Shmuel Gerber

On 6/8/2023 at 2:02 PM, Guest GuestAlex said:

CHARGE 2.  Violation of Facility Rules.

SPECIFICATION 2.1  That Mr. N, in performance of activity X on date Y1, failed to lock the gate of Z (rule A.B.C).

SPECIFICATION 2.2  That Mr. N, in performance of activity X on date Y2, spat on the sidewalk (rule A.D.E).

Earlier you said that the statement in your bylaws regarding the board dismissing a member "is the one and only statement in the entirety of the Bylaws addressing any matter of discipline whatsoever."

But now you seem to be saying that it would be appropriate to bring a charge before the board for "violation of facility rules". This implies that the board has some jurisdiction regarding enforcement of facility rules.

Which one of these is correct? 

On 6/4/2023 at 9:47 PM, Ray B said:

Is there any prohibition express or implied barring the calling of a special meeting in executive session when a majority agrees at the time the meeting is called?  It has been asserted that executive session can only be declared after an approved motion, and is prohibited at the time of calling the meeting.

It's not clear to me how the special meeting is being called. Is the assembly itself at one meeting deciding to call a special meeting? Or are you trying to get a majority to agree outside of a meeting (e.g. by email) that a special meeting called by some other persons (e.g. the president or a number of members requesting it) will be held in executive session? 

On 6/8/2023 at 10:20 AM, Gary Novosielski said:

The call must specifically describe the business to be conducted in the special meeting, which may conflict with the need for secrecy. I know of no method to issue a call for a meeting so that the call itself is secret.

Matters discussed during an executive session are not secret from the members of the body that is meeting. 

On 6/8/2023 at 11:46 AM, Guest GuestAlex said:

There are approved sets of rules governing use of the organization's facilities.  The investigation involves misuse of those facilities for reasons that can certainly be construed as detrimental.  If, however, 2/3rds of the entire Board does not agree with that conclusion, then the fact remains that there will still be investigated, documented rules violations that, on their own, might be worthy of censure, suspension, or some lesser discipline.

Lesser discipline, perhaps. You're still not talking about lesser charges. You're talking about imposing a lesser penalty for the same charge. 

On 6/8/2023 at 9:51 AM, Guest GuestAlex said:

The investigation report may also result in other charges with their own specifications.  If only these lesser charges result, or if the greater charge fails (based on the motion to dismiss failing or there not being a 2/3 vote to dismiss at trial), then the question remains of what punishment applies to these non-dismissable charges.  That is the basis for the continuing discussion above.

Again it seems to me that you are conflating two things.

If the board finds the member guilty of "conduct detrimental to the objectives of The Association" but there is less than a 2/3 vote to dismiss the member (or actually a vote of two-thirds of the entire Board, which is not the same as a 2/3 vote), then maybe you have a question whether the board can suggest some lesser punishment to the membership.

But I still don't quite understand what lesser charge you think can be brought if the member was found not to have engaged in conduct detrimental to the objectives of the association. Conduct only slightly beneficial to the objectives of the association?

On 6/8/2023 at 9:55 AM, Gary Novosielski said:

So, in effect the membership is being asked to decide a question without being fully informed of the consequences of that decision. 

If they vote to accept, and later learn the relevant facts, they may feel that they were manipulated by the board, and I'd be unlikely to disagree with them.

You make a good point. 

On 6/7/2023 at 2:01 PM, Guest GuestAlex said:

Our Bylaws provide that the Board can vote to dismiss for "conduct detrimental to the organization".  I would agree that, if a charge of conduct detrimental to the organization is preferred, then the motion to punish may not be less than dismissal.  What I think is relevant is that lesser charges may be included in the recommendation from the investigation.

If at that point the subject has not been dismissed on the major charge, how should punishment of the lesser charges be handled?  The competing arguments seem to be that either (1) lesser punishment is not given explicitly to the Board in the Bylaws, so it remains with Membership, or (2) authority for lesser punishment is implicitly included with the authority for dismissal.

The argument for the latter might be made with Principle #5: "A provision granting certain privileges carries with it a right to a part of the priviliges [...]"

You seem to be confusing a charge for a lesser offence with a lesser punishment for a given offense. You also may be confusing a charge (a statement of "an offense—that is, a particular kind of act or conduct that entails liability to penalty under the governing rules—of which the accused is alleged to be guilty") with a specification (a statement of "what the accused is alleged to have done which, if true, constitutes an instance of the offense indicated in the charge") RONR 63:24.

According to what you've posted, the board simply has the power to dismiss a member for "conduct detrimental to the organization." If nothing that the member is suspected or accused of rises to this level, then the board has no power to bring any charge at all. Of course, I haven't read your bylaws, and for some reason you refuse to quote even the relevant provisions.

You say you "would agree that, if a charge of conduct detrimental to the organization is preferred, then the motion to punish may not be less than dismissal." Well, if your organization agrees with that as well, then it would seem there is nothing left for the board to do if no such charge is made.

On 6/7/2023 at 9:15 AM, Josh Martin said:

The alternative argument would be that if the board has authority to expel a member, it also has the authority to impose lesser penalties. Ultimately, it will be up to the organization to interpret its own bylaws, and it may be advisable in the long run to amend the bylaws for clarity in this matter. The Principles of Interpretation found in RONR (12th ed.) 56:68 may be of assistance in this regard.

What about Principle #7?

"The imposition of a definite penalty for a particular action prohibits the increase or diminution of the penalty. If the bylaws state that a member shall be dropped from membership on a board if he misses three consecutive regular meetings of the board, he cannot be retained by vote of the board, nor can more severe penalties be imposed, such as a fine in addition. If, for example, it is desired to allow the board to diminish or waive the penalty, or increase it, the bylaw must not make it definite or must specifically provide for diminution, waiver, or enlargement."

On 6/6/2023 at 2:50 PM, Josh Martin said:

In my view, the body which is empowered to expel the member would have the authority to accept the resignation.

In the event that only the general membership has the authority to accept the resignation, it will certainly be rather complicated for the membership to determine this matter since the members are not privy to all facts of the case, but that does not change the rules.

I concur with Mr. Novosielski that it is appropriate to, at a minimum, share with the membership the fact that this person is under investigation.

The board can agree that if the member resigns, further disciplinary investigation will be dropped. I see no need for the board to inform the membership of charges that are not being brought, when the whole purpose of the resignation is to avoid the embarrassment of expulsion. 

On 6/3/2023 at 4:07 PM, EricS said:

 

On 6/3/2023 at 3:51 PM, Joshua Katz said:

Well, minutes without a meeting seems suspect to me. But, as I mentioned, the minutes of the following meeting could include a list of things adopted by "unanimous consent." Of course, I'm taking your lawyer's word for it that you can do that in the first place.

Doing this would require the EC to actually meet, and we have no reason to meet other than this requirement. Which is why I was thinking originally that I just need to have one EC meeting per year and record all the queued-up EC decisions in the minutes of that meeting, so there's something in our minutes book.

A reason to meet would be if any member of the executive committee disagrees with a proposed action. The purpose of having a committee or board instead of one officer make these decisions is to have the benefit of more than one person's opinion, not to rubberstamp every action ever proposed. 

The rule in RONR (12th ed.) 24:3 states, "when the chair rules on a question about which there cannot possibly be two reasonable opinions, an appeal would be dilatory and is not allowed."

A member may appeal from the decision of the chair even if the decision is based on a rule, if the member disagrees with how the rule should be interpreted and applied to the particular situation. 

On 5/26/2023 at 2:39 PM, Rob Elsman said:

Based on the facts provided, Mr. A appears qualified to make the motion to reconsider both the main motion and the subsidiary motion, Amend, since he voted with the prevailing side on the first motion to be reconsidered, Amend.

After the motion to reconsider the subsidiary motion, Amend, has been adopted, it is in exactly the same position it was in right before the vote on it was originally taken.

This second paragraph is confusing because, as you say in the first paragraph, there should not be a motion to reconsider the vote on the motion to Amend, but rather a motion to reconsider the votes on both the main motion and the amendment. 

This is getting well beyond the scope of the forum. @FreedomThroughRules If there is anything from your last post that you want to save, please do so right away because pretty soon it will probably be deleted. 

On 5/24/2023 at 2:45 PM, FreedomThroughRules said:

Funny that you mention this. The current language, adopted by the state convention delegates in 2007 now reads as follows.
 

This Constitution, the Party Bylaws, and Robert’s Rules of Order Current Edition are the exclusive governing rules of the ___ Party.

Then what the [bleep] have we been talking about for the past 20+ responses? 

On 5/22/2023 at 4:46 PM, Guest FreedomThroughRules said:

In the preamble of the constitution is the following sentence: 

The party's Constitution and Bylaws are the exclusive rules of the organization.

On 5/24/2023 at 4:32 AM, Guest FreedomThroughRules said:

Here's the actual wording from Article XIII of the party's constitution: Sorry for the error.

The rules contained in the current edition of Robert’s Rules of Order shall govern all meetings of the Party unless contrary to the Party Constitution and Bylaws and any special rules of order the Party may adopt.

If the Constitution makes no mention of standing rules, then I would tend to agree that no standing rules can be adopted. But it does provide for rules of parliamentary procedure (Robert's Rules of Order and special rules of order), so I don't think many will be persuaded that the provision has no effect. 

On 5/23/2023 at 7:19 PM, Joshua Katz said:

By itself, I don't find this sort of thing very persuasive, but that's because I'm a textualist/originalist.

Haven't you heard? We're all textualists now. 

On 5/23/2023 at 8:17 PM, Guest Mary Lynn said:

Sorry.  My computer stated an error had occurred so I didn't think the post went through.

The explanation has been given on numerous levels of trying to explain to the Chair that 44:13 doesn't apply in this situation and that he only gets one vote.  This matter has become so contentious that they are trying to remove the Vice Chair and one State Committee Member for not following the rules.  As our State Election Laws require that if a vote fails, then the State Election Board shall ultimately appoint the Nominee.  The Chair and SC Member did not agree and still believe that the Chair had the tie breaking vote through 44:13.

Thank you for your help.

The text of 44:13, "In an appeal from the decision of the chair, a tie vote sustains the chair’s decision, even though his vote created the tie, on the principle that the decision of the chair can be reversed only by a majority." refers specifically to the motion known as Appeal, as discussed in §24 (see especially 24:3(7)). It has nothing to do with how the chair decides to vote on some substantive question. That is a vote of the chair, not a decision of the chair. 

On 5/23/2023 at 8:54 AM, Atul Kapur said:

On 5/22/2023 at 10:31 PM, Tomm said:

Perhaps some members may agree with the 500 and decide not to attend the meeting, but if the amendment suddenly changed to 800 they may have objected and would want to attend the meeting to debate against the 800.

Expand  

Then they should have attended the meeting. 

That's true under the rules in RONR. But I can see why it may not be self-evident in all cases.

For example, suppose the annual dues are currently $100 and notice is given of a motion to amend the amount to $10, with the rationale that the organization should charge only minimal dues to broaden the membership and should raise the needed funds by other means. There may be many members who are perfectly OK with adopting such an amendment, but would be adamantly opposed to reducing the dues to $90, which would neither encourage much new membership nor provide the funds needed to run the organization. If such members think that this amendment exceeds the scope of notice, they would be wrong but not illogical. 

On 5/23/2023 at 4:10 PM, Dan Honemann said:

Now that you remind me of all this I do recall that, as Mr. Martin mentioned, we have had a previous discussion here in this forum concerning this question in which, I believe, this same argument was raised based upon 21:14 and Table II, No. 3. Perhaps you or Mr. Martin can find it.

I don't recall that discussion (which of course doesn't prevent anyone from finding it if it exists), but I think I do recall a fairly recent disagreement over whether it takes a 2/3 vote to adopt an agenda setting a time for adjournment at a meeting with a pre-existing order of business, as would be required to adopt an agenda setting a special order. My contention is that a majority vote is sufficient to set the time for adjournment.

In short, I'm saying that to schedule a time to adjourn takes a majority vote; the assembly can then adjourn earlier by majority vote (at the time that it wants to adjourn, although not while other business is pending), but it will take more than a majority vote to delay the time for adjournment.

On 5/23/2023 at 2:29 PM, Guest FreedomThroughRules said:

That being the case, I find it absurd to claim that the language in Article XIII is more SPECIFIC than the language in the preamble, which is VERY specific.

By that logic, the entire article specifying the parliamentary authority should be ignored.

On 5/23/2023 at 2:29 PM, Guest FreedomThroughRules said:

why have a level playing filed when you can pass a standing rule that says that you can ignore the protections in the constitution for grassroots control of the conventions, a standing rule that the delegates have no power to rescind

As Mr. Martin has already noted, in any organization the Constitution supersedes any conflicting provisions of adopted standing rules. 

On 5/23/2023 at 3:21 PM, Bruce Lages said:

Now I'm curious as to why, if, as you say, the vote requirement would be the same for a single meeting session, the inclusion of that lengthy conditional clause describing the type of meeting or session at the beginning of the first sentence, as well as the wording "if such a meeting..." in the bolded sentence was felt to be necessary.

Because the paragraph is dealing principally with adjourning without a motion, and this case is distinguished from what is treated in the next paragraph:

"21:15 When it appears that there is no further business in a meeting of an ordinary local society that normally goes through a complete order of business (41) at each regular meeting (9), the chair, instead of waiting or calling for a motion to adjourn, can ask, “Is there any further business?” If there is no response, the chair can then say, “Since there is no further business, the meeting is adjourned.”"

By the way, I think the bolded sentence in my reply above was added in the 10th edition, but I'm too lazy to check right now. 

According to Table II, No. 3, a motion to adjourn in advance of a time already set requires (only) a majority vote.

I think the book is pretty clear about the fact that the adoption of an agenda or program does not mean that adjourning earlier will require more than a majority vote:

"21:14 Cases Where the Assembly Can Adjourn Without a Motion. If an hour for adjourning a meeting within a convention or other session of more than one meeting has been scheduled—either in an agenda or program or by the adoption of a motion setting a time—no motion to adjourn is necessary when that hour arrives. The chair simply announces the fact and declares the meeting adjourned, as described for a recess in 20:6. If the assembly does not then wish to adjourn, the matter is handled as a case of setting aside the orders of the day, as explained in 18:8 (see also 41:56). If such a meeting wishes to adjourn earlier, it is done by a main motion, which, however, can be adopted by a majority vote (see 21:3). …"

I don't see any rule that would make the vote requirement different from a majority in a session consisting of a single meeting.

The only scenario I could think of where more than a majority vote would be required to adjourn is if it is desired to fix, in advance, a different time for adjourning than the time that has been previously set. In that case, the assembly is not attempting to adjourn immediately, which would require only a majority vote, but is instead attempting to amend something previously adopted, which in the case of an adopted agenda requires either a 2/3 vote or the vote of a majority of the entire membership. 

The rules in RONR generally assume that there is a whole number of members, each of whom is entitled to cast one vote (if present at the time of the vote).

"Majority of the voting power" could indicate that multiple or fractional votes are possible. 

On 5/17/2023 at 9:02 AM, Josh Martin said:

The 12th edition does not use page numbers anymore

This is news to me. 😀