easier for the assembly to accomplish actions that might be good yet are illegal, just as it is irrelevant to say that this makes it easier for the assembly to accomplish actions that might be bad and are illegal, or actions that are bad and legal.

[Joshua Katz]

3 minutes ago, Shmuel Gerber said:

That is neither more to the point nor less to the point, as both examples are beside the point, which is that the chair of an assembly is empowered and has the duty to enforce the assembly's own rules and the applicable rules of parliamentary procedure, but the chair is not empowered to decide whether the assembly's actions are good or bad, legal or illegal.

 

I'm not sure what you're disagreeing with me about, except that you don't like my examples and introductory phrases.  

[Shmuel Gerber]

Just now, Joshua Katz said:

I'm not sure what you're disagreeing with me about, except that you don't like my examples and introductory phrases.  

I'm disagreeing with introducing the concept of the chair's proper role in the deliberative process of an assembly by illustrations involving reprehensible acts, or justifications involving (presumably) virtuous acts. The chair cannot peremptorily rule a motion out of order on the basis that it violates a substantive law simply because that is not one of the chair's proper functions in a deliberative assembly, and it is a matter for the assembly to determine for itself within that process. I don't think it is helpful to add, "So therefore a motion to commit murder (or rob a bank, or plant tulips, or whatever) is not out of order."

[Joshua Katz]

32 minutes ago, Shmuel Gerber said:

I'm disagreeing with introducing the concept of the chair's proper role in the deliberative process of an assembly by illustrations involving reprehensible acts, or justifications involving (presumably) virtuous acts. The chair cannot peremptorily rule a motion out of order on the basis that it violates a substantive law simply because that is not one of the chair's proper functions in a deliberative assembly, and it is a matter for the assembly to determine for itself within that process. I don't think it is helpful to add, "So therefore a motion to commit murder (or rob a bank, or plant tulips, or whatever) is not out of order."

Okay.  I thought examples might be helpful to illustrate what a substantive law is.  

[Richard Brown]

Weighing in only on two aspects of the original post and the responses by Joshua Katz and Greg Goodwiller, I thought Joshua's example of a motion to do something bad still being in order was appropriate.  I thought it appropriately made the distinction between violating a substantive law and violating a procedural one.  I've seen similar examples used in this forum many times.  I also agree with Mr. Goodwiller's suggestion to consult with an attorney.  The original post presents as many or more legal questions as parliamentary ones.  I was a bit taken by surprise by Mr. Gerber's response and am still trying to digest it all.  I'm thinking maybe Mr. Gerber misunderstood the point that Mr. Katz was trying to make regarding motions that violate substantive criminal laws being in order but motions that violate procedural laws being out of order.   I think the original poster was taking the position that a motion would be out of order if it violates some substantive law.  That position is not correct, or certainly is not necessarily correct.  I think that is the point Mr. Katz was addressing.

And I commend Mr. Katz for tackling the question in the first place.  The original post by Mr. Tatara is a difficult one to fully respond to.  I decided to pass on it initially because of the complex nature of it and not wanting to have to invest the time at that moment that a full answer would require.

[Joshua Katz]

6 minutes ago, Richard Brown said:

And I commend Mr. Katz for tackling the question in the first place.  The original post by Mr. Tatara is a difficult one to fully respond to.  I decided to pass on it initially because of the complex nature of it and not wanting to have to invest the time at that moment that a full answer would require.

Thank you, but to be fair, I was in class so I had some time.

[Shmuel Gerber]

 

7 minutes ago, Richard Brown said:

I've seen similar examples used in this forum many times. 

And therein lies my motivation in responding to it.

7 minutes ago, Richard Brown said:

I'm thinking maybe Mr. Gerber misunderstood the point that Mr. Katz was trying to make regarding motions that violate substantive criminal laws being in order but motions that violate procedural laws being out of order. 

I don't think I misunderstood, but then again I suppose that's the nature of misunderstanding. :-)

7 minutes ago, Richard Brown said:

And I commend Mr. Katz for tackling the question in the first place.

As do I. That doesn't mean I can't discuss why I would recommend a different way of explaining the issue.

 

[Gary Novosielski]

I've read everyone's responses and it does not seem to me that there is any substantive disagreement on what the chair's proper role is.

The chair must enforce procedural rules, whether statutory or in-house, and (except under small-board  rules) does not weigh in on whether the decisions made are wise, foolish, or otherwise, as long as they are properly adopted.

I haven't seen anyone contradict that.

[Shmuel Gerber]

I was going to elaborate some (I'm not in class, so I have some time), but then I remembered that we've had this discussion in the past --probably more than once. Two pages of it can be seen here:

http://robertsrules.forumflash.com/topic/26562-motions-that-conflict-with-non-procedural-laws/

 

[Josh Martin]

6 hours ago, Richard Tatara said:

My question now is: when does the Chairman have the responsibility to declare the motion is out of order? For example, when the member comes forward to move to change the agenda, it is reasonable to expect that he/she will need to say something about the business they would like to add to the agenda. We cannot say for certain in advance exactly how the member may characterize the new business he wants to bring forth. Therefore, must we wait until he/she has said something about requesting information that would be considered violating the privacy law? And is it reasonable for the Chairman to interrupt the member mid-sentence to declare the motion out of order and prevent the member from making statements that could potentially put the organization at risk of privacy violation? Can we stop the business from moving forward even at the "change the agenda" stage, versus potentially waiting until the entire motion is read (assuming the change-the-agenda motion is successful)? 

I concur with my colleagues that the chair can not rule the motion out of order on the grounds that it conflicts with a non-procedural law, which it seems to me that the law in question is. As Mr. Katz suggested, an appropriate course of action to take instead would be for the chair to raise an Objection to Consideration of the Question. The purpose of this motion “is to enable the assembly to avoid a particular original main motion altogether when it believes it would be strongly undesirable for the motion even to come before the assembly.” (RONR, 11th ed., pg. 267) Similar to a Point of Order, the chair may raise this objection on his own initiative. The motion is not debatable, and the chair states the question on whether the motion shall be considered. If 2/3 of the assembly votes in the negative, the question is not considered. See RONR, 11th ed., pgs. 267-270 for more information.

I do not think OTC can be made during the time that the member is making the motion itself, but it can be made immediately after. OTC can only be applied to original main motions. A motion to amend the agenda is an incidental main motion, and so it cannot be applied to the motion to amend the agenda. If OTC fails, it may be desirable for the Chairman to relinquish the chair so that he may speak against the motion in debate.

I also concur with Mr. Goodwiller that seeking legal counsel would be highly advisable. Having a written opinion from a lawyer (or perhaps having a lawyer actually present) may help to persuade the members that the motion is in conflict with the law and that there would be severe consequences for the organization for violating the law.

Edited December 1, 2017 at 08:48 PM by Josh Martin

[Gary Novosielski]

It would also be advisable to have the matter considered in executive session, which compels the members to keep confidential whatever occurs in the meeting.  A case could be made, I think, that as the superior body, the assembly must have complete information in order to properly oversee the operation of the board. Privacy laws, as a rule, do not prevent people with a genuine need to know from knowing.  But of course you would not want confidential information released to the general public.

Note well that the above is not legal advice, but may prompt some questions that your attorney could properly advise you on.

[Richard Tatara]

Thanks to all for the many lessons learned in your responses. You taught me as much about the role of the Chairman as you did about the use of the Motion Out of Order rules. I have since learned that the privacy laws are not as private as we thought. Also, as often is the case, there is more to this scenario than I first understood. We will have to take our chances that the assembly does not want to entertain the new agenda item. If they do, we will be ready with the Objection to Consideration of the Question tactic.

[Dan Honemann]

9 hours ago, Richard Tatara said:

Thanks to all for the many lessons learned in your responses. You taught me as much about the role of the Chairman as you did about the use of the Motion Out of Order rules. I have since learned that the privacy laws are not as private as we thought. Also, as often is the case, there is more to this scenario than I first understood. We will have to take our chances that the assembly does not want to entertain the new agenda item. If they do, we will be ready with the Objection to Consideration of the Question tactic.

As best I can determine from what has been posted, an Objection to the Consideration of a Question will probably be of little use. The following is from the initial statement of facts:

"Now the member seeks to present his motion to the entire assembly. To do this, the member will first have to get approval from the assembly to add a new business item not on the adopted agenda for the assembly meeting; our agenda is fixed by our constitution and bylaws, so this business would be considered a changed agenda. If the assembly approves (two-thirds majority required), then the member would present their motion."

If the assembly agrees, by a two-thirds vote, to amend the agenda by adding to it a motion that the correspondence referred to be released to the assembly in some fashion, it's not very likely that when the motion is made later on during the session the assembly will agree, by a two-thirds vote, not to consider it.

[Richard Brown]

I agree with Mr. Honemann's analysis, assuming we have the correct facts.  I have a concern and a question about this business of amending the agenda to add the additional item. 

It's true that Mr. Tatara said, in his initial post IN THIS THREAD, that having the assembly take up this additional item will require amending the agenda and that doing so will require a two thirds vote.  However, I'm not sure that procedure is exactly what the bylaws require.  This thread seems inextricably tied to Mr. Tatara's earlier thread titled "Preface to a Motion" and originally posted on Tuesday, Nov 28.     This thread is a follow up to that thread.

In that thread, he made the following opening statement:  "The constitution and bylaws (C&BL) of our religious assembly state that the agenda for the general assembly meeting must be set one week in advance by a council made up of leaders of each of the main boards that manage the church business. The C&BL further states : Any new business not on the agenda will be at the will of the Voters Assembly. If an assembly member wants to bring business forward that is not on the agenda, we believe the right way to do this is for the member to make a motion requesting that the assembly consider hearing new business that is not on the agenda."

Saying that any new business not on the agenda will be at the will of the voters assembly is not exactly the same thing as saying the agenda must be amended.

I believe I introduced the concept of amending the agenda in my response to Mr. Tatara in the other thread when I said, in effect, that as a practical matter, I would treat getting said permission as a motion to amend the agenda to add an additional item to it.   However, I don't think it's ever been established that that is in fact the way this should be handled per the quote from the bylaws in the other thread.  And, further complicating things, based on the bylaws quote in the other thread, what vote would be required to get the permission of the assembly to add the additional item? A majority vote or a two thirds vote?  The applicable bylaw provision, as quoted above says, "Any new business not on the agenda will be at the will of the Voters Assembly".

So, that brings up the question:  What vote is required to obtain the permission of the assembly to add this item to the agenda?  A two thirds vote or a majority vote?

Here is a link to the other thread:  http://robertsrules.forumflash.com/topic/31019-preface-to-a-motion/

 

 

Edited December 2, 2017 at 07:44 PM by Richard Brown
Added link to the other thread

[Dan Honemann]

Both threads indicate that the agenda for the meeting of the general assembly is set in advance, and that it needs to be amended if anything is to be added to it at that assembly's meeting. The only uncertainty is the vote required to do so. 

If necessary, the last sentence of my previous response can be amended by striking the phrase "by a two-thirds vote" where it first appears and inserting "by a majority vote". That will work just as well.  

[Richard Tatara]

Mr. Brown is correct in his observation that the two issues I recently presented are linked. Like many organizations, the language in our constitution and bylaws (C&BL) can always be improved to provide more clarity, but our assembly tires of repeated amendments to make such changes and people stop coming to meetings. However, our C&BL  provide that "Robert's Rules of Order will be in effect for any business meeting within the organization". Therefore, it is expected that Robert's Rules will be used to provide clarification on procedure in cases where the language in the C&BL are not clear, such as the interpretation of the bylaw "New Business not on the agenda will be at the will of the Assembly". Therefore, I assert that the agenda we use at our Assembly meetings is considered to be an adopted agenda (so long as the process in the C&BL is followed in preparing and posting that agenda). Therefore, changes to that agenda to bring new business forward that is not on the agenda will be subject to the Changing an Agenda rules found in RONR page 373.

Linking these two threads together leads to one final question: It appears that a motion made under the Changing an Agenda rule is an incidental motion. As such, the motion would be made, require a second, and is debatable. Can a member raise an Objection to Consideration to the Motion to Change the Agenda? Assuming the objection is raised properly before debate occurs, this would have the effect of forcing the assembly to vote without hearing arguments for changing the agenda.If this is allowed, in the context of our entire procedures, it could be viewed as a tactic designed to prevent members from stating their case in front of the assembly. i.e. denying the member a right to be heard in the assembly meeting.

Edited December 3, 2017 at 05:13 PM by Richard Tatara

[Joshua Katz]

5 minutes ago, Richard Tatara said:

Can a member raise an Objection to Consideration to the Motion to Change the Agenda?

It can only be applied to original main motions and petitions and communications not from a superior body.  It cannot be applied to incidental main motions.  See p. 268, ll. 1-3.

[Richard Tatara]

I thank Mr. Katz for confirming this...it was important to me to have a RP opinion to backup my read.

[Dan Honemann]

On ‎12‎/‎1‎/‎2017 at 9:47 AM, Joshua Katz said:

The appropriate motion would be, I think, object to consideration.  It can only be made to the motion, though, not to the incidental motion to amend the agenda. 

 

On ‎12‎/‎1‎/‎2017 at 3:47 PM, Josh Martin said:

 OTC can only be applied to original main motions. A motion to amend the agenda is an incidental main motion, and so it cannot be applied to the motion to amend the agenda.

 

2 hours ago, Richard Tatara said:

 Can a member raise an Objection to Consideration to the Motion to Change the Agenda? 

 

2 hours ago, Joshua Katz said:

It can only be applied to original main motions and petitions and communications not from a superior body.  It cannot be applied to incidental main motions.  See p. 268, ll. 1-3.

 

2 hours ago, Richard Tatara said:

I thank Mr. Katz for confirming this...it was important to me to have a RP opinion to backup my read.

Well you got this opinion first from Mr. Katz, then again from Mr. Martin, and then yet again by Mr. Katz, so I guess that ought to nail it down.