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smb

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Everything posted by smb

  1. If I may be permitted a variation -- how about changing a motion "distributed" in advance to wording where notice is a requirement? Probably explained best with an example. Association prepares the call to meeting and mails it to all members fifteen days before. The agenda [distributed with the call to meeting] includes a proposed motion to waive monthly dues for members who become unemployed due to layoff. At the meeting, an opponent of the motion raises a point of order -- the dues are set forth in the Bylaws. Bylaw amendments require fifteen days written notice. Since the call was sent out fifteen days prior, a substitute motion is made to amend the bylaws to grant waivers for up to six months. If the bylaws required that written notice of a bylaw amendment include the exact wording of the proposed amendment, this might not be kosher. If the bylaws required only that the notice must provide the "substance" of the proposed amendment, this might be OK. But what if the bylaws are not so specific and simply require "prior notice of the amendment"? Is there any consensus whether the default mode for prior notice is "substantive" or "exact." And, if substantive -- what is the affect, if any, of the motion distributed in advance omitting any reference to the bylaws?
  2. The rule that unfinished business falls to the floor when there is a change in board composition does not apply to changes due to resignations, removals, or other appointments to fill vacancies. [pp. 488-89]. The rule only applies when directors have staggered terms. The purpose of staggered terms is to promote stability and continuity. I believe requiring unfinished business to be reintroduced anew frustrates both of those purposes. So please allow me to reiterate my request for an explanation -- is there some legitimate reason for this rule that I am failing to see?T
  3. So as long as we are here, I've often been troubled by the rule stated on pages 237 and 488-489 and a more basic question to me is whether the rule serves a valid purpose when there is a change to only part of the board. [As opposed to a full board turnover.] Since the authorship team is working on edition 12, perhaps this a good time to raise the subject for discussion. Requiring reintroduction of unfinished business when there is only a partial turnover frustrates existing board members and unnecessarily delays pending business. Many boards, especially local government boards, require two or three readings before action can be taken. A board that meets monthly necessarily must then wait three months before it can take action on matters that may already have been through their second-reading and may have already been the subject of public hearings. Imagine a city council deliberating changes to its "use of force" or "sexual harassment" policies having to explain to the public that there will be at least a 3-month delay because RONR requires they be reintroduced anew. As a practical matter, in my nearly 30 years of professional practice I have never yet had a client observe this rule -- some have special rules that override this provision [knowingly or not]-- more commonly they are simply unaware of the rule and press on. I have no problem with the rule when there is a full turnover -- that's clearly a new board. But I think the rule should be reexamined for partial turnovers. In the alternative, I would welcome a good explanation of the purpose it serves with only a partial turnover.
  4. Ok, a refinement.... If we assume such directors are 'appointed', are they appointed by the President or appointed by the Board? A significant factor since the power of removal lies with the power of appointment. RONR at p. 497 ll. 7-13 suggests that the President would have authority to remove only if the appointment was "by the President acting alone." But that section refers solely to committee appointments. Does the same principle apply to an executive board? [I am referring to a Board of Directors which is the "deliberative assembly" itself; not an appointed "executive committee" that is subject to the assembly.] While I recognize this may be an issue of bylaw interpretation, my interest here is in determining whether experienced parliamentarians who might be asked to opine would apply pp. 497 to an executive board or apply the section literally to committee appointments only. In another post one of our contributors suggested it does -- but I think the subject warrants some further discussion. Thx
  5. Somewhat related to another thread, but figured it should be a separate discussion. A Board consists of 7 directors "elected" by the members and 2 additional directors "appointed by the Board." Elsewhere in the bylaws [and policies] there are several sections where it makes a difference whether a director was "elected" or "appointed". The bylaws also provide that in case of a vacancy, a successor is "appointed by the President, subject to confirmation by the Board." One of the "elected" directors resigned. The president appointed a successor and the board confirmed. The question is whether this new director is an "appointed" director or an "elected" director. Logically, I would think that references to "appointed" vs "elected" directors refers to the normal way one becomes a director and the vacancy provision simply adds an element of confusion. Thus one "appointed" to fill a vacancy in an "elected" position is still sitting in an "elected" position. But, to put this into RONR-ese, since the process for filling a board vacancy is similar to the process in RONR for "appointing" a committee via "nominations by the Chair [p. 494] I have to wonder whether others would differ from my 'logical' approach and consider this new director "appointed" instead of "elected." I recognize this is a question of bylaws interpretation, and I have already advised the board they have the responsibility to do so, but I'm curious to know if others have encountered this situation.
  6. I was going to ask a question in a new thread, but since it relates to this discussion -- and in particular, Mr. Martin's comments quoted below, figured I would try here first. "RONR does not directly address the situation of the President making appointments with approval of the board (especially when none of these persons are actually in office yet). It could perhaps be argued that it is comparable to the procedure of nominations by the chair (which is the paragraph c discussed above), in which event removing a chairman would be accomplished by the board rescinding or amending the motion to approve the appointment. This requires a 2/3 vote, a vote of a majority of the entire membership (of the board), or a majority vote with previous notice. None of the other procedures for appointing committees discussed in RONR seem to fit at all, since the President is not acting alone, and paragraphs a, b, and e do not involve the President or chairman. I concur with his reasoning -- the question is whether the same would apply to a nonprofit Board of Directors, which is essentially the "assembly", rather than a committee? The bylaws provide that in case of a vacancy, the President appoints a replacement "subject to confirmation by the Board of Directors." The President now wants to remove a director he named to fill a vacancy and believes he has unilateral authority to do so because it was his "appointment." The Board disagrees, saying it was their appointment and he simply "nominated" someone. The President responded that nominations are used when there are elections; this wasn't an election -- it was his appointment and they had no power to do anything other than accept or reject. [I.e., they could not open the floor to further nominations and "elect" someone else.] A lot of semantics going around with no authority, including RONR, clearly on point. But Mr. Martin's logic makes sense to me and I see no reason not to apply it to this circumstance as well as a committee. Is there any reason why we should consider a Board differently than a committee in this context?
  7. "The parliamentarian can and perhaps should affirm that motions which violate the bylaws are not in order, but I agree with D.H. that judging whether a particular motion does or does not conflict is beyond the scope of a non-member parliamentarian's duties. " However, the Parliamentarian would be within the scope of duties to explain, if necessary or helpful, RONR's rules of interpretation.
  8. I would like to comment on one of Mr. Martin's comments to my earlier comment..... "In my view, the words in question are a rather weak and technical point to hang this argument on. It seems to me that if the assembly orders that an adjourned meeting be held, it must be held, unless the assembly orders otherwise. If the meeting is held in the circumstances described, it seems to me it would start in New Business." ===== First, while I concede I raised a technical point, RONR consists of 669 pages of technical points. None of those who have disagreed with me have given an alternate explanation for the application of this technical point if not the meaning I put to it. More importantly -- and pardon me for injecting reality into this theoretical discussion -- but the question that was asked set the following premise: "suppose an adjourned meeting was set for Tuesday due to expectations it would be needed...." The facts also said there was no proviso. Since the privileged form of the motion to Fix the Time to Which to Adjourn is not a debatable motion, and there was no proviso, and no business was postponed or scheduled for the adjourned meeting then I must ask how did the assembly have "expectations it would be needed.." This tells me the subject was discussed -- which tells me it was not the privileged form of the motion. So now we have the apparent reality that members knew, and possibly debated, the reasons for setting an adjourned meeting before voting on the motion -- and those reasons no longer exist. You now have two options: 1) cancel the meeting because the assembly's purpose [i.e. what the assembly ordered] has been accomplished, but possibly inconveniencing a few members who drive through snow and sleet to get to the non-existent adjourned meeting; or 2) hold the meeting, possibly with only a few die hard schemers attending since you don't have to give notice, open with 'new business', and allow those few members to do whatever they please simply because no one thought earlier to reconsider the motion before adjourning. "Danger, Will Robinson!!! So, recognizing that this ambiguous situation has two lousy options, I am in favor of option (1). Why? Because option (1) only risks inconveniencing members who can raise their points of order and discipline the President at the next regular meeting if they want to. Option (2) could jeopardize the health, security, finances, and good will of the organization. But it would help our analysis if we knew facts we don't have before us. If she was doing her job right, the presiding officer either declared the meeting adjourned or declared the "meeting is adjourned until __date/time__" as is the form RONR specifies when an adjourned meeting has previously been set. [p. 86 ll.21-25] So whether we hold an adjourned meeting later, to me, is dependent not on the expectations of the assembly when the motion was adopted but on the expectations of the members as they walked out the door. If the Chair simply declared the meeting adjourned, and all business has been accomplished, I think most people [though perhaps not us parliamentarians] would assume the adjourned meeting canceled. If someone thinks otherwise and still wants that later meeting they can raise a point of order to correct the Chair's announcement.
  9. 1) I agree with your conclusion -- and note that your suggested uses are consistent with the usual meaning of the word 'proviso' -- i.e., putting a condition or qualification in a contract or agreement so that the specified action will happen only when that condition or qualification is satisfied. But note also that this common meaning is different than the sense the word is used by RONR. In your examples, the proviso is actually a part of the main motion and the substantive matter and proviso would ordinarily be voted on together. In RONR, the proviso is a separate element -- purely an artifice that allows you to adopt a bylaw amendment without the language of the proviso becoming a part of the bylaws itself.. 2) I believe there was a parliamentary opinion several years ago that addressed this issue. I think it was an AIP opinion, not NAP, but I am unable to locate it at the moment. If I recall correctly, the adjourned meeting is not held. This is because an adjourned meeting takes up its work "at the point where it [the first meeting] was interrupted in the order of business or in the consideration of the question that was postponed to the adjourned meeting." [RONR 11th, p 94 ll. 11-14]. If the current meeting adjourns with all business having been completed there is no interrupted business to take up; similarly there is no postponed business. 3) I see no reason, logically, why a proviso cannot be used for such a purpose and I have seen it used that way many times. But RONR is a little unclear. "The incidental motion to create a proviso, like the corresponding subsidiary motion to create a proviso by amending a motion's enacting words... "[RONR 11th, p 398 ll. 27-31; emphasis added.] This equating the incidental form to its corresponding subsidiary motion suggests that the purpose of a proviso is simply to put condition's on a motion's "enacting" provisions -- i.e., how and when it becomes effective. But as you note, fn. 7 on tinted page 23, states that a proviso can be made as a main motion, as an amendment to enacting words, or as an incidental motion. [Again, my emphasis.] This indicates that a proviso can can be used for purposes other than determining the conditions for enactment.
  10. While I concur that Mr. Gerber's comment pretty much sums it up, allow me to add one additional factor. While hearsay is generally not permitted in judicial proceedings, depending upon the jurisdiction there are dozens of exceptions to the general rule where hearsay IS permitted. It would be expecting far too much for reg'lar folk untrained in those hair-splittings to try to figure out what those exceptions are, whether they apply, and whether there is an exception to the exceptions. I would also note that RoNR is not alone; disciplinary procedures in many other non-judicial contexts also permit hearsay. E.g., labor union hearings. Best to keep our lives simple and just remember 1) hearsay, while permitted, must still be evaluated for credibility; 2) it is best if the hearsay amplifies other evidence, and is not the only evidence
  11. Just noticed I never replied to these two responses. Sorry about that....I actually checked the official interpretations before posting. Somehow I managed to overlook it! thanks for pointing it out politely.
  12. A question of semantics....Under RONR 11, a motion is before the assembly only after it has been moved, seconded, and stated by the chair. The minutes should include all main motions "made or taken up" and not withdrawn. X rises, makes a motion, and the chair immediately rules the motion out of order. There is no second; there is no appeal of the ruling. Should the motion go into the minutes? I.e., Does the phrase "motions made" refer solely to the first step of someone "making" the motion or has a motion been "made" only after it has been seconded and stated by the chair. Since "make" and "made" are tenses of the same verb, it would seem that a motion immediately ruled out of order should still be included in the minutes. However, by that logic, motions made but not seconded should also be included in the minutes and, as a simple matter of practice, I know of no one who does that. Comments?
  13. Let's cut to the chase: the members of an imaginary board make a unanimous decision outside a properly noticed meeting. Regardless of whether it is later ratified [or not] does a record need to be made that the action was taken -- even if for no other purpose than to use as evidence in some later disciplinary action or a court suit to have them reimburse the association for their spendthrift ways? If the answer is yes, then what form does that record take? And if we don't call it minutes, what do we call it?
  14. Sorry for the long delay in responding -- I've been away. But, since I agree with Mssr. Honemann's assertions 1) that this is not an earth shattering discussion, and 2) but we are having fun with it anyway -- I feel the desire to raise a further point: He concludes that "no action was taken by the board since 'a board can transact business only in a regular or properly called meeting …'” and that "there is certainly nothing in RONR which even hints at the notion that minutes should be taken at anything that isn't a regular or properly called meeting", quoting RONR at p. 486 ll. 33-34. But the excerpted quote is incomplete: that sentence in RONR ends with the words "and at which a quorum ...is present." [(RONR, 11th ed., p. 486-487-7, ll. 33-3). We all know that if an assembly loses its quorum there are still actions that RONR permits to be taken in the absence of a quorum. [(RONR, 11th ed., p. 348, ll. 14-23). But if we accept the analysis above, then once the quorum is lost, none of those actions -- including adopting a motion 'to fix the time to which to adjourn' -- would be "board actions" since they would have been taken without a quorum present. I think most of us would agree that an adopted motion to fix the time to which to adjourn is a 'board action' that would go into the minutes of that meeting. If that is correct, then shouldn't the alternative of adopting an urgent motion that can't await the next meeting [with the admonition it must be ratified later] also be entered into those minutes? And if that is the case, then shouldn't a record also be made of the informal action taken by the board later via email? Whether an action was taken at a meeting that was properly convened but then lost its quorum or was taken informally via a later email the result is still the same. An action was taken that does not comply with the quoted language above. So...what is the proper way of recording it? RONR is silent; and perhaps the best answer is that this is not covered by RONR and you just have to punt. I can live with that -- my only objection is to the suggestion that because the vote was taken by email, it was not 'the board' that took action. The Board did take action and some record needs be made of that action. [Whether the action is valid or not is a separate matter.] The only question is how and when that record is most properly made. I'm still having fun.
  15. Oops....somehow I did miss that answer in the first response. But I think it is somewhat incomplete and I must disagree with the criticism of my response. Mr Brown stated [and Mr. Honemann appears to agree] that the results of the email vote should be recorded in later minutes only if that amendment was properly adopted. So, what if it was NOT properly adopted -- do you simply ignore it? Of course not -- whether or not it was properly adopted it is still an action by the Board that needs to be recorded -- if for no other reason than to provide the factual foundation for whatever needs to happen next. Hence, my suggestion that the emailed action be 'reported' at the next meeting and that report be recorded in those minutes. Above, it was 'presumed' the bylaws don't allow for an emailed vote -- why are we presuming that? Moreover the statement on p 487 of RONR [ll. 4-12] that permits a Board to ratify an emailed [or telephoned] action does not require as a predicate that email be authorized in the bylaws. It's very purpose is to ratify an improper act. And, if this is an incorporated body that is statutorily permitted to take action by unanimous consent via email, that statutory authorization trumps RONR's admonition on p. 487. I realize I am getting into a bunch of speculative non-RONR issues here -- but they are necessary to the point: This board took an action to amend [either expressly or implicitly] an adopted motion; whether or not it was proper and whether or not that action took place in a 'deliberative proceeding' it still needs to be put into the minutes somewhere so that the factual foundation for whatever further action might be necessary is part of the record; that can occur at the next meeting either by ratifying the action or by reporting the action as having been taken and recording that report. I erred earlier by only suggesting the latter.
  16. Interesting discussion but so far no one has really answered the actual question asked. The minutes of the special meeting should accurately reflect what occurred at the special meeting. Then, the action that occurred afterward should be reported at the next meeting and properly recorded in those minutes. Whether that later action is valid or not is immaterial to the minutes -- it happened and needs to be recorded. The digression of whether that later action is valid or not something that can't really be answered with the limited information we have. If this is an incorporated organization, the codes of many states permit board approval via email if consent is unanimous. Likewise, if the contract is signed by both parties, you may have a valid contract -- even if it may have been improperly authorized. The latter two points are outside the realm of this forum.
  17. More a question of bylaw interpretation, than RONR but I appreciate your leniency and input... The Bylaws provide that committees are appointed by the President with the 'approval of the Executive Committee and ratification by the Board of Directors.' The Board of Directors meets three times per year; the Executive Committee meets monthly. The Executive Committee has full power to 'act for the Board of Directors between meetings of the Board." So....either ratification by the Board is redundant and unnecessary -- or this bylaw gives the Board the ability to reject an appointment, even if approved previously approved by the Exec Comm. The question is, what is the effective date of a committee appointment -- upon approval of the Exec Comm or ratification by the Board? Or is it upon appointment by the President, unless disapproved by the Exec Comm or Board?
  18. Oops...hit enter too quickly. I am aware we parliamentarians have expressed differing opinions on this question so what I'm looking at the moment is whether anyone has ever found legal authority for the proposition that adopting RONR is sufficient. [recognizing of course that other legal jurisdictions may disagree.'
  19. I'm sure this has been the subject of a prior thread, but I am unable to find it so apologies for bringing it up again. I'm willing to accept either fresh advice or a link to a prior thread State corporation codes frequently provide default language for certain elements of procedure "unless otherwise provided by the bylaws." So there has always been the lingering question whether a provision in the bylaws stating that RONR is the parliamentary authority satisfies that requirement or whether any override of the statute must be by an express bylaw. Thx
  20. It's an unusual set-up. The standing rules for this association's conventions are in the association's policy manual. Per the bylaws, the sole authority for approving, amending, rescinding the policy manual resides in the Board of Directors. The convention delegates have never voted to adopt or amend the convention standing rules -- they are a fait accompli. Delegates have occasionally suspended applicable procedural rules provided by RONR but they have never had occasion to suspend one of their own own standing rules. So the question essentially is whether, under such a scheme, the convention delegates have the authority to suspend a standing rule adopted by the board without prior board authorization to do so or whether the rules from the board should be considered directive. While the situation is somewhat akin to the Bylaws 'directing' that RONR be the parliamentary authority, RONR expressly provides for suspending its own rules. The standing rules adopted by the board do not provide such express authority. So the question, essentially, is whether the delegates need to be given express authority or whether the authority of delegates to suspend a standing rule is implicit. My own opinion is that since RONR allows a body to suspend a procedural rule contained in the bylaws [certainly a 'directive' document], there is no reason it shouldn't be able to do so here as well. Obviously, this cannot be answered by reference to RONR -- so perhaps this is not an appropriate topic for this forum -- just curious to see if others have encountered such a situation before and how it was handled.
  21. The Standing Rules for annual conventions were prepared and adopted by the organization's Board of Directors. Some members see a need to suspend one of the rules for this year's convention. There are three options: 1) at the next Board meeting a motion can be adopted to suspend the rule for the upcoming convention; 2) at the next Board meeting there can be a motion authorizing the convention delegates to suspend the rule if they wish to do so; 3) the convention delegates can suspend the rule themselves without board action. Ordinarily, the latter can be done with a majority vote of the delegates. Questions: (a) If the Board wanted to amend or rescind the standing rule without prior notice, it would require a 2/3 vote or majority of the board. Would that also be required to suspend the rule without prior notice, or would a suspension require only a majority vote? RONR authorizes convention delegates to suspend a standing rule by a majority vote; can the Board adopt a motion requiring a 2/3 vote of the delegates instead? Wouldn't that, itself, be a standing rule that the delegates could suspend by a majority vote? [c] Since RONR authorizes convention delegates to suspend a standing rule by a majority vote, can the convention delegates do so even if the previously mentioned motions were made at the Board meeting but failed to receive a majority vote?
  22. I am essentially with Kim on this one. You are neither the parliamentarian nor the chair -- more importantly, unless one is in such a position, you do not surrender your own rights just because you know something about PL. One of those rights is the right to rise to a point of order or NOT. It may be a different situation if there is a ruling by the Chair and now you must decide whether to appeal the ruling or not. Here there is more reason to speak up -- but not because there is an ethical duty; rather it is because the chair's ruling may become a precedent unless set aside and that is the time to set the record, and the rules, straight. But...let us not confuse "doing the right thing", which is admirable, with having an "ethical duty."
  23. Thanks for the comments -- Daniel is such a ubiquitous presence on this board that his conclusion there is apparently no analysis or discussion is good enough for me, and that's mostly what I was looking for. As for Kim's comment, while we should always be aware of state laws on an issue, I chose not use the legal concept of 'self-dealing' as the standard because most state laws define that term very narrowly -- much more narrowly than RONR. I.e., RONR refers to pecuniary interests generally -- the self-dealing principles of California law (for example) apply to only a very small subset of what might be considered pecuniary interests. That's the reason I brought this up -- I see directors of nonprofits frequently abstaining on monetary issues that affect them personally because they think they 'should' do so -- even though corporate law has no concerns. The problem is that corporate law often requires a majority of the board for approval, not those present and voting, so their abstention is equivalent to a 'no' vote.
  24. The following statement on p. 407 has been the subject of many posts. Sorry to bring it up again, but I don't think this particular question has been addressed. "No member should vote on a question in which he has a direct personal or pecuniary interest not common to other members of the organization. For example, if a motion proposes that the organization enter into a contract with a commercial firm of which a member of the organization is an officer ..." My question is very narrow. What is the meaning of "not common to other members of the organization"? I often see board members unnecessarily abstaining* on votes because they think they have a conflict when, in fact, there is no conflict. The issue may be who to send as a delegate to a conference, fixing the $ amount of stipends or other compensation, etc. The example given on p. 407 suggests that the rule applies only when the pending question relates to a personal or pecuniary interest that is "outside" the organization itself. Is that a correct reading? Suppose we have an organization of web-designers; a member thinks the organization's own website needs to be redesigned but recognizing how much work that entails thinks that they should pay a token amount of $500 to whichever member the Board tasks to do it -- he wants to establish the principle that just because they all have skills, no one should be expected to do the work for free. At this point, we don't know which member will be asked or volunteer to do it -- it could be any of them. So it seems clear to me that all members can vote on this issue with a clear conscience -- they have no conflict and no one need consider abstaining*. Now we change the scenario a bit -- Helen has previously offered to redesign the website; another member now offers the same motion to compensate her for her time. Should she consider abstaining? * We know that even when there is a conflict, one still has the right to vote and no one can be compelled to abstain. The only issue I am concerned with is whether there is even a need to consider doing so. I hope I have not made the issue too simplistic -- my purpose in bringing this up is not to have others simply conclude whether or not Helen should abstain. My purpose is to see how others interpret the meaning 'not common to other members" -- even with other examples -- or to discover if there is already a broader analysis or discussion of the issue that I have somehow overlooked. Thx
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