unhealable breaches

[Trina]

In a recent thread:

If the original election was actually a violation of the bylaws, then it may be declared invalid "at any time during the continuance in office of the individual declared elected." (RONR, 11th ed., p. 445).

To use a simpler example than the issue of membership in good standing, suppose the bylaws require the officers to be residents of a certain town. If a non-resident is declared elected, he couldn't become legitimate just by moving into the town after the election.

Does this mean, if effect, that the new language on pp. 444-446 creates an additional sub -category of breaches that are unhealable, except by raising a point of order and finding the action null and void?

I mean that p. 251(a) violations, in general, are healed if the adopted motion no longer conflicts with the bylaws (which could happen if the bylaws are amended, as well as if something else happens -- as in the election Mr. Gerber mentioned -- that serves to eliminate the conflict between the adopted motion and the bylaws).

If I understand the new language cited by Mr. Gerber, this means that an election which can be contested due to a p. 251(a) violation can no longer be 'repaired' by amendment to the bylaws or by any other circumstance that eliminates the conflict between the election and the bylaws. In essence, the breach is to be evaluated based on a snapshot of the conditions back at the instant it occurred, no matter how long ago that may have been. Is this accurate?

It seems that elections have become more similar to other adopted motions in some ways (the ability of the assembly to rescind an election without cause, if description of term of office includes 'or until successors elected'), yet more different in other ways (the resolution of a continuing breach arising from violation of the bylaws).

A peripherally related question -- is there an explicit requirement in RONR that organizations maintain good records of earlier versions of their bylaws? Or is this implicit in the requirement to retain the minutes indefinitely? I was wondering what happens if a point of order is raised that a past election violated the bylaws of that time (which have since been amended).

[Sean Hunt]

Does this mean, if effect, that the new language on pp. 444-446 creates an additional sub -category of breaches that are unhealable, except by raising a point of order and finding the action null and void?

I mean that p. 251(a) violations, in general, are healed if the adopted motion no longer conflicts with the bylaws (which could happen if the bylaws are amended, as well as if something else happens -- as in the election Mr. Gerber mentioned -- that serves to eliminate the conflict between the adopted motion and the bylaws).

I would have to disagree with the belief that the language on p. 445 creates a special case. In particular:

If an individual does not meet the qualifications for the post established in the bylaws, his or her election is tantamount to adoption of main motion that conflicts with the bylaws.

Looking at p. 251, however, I'd say it's unclear whether or not breaches can be healed at all. In particular, the bulleted list is written in the present tense, but the sentence ".. any action so taken is null and void" implies that the validity should be evaluated at the time the motion passed. So I think that elections aren't a special case, but follow the normal rules, whatever they may be.

[Trina]

I would have to disagree with the belief that the language on p. 445 creates a special case. In particular:

Looking at p. 251, however, I'd say it's unclear whether or not breaches can be healed at all. In particular, the bulleted list is written in the present tense, but the sentence ".. any action so taken is null and void" implies that the validity should be evaluated at the time the motion passed. So I think that elections aren't a special case, but follow the normal rules, whatever they may be.

Take a look, though, at the other thread, starting with Mr. Merritt's post:

http://robertsrules....dpost__p__64767

It seems pretty clear that the situation for the election is now viewed as being different (than it would have been under the 10th edition), because of the text quoted by Mr. Gerber.

Are you saying that, in your opinion, breaches under p. 251(a) cannot be healed in any case, neither by amendment of the bylaws, nor by changed circumstances which render an adopted motion no longer in conflict with the bylaws?

[J. J.]

I would have to disagree with the belief that the language on p. 445 creates a special case. In particular:

Looking at p. 251, however, I'd say it's unclear whether or not breaches can be healed at all. In particular, the bulleted list is written in the present tense, but the sentence ".. any action so taken is null and void" implies that the validity should be evaluated at the time the motion passed. So I think that elections aren't a special case, but follow the normal rules, whatever they may be.

Well, obviously a beach could, even if it existed for years, come to an end. A person improperly elected to office completes his term and another person is properly elected would be an example. Main Motion B is rescinded. It conflicted with Main Motion A, which was, and is still, in force; Main Motion B was not adopted by the vote required to rescind. The assembly can't rule that Main Motion B is null and void, because Main Motion B is no longer in effect.

In an election, the improper election of the person is still in effect.

[Guest Edgar]

Well, obviously a beach could, even if it existed for years, come to an end.

Yep; it's called erosion.

[J. J.]

Yep; it's called erosion.

I definitely need larger text.

[Guest Edgar]

I definitely need larger text.

Try "Ctrl +" (hold "Ctrl" and hit the "+" key). You can also adjust your monitor's resolution (mine is set at an archaic 800 X 600). You can also adjust the default size of text through your browser (I use Google's Chrome) and/or your operating system (Windows XP here). With eyes as bad as mine, every little bit helps. Now if they'd just make that CAPTCHA code a bit more guest-friendly . . . it would be like Christmas in December.

[Sean Hunt]

Well, obviously a beach could, even if it existed for years, come to an end. A person improperly elected to office completes his term and another person is properly elected would be an example. Main Motion B is rescinded. It conflicted with Main Motion A, which was, and is still, in force; Main Motion B was not adopted by the vote required to rescind. The assembly can't rule that Main Motion B is null and void, because Main Motion B is no longer in effect.

In an election, the improper election of the person is still in effect.

What of the situation of an ineligible member elected to a board, who cast votes in a set of decisions (counted votes, for the sake of an argument) that were all passed by one vote? Are all those decisions not also null and void, even after the member's term expires?

[Weldon Merritt]

What of the situation of an ineligible member elected to a board, who cast votes in a set of decisions (counted votes, for the sake of an argument) that were all passed by one vote? Are all those decisions not also null and void, even after the member's term expires?

It certainly would seem so.

[J. J.]

What of the situation of an ineligible member elected to a board, who cast votes in a set of decisions (counted votes, for the sake of an argument) that were all passed by one vote? Are all those decisions not also null and void, even after the member's term expires?

It was previously opined that it would not. Certainly, in most cases, the majority vote requirement could be suspended, and would, in itself, not create a continuing breach.

[Sean Hunt]

It was previously opined that it would not. Certainly, in most cases, the majority vote requirement could be suspended, and would, in itself, not create a continuing breach.

Do you have a link? I find it hard to believe that RONR is anything but clear in this regard.

[Weldon Merritt]

It was previously opined that it would not. Certainly, in most cases, the majority vote requirement could be suspended, and would, in itself, not create a continuing breach.

But it also was previously opined that the breach caused by the election of an ineligibkle candidate could be healed by the candidate's later becoming eligible.

[J. J.]

Do you have a link? I find it hard to believe that RONR is anything but clear in this regard.

No, but, it was discussed frequently that, in most cases, 2/3 could suspend therule that a majority was needed to adopt a motion. There are some notable exceptions.

[Dan Honemann]

Does this mean, if effect, that the new language on pp. 444-446 creates an additional sub -category of breaches that are unhealable, except by raising a point of order and finding the action null and void?

I mean that p. 251(a) violations, in general, are healed if the adopted motion no longer conflicts with the bylaws (which could happen if the bylaws are amended, as well as if something else happens -- as in the election Mr. Gerber mentioned -- that serves to eliminate the conflict between the adopted motion and the bylaws).

If I understand the new language cited by Mr. Gerber, this means that an election which can be contested due to a p. 251(a) violation can no longer be 'repaired' by amendment to the bylaws or by any other circumstance that eliminates the conflict between the election and the bylaws. In essence, the breach is to be evaluated based on a snapshot of the conditions back at the instant it occurred, no matter how long ago that may have been. Is this accurate?

It seems that elections have become more similar to other adopted motions in some ways (the ability of the assembly to rescind an election without cause, if description of term of office includes 'or until successors elected'), yet more different in other ways (the resolution of a continuing breach arising from violation of the bylaws).

A peripherally related question -- is there an explicit requirement in RONR that organizations maintain good records of earlier versions of their bylaws? Or is this implicit in the requirement to retain the minutes indefinitely? I was wondering what happens if a point of order is raised that a past election violated the bylaws of that time (which have since been amended).

Nothing that is said on pages 445-46 of the 11th Edition makes any change in the rules concerning points of order raised for the purpose of contesting the validity of an election.

[Trina]

But it also was previously opined that the breach caused by the election of an ineligibkle candidate could be healed by the candidate's later becoming eligible.

Nothing that is said on pages 445-46 of the 11th Edition makes any change in the rules concerning points of order raised for the purpose of contesting the validity of an election.

So, the parliamentary situation was exactly the same under the 10th edition, and all earlier opinions about healing such a breach via post-election changes in the candidate's eligibility (as exemplified by Mr. Merritt's words) were simply incorrect?

[Dan Honemann]

So, the parliamentary situation was exactly the same under the 10th edition, and all earlier opinions about healing such a breach via post-election changes in the candidate's eligibility (as exemplified by Mr. Merritt's words) were simply incorrect?

What "earlier opinions"? Not mine, I hope.

[Gary c Tesser]

....

I was going to vehemently disagree, citing the sentence that refers to the principle about the mandate of the voting body, in RONR 10th, p. 402, line 34 - p. 403, line 2, but it's not there (in the 11th Ed, it would start on p. 416, line 34). Is the statement somewhere else in the 11th, or was it wrong (like the Mickey Mouse provision)?

[Dan Honemann]

I was going to vehemently disagree, citing the sentence that refers to the principle about the mandate of the voting body, in RONR 10th, p. 402, line 34 - p. 403, line 2, but it's not there (in the 11th Ed, it would start on p. 416, line 34). Is the statement somewhere else in the 11th, or was it wrong (like the Mickey Mouse provision)?

Page 415, lines 24-31.

[Trina]

What "earlier opinions"? Not mine, I hope.

For some very recent examples, see:

http://robertsrules....dpost__p__64767

posts #12-#16, and then assorted changes of opinion (posts #30, #31) which followed Mr. Gerber's reference to pp. 445-446 in the 11th. I'm fairly certain I've read such opinions in the past also.

However, the point seems to be that you're saying these opinions are wrong now... and were incorrect in the past also.

Is it fair, then, to say that the new language on pp. 444-446 is a clarification, rather than a change?

[Dan Honemann]

For some very recent examples, see:

http://robertsrules....dpost__p__64767

posts #12-#16, and then assorted changes of opinion (posts #30, #31) which followed Mr. Gerber's reference to pp. 445-446 in the 11th. I'm fairly certain I've read such opinions in the past also.

However, the point seems to be that you're saying these opinions are wrong now... and were incorrect in the past also.

Is it fair, then, to say that the new language on pp. 444-446 is a clarification, rather than a change?

I'm not sure if I would even go so far as to say it is a clarification, although it will do no harm to call it that. It certainly isn't a change. As Shmuel noted in the thread to which you refer, "The text on page 445 is explaining the rules on pages 250-251 as they apply to the case of an election."

[Trina]

I'm not sure if I would even go so far as to say it is a clarification, although it will do no harm to call it that. It certainly isn't a change. As Shmuel noted in the thread to which you refer, "The text on page 445 is explaining the rules on pages 250-251 as they apply to the case of an election."

Thank you.

At the risk of further embarassment (to myself, anyway), was I also incorrect in my assumption, at the beginning of this thread, that a p. 251(a) violation pertaining to an election could potentially be healed by an amendment to the bylaws (so that the action -- i.e. the election -- is no longer in conflict with the bylaws)?

To ask another way, is such a breach to be evaluated solely based on a snapshot of the conditions back at the instant it occurred, regardless of any later changes?

[jstackpo]

Pitching in for Dan (risky perhaps, but he is probably gazing at the Chesapeake wishing his boat was in the water and he on it), evidently you were incorrect in your first paragraph (so was I in my thinking), and your second question gets a "Yes" answer. ('Course when the improperly elected person reaches the end of his term in office and goes out of office, the problem all goes away.)

I think this can lead to other problems, but we'll save those for another thread.

[Josh Martin]

A peripherally related question -- is there an explicit requirement in RONR that organizations maintain good records of earlier versions of their bylaws? Or is this implicit in the requirement to retain the minutes indefinitely?

It is implicit in the requirement to retain the minutes indefinitely. It is not required for organizations to keep earlier versions of their Bylaws, although such versions could be reconstructed from the minutes (assuming the minutes contain all the information they're supposed to).

At the risk of further embarassment (to myself, anyway), was I also incorrect in my assumption, at the beginning of this thread, that a p. 251(a) violation pertaining to an election could potentially be healed by an amendment to the bylaws (so that the action -- i.e. the election -- is no longer in conflict with the bylaws)?

To ask another way, is such a breach to be evaluated solely based on a snapshot of the conditions back at the instant it occurred, regardless of any later changes?

It would seem to me that an organization could "heal" such a breach by an amendment to the Bylaws so that the election is no longer in conflict with the Bylaws. Since an organization could amend the Bylaws in such a way that it makes a currently serving officer ineligible (although this is generally not advisable), I see no reason why it can't work the other way around.

Of course, until a few days ago I was under the impression that such a breach was healed if a member became eligible for office due to some change in the member's circumstances, so I might be completely wrong about this as well.

EDIT: And it seems I am. We learn something new every day on this forum.

[Dan Honemann]

It would seem to me that an organization could "heal" such a breach by an amendment to the Bylaws so that the election is no longer in conflict with the Bylaws. Since an organization could amend the Bylaws in such a way that it makes a currently serving officer ineligible (although this is generally not advisable), I see no reason why it can't work the other way around.

Of course, until a few days ago I was under the impression that such a breach was healed if a member became eligible for office due to some change in the member's circumstances, so I might be completely wrong about this as well.

EDIT: And it seems I am. We learn something new every day on this forum.

The only point that I have tried to make in this thread so far is that. in my opinion, the explanation on pages 444-46 makes no substantive change in the rules concerning points of order raised for the purpose of contesting an election.

As for the other issues being discussed, it seems to me that far greater specificity and clarity is required in order to understand exactly what they are, and in order to handle them properly. For example, the words "heal" and "healed" appear nowhere in RONR, and I don't find them particularly helpful when used in this context.

Bylaws can certainly be amended to eliminate an office or to change the eligibility requirements for holding an office, but they cannot be amended in such a way as to rewrite history. If a person who is ineligible to hold an office (under the proper construction of an applicable bylaw provision) is, at the conclusion of an election, declared to be elected to that office, that declaration by the chair is fatally flawed, and a point of order to that effect can be raised at any time during his continuance in that office. The point of order will be well taken, regardless of events which may subsequently have occurred. This has been the case for as long as I can remember.

Frankly, I doubt that anyone actually disagrees with this. All the fuss seems to be about what happens next, and here is where specificity and clarity are absolutely essential. Or perhaps this is just one way of saying "don't ask me any hard questions."

[George Mervosh]

Bylaws can certainly be amended to eliminate an office or to change the eligibility requirements for holding an office, but they cannot be amended in such a way as to rewrite history. If a person who is ineligible to hold an office (under the proper construction of an applicable bylaw provision) is, at the conclusion of an election, declared to be elected to that office, that declaration by the chair is fatally flawed, and a point of order to that effect can be raised at any time during his continuance in that office. The point of order will be well taken, regardless of events which may subsequently have occurred. This has been the case for as long as I can remember.

The good part is it seems much clearer now. I think we can all appreciate the greater clarity, even though the rule is unchanged.