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smb

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  1. Thanks for the input. Just to clarify: The RESOLVED clause with a brief BACKGROUND statement below it were presented in a one-page resolution submitted by the committee chair. The RESOLVED clause simply authorizes the committee to proceed with the project and provides the funding; the BACKGROUND statement is just a brief summary of the project -- It's possible there was a more detailed oral report, but the minutes do not state. My understanding is that the Board had been more fully briefed about the nature of the project at a prior meeting -- this meeting simply gave the order to proceed. The adopted RESOLVED clause was included verbatim in the minutes; the Background statement was not. The crux of the matter is whether the committee was free to exercise its judgment or had to adhere to the project details given in the background statement. Clearly, a special meeting of the Board could have addressed the matter -- but that didn't happen. I am looking at this issue in the past tense for a training exercise to address how this tzimmes could have been avoided.
  2. A committee presents a written 'resolution' to the Board asking it to adopt the recommended action. The resolution contains no Whereas clauses, but it does contain a BACKGROUND statement briefly summarizing the purpose of the resolution. The Board adopts the recommended action; the minutes include neither the text nor a summary of the background statement. Those charged with implementing the resolution have chosen to do so in a way that fails to address one of the items stated in the Background statement. A dispute has arisen whether they must do so. Just to make this clear: the resolution provides funding for construction of a new multi-story building. The background statement briefly describes the project and states that access to the floors is to be provided by stairways, ADA-compliant ramps, escalators, and elevators. The building committee now believes that escalators are an unnecessary expense given the elevators and ramps, so has omitted them from the building plans. Escalator fans are upset! Must the committee give effect to the Background statement and provide for all four methods of access? RONR doesn't really address such an issue...the closest it comes is below, but it addresses the reasons for a motion, not really applicable to this situation. Also note that the committee presented the Board only with its recommended action and a brief background statement. There was no 'report' presented for adoption and the Board adopted only the recommended action which did no more than approve the project funding. "It is usually inadvisable to attempt to include reasons for a motion's adoption within the motion itself. To do so may encumber the motion and may weigh against its adoption—since some members who approve of the action it proposes may dislike voting for it if it states reasons with which they disagree. When special circumstances make it desirable to include a brief statement of background, the motion should be cast in the form of a resolution, with the background or reasons incorporated in a preamble that is placed before the resolving clauses. RONR (12th ed.) 10:16] Thoughts? [Obviously the board can resolve the matter, but the project is due to be advertised for bid prior to the board's next meeting.]
  3. Yes, it's both. I agree with Mssr. Atul that 'provided' includes the concept of 'also', but have no problem with his alternate language. Thanks to all.
  4. This may look like a legal question, but I am just looking for some scrivening advice.... A non-profit association's bylaws require a 2/3 vote [present and voting] to take certain actions. The state's non-profit code states "the bylaws may not provide for a lesser vote than a majority of the directors present." If there are a significant number of abstentions, a 2/3 affirmative vote may be less than a majority of those present. E.g. with 50 present a majority of those present id 26. A vote of 17-8 meets the 2/3 threshold but is insufficient to comply with the statute. Similarly, a vote of 26-24 meets the statutory requirement, but is less than 2/3 required by the bylaws. They want to change the language to avoid these anomalies. One suggestion is: "...requires approval by 2/3 of those present and voting, provided the number of affirmative votes is at least a majority of members present." This works, but it seems awkward and could be confusing without including examples an as outlined above. Does anyone have any suggestions for better phrasing? Thanks
  5. Yup, the rule is extremely simple -- amendments to the policy/procedure manual [where the special rules of order are located] may be adopted or amended by a simple majority vote. [I didn't draft it!] RONR is their parliamentary authority. Josh's simple solution is certainly the appropriate alternative. I was simply hoping to avoid the distraction of a second motion, debate, vote, and probably a brief educational session on the difference between special rules of order and standing rules when no fundamental rights are being affected. Oh well,....BTW, I stand corrected on suspending 25:14; thanks.
  6. RONR requires a 2/3 vote to suspend a special rule of order. [25:14] Contrary to RONR, an Association's bylaws allow adoption of special rules of order by a majority of members present and voting instead of the usual 2/3 vote. At an upcoming meeting, I anticipate a motion to suspend one of their special rules. I am confident that the motion to suspend will have the support of a majority of those present, but possibly not 2/3. If the motion fails for lack of 2/3 support, I anticipate a second motion to simply rescind the rule instead. A motion to rescind, made without prior notice, can be adopted by either a 2/3 vote or a majority of the membership [35:2(7)]. If a majority of the membership votes in favor of the suspension, it seems rather absurd to require them to rescind the rule altogether, rather than just recognize the rule as suspended for that session. While that seems eminently logical, it is directly contrary to RONR 25:14. Of course, they can also suspend RONR 25:14 by a vote of a majority of the membership.... You can see where this is headed -- my inclination is simply to advise the presiding officer to declare the rule suspended if they get an affirmative vote of the membership unless someone is foolish enough, or technical enough, to raise a point of order. Anyone have a better suggestion? [All references to RONR 12th ed.]
  7. p.s. The Bylaws do not expressly prohibit someone from holding more than one office; so if the IPP is not technically "unable" to serve he can just declare he is unwilling to serve as both?
  8. An association's bylaws provide for the immediate past president to remain on the board as a voting member. The immediate past president has been elected to the position of vice-president, also a voting member of the board. The bylaws state that if the IPP is unable or unwilling to serve, the board can appoint another past president to the IPP position. Since the newly elected VP cannot hold two positions on the board, it would seem that he is 'unable' to fulfill the hold-over position and the board is free to appoint another prior president to the position. Do you see any flaws in this logic? Thx
  9. I'm a bit late sounding in, and concur with the general tenor of the analysis so far. I have several large clients [unions and professional associations] who have similar language and they ALL apply it in the manner that many public entities call 'first reading' and 'second reading'. That is, at the first meeting [reading] the motion or resolution is introduced and read nothing else usually happens [but there may be an explanation and an opportunity to ask questions of the author(s)]. This gives members the opportunity to digest the material before it comes up at the next meeting for second reading. No action, including debate, is taken until second reading. As others have noted, whether that is your association's intent is for them to decide -- I add this only to suggest the first/second reading interpretation is quite common.
  10. At the risk of making this convoluted discussion more convoluted with another hypothetical, not necessarily. Suppose the need to consider an item not specified in the call of the meeting is brought up at the outset of the meeting and there is a motion to suspend the rules to add it to the agenda. That passes. Now, before that matter is taken up someone decides to leave -- I don't think their departure would affect the ability of those remaining to take the matter up since the motion to suspend was adopted while the departed was present.
  11. I recognize this is a question of bylaw interpretation and not strictly RONR, but I would appreciate your thoughts about the requirement for prior notice with respect to conventions and 'absentees' 1. An organization has a convention of delegates every two years. Delegates are elected by chapters, and receive their credentials when they register at the convention. Several elected delegates failed to attend. The convention took up an amendment to the bylaws for which proper notice had not been given. [The notice was given, but only 25 days prior to the convention rather than the 30 required.]. It was adopted unanimously. One of the elected delegates who failed to attend has since protested that the amendment was not properly adopted, citing the rule that the requirement for notice is protection for absentees and cannot be waived if any member is absent. [25:10]. The response he was given is that he does not have the protected status of 'absentee' because he did not become a 'member' of the convention because he was not yet credentialed. 2. Suppose the delegate had attended and had been credentialed. He leaves the meeting before the bylaw amendment is taken up...can he now protest because he was a 'member' of the convention but was absent when the vote was taken? 3. The bylaws state that the "notice of the convention " shall be sent to all delegates at least 45 days prior and that "a packet with more information shall be sent to all delegates at least fifteen days prior. The convention notice was mailed, stating that among the items of business will be proposed amendment to the bylaws . The actual bylaw amendments were included in the later packet, but it was mailed twelve days prior to the convention instead of the required fifteen. Is the fifteen-day requirement for the followup packet a form of 'prior notice' that cannot be suspended, or was the information in the call to convention sufficient? 4. In scenario 3, would it make any difference if the notice of convention gave a brief summary of the bylaw amendment, although not the detail. I.e. 'a proposed amendment to the bylaws to permit officers to serve a second consecutive term." Thx p.s. I recognize how strictly we consider the requirement for prior notice in most contexts -- these question relate solely to conventions of delegates, where delegates are presumed to have a duty to attend so the normal purpose for notice [allowing members to determine whether they want to attend or not] may not be pertinent.
  12. I know the technically correct answer to this question; but nevertheless interested in your thoughts and any recommendations An organization has a set of policies and procedures [containing both special rules of order and standing rules.] The requirements and amount of notice for amendments to the policies and procedures are identical to those for amending the Bylaws, except for the fact that the policies can be amended at any membership meeting and the Bylaws only at the annual meeting. The Bylaws provide that ALL committee appointments are made by the President, subject to confirmation by the Board of Directors. Long ago, the identical language was apparently placed into their policy and procedures, with further details about committee responsibilities and procedures. At their last annual meeting, the assembly voted to amend the policy & procedure to clarify that the President's authority is intended only for the organization's standing committees and giving their Board of Directors authority to appoint the members of ad-hoc or special committees created by the Board itself. It is now several months later, and someone has noticed that they amended the policies and procedures, but neglected to amend the identical language in the Bylaws. Needless to say, the President now claims the Bylaws take precedence and that he has sole authority to appoint ALL committee members. He has declared the appointments made by the Board during the past four months invalid and plans to repopulate the committees. [subject to confirmation of course] Some on the board are concerned not only about the political war that will probably ensue, but also what effect, if any, this might have on actions already taken by the committees during the past few months. [Some of the special committees were delegated power to act independently in some areas, not having to come back to the board.] The obvious solution is to simply say that since the bylaws and the policies have the identical requirement for notice and the required vote for adoption, and that those procedures were properly followed, then the failure to amend the bylaws too was inadvertent error and that they were also amended by implication. Of course, RONR unlike the Standard Code does not allow for amendment or repeal by implication. [And I'm not even sure the Standard Code would recognize it for Bylaws] In any event, it is another 7 months until their next annual meeting where they can amend the Bylaws to conform. Suggestions? Thx
  13. Is the hiring of the attorney null and void ab initio or is it simply voidable? At 40:6 RONR states null and void. But the remedy for such a continuing violation [23:6, 23:9] is that the action must be declared null and void if a point of order is raised at a subsequent meeting of the Board and the point of order is sustained. Alternatively, the members can adopt an incidental main motion to declare the board's action null and void. [23:9]. So....if the Board has not yet met again, and the assembly has met but did not so declare, just what is the status of the action? And, what if the board meets at the next quarter, and no member of the board raises a point of order? Inquiring minds simply want to know....
  14. At the risk of being criticized by adding more example to this discussion... Suppose the motion is 'to ratify the action of the President contracting for mold removal in the headquarters building.' Are you suggesting that we could not add "and to commend the President for taking prompt action to protect the health of employees in the building." Or after "mold removal" insert "and related building repairs" [because the contract covered more than just removal of the mold and included replacement of carpeting and ducting.) Or, to strike 'ratify' and insert 'question' followed by a second amendment to add "and appoint a committee to investigate whether the type and amount of mold and risk to employees was sufficient to warrant the added costs of an 'emergency' services contract rather than taking the matter to the executive committee for review and action." We could go on and on....the point being that the statement that the motion contains "no variable factor other than the possibility of substitution of a motion of censure" is negated and limited only by the limits of one's imagination.
  15. My recent lengthy screed 🙂 was a response to the above statement. But there are no SDCs for the motion to ratify itself. It is a subsection of chapter 10 "The Main Motion" and the only SDCs provided are those for main motions categorically [10:8]. SDC 10:8(6) says only what Mr. Novosielski says it would: "Is amendable." Mr. Honemann later added "RONR is obliged (in 10:56) to point out that a motion to ratify can be amended by substituting a motion of censure for the very reason that amendment of a motion to ratify is extremely limited. If this limitation did not exist, it would not be necessary to provide this explanation." So I must ask: Where in RONR is this limitation imposed? It isn't in 10:8; it isn't in 10:52-57. Inquiring minds want to know....
  16. The extreme attention being paid to the premis of repairing pipe and cleaning carpet appears to have gotten us off track. So let me bring us back to the original issue: i.e., the scope of permissible amendment on a motion to ratify. And I shall begin by simply stating that those among you who believe the motion to ratify cannot be amended other than to substitute a motion of censure are wrong. Completely wrong. Indisputably wrong. I realize those are rather strong statements, but please read on. 1. It is indisputable that the motion to ratify can be amended; It is an incidental main motion (10:5, 10:57) and SDC 10:8(6) expressly states that all main motions can be amended. “The chief difference in the rules governing original and incidental main motions is that an Objection to the Consideration of a Question can be applied only to original main and not to incidental main motions.” [10:6] This conclusion is corroborated by T26 which expressly states that the motion to ratify can be amended. 2. So, the only question is whether there are limitations on the scope of permissible amendment. 3. More specifically, what is the significance of 10:56 –- " A motion to ratify can be amended by substituting a motion of censure, and vice versa, when the action involved has been taken by an officer or other representative of the assembly.” It has been posited that this is the only form of acceptable amendment. That is incorrect; it appears to me that all 10:56 does is declare that converting a motion to ratify into a motion of censure is in order. 4. The problem with the conclusion that 10:56 is limiting is that it misreads the grammatical structure of the sentence, which consists of a subject (A motion to ratify), a predicate (can be amended), a conjunction (when) and a subordinate clause (the action involved has been taken by an officer or other representative of the assembly.) 5. If I’ve lost you – the conjunction and the subordinate clause do no more than tell us when the subject of the sentence (“A motion to ratify can be amended by substituting a motion of censure, and vice versa…” is appropriate. An alternate, but clearer wording, would be “When the action involved has been taken by an officer or other representative of the assembly, a motion to ratify can be amended by substituting a motion of censure, and vice versa.” 6. The language in 10:56 was introduced in the 1915 edition of RORR, and has remained unchanged. I say this only to suggest that what 10:56 means is apparently whatever Henry Robert himself intended. While he isn't here to enlighten us, he has provided us with some analogous language that may be useful to our interpretation. 7. Consider the statement at 10:53, “A motion to adopt a resolution, bylaws, or any other document can be amended by adding, “and that it be printed and that members be furnished with copies…” Must we conclude that the ONLY way a resolution, bylaws, or any other document can be amended is by adding language at the end and that we cannot amend by striking, inserting, striking and inserting, or substituting? Such an interpretation would certainly be counter to 54:18 “the chair gives opportunity to insert additional paragraphs or sections and to correct any inconsistency or oversight that may have arisen during the process of amendment.” [My emphasis.] 8. So, if 10:56 isn’t intended to limit the scope of permitted amendment, what is its purpose? I suggest that it is simply to rule out a potential point of order that an amendment converting a motion to ratify into a motion of censure is not germane. If you think this suggestion frivolous, I refer you to the similar statement at 12:20 that “An amendment to strike out ‘commend’ and insert ‘censure,’ although antagonistic to the original intent is germane and ‘in order’ because both ideas deal with the council’s opinion of the officer’s action.” Note that RONR uses strike and insert in 12:20 because to change commend to censure only requires a change of one word. In most cases, if the assembly wants to reject a motion to ratify an action, you don't strike ratify and insert reject. You reject the motion simply by not adopting it. [4:3] However, when “the action involved has been taken by an officer or other representative of the assembly,” changing a motion to ratify into a motion of censure cannot be accomplished simply by striking 'ratify' and inserting 'censure' - the result would probably be a nonsensical sentence. So, substitution is inevitably the form of amendment that must be used and RONR is simply giving us the permission to do so. Such a reading does not mean substitution is the only form of amendment in all cases. "Common sense should guide the presiding officer in interpreting the rules...to give freedom for improvement of the main motion finally to be voted upon." [12:25]] 9. Now, obviously, whatever amendment(s) may be desired must be germane in other ways and must still comply with other rules of order for amendment. My only point is that 10:56 does not proscribe the only form of amendment for such a motion. It simply reinforces the concept that substituting a motion of censure [or vice versa] “can be hostile to, or even defeat, the spirit of the original motion and still be germane.” [12:16]
  17. Yes; I can't give the cite at the moment cuz I'm on the road -- but among the 'actions' that can be ratified are those taken by officers or others beyond their scope of authority. [Assuming, the board has the authority itself.]
  18. This approach would reopen the original motion to further amendment and potentially much longer debate. Ratifying, either in whole or part depending upon whether the motion to ratify is divisible, keeps it a much simpler process.
  19. I recognize the purpose of this forum -- and that what other authorities have to say about a subject are recognized as 'persuasive' only where RONR is "silent" (2:18). But we may have uncovered an ambiguous provision in RONR and I figured that what other authorities whose work is clearly derivative of ROR might be useful to the discussion. Before I further incur the Wrath of Dan for presuming an ambiguity, please permit me to explain. The motion to ratify is an incidental main motion. RONR expressly states that main motions can be amended. [10:8.6]. It makes no distinction between original main motions and incidental main motions. Page T26 also states expressly that a motion to ratify can be amended. And we know that, at the very least, "a motion to ratify can be amended by substituting a motion of censure..." (10:55) What is unclear to me, and what started this post, is whether substituting a motion of censure is the ONLY form of amendment permitted. RONR is, if not silent on that issue, at least unclear. Mr. Honemann also states that a motion to ratify is indivisible. But "When a question is indivisible and a member is opposed to a portion of it, he can seek the desired result by moving to strike out the part to which is is opposed." (27:9) At 10:57, RONR states that "Since the motion to ratify (or to censure) is a main motion, it is debatable and opens the entire question to debate. [My emphasis.] If the only function of ratify is to permit an up/down vote on the action taken without the ability to divide or amend to strike, what is the entire question opened to debate? Does entire question refer only to the question of 'ratify or not' or does it also refer to the substance of the original action? And why would it refer to the latter if we can't do anything to change it? Suppose at a contentious but inquorate meeting, an assembly adopts three motions. At the next meeting, three separate motions to ratify can be introduced. Or, instead a motion can be made "to ratify the actions taken at the inquorate meeting." Since the latter form refers to 'actions' in the plural, does the motion to ratify actually consist of separate parts that now can be divided per 27:1? Or Is the motion to ratify indivisible because "the only motion now before the assembly is a motion to ratify the board's action in adopting what it adopted." Is it really a correct reading of RONR that if the body wants to ratify 1 and 3 only, but not 2 its only solution is to defeat the motion to ratify, then introduce 1 and 3 as renewed motions fully open to further amendment? How does that help an organization "function efficiently"? [p. 42] Would it make any difference to our analysis if, at the inquorate meeting, the three motions were adopted in toto with a single vote? Or is it still indivisible because "whether or not the motion [the inquorate assembly] adopted would or would not have been divisible when it was pending before the board for adoption is entirely irrelevant." Bottom Line: it is clear that a motion to ratify is amendable -- the only question is whether the ONLY amendment permitted is to substitute a motion of censure or whether it may also be amended to strike out a portion the body does not want to ratify. RONR is ambiguous on this point and I concur that we should not be elevating form over substance. Hey, what if the body wants to ratify 1 and 3, but censure the President because it only adopted 2 because he withheld critical information? STOP. DON'T ANSWER THAT. I GOT CARRIED AWAY.
  20. Well, looks like several of us are on the same page -- and for what its worth Demeter, Riddick, and the AIP Standard Code all agree that a motion to ratify can be amended. Most helpful is Riddick, who clarifies that amendment is limited to "only as to which part of the action is to be ratified." [1985 ed., p. 161] Essentially akin to the division we have been discussing.
  21. I think the following is worth adding to the discussion. "The motion to ratify (also called approve or confirm is an incidental main motion that is used to confirm or make valid an action already taken...." [10:54] The underscoring is my emphasis. Among the examples given, are actions taken by a local unit that requires approval of a parent body, or action taken by a national organization that requires approval of its constituent units. [ibid.] It could lead to chaos if a national organization adopted a bylaw amendment requiring approval of a majority of its chapters and each individual chapter had the ability to rewrite the language in the course of ratifying. It seems self-evident that the intent of ratify is to solely to approve or reject the prior action in the form in which it was adopted. [I.e., amendments not permitted]. However, I am not certain that a motion to ratify cannot be divided. Obviously it depends upon the motion, but if the original motion was divisible [See section 27] arguably a body could choose to affirm only parts of it. Example: national board adopts amendments to Bylaws Articles I, III, and IX. The constituent units are asked to ratify the board's action. Can they affirm only the amendments to I and IX, but reject III? This would appear possible if the Board amended those articles in three separate motions, and units are now asked to affirm those three separate actions. But suppose the board adopted all of the amendments in toto with a single vote. Is there any rationale for denying the units the ability to reject some of the amendments only because the board chose to adopt them in gross, rather than dividing the question?
  22. DH: I concur -- but this is an issue that is going to be visited soon so appreciate having a second opinion. AK: And in appropriate situations, a motion to ratify may be divisible with separate votes on each portion.
  23. RONR 12th ed 10:57 states that a motion to ratify is debatable and opens the entire question to debate. It says nothing about amendment, a different standard characteristic, except that it "can be amended by substituting a motion of censure." [10:56] Is the latter provision intended to limit the scope of permissible amendment on a motion to ratify to amendment by substitution or does "open[ing] the entire question to debate" imply that the other forms of amendment are still permitted. Example: A board adopts an emergency resolution when there is no quorum present. At the next meeting the resolution is presented for ratification. Is the only option an up-down vote on ratification, or are amendments altering the content of the resolution permitted as if the resolution were being presented for the first time ? [Essentially treating the matter as amending something previously adopted.]
  24. An executive session may adjourn because there was a motion to do so, or it may adjourn without a motion simply by the chair adjourning the ES once its business is completed. In either case, the regular assembly minutes need only state when the normal business meeting resumed [or adjourned if no further business.] There is no need to refer to anything that occurred within the exec session other than any action that is required or permitted to be reported out.
  25. There is a solution to every problem -- as already noted, it often lies with practicality rather than slavish adherence to a bylaw that no longer works. What follows is California nonprofit corporation code section 7515. I recognize this is not a legal forum here; but the legal solution that CA enacted for its incorporated nonprofits also provides a workable model for unincorporated associations engaging in self-help . ==== (a) If for any reason it is impractical or unduly difficult for any corporation to call or conduct a meeting of its members, delegates or directors, or otherwise obtain their consent, in the manner prescribed by its articles or bylaws, or this part, then the superior court of the proper county, upon petition of a director, officer, delegate or member, may order that such a meeting be called or that a written ballot or other form of obtaining the vote of members, delegates or directors be authorized, in such a manner as the court finds fair and equitable under the circumstances. (b) The court shall, in an order issued pursuant to this section, provide for a method of notice reasonably designed to give actual notice to all parties who would be entitled to notice of a meeting held pursuant to the articles, bylaws and this part, whether or not the method results in actual notice to every such person, or conforms to the notice requirements that would otherwise apply. In a proceeding under this section the court may determine who the members or directors are. (c) The order issued pursuant to this section may dispense with any requirement relating to the holding of and voting at meetings or obtaining of votes, including any requirement as to quorums or as to the number or percentage of votes needed for approval, that would otherwise be imposed by the articles, bylaws, or this part. (d) Wherever practical any order issued pursuant to this section shall limit the subject matter of the meetings or other forms of consent authorized to items, including amendments to the articles or bylaws, the resolution of which will or may enable the corporation to continue managing its affairs without further resort to this section; provided, however, that an order under this section may also authorize the obtaining of whatever votes and approvals are necessary for the dissolution, merger, sale of assets or reorganization of the corporation. (e) Any meeting or other method of obtaining the vote of members, delegates or directors conducted pursuant to an order issued under this section, and which complies with all the provisions of such order, is for all purposes a valid meeting or vote, as the case may be, and shall have the same force and effect as if it complied with every requirement imposed by the articles, bylaws, and this part.
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