smb

Just to reiterate -- while it is true that Robert's Rules of Order [newly revised] expressly prohibits e-meetings unless authorized by the bylaws, if your association is incorporated some states permit it.   It depends upon the law of your specific state; and it depends upon how that law is actually worded -- such analysis/advice is beyond the scope of this forum and you should check with an attorney experienced in Maryland nonprofit law.

I will take the previous comments in reverse order:

"I would say it is too late to raise points of order regarding such motions. It was not the motions that violate a provision of the bylaws, but the procedure by which they were adopted. As we have reiterated many times on this forum, points of order regarding procedural errors generally must be raised immediately."

Comment: Correct if I was referring to continuing violations (a) or (b) on p. 251 which refer to "motions."  I am referring to (d) "any action has been taken in violation of a fundamental principle of parliamentary law. (p. 263)"  One of those fundamental principles is "the right to vote is limited to the members of an organization who are actually present at the time the vote is taken in a regular or properly called meeting (p. 423)..." [My emphasis.] If the term "action" does not include a procedural irregularity that violates a fundamental right, what does the term mean and where might I find that definition?  

"Yes, as a matter of parliamentary law, RONR's provisions are incorporated in to the bylaws..."

Comment:  This does nothing more than state the conclusion....I asked for a citation to the authority for this statement and was given the following:

"It is contained in the article adopting the parliamentary authority. It says that, absent any higher rule to the contrary, the rules in RONR will "govern the society in all cases to which they apply" or words to that effect.  That establishes a rule, not in RONR, but rather in the bylaws."

Comment:  I concede that is the recommended wording in RONR -- However, that particular sentence continues -- the rules in the parliamentary authority are binding only "where they are not inconsistent with the...provisions of local, state, or national law applying to the particular type of organization." p. 16 ll. 24-27.  So again, I ask, when a provision in RONR is inconsistent with an express provision in state law, by what authority does RONR get to claim superiority over that law simply by virtue of having been adopted as the parliamentary authority?  That paragraph in RONR also states that the rules in the parliamentary authority are binding only "where they are not inconsistent with the bylaws" of the body."   This tells me that the parliamentary authority is apart from the bylaws -- otherwise the suggested wording  would have been something like "inconsistent with a more specific provision of the bylaws." This is reinforced by the language used in RONR's model bylaws on p. 588: "The rules in the current edition...shall govern....in all cases to which they are applicable and in which they are not inconsistent with these bylaws..." [my emphasis.] Or are you saying that the preceding sentences simply mean the whole of RONR can be considered a series of "general statements" in the bylaws that yield to "more specific" statements elsewhere? Principles of Interpretation, p. 589 ll. 18 et seq.  And would this mean that if an organization is uncertain of the meaning of something in its bylaws and is attempting to "decide for itself the meaning of its bylaws", it also needs to read what RONR might have to say on the issue?  And if that is the case, and what is significant is the intention of the society at the time the bylaw was adopted, are they free to disregard this entire discussion if it can be established that there was NO intent that ALL of RONR be incorporated by reference into their bylaws simply by adopting it as parliamentary authority?

I am not trying to be obtuse or difficult.   But saying that all of RONR is incorporated by reference into ones Bylaws is a BIG mistake.   What you are saying to thousands of attorneys, nonprofit managers, community association execs, etc. is this:  if your state law says that your Bylaws may prohibit something, and your bylaws do not do so, you also need to read all 668 pages of RONR closely, because if there is something in there that prevents you from conducting electronic meetings, conducting business with a  "disappearing" quorum, or any of a host of other matters,  you need to amend your bylaws or special rules of order and bring the law in-house.  Oh...and make sure you conduct another review when the 12 edition comes out, just in case.

I already have a number of clients who switched to other parliamentary authorities in recent years.  This isn't going to make the remaining ones happy.

The following is excerpted from the General Discussion of the new informal FAQ concerning electronic meetings during this time of Covid-19. I'm bringing it here because that discussion raised an  issue that I think merits advanced discussion and I don't want to detour the FAQ into something beyond its original purpose.

During the FAQ discussion, it was alleged that having a provision in the Bylaws that adopts RONR as the parliamentary authority,  incorporates "all of it [RONR] into the bylaws by reference, just as if it were copied into the Parliamentary Authority article in full." I don't find any authority in RONR for that proposition and think it an unwise proposition.  I also think it inconsistent with the following language in RONR p.13 ll. 8-11 "...bylaws...contain [the society's] own basic rules relating principally to itself as an organization, rather than to the parliamentary procedure which it follows." 

While some of my comments were perhaps a bit flippant, here is one practical consequence that I offered: California nonprofit corporation code section 5513 states the following: "...unless prohibited in ... the bylaws any action which may be taken at any regular or special meeting of members may be taken without a meeting if the corporation distributes a written ballot to every member entitled to vote on the matter."  The language in RONR on p. 97 clearly states that "except as authorized in the bylaws" the business of an organization can only be validly transacted at a properly called meeting."  Does that restriction in RONR mean that California nonprofit organizations using RONR as their parliamentary authority are prohibited from taking action by mail ballot?  [Needless to say, there are numerous other laws with similar bylaw-referent language throughout CA and the U.S.]

So, here's the crux of the issue :  when a state, federal, or local law has language such as "unless prohibited by the bylaws"  or "if authorized in the bylaws", are those conditions satisfied when 1) the bylaws are silent; but 2) the bylaws adopt RONR as the parliamentary authority, and 3) RONR has an applicable rule.  I am not asking for a legal opinion or your thoughts on how a court might respond. I am only asking how you think RONR is properly applied.

However you answer that question, would your answer be any different if you were responding to an organizations that designates RONR as its parliamentary authority, but does so in its Standing Rules, and not their Bylaws?

Thx

It may also make a difference whether your Association is incorporated or not.  If so, many states provide that Directors remain in office until their successors have been elected.  Some say "unless the bylaws provide otherwise", but many have it as an absolute rule.  Similarly, many states permit virtual meetings via zoom or other teleconferencing method even if not provided for in your bylaws.  if this is a viable option, and your numbers aren't too large, my suggestion would be to hold a virtual meeting instead of email -- possibly for the sole purpose of calling to order and accepting nominations.  That would enable you to comply with the requirement that the annual meeting be held.  And, if you are lucky, you may have some positions with only a single candidate -- you can declare them elected by acclamation unless your bylaws require a ballot vote even when only a single candidate. Finally, many state corp codes that permit email voting have strict requirements for prior consent from each member before email can be used; if you haven't prepared for it in advance, it might not be a viable option.

Thx both.  I've worked with both products in small meeting situations -- gotomeeting is probably the more robust of the two.  I'll continue my exploration and repost if I find anything worth sharing.

Many associations are now cancelling or postponing their annual meetings -- while others are trying online meeting software like gotomeeting or zoom.  Those can  work for small boards and committees -- but are they practical for a meeting with several hundred members or more?  gotomeeting and zoom can handle basic agenda, giving reports, even making main motions.  They break down with debate, amendments, and anything having to do with order of precedence.  Assuming governing documents or state laws permit electronic meetings, is anyone familiar with any software that can accommodate those intricacies?  Not looking for perfection, just a fighting chance.

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? 

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

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. 

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

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.

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?

"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.  

I would like to comment on one of Mr. Martin's comments to my earlier comment.....

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.   

"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.  

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.

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

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.

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?

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?

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.

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.

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.

Thanks for the input...

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?

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.'