bylaw-subcommittee rule conflict

[Guest fiona]

Non profit corp. president has authority to be ex officio member and have voting priviledge on all committees. There is a sub committee of the board of directors, this sub committee serves subject to the control of the board of directors and has "basic rules of operation." 5 members are to vote on this sub committee including the vice pres and 3 general members and 1 other representative. They will not allow the president to vote because it would break the 5 member rule. Do by laws supercede rules of operation?

[Josh Martin]

Do by laws supercede rules of operation?

Yes.

[Guest fiona]

Yes.

So does the president as ex officio voting member of all committees have the authority to be a member of a committee that states it has 5 members, ie be the 6th member? Would the president be an additional member or bump someone off the committee?

[George Mervosh]

We can't interpret your bylaws here......but it's safe to say that if someone is a voting member of all committees because the bylaws say they are.....their right to vote can't be taken away except by amending the bylaws.

[tctheatc]

So does the president as ex officio voting member of all committees have the authority to be a member of a committee that states it has 5 members, ie be the 6th member? Would the president be an additional member or bump someone off the committee?

Let me answer a question with a question: if a committee has FIVE members, how could there be a SIXTH?

[Kim Goldsworthy]

... president has authority to be ex officio member

and has voting privileges on all committees.

OK. If you say so.

May I assume your bylaws contain this rule? -- Or is this your assumption about Robert's Rules of Order?

There is a sub committee of the board of directors, this sub committee serves subject to the control of the board of directors and has "basic rules of operation."

5 members are to vote on this sub committee including the vice pres and 3 general members and 1 other representative.

They will not allow the president to vote because it would break the 5 member rule.

Whoa!

What "Five member rule"?

Do you have a 5-member rule?

There is no such rule in Robert's Rules of Order.

Do by laws supersede rules of operation?

Yes.

If your "rules of operation" (whatever that is) conflicts with your bylaws, then the bylaws prevail, and the rules of operation yields.

If your bylaws place the president on all committees, then whatever "rule of 5" you have must account for the superior rule placing your president on whatever committee is subject to your "rule of 5".

Whether there is a true conflict, or only an apparent conflict, and whether the "rule of 5" is correctly written in accord with your bylaws, is all for you to decide. -- Don't ask us, "Does our Rule-Of-Five conflict with our bylaws?"

E.g., how do you know your president truly sits ex officio on all committees?

(There is NO SUCH RULE in Robert's Rules of Order.)

E.g., what made you think the president didn't sit on your "sub committee"?

(What made your subcommittee think that the rule in the bylaws may be ignored in their case?)

[David A Foulkes]

So does the president as ex officio voting member of all committees have the authority to be a member of a committee that states it has 5 members, ie be the 6th member? Would the president be an additional member or bump someone off the committee?

Generally speaking, when the president is ex-officio (Latin for "by virtue of office or position") a member of a committee, that means he is also a member of the committee because of the office he holds. So, yes he is the "6th" member of this 5-member committee. He is not required to attend any meetings, nor does he count towards the quorum when they meet, but -- he does retain the same rights as all the other members, including the right to vote when he does attend. No one gets bumped off when he shows up. Now, in order for the president to be ex-officio a member of all committees (and RONR says this should not include the nominating committee), this must be in the bylaws. Is it? Is that what you mean by "has the authority"?

[Josh Martin]

So does the president as ex officio voting member of all committees have the authority to be a member of a committee that states it has 5 members, ie be the 6th member? Would the president be an additional member or bump someone off the committee?

Well, in the long run, I would just amend the "Rules of Operation" to be consistent with the Bylaws. In the meantime, the solution that would seem to be consistent with both the Bylaws and the Rules of Operation would be to replace one of the "general members" or the "other representative" with the President, since he presumably could count as either of those things.

So, yes he is the "6th" member of this 5-member committee.

The fact that the President is an ex-officio member does not mean that five equals six.

No one gets bumped off when he shows up.

So you are suggesting that the organization should violate its rules specifying that the committee has only five members?

[Guest Guest]

The Bylaws State the president is a member (ex officio) with voting priviledge on ALL committees. These bylaws talk in general about many things but not that committee in particular. The specific sub-committee has "basic rules of operation" stating 5 members. The uneven number they say was to prevent a tie vote. The sub-committee seems to be going renegade, does want the president to come, certainly not vote (it is not a nominating comittee) they say their Basic Rules of Operation are bylaws. I am thinking: good grief!

[J. J.]

The Bylaws State the president is a member (ex officio) with voting priviledge on ALL committees. These bylaws talk in general about many things but not that committee in particular. The specific sub-committee has "basic rules of operation" stating 5 members. The uneven number they say was to prevent a tie vote. The sub-committee seems to be going renegade, does want the president to come, certainly not vote (it is not a nominating comittee) they say their Basic Rules of Operation are bylaws. I am thinking: good grief!

Unless this "5 member rule" is in the bylaws, the rule that is in the bylaws is controlling.

[Gary Novosielski]

The Bylaws State the president is a member (ex officio) with voting [privilege] on ALL committees. These bylaws talk in general about many things but not that committee in particular. The specific sub-committee has "basic rules of operation" stating 5 members. The uneven number they say was to prevent a tie vote. The sub-committee seems to be going renegade, does want the president to come, certainly not vote (it is not a nominating comittee) they say their Basic Rules of Operation are bylaws. I am thinking: good grief!

It sounds like the sub-committee came up with their own rule, which means nothing when compared to the rule that the president is a member of all committees. Some bylaws provide that he is an "additional" member of all committees, which might be worth considering for your bylaws, as it answers the question about whether he would bump anyone off existing committees if the bylaws established, say, a standing committee "of five".

Every group I can recall interprets that language as meaning that the president's ex-officio membership was "in addition" to the specified number of members on the committee, but it can't hurt to spell it out.

If this rule is not in your bylaws, and was just made up by the people on the sub-committee to keep others out, then it is trumped by the bylaws. If they're so intent on keeping the number to five, they can presumably throw someone else off, but the president is on, and should just start showing up.

Trouble is, subcommittees don't even have the power to throw members out, so you've got yourself a paper tiger there.

[Josh Martin]

The uneven number they say was to prevent a tie vote.

This is a common strategy, but it is misguided for many reasons. Having an odd number of members does not necessarily prevent a tie vote, since some members may be absent or abstain. Furthermore, there is no reason to prevent a tie vote. Except in the case of an election, a tie vote simply means that the motion fails. It's not in some sort of "limbo" as so many societies seem to think, considering the elaborate measures they set up to avoid tie votes and/or provided methods for breaking tie votes.

The sub-committee seems to be going renegade, does want the president to come, certainly not vote (it is not a nominating comittee) they say their Basic Rules of Operation are bylaws. I am thinking: good grief!

If a sub-committee is under the impression that their rules are of equivalent force to the Bylaws and intend to deny a member of the committee the right to attend and vote, I think it's time to replace those committee members. Since the VP is an ex-officio member, he may be tricky to remove, but removing the other four should be relatively simple. Who appointed this committee in the first place?

Unless this "5 member rule" is in the bylaws, the rule that is in the bylaws is controlling.

While I agree that the rule in the Bylaws is controlling, it seems entirely possible to satisfy both rules, by having the President as one of the five members.

It sounds like the sub-committee came up with their own rule, which means nothing when compared to the rule that the president is a member of all committees. Some bylaws provide that he is an "additional" member of all committees, which might be worth considering for your bylaws, as it answers the question about whether he would bump anyone off existing committees if the bylaws established, say, a standing committee "of five".

Every group I can recall interprets that language as meaning that the president's ex-officio membership was "in addition" to the specified number of members on the committee, but it can't hurt to spell it out.

If this rule is not in your bylaws, and was just made up by the people on the sub-committee to keep others out, then it is trumped by the bylaws. If they're so intent on keeping the number to five, they can presumably throw someone else off, but the president is on, and should just start showing up.

Trouble is, subcommittees don't even have the power to throw members out, so you've got yourself a paper tiger there.

I'm still highly troubled by this distortion of the basic rules of mathematics, whether or not it is common in many assemblies. Five members is five members. While I agree that the subcommittee is unlikely to have the power to remove a member, the appointing authority certainly can remove a member - and given the attitude the subcommittee is developing, the appointing authority might want to remove more than one member.

[David A Foulkes]

So you are suggesting that the organization should violate its rules specifying that the committee has only five members?

Perish the thought, but nothing I've read so far (up to this point, or since I last signed off) leads me to the think this "5 member rule" has much to it to fend off a bylaw.

So help a guy out, please. Let's say bylaws make the President ex-officio a member of all committees. Also, at the Annual Meeting, an Audit committee shall be appointed by the President consisting of three members. How many does the President name to the committee? If a motion is adopted to refer a question to a special committee of five members to be appointed by the President, how many members does he name?

Since the VP is an ex-officio member....

I assume you meant the P, not the VP, right?

[Gary Novosielski]

I'm still highly troubled by this distortion of the basic rules of mathematics, whether or not it is common in many assemblies. Five members is five members.

Then you must also be troubled by the fact that the president is not counted (p.440, l. 34) toward (or against) a quorum for such committees. Would you argue that by the rules of mathematics, he must be counted?

Furthermore, he is not obliged to attend meetings and I would suggest that in most societies having that provision, his attendance is rare. If the rule were interpreted as you suggest, committees "of five" would routinely meet with four members and an empty chair.

In my view, saying that the president "is not counted in determining the number required for a quorum" is tantamount to saying that he is not added to the nominal size of the committee--which is used to determine the number required.

Thus, on a "committee of five", the quorum is three. If the president is an ex-officio member of all committees, the quorum is still three, and I would still consider it a committee of five. If two members are at a meeting, waiting for a quorum, and the president comes in, they still do not have a quorum.

This provision affords the president the opportunity to attend and participate in committees but, on occasions when he does not choose to do so, he simply does not "count" at all. If you force all committees routinely to meet short-handed by insisting on counting the president as a (potential) member, it handicaps the committee in precisely the way that the quorum exclusion was intended to prevent.

I don't dispute that your interpretation is reasonable, but I must say I have never run across it in "the wild". I don't think it's an issue of mathematics so much as a matter of nomenclature, not unlike baker's dozen.

While I agree that the subcommittee is unlikely to have the power to remove a member, the appointing authority certainly can remove a member - and given the attitude the subcommittee is developing, the appointing authority might want to remove more than one member.

No question about that.

[Guest fiona]

Yes I too am dazed, confused and it is horribly ruminative. I am not a parliamentarian, I am just the poor sucker in this job--president of a non-profit org. I am told by the subcommittee, thatI may not vote on this subcommittee (they select people to give money to.) I am trying to be accurate in figuring out my position in this and, other than ignoring the whole issue, I am asking you so I and the board can better serve our objectives and be in compliance with our corporate papers. I regret spending what could be creative working time trying to sort out an interpretation like this and I recognize my lack of experience. So I thought people such as yourselves would find a wealth of prior experience to draw on and help me understand. I am sorry I have been about as clear as mud.

What I know:

Bylaws state president "is ex officio (I know what that means too) voting member of all committees." (Clear as day, adopted as an organizational bylaw, no question, but adding the word "ADDITIONAL" would be a brilliant idea.)

At the 1st meeting of the board of directors, 10 yrs ago, after incorporating, the resolution was passed to form a sub committee of the board specifying 5 people to be on that committee: --vice pres. 3 members at large and a community representative. The resolution is entitled "criteria and set up of committee." And, there is an additional document apart from the resolution from the first meeting, "Selection Committee-Basic rules of operation," that restates the resolution. It was set up at the same 1st meeting at which the original board resolved to accept the bylaws but is not a part or an article in the BYLAWS.

The person who states that the president may not be there argues that the comittee rules are "bylaws." He believes that the stipulated 5 members rule of that sub committee of the board means the president may not attend.

The chair of the sub comittee is the VICE president. The chair had been made aware that I would participate last year. 2 days before the meeting this became an issue to the chair and a member at large, who was on the committee.

The sub committee document certainly does not appear to be a part of the documentation of the BYLAWS with its numerous descriptive articles and points of how the organization should operate. The bylaw document was accepted after the articles of incorporation for the state. I see no way that the "committee rules" could be construed as part of the "bylaws." Yet this seemd to be the point used to keep me out of the meeting.

I am not saying that Robert's Rules of Order are saying these things; like president's role or number on committee. I am trying to understand how these items and this problem can be understood by a lay person such as myself, under the democratic notions contained in the rules. And, I really appreciate your thoughts about this. I don't have access to such experience except through you, so please bear with me. Fi

[Gary Novosielski]

I am not saying that Robert's Rules of Order are saying these things; like president's role or number on committee. I am trying to understand how these items and this problem can be understood by a lay person such as myself, under the democratic notions contained in the rules. And, I really appreciate your thoughts about this. I don't have access to such experience except through you, so please bear with me. Fi

Well, we tend to get off on tangents with fine points, but don't let that distract you.

I think we all agree that if you can clearly identify the bylaws document, and the subcommittee rules are separate, that the bylaws trump this rule. If the rule is separate from the bylaws, then it is not in the bylaws. As Lincoln was fond off pointing out, if the tail of a dog were called a leg, a dog would still have four legs. Calling the tail a leg doesn't make it one.

There can be no doubt that if the bylaws say the president is a member of all committees (except, preferably the nominating committee) then the president may attend and vote in this committee. The bylaws supersede any special rules of order even presuming that's what those five-person rules are, and even presuming that they were properly adopted, which is something I'm not convinced of.

Nearly all of us (I think) agree that even with a rule that a committee may not have more than five members, the president is still a voting (additional) member. And those of us who don't agree would, I believe, still hold that if someone has to leave the committee it's not the president, because of the specific language in the bylaws.

So the answer to your question is: You're right. What other questions do you have?

[Guest fiona]

Well, we tend to get off on tangents with fine points, but don't let that distract you.

I think we all agree that if you can clearly identify the bylaws document, and the subcommittee rules are separate, that the bylaws trump this rule. If the rule is separate from the bylaws, then it is not in the bylaws. As Lincoln was fond off pointing out, if the tail of a dog were called a leg, a dog would still have four legs. Calling the tail a leg doesn't make it one.

There can be no doubt that if the bylaws say the president is a member of all committees (except, preferably the nominating committee) then the president may attend and vote in this committee. The bylaws supersede any special rules of order even presuming that's what those five-person rules are, and even presuming that they were properly adopted, which is something I'm not convinced of.

Nearly all of us (I think) agree that even with a rule that a committee may not have more than five members, the president is still a voting (additional) member. And those of us who don't agree would, I believe, still hold that if someone has to leave the committee it's not the president, because of the specific language in the bylaws.

So the answer to your question is: You're right. What other questions do you have?

[Guest fiona]

Thank you Gary.

[Josh Martin]

Perish the thought, but nothing I've read so far (up to this point, or since I last signed off) leads me to the think this "5 member rule" has much to it to fend off a bylaw.

Of course it doesn't. All I'm saying is that it's entirely possible to satisfy both rules, by replacing an existing member with the President.

Let's say bylaws make the President ex-officio a member of all committees. Also, at the Annual Meeting, an Audit committee shall be appointed by the President consisting of three members. How many does the President name to the committee? If a motion is adopted to refer a question to a special committee of five members to be appointed by the President, how many members does he name?

Hm. I suppose I'm willing to concede that the interpretation that the President does not "count" as one of the five may be reasonable, although I still don't much care for it personally.

I assume you meant the P, not the VP, right?

No, I meant the VP. The original poster stated that the rules of operation provide that the committee consists of five members - the VP, three general members, and one "other representative," whatever that means.

Then you must also be troubled by the fact that the president is not counted (p.440, l. 34) toward (or against) a quorum for such committees. Would you argue that by the rules of mathematics, he must be counted?

No, I am not troubled by the rule that the President is not included in a quorum for committees when he serves as an ex-officio member on all committees.

In my view, saying that the president "is not counted in determining the number required for a quorum" is tantamount to saying that he is not added to the nominal size of the committee--which is used to determine the number required.

I think we're just going to have to agree to disagree and leave this issue up to the assembly.

I am told by the subcommittee, thatI may not vote on this subcommittee (they select people to give money to.)

The subcommittee is incorrect.

The person who states that the president may not be there argues that the comittee rules are "bylaws." He believes that the stipulated 5 members rule of that sub committee of the board means the president may not attend.

This is nonsense. The organization has only one set of Bylaws, and it's not the committee's rules. The rule in the real Bylaws trumps the committee's rules. While myself and some of the other members of this forum might disagree on how to resolve this conflict, we all agree that the Bylaws prevail and the President is an ex-officio member of the committee, as the Bylaws provide.

There are, as you suggest, two ways of resolving this conflict until the committee's rules can be clarified. The President can just be the "sixth" member, or the President can replace an existing member. Either interpretation is reasonable, and which to use will be up to the assembly. Frankly, I tend to prefer the replacement strategy, both because I prefer that interpretation and because it seems like some of the committee members should be replaced anyway. The committee seems to have an inflated sense of its own importance.