Gary Novosielski

On 2/18/2024 at 11:36 AM, Securis said:

Committee of the Whole is an informal practice of parliamentary procedure where board members are allowed to speak on topics in a more or less conversational manner without the need to be recognized by the chair.

Have you in fact adopted Robert's Rules of Order as your parliamentary authority?  I ask because that's not the way Committee of the Whole is described there.

On 2/18/2024 at 6:12 PM, Tomm said:

I'll have to see if I can track it down. I typically copy and paste my questions and responses into a WORD document and save them in a RONR file.

I'll search thru my account.

I can't find it either.

On 2/18/2024 at 9:55 AM, Josh Martin said:

Well, then I guess I do have to grapple with the meaning of the word "should."  

So far as I can tell from the word's common usage and the way it is used in RONR, it would seem to me that "should" is context-dependent. There is no doubt that in some cases where it is used in RONR, "should" is clearly used to indicate a suggestion and best practice, not a requirement. In other cases, however, it seems to be more in the nature of a requirement. In some cases, it seems that the word "should" is used in situations where the rule itself is context-dependent, and requires the application of judgment by the chair, such that a stronger "must" would be inappropriate. For example:

"It is the duty of the presiding officer to prevent members from misusing the legitimate forms of motions, or abusing the privilege of renewing certain motions, merely to obstruct business. Whenever the chair becomes convinced that one or more members are repeatedly using parliamentary forms for dilatory purposes, he should either not recognize these members or he should rule that such motions are not in order—but he should never adopt such a course merely to speed up business, and he should never permit his personal feelings to affect his judgment in such cases. If the chair only suspects that a motion is not made in good faith, he should give the maker of the motion the benefit of the doubt. The chair should always be courteous and fair, but at the same time he should be firm in protecting the assembly from imposition." RONR (12th ed.) 39:4

"In connection with the methods of voting by voice, by rising, or by show of hands, as explained in Chapter II, if the chair is in doubt on a voice vote or a vote by show of hands, he should retake it as a rising vote and, if necessary to satisfy himself of the result, he should obtain a count of it." RONR (12th ed.) 45:14

I don't think in either of these cases it is reasonable to interpret these rules as a mere "suggestion" for the chair. Rather, "should" appears to be used rather than "must" because the rule requires the application of the chair's judgment based upon the specific facts of the situation. These are not rules that can be uniformly applied.

I am inclined to think that the use of the word "should" in 48:5 is used in this manner. There may be particular instances where it is not appropriate (or not possible) to record the name of the motion maker in the minutes, particularly in a small board. For example, the motion may be assumed by the chair, so there is really no "motion maker" to record. Conceivably, there may also be instances where the motion maker is known, but the assembly determines that in a particular instance, it is not appropriate to record the name of the motion maker, such as if the motion was amended in such a manner that it was hostile to the intent of the original motion maker. So I think that the rule allows for some leeway and the application of the chair's (and the assembly's) judgment as applied in a particular situation.

I do not think, however, that the rule as written permits the assembly to ignore it entirely. I would say the rule requires the assembly to generally record the name of the motion maker in the minutes.

As a result, a rule overriding this entirely and providing that the name of the motion maker should not be recorded in the minutes would conflict with the parliamentary authority and, therefore, cannot be adopted by a subordinate board. If a subordinate board desires such a rule, it would need to make a recommendation to the membership on this matter. On the other hand, a board which is not subordinate to a higher authority is free to adopt a rule on this subject.

"The executive board of an organized society operates under the society's bylaws, the society's parliamentary authority, and any special rules of order or standing rules of the society which may be applicable to it. Such a board may adopt its own special rules of order or standing rules only to the extent that such rules do not conflict with any of the rules of the society listed above... A board that is not a part of a society can adopt its own rules, provided that they do not conflict with anything in the legal instrument under which the board is constituted." RONR (12th ed.) 49:15

In the usual case of a subordinate board, by adopting RONR as its parliamentary authority, the membership has instructed the board on what it should do.   So I think without going out on a limb, I can state:  That's what the board should do.  

On 2/17/2024 at 7:00 PM, Paul Hunter said:

Thanks for the response Atul and Gary.  Had one question about the below.

Is the 2/3 vote for all motions that do not have previous notice?  Or just a subset of motions that do not have previous notice?

Most motions only require a majority vote.  A small subset have a higher threshold.  In this case this type of motion is called Amend Something Previously Adopted.   Adopting most motions requires a majority, but changing something that has already been agreed upon requires a more stringent requirement.  This is to prevent fluid opinions, or the presence or absence of a single member from enabling  flip-flopping of what has been decided.

Some motions require a two-thirds vote without other options  This is usually in situations where people with minority opinions are negatively affected.  One example is cutting off debate before everyone who wishes to has spoken.  

Should means that it is not mandatory but that it should be recorded.  I think it's a fair question why some people on your board don't want to do things the way they should be done.

But if they're insistent, the good news for them is that since this is not a hard and fast rule, there is no need to suspend it if they don't want their names recorded.  So a two-thirds vote would not be required.  The assembly may decide what goes into the minutes (or what doesn't) by a majority vote.  If the "some people" do not constitute a majority, they don't get to decide.

FAQ 14:

How can I get an item on the agenda for a meeting?

For a proposed agenda to become the official agenda for a meeting, it must be adopted by the assembly at the outset of the meeting.

At the time that an agenda is presented for adoption, it is in order for any member to move to amend the proposed agenda by adding any item that the member desires to add, or by proposing any other change.

It is wrong to assume, as many do, that the president “sets the agenda.” It is common for the president to prepare a proposed agenda, but that becomes binding only if it is adopted by the full assembly, perhaps after amendments as just described. [RONR (12th ed.) 41:62; see also pp. 16–17 of RONR In Brief.]

On 2/17/2024 at 4:52 PM, Tomm said:

Let me ask it this way; the standard order of business requires that the Minutes must be approved but says nothing about the agenda requiring approval.

If an order of business is written to include having as one of its mandatory items, be the approval of the agenda, would that order of business need to be established as a special rule of order?

Again, you would use either an order of business, or an agenda, but not both, so the question makes no sense, Josh's softening brain notwithstanding. 😇

I agree with @Joshua Katz, and RONR agrees with both of us:

47:52
Only on the most involved matters should the parliamentarian actually be called upon to speak to the assembly; and the practice should be avoided if at all possible.

On 2/17/2024 at 1:44 PM, Anthony said:

Some board members have decided to retain an attorney/parliamentarian.  How is this person allowed to speak at a meeting when only members of the executive board are allowed to participate?

With the permission of the assembly in session (i.e., the board) any non-member may be present and may be heard. 

This is usually accomplished by unanimous consent, but if anyone objects, a majority vote can allow a non-member to be heard, as long as it is not during debate on a pending motion. 

Speaking in debate would require a suspension of the rules, and therefore a two-thirds vote.

On 2/17/2024 at 9:15 AM, Carmen Harris said:

2.1 is about the process of amending the manual only. In that section there is no reference to holding a meeting to accept amendments and the like. It says that "feedback" is collected to prepare a draft for the vote. 

That preparation for the vote implies that there is a meeting beforehand? 

Since a deliberative body can do nothing, in fact does not "exist" as such outside of the context of a meeting, the answer is clearly Yes.  In order to "collect'" information, such as committee reports or what have you, a meeting with a quorum present is required.  And if there is some other collection mechanism, a meeting is still required to consider the collected information, and absolutely necessary to make any motion as a result of considering it, prior to voting on it. 

Whenever the bylaws state that a body does something, anything, it is assumed to be in session while it does it, unless explicitly stated otherwise.

On 2/17/2024 at 10:26 AM, Josh Martin said:

 

How exactly did the vacancies in question happen? I'm especially curious about the statement that "Board members are not aware of the vacancies." The provisions in your constitution appear specific to certain reasons for vacancies, not all vacancies, and may or may not be relevant here. (To the extent they are relevant, however, I would note that in those circumstances, the constitution provides that the vacancies must be declared by the board, not by the chair.) There may, however, be other provisions in RONR which are relevant, such as provisions relating to accepting a resignation.

I will note, I am in complete agreement with my colleagues that if there are vacancies, that in an organization where the quorum is defined as "a majority of its board members," the quorum is reduced accordingly. This is because if there are vacancies, the number of board members is reduced accordingly (because a vacant position isn't a board member), and therefore, the majority of the board members is also reduced. This isn't a question of whether the quorum "can" be changed by the board or by the chair - it automatically changes.

If an organization wishes to provide for a quorum which is based on a majority of the board positions, or simply a fixed number (such as eleven), it's free to do so. But your organization has not done so.

You raise an interesting question, however, of whether there actually are vacancies. That was a question we had not originally asked, because from the outset there didn't seem to be any dispute that there were vacancies. We'll need additional facts to answer this question. For starters, how exactly did the vacancies in question arise?

I agree that these provisions in the constitution are probably not relevant.

I'm more curious, however, about this statement that "Board members are not aware of the vacancies." If there were resignations by board members, for instance, those resignations must be accepted before they are final, and until that occurs, there are no vacancies. Since it is suggested that board members aren't even aware of the "vacancies", this would seem to suggest that the resignations have not been accepted.

Although the statement "Board members are not aware of the vacancies." also makes me confused about how the OP is asking this question.

I agree, and I'm also curious about the apparent assumption that when the number of members is reduced, somebody (or some body) must "adjust" the quorum.  In fact, if the quorum is set at (or defaulted to) a majority of the members, then the so-called adjustment is instant and automatic, calling for no action on anyone's part except a little mental math.

On 2/17/2024 at 12:18 AM, Tomm said:

The bylaws do say, "At least seven (7) days prior to all Board meetings, excluding Executive Sessions, Special Sessions, Informational Meetings and the Exchanges, an agenda, subject to amendment, shall be posted in..." 

So I guess that since you can't amend the agenda unless you approve it, it's kinda already there in the bylaws, but there has been times when the new 1/3 of the board is elected every year, and a new president is elected, there was a period of time when the agenda was not approved.

I was hoping a special rule of order was required specifying the order of business to emphasis that the agenda always needs to be approved. 

On the contrary, nothing here suggests that it must be adopted.  If anything it appears to suggest the opposite since it specifies it is "subject to amendment" which, if it were binding, it would not be, except by the higher threshold motion to Amend Something Previously Adopted.

So in my view your "agenda" is not adopted, and so may be amended at any time by a motion and second with a majority vote.  In addition, it appears that there is nothing preventing anyone from making additional new business motions when the "agenda" is completed, and prior to adjournment.

On 2/16/2024 at 7:59 PM, Guest tojoboland1@yahoo.com said:

I currently am an elected Executive Board member of a union. We just received the resignation of another elected officer. Our Laws and By-Laws state that the Executive Board fill the position that has been vacated. My question is, "if I am interested in seeking appointment to this position do I need to recuse myself from the appointment process?"

Thank you,

Todd

No, not at all.

On 2/16/2024 at 6:26 PM, Tomm said:

The corporate secretary, based on the input and requests of the individual directors, composes the agenda and it is posted via e-mails and corporate web site by the corporation to all members, not just board members.

Nothing in the bylaws requiring that the agenda be approved, only posted! 

Well, if it's not adopted, it's not binding, so in a sense it's a bit of overreach to call it an agenda.   Is there any other rule that would appear to make it binding, or that would prevent any other motions not on the "agenda" from being introduced?

Well, there's nothing in there about the chair needing to declare anything to make a vacancy official, so apparently we're howling down the wrong rabbit hole.

Well, if the rules in RONR apply, the agenda must be approved if it is to be binding upon the assembly, but having not read your bylaws I can't know whether there is some rule making it binding without that vote, which is the case in some organizations.  You don't say who is writing the agenda and who is posting it.

But RONR says if it's not approved it's not binding.

Well, that rule is not found in RONR, so this forum won't be familiar with its application.  If it is the duty of the chair to declare these vacancies, you could try raising a point of order that the chair has failed to do so, or simply adopt a motion directing the chair to do so.  But a lot depends on what your bylaws say, since this process is somewhat at variance with the rules in RONR.

On 2/16/2024 at 5:37 PM, Tomm said:

I understand that but the agendas of board meetings are published 7 days prior to the meeting.

So can I assume if approving the agenda is a mandatory requirement, it needs an order of business written as a special rule of order?

As far as allowing guest members to comment; that's always done prior to board actually voting on a motion.

If an agenda is mandated by your bylaws, then that supersedes the use of the standard order of business.

The Standard Order of Business does not contemplate the use of an agenda at all.  Business is simply brought up in the specified order.

It is likely that the chair will have a memo listing the items of business scheduled for that meeting, but such a memo is not binding and so does not require adoption by the assembly.

Yes, if there are hearings of the public or of general members, that could be added as a new item, if the idea is to put it early in the meeting, something akin to a committee report.   Or, if it is desirable to put it later in the meeting it could be scheduled during Good of the Order/General Good and Welfare/Open Forum, which is an optional heading at the end of the Standard Order, and would not require any special rule of order to accomplish.

On 2/15/2024 at 9:58 PM, Carmen Harris said:

Actually I'm back. that meeting in 2.2d says it is "recommended" and there's no reference to a meeting in the voting procedures section. Are recommended meetings required?  

Without a meeting there is no moving, seconding, debating, or voting.  So meetings are only required if you want to do something.

If I understand Dan's position, he's drawing a distinction between a minority of a particular size, and one of variable size depending upon the number of positions open, the inclination of the minority to work as a team, the barometric pressure and the phase of the moon.

I concur.

If I were in the chair I would probably simply require a two-thirds vote to suspend the rules, and note that, if appealed from, the matter would be decided by a majority vote, which protects no minority at all.

On 2/16/2024 at 11:26 AM, Guest Jupiter05 said:

Someone called the secretary and requested that additional words be added to the previous meeting's minutes. She did as requested by the board member and then sent an email to everyone with a "clarification" cap on money to be spent that was not discussed or in the original motion. The "clarification" is actually adding details to a resolution and it is not what I voted on. What do I do?

If these minutes have not yet been (read and) approved at the subsequent meeting, then when approval becomes pending you can offer a correction (essentially an amendment) to the draft minutes, striking whatever language was included that you believe did not really take place.  The minutes should contain the exact text of the resolution as adopted.  If there is disagreement on corrections, a majority vote will decide the question.

If these minutes were already approved, you can make a motion to Amend Something Previously Adopted (§35) to correct the minutes.   
This motion:

• requires a second; 
• is debatable;
• is amendable; and
• for passage requires any one of the following:
  • a two-thirds vote;
  • a majority vote if previous notice is given; or
  • a majority of the entire membership.

Presuming the Secretary is a member, absolutely.

On 2/14/2024 at 11:56 PM, Paul Hunter said:

Our bylaws state, concerning appointing, ....

"...create and appoint standing and special committees (subject to the approval of the board)..."  

but makes no mention of removing...

 

The power to appoint carries with it the power to remove, but I believe the power to appoint subject to approval means that the power to remove is also subject to approval.

On 2/14/2024 at 6:47 PM, Michael Seebeck said:

It's a common mistake in thinking that everything in RONR is gospel truth.

No, the question is simply whether everything in RONR is in RONR. It is the gospel truth that it contains everything it contains.

Given that, if an organization has adopted RONR as its parliamentary authority, then with the standard exceptions, it governs and is binding upon the organization in all cases to which it may be applied.  The rules must be followed, strong suggestions should be followed, and the remaining words, to the wise, are sufficient.

On 2/14/2024 at 6:47 PM, Michael Seebeck said:

BUT, the Appeal from the ruling of the Chair flips it over, as was previously stated, so that what was lack of proof of a quorum by the person raising the point now becomes the opposite: the Chair must prove a quorum did exist instead.  The nature of an Appeal flips the burden because the vote is in the opposite direction.  If the question on Appeal is "shall the ruling be overturned (not sustained)?" then a majority in the affirmative would do so--which is the equivalent of a majority in the negative on sustaining the ruling.

The Chair need do no such thing.  The chair only needs to show that the burden, which remains squarely upon the doubter of the quorum, has not been met, and is no longer timely, and therefore the presumption should be that a quorum was present.   The assembly should agree, in the absence of "clear and convincing" evidence.

Furthermore, that is not the way the question is actually put, but if it were, it would change nothing.

The term "clear and convincing evidence" is a fairly objective term, and reasonably well defined as such things go, meaning that the party making the assertion can demonstrate that the assertion is reasonably certain or at least highly probable.  It is a more stringent standard than a mere "preponderance of the evidence," but less stringent than "beyond a reasonable doubt."  Merely saying that one recalls that a quorum was not present is not sufficient, and does not shift the burden to anyone else.