Adoption requires two-thirds vote...

[keefe]

Hello,

About a year ago our church had done some Constitution and Bylaw amendments.  Below is a part of our bylaw amendment process.  My understanding of Chapter XIII Voting in Roberts Rules of Order is that two-thirds when not qualified is, two-thirds of votes cast by persons eligible to vote.  Our previous Article IX (the strike through) appears to not have had a qualifying statement, therefore, it would be two-thirds of votes cast.  Now it would appear to have a qualifying statement of two-thirds of the members voting to pass a bylaw amendment.  Example, previously thirty votes cast and twenty were yes, then that two-thirds would pass the amendment.  Now as it reads, thirty votes cast and twenty yes, but our membership is 100 then that is not two-thirds so the amendment would not pass.

 

I know that ultimately it is up to our membership to interpret what it meant when amending the bylaws but I would appreciate some input on this from anyone.  Thank you.

ARTICLE IX

AMENDMENTS TO THE BY-LAWS

Its adoption requires a two-thirds (2/3) majority of the votes cast.vote of the eligible Confessing Members.

[jstackpo]

Your problem is the same as many organizations have which don't use the precise language defining a vote threshold requirement as found in RONR, page 402 ff.  As you point out it might mean a "2/3 vote" in the defined sense of page 403, or it might mean a "vote of 2/3 of the members" as also defined on page 403.

Once your membership figures out what meaning the prefer, amend the bylaws. That is the only way to fix the problem.

(And the phrase "2/3 majority" isn't much better - mathematically that one means "2/3 of more than half" which works out to "more than 2/6", or "more than 1/3". I don't think you meant that, but that is what it says to someone who is strict with multiplying fractions together.  And I'll bet you thought you were done with multiplying fractions in about the 8th or 9th grade.)

[Joshua Katz]

38 minutes ago, jstackpo said:

(And the phrase "2/3 majority" isn't much better - mathematically that one means "2/3 of more than half" which works out to "more than 2/6", or "more than 1/3". I don't think you meant that, but that is what it says to someone who is strict with multiplying fractions together.  And I'll bet you thought you were done with multiplying fractions in about the 8th or 9th grade.)

I disagree.  I think it means very little (but it's obviously supposed to mean 2/3 and should be interpreted as such).  I disagree with your interpretation because it doesn't say 2/3 of a majority, it just has a noun (majority) and a modifier (2/3) which don't go together.

[jstackpo]

Fair enough.  The main point is that the phrase "2/3 majority" simply should not be used.  "2/3 supermajority" seems (marginally) OK, however.

[Tom Coronite]

If RONR is your parliamentary authority, and absent any rule to the contrary, only members are allowed to vote. So you don't need to specify that it's only members who can vote. Often adding that language creates ambiguity. Review the reference jstackpo notes and just go with the wording RONR has there. If it's a 2/3 vote you want, just say that. Strike the language about who's doing the voting.

[jstackpo]

Right...  and the ambiguity arises because of the rule on page 589, line 34ff, stating that "There is a presumption that nothing has been placed in the bylaws without some reason for it".  So there is (?) some reason for including the "of the members" phrase, but what might it be?  About all I can think of is that it supplies the "what" in the question "2/3  of what?"  

So leave the phrase out or else supply the complete one: "a 2/3 vote of the members present and voting", as shown on page 402, line 29.

[Guest Who's Coming to Dinner]

11 hours ago, keefe said:

Our previous Article IX (the strike through) appears to not have had a qualifying statement, therefore, it would be two-thirds of votes cast.  Now it would appear to have a qualifying statement of two-thirds of the members voting to pass a bylaw amendment.

Abstentions are not votes. A member who is not voting does not cast a vote. I would hope that is obvious. Absent cheating, the number of members voting is equal to the number of votes cast. Therefore, these two sentences are equivalent.

[keefe]

Yes, I understand that abstentions are not votes.  The question is about the qualifying part of the bylaw stating 2/3 vote of the eligible confessing members.  Example, previously thirty votes cast and twenty were yes, then that two-thirds would pass the amendment.  Now as it reads, thirty votes cast and twenty yes, but our membership is 100 then that is not two-thirds so the amendment would not pass. Instead it would require 67 yes votes.

[Richard Brown]

Keefe, my interpretation of the amended bylaw provision is the same as yours. This assumes, however, that there are not separate classes of confessing and non confessing members, but that the term confessing members simply means members.

That term came up in a very recent thread and the original poster in that thread clarified that at least in his case confessing members simply means members. Ultimately, your organization has to determine exactly what that term means and who it includes.

[keefe]

Richard, that is correct, confessing members are just simply members, there are no non-confessing members.  Simply put, we have members and non members   Unfortunately the added "confessing" part can confuse.

Thank you all for your feedback.

[Gary Novosielski]

On 4/15/2018 at 11:43 AM, keefe said:

Yes, I understand that abstentions are not votes.  The question is about the qualifying part of the bylaw stating 2/3 vote of the eligible confessing members.  Example, previously thirty votes cast and twenty were yes, then that two-thirds would pass the amendment.  Now as it reads, thirty votes cast and twenty yes, but our membership is 100 then that is not two-thirds so the amendment would not pass. Instead it would require 67 yes votes.

My interpretation would be that the threshold is not changed by that language, although that may have been the intent.

The difference is between:

• a two-thirds vote of the <assembly>; and,
• a vote of two-thirds of the <assembly>.

The first case, where the words "two thirds" and "vote" are together, matches RONR's term for a vote of two thirds of those present and voting; "of the assembly" .  After looking at lots of similar language, I'm pretty comfortable saying that, but of course I'm not a member of your organization, and therefore my opinion has no weight.

The second case cleary say that two thirds of the entire body must actually approve.  We've also seen provisions that say "two-thirds of those present" without saying "and voting" which has the (unfortunate) effect of making an abstention the logical equivalent of a No vote.  All that matters is how may Yes voters and how many present.

The most unambiguous and probably most recommended language is simply to say "two-thirds vote".  If you need to mention the body that is voting at all, put it in front, such as:  "must be approved by the Membership by a two-thirds vote".

[J. J.]

On 4/15/2018 at 11:43 AM, keefe said:

Yes, I understand that abstentions are not votes.  The question is about the qualifying part of the bylaw stating 2/3 vote of the eligible confessing members.  Example, previously thirty votes cast and twenty were yes, then that two-thirds would pass the amendment.  Now as it reads, thirty votes cast and twenty yes, but our membership is 100 then that is not two-thirds so the amendment would not pass. Instead it would require 67 yes votes.

I will also agree with this interpretation.  The line is "a two-thirds (2/3) vote of the eligible Confessing Members."  It refers to the members in toto, not a subset of those people that show up at a meeting or those who vote. 

[Richard Brown]

I'm going to backtrack somewhat on my previous answer.  In that answer, I said that my interpretation of the new bylaw provision is the same as Keefe's, namely that the new requirement is "a vote of two thirds of the entire membership".  Now, I'm not so sure.  Gary Novosielski's argument and rationale is pretty persuasive.   Ultimately, it is a matter of this organization interpreting its own bylaws, but we seem to be weighing in with our own personal interpretations.  Keefe knows it's the opinions of his members that count, not our opinions.  But, perhaps we can help to resolve the issue.

If we were not discussing a recent bylaw amendment and the new  wording was the only wording that had ever been there, I would agree with Gary Novosielski's well stated interpretation, namely, that the requirement is an ordinary two thirds vote.  I would say that the use of the term "eligible confessing members" refers to the body which must vote on a bylaw amendment.  I would say that it is simply stating that it is the members, rather than an executive board or some other body, which must approve a bylaw change.  So, I would take the position that the new wording means the same thing as the old wording, namely, an ordinary two thirds vote.  RONR is clear on the language that should be used when the vote is to based on the votes of a majority or two thirds of the entire membership and this  provision does not use that language.

However, that position is complicated... and weakened.... by the fact that this is a change from the previous wording.  I think the previous wording was clear that an ordinary two thirds vote is what was required, notwithstanding the use of the term "two thirds majority".  I think we all know it means a two thirds vote.

Since RONR tells us that we are to presume that nothing was put in the bylaws without a reason, we are left to wonder what the reason is for the change.  Since the previous version was clear that an ordinary two thirds vote was required to amend the bylaws, it seems the new wording was likely intended to change the vote requirement for amending the bylaws.  With that in mind, it  seems to me that the most logical interpretation of the change, based on what I presume was the intent of the drafters, is that the new language requires the affirmative vote of two thirds of the entire membership, as opposed to the previous wording which required an ordinary two thirds vote.   Perhaps the members who drafted the bylaw change are still around and can tell the other members what they intended the change to accomplish.   Since the language is clearly ambiguous and subject to more than one interpretation, the intent of the drafters can be considered.

Ultimately, this a question for the membership itself to decide. I don't know whether we have helped Keefe or if we have confused him further. 

[Josh Martin]

6 hours ago, Gary Novosielski said:

My interpretation would be that the threshold is not changed by that language, although that may have been the intent.

The difference is between:

• a two-thirds vote of the <assembly>; and,
• a vote of two-thirds of the <assembly>.

But this isn’t what the language actually says.

I agree that I have seen cases where the bylaws say something like “2/3 vote of the board” or “2/3 vote of the membership.” In many cases, the intent of this language is simply to clarify which assembly is voting. This rule, however, says “2/3 vote of the eligible confessing members.” I think it is entirely reasonable to interpret this language as referring to a vote of 2/3 of the entire membership, although that is certainly not the only reasonable interpretation.

I also concur with Mr. Brown that since this is a recent change, the change was presumably made for a reason.

[Gary Novosielski]

On 4/22/2018 at 9:10 PM, Josh Martin said:

But this isn’t what the language actually says.

I agree that I have seen cases where the bylaws say something like “2/3 vote of the board” or “2/3 vote of the membership.” In many cases, the intent of this language is simply to clarify which assembly is voting. This rule, however, says “2/3 vote of the eligible confessing members.” I think it is entirely reasonable to interpret this language as referring to a vote of 2/3 of the entire membership, although that is certainly not the only reasonable interpretation.

I also concur with Mr. Brown that since this is a recent change, the change was presumably made for a reason.

Perhaps the reason was simply to remove the objectionable phrase "two-thirds majority".  I don't see a strong reason to decide that the three phrases that all begin "two-thirds vote of <a given body>" should be interpreted differently, especially since the term eligible confessing members is essentially synonymous with the membership. (I.e., there are no members other than eligible confessing ones.)

But It's possible the intent of the change was to alter the threshold, and if so (in fact, even if not), the organization would be well-advised to figure out what the bylaws should say, and amend them to say it.   

[J. J.]

11 hours ago, Gary Novosielski said:

Perhaps the reason was simply to remove the objectionable phrase "two-thirds majority".  I don't see a strong reason to decide that the three phrases that all begin "two-thirds vote of <a given body>" should be interpreted differently, especially since the term eligible confessing members is essentially synonymous with the membership. (I.e., there are no members other than eligible confessing ones.)

But It's possible the intent of the change was to alter the threshold, and if so (in fact, even if not), the organization would be well-advised to figure out what the bylaws should say, and amend them to say it.   

To me, the key is the term "eligible confessing members."   That sets a parameter.  There is a presumably finite group of these members, and these members are not the same as "eligible confessing members present and voting at a meeting" (or "votes cast") or the "eligible confessing members present at a meeting."  I have to conclude that "eligible confessing members" means just that, all eligible confessing members.

In looking at the change, the body specifically removed the term "votes cast."  To use the standard language, the body only needed to strike one word, "majority."  This, to me, indicates that the body did not wish to base its decision on an amendment to the bylaws on the number of "votes cast."

I will concede that the group that adopted the bylaw may have made not understood the implication of adopting this; that does not change the plain wording of the amended text.  Even looking at the history of this adoption, the assembly went out of the way to abolish the idea of basing this on just a percentage of the eligible confessing members voting or attending a meeting. 

[Gary Novosielski]

Well, since the "clear meaning" of the language is evidently something upon which reasonable people can disagree, I continue to believe that the bylaws should be amended to make the clear meaning substantially more clear.