Reversal of Board of Director's Decision

[Chris Harrison]

I would argue that a contract is a legally binding agreement and a motion to violate it would be out of order since motions of an illegal nature cannot be considered.

That is not true (and I would request a RONR citation supporting your position). There is nothing in RONR that would make a motion to breach a contract out of order (and I would vigorously Appeal any ruling that stated that it was). Members are free to argue in debate of all the evil things that may or would happen if the contract is breached but the motion itself is perfectly valid. It is no different than a '50's era organization advocating for civil rights making and adopting a motion to stage a sit-in or violating any other Jim Crow law. While taking whatever action the motion proposes might be illegal there was nothing in RONR that makes that motion out of order on its face.

[Chris Harrison]

This will be the basis for my opinion tomorrow night. There seems to be a couple sets of mindsets on this particular topic. I won't profess to be able to read people's intent, but yes, absolutely, I believe the board had the right to do what they did <which no one seems to disagree with> and I believe AFTER reading all of the great discussion here, that the membership cannot undo a contract, whether verbal or written, 2 months after someone has been hired for a specific fee, for specific hours, to perform a specific job. I am sorry if some believe I am wrong to feel the membership cannot undo a verbal contract, but it is also obvious to me that others also feel the same way...and they aren't even the OP :)

You can make that argument but there won't be anything in RONR to support your position.

[tctheatc]

This will be the basis for my opinion tomorrow night. There seems to be a couple sets of mindsets on this particular topic. I won't profess to be able to read people's intent, but yes, absolutely, I believe the board had the right to do what they did <which no one seems to disagree with> and.....

Here's where you and I part ways, FWIW. I may not specifically disagree, but I certainly don't know. I've read the cite from your bylaws. It talks about responsibility for properties and grounds, maintenance and operation, or words to that effect (and what the heck does cognizant by membership mean??). Does that include hiring guards? I don't know; that's for your membership to decide. Did their reversal of the decision equal telling the board they overstepped their bounds? I don't know; that's for your membership to decide. Is there a binding contract that will have to be honored, and will the board be specifically liable for it because they overstepped their bounds? I don't know; that's for your membership to decide. Is this matter so important to them that they'll be willing to eat the contract? I don't know; that's for your membership to decide. You get the idea.

My personal opinion, for what that's worth, is that you are assuming the board's authority to make the decision and failing to see that the membership's heartburn with that decision may indicate they don't read that bylaw cite the way you do. You may be hanging your hat on a peg that ain't even in the right room.

[tctheatc]

I would argue that a contract is a legally binding agreement and a motion to violate it would be out of order since motions of an illegal nature cannot be considered.

The applicable cite from RONR says "unless it is too late" to countermand the action, and then gives the existence of a contract as an example. It is not a statement that contracts cannot be undone; it's a statement that an action cannot be reversed if it's too late to reverse the action. When that bridge has been crossed is for an assembly to decide.

I see nothing stopping an assembly from saying "That decision was bogus, and we hereby (according to applicable procedures) overturn it. We don't care about the contract. We will pay it as it is a relatively small amount and this matter is more important to us." In this case, the assembly is deciding/proving that it's not too late to overturn the decision. Or that overturning a decision does not automatically mean an existing contract must be breached. It could even be renegotiated perhaps.

Seems to me far too much focus is being put on the word "contract" as if its existence means all options are out the window, and far too little attention is placed on post #2 which references OI 2006-13. If the assembly countermands the action, they countermand the action. What that means toward an existing contract or work agreement is another matter that hopefully they considered when they made their decision. But I fail to see how the introduction of the word "contract" means the membership has to throw their hands up and wail "all is lost!!"

[Kim Goldsworthy]

I won't profess to be able to read people's intent,

but yes, absolutely,

I believe the board had the right to do what they did <which no one seems to disagree with>

and I believe AFTER reading all of the great discussion here,

that the membership cannot undo a contract, whether verbal or written, 2 months after someone has been hired for a specific fee, for specific hours, to perform a specific job.

FALSE.

The membership is free to vote to go contrary to the board's contract.

The fact that people were hired is immaterial.

The parliamentary situation does not change just because people were hired.

The parliamentary situation is, barring a rule saying otherwise, an organization CAN change its mind, and CAN act contrary to a contract.

That is, the organization is FREE TO PUT ITSELF AT RISK.

If you are asking a question about parliamentary procedure, then the answer has already been given you, several times: If a body CAN enter into or rescind a contract, then it can do so REGARDLESS of how far into the contract (like "two months") the organization already has gone.

So saying, "It's been two months" changes NOTHING in the parliamentary sense.

(If you are asking a legal question, then your answer will likely be different, since a legal answer will involved things like liability and lawsuits, all of which are not part of parliamentary procedure.)

I am sorry if some believe I am wrong to feel the membership cannot undo a verbal contract, but it is also obvious to me that others also feel the same way...and they aren't even the OP :)

To repeat, by default, the general membership is superior to its board, and CAN rescind whatever its board adopts.

Nothing you've cited (your own rules) indicate "exclusivity" of the board's decision-making, only "between meeting" authority, and nothing more.

To repeat, the passage of time does not change the parliamentary situation. -- Two months; Two years; the parliamentary rule does not not change from season to season, from year to year.

[Sean Hunt]

The applicable cite from RONR says "unless it is too late" to countermand the action, and then gives the existence of a contract as an example. It is not a statement that contracts cannot be undone; it's a statement that an action cannot be reversed if it's too late to reverse the action. When that bridge has been crossed is for an assembly to decide.

I disagree; I believe this refers to the well-founded legal principle common to many forms of contract law that a contract is not binding until it has been offered and accepted, and communication of the acceptance is made. If the board offers a contract and it is not accepted, then it is not too late for the assembly to pass a motion withdrawing the offer. If the board resolves to accept a contract but does not communicate this to the other party, it is again not too late. Once the contract has been legally created, however, it is binding.

Interestingly, RONR p. 307 says that one cannot Rescind or Amend Something Previously Adopted something of a contractual nature if the other party has been informed of the resolution; this would arguably prevent a contract offer from being withdrawn, although p. xxi claims that this rule has been eliminated so it's dubious as to whether or not that's simply an oversight.

[Dan Honemann]

"References to federal, state, and local laws are restricted, wherever appropriate, to procedural rules prescribed by such laws, in recognition of the fact that rules of parliamentary procedure are concerned with the process by which a deliberative assembly arrives at a decision, and not with the wisdom, or even legality, of the decision itself. For similar reasons, the rule prohibiting rescission of a motion which is in the nature of a contract has been eliminated." (RONR, 10th ed., p. xxi).

[tctheatc]

Yeah, and I think the situations you list/describe would be some of the factors an assembly would have to consider in deciding if it's too late.

[Gary Novosielski]

This will be the basis for my opinion tomorrow night. There seems to be a couple sets of mindsets on this particular topic. I won't profess to be able to read people's intent, but yes, absolutely, I believe the board had the right to do what they did <which no one seems to disagree with> and I believe AFTER reading all of the great discussion here, that the membership cannot undo a contract, whether verbal or written, 2 months after someone has been hired for a specific fee, for specific hours, to perform a specific job. I am sorry if some believe I am wrong to feel the membership cannot undo a verbal contract, but it is also obvious to me that others also feel the same way...and they aren't even the OP :)

Then your answer will be based upon your own prejudices and nothing in RONR. Your resignation as parliamentarian should be demanded.

[Gary c Tesser]

Then your answer will be based upon your own prejudices and nothing in RONR. Your resignation as parliamentarian should be demanded.

Gary (the junior), that's kinda harsh, as is, I will say, your earlier assertion of bias on the part of the OP. (Please "Assume Good Faith") While it looks as though eb7417 (whyever would a mommy name a kid that? What's wrong with George or Gary or JJ or eb74-22 or other downhome American names?) prefers one answer, he (or she) looks to me to be open-mindedly willing to be convinced.

But I will agree: eb#### (I forget the spelling), I"d suggest that your opinion as parliamentarian, when you give it to the assembly, reflect the controversy. I think nobody who posted has himself* decided absolutely, and I don't think you can, either.

Kim: How do you propose to refute the p. 466 argument?

scshunt: Well-founded legal principles, or even waterlogged foundering legal principles, don't apply to parliamentary law. That's why we say, Don't talk to me, see a lawyer.

And I hate to look like scshunt's badger again, but p. 307 deals with the motion to Reconsider, not R/ASPA. Not that I understand why one and not the other, I'll concede (except that around December 2006, I suggested that, yes, one of those references to a contract was an obsolete oversight -- p. 307 or p. 466, I don't remember which -- and A Grouchy One acknowledged it, I bet it was p. 466, based on Mr Honemann's citation in Post 32 here).

And tc, I don't follow your argument. If a thing is an example of what cannot be done, it seems to me that it is a thing that cannot be done. I don't see the flaw in that logical argument. But I think (not only because I'm sucking up) that Shmuel Gerber made the point that I think you want.

__________

* O where is she?

[Sean Hunt]

Yeah, I've been corrected. The action was legal.

[Gary Novosielski]

Yeah, I've been corrected. The action was legal.

Well, now, it might NOT have been legal. But the point is it was proper procedure.

Societies of thoughtful, committed people must have at their disposal a means to break the law, when breaking the law is the right thing to do.

[Gary c Tesser]

Well, now, it might NOT have been legal. But the point is it was proper procedure.

Societies of thoughtful, committed people must have at their disposal a means to break the law, when breaking the law is the right thing to do.

Or even, as with my biker gang, my zombie-eating club, or the orchid fanciers' society, when it's the wrong thing to do.

[Gary Novosielski]

Or even, as with my biker gang, my zombie-eating club, or the orchid fanciers' society, when it's the wrong thing to do.

Yes, that too, but I think that does serve as a somewhat thinner justification.

[Josh Martin]

This will be the basis for my opinion tomorrow night. There seems to be a couple sets of mindsets on this particular topic. I won't profess to be able to read people's intent, but yes, absolutely, I believe the board had the right to do what they did <which no one seems to disagree with> and I believe AFTER reading all of the great discussion here, that the membership cannot undo a contract, whether verbal or written, 2 months after someone has been hired for a specific fee, for specific hours, to perform a specific job. I am sorry if some believe I am wrong to feel the membership cannot undo a verbal contract, but it is also obvious to me that others also feel the same way...and they aren't even the OP :)

Well, I think the most important takeaway from this far-ranging discussion at this point is that, whether or not the membership's action was proper, only the general membership can fix its own mess. The board does not have the authority to either rescind or declare null and void a motion adopted by the general membership. A special meeting of the general membership should be called as soon as possible, and then all this can be sorted out.

I think the other important takeaway is that the society might need to consult a lawyer since, despite this forum's best efforts to argue the issue, the society's problems are more legal than parliamentary. This often becomes the case whenever the word "contract" gets involved.