Bylaws violation longish

[Guest Linda S]

I have a question about how to handle an issue that came up recently in a club meeting.

 

In May of 2014 a membership application was voted on. The Bylaws of the club call for the member to attend two meetings prior to applying to membership. They can then apply for membership with two club members in good standing signing the application as sponsors. They must then attend two meetings after the application is submitted. At the first meeting the application is "read-in" to the membership, and at the second meeting they are required to be there (with their sponsors present for this meeting). The intent is that the members can ask questions of the applicant, and then the applicant is excused and the members discuss the application amonst themselves (this has been the club practice for more than two years). The applicant met all of the requirements (attending two meetings prior to application, acquiring two sponsors, attending two meetings, the second one with the sponsors present. The bylaws call for a secret ballot and the requirement is that there be a quorum and two-thirds (2/3) of the members present and voting approve the application.

 

All of those requirements were met and the application was rejected because there was not a two third majority in favor of the application. The applicant was notified by postal mail and was told that she was eligible to reapply for membership in six months.

 

At the next club meeting a largely different group of club members very loudly objected to the rejection of the applicant (applicant was present at the meeting). They insisted that a second vote be taken THAT DAY. The club president pointed out that this would be a violation of the club bylaws, in that it did not follow the application procedure laid out in the bylaws, that she was eligible to reapply in what was then four months (two months had elapsed since the first vote) and that one of the sponsors of the applicant was not present, which is required according to the bylaws. Another club member that was present at the second meeting volunteered to be a sponsor and signed the application form as a sponsor. Again the president pointed out that this was not in accordance with the club bylaws but he was shouted down by the group supporting the applicant (who had arranged all of this in advance).

 

One very loud and bullying member made a motion that a vote be taken that day on the application. The premise of the motion was that the first vote (taken in May) was invalid because the names of the tellers that counted the ballots were not recorded in the minutes (there is no requirement in the bylaws that tellers be named or that their names be recorded in the minutes). The president struggled with the motion mightily but wa not aware that he could refuse to accept the motion because it was in violation of the bylaws. The motion was seconded and the vote took place that day with the applicant this time being voted in (with two members of the board of directors voting in favor of the motion even though they had been reminded repeatedly that this was a violation of the club bylaws.

 

After discussion the following day with a parliamentarian he became aware that he had an option that he had failed to use. The suggestion was made that the board meet to vote to invalidate the second vote based on the fact that it was a violation of the bylaws. He called a board meeting. Three board members expressed a desire to just move on and accept the second vote. The president asked them to first affirm that the first vote (taken in May) was, indeed, a valid vote. That passed unanimously, after some discussion. The president pointed out that there was another option, that would be to invalidate the second vote, send a gracious letter to the applicant, noting that she could reapply in (now) four months, since two months had elapsed. A majority of the board (five members total) took a voice vote, each member being called on specifically for their vote, and the majority voted to accept the second vote as valid. The president did not vote as he was running the meeting and it was a voice vote.

 

So now, there are two conflicting, supposedly valid votes, which were voted on by membership groups that had very little overlap, i.e, many members present for the first vote were not present for the second vote (had there been prior notice of the second vote the membership group most likely would have changed substantially, but that is speculation).

 

The parliamentarian that has been advising the president (informally) has stated that because the club violated the bylaws and set a new precedent for membership, that all membership application rules are voided and any requirements for membership and applications processes are voided.

 

This is quite a small club (about 14 voting members) and the board members voting in favor of validating the second vote expressed their interest in not offending the applicant, who had been a club member previously and had resigned from the club by not renewing her membership three years ago.

 

Is there a remedy for this situation that deals not only with the bylaws issues but also the personal issues (the need for comity in the club)? The parliamentarian suggest that the president bring this back to the membership pointing out that to protect the status of the (now) new member, the club needs to follow the processes in the bylaws, asking her to reapply in six months for her own protection as a member in good standing. The parliamentarian points out that any time the new member exercises any membership privilege, such as voting or running for office, any other member can challenge her standing in the club.

 

Sorry this is so long, but we do need solutions as to how to move on, keep the wheels on the club and still protect the club bylaws and membership processes. There are certain reasons (business reasons) that being a member of this club has advantages in the small business area that we are all in. If the membership process is voided by these actions I am told that anyone can apply on any given day and a vote can be made as to their application. That is, all comers are welcome to apply, there is no notice given as to when someone might apply and the membership just takes their chances hoping that no bad actors are let in.

 

Help is needed, but again there is a strong feeling amongst about half of the members and the majority of the board that the club should just ignore this and move on. What are the risks?

 

Thanks for reading this, looking forward to your comments.

 

 

 

[Timothy]

Any action that is taken that conflicts with the bylaws is null and void. (pg. 251)

[Edgar Guest]

The parliamentarian that has been advising the president (informally) has stated that because the club violated the bylaws and set a new precedent for membership, that all membership application rules are voided and any requirements for membership and applications processes are voided.

 

That's absurd.

[Guest Guest]

The argument that was made was that precedents reign supreme, citing the Supreme Court and the Constitution of the US. The counter argument, it seems to me (not a lawyer) is that any good lawyer would argue that there may be a precedent but that not all situations are equal. JMO.

 

Still trying to find a way out of this hole.

[Edgar Guest]

The argument that was made was that precedents reign supreme, citing the Supreme Court and the Constitution of the US. 

 

Still absurd.

[Josh Martin]

Help is needed, but again there is a strong feeling amongst about half of the members and the majority of the board that the club should just ignore this and move on. What are the risks?

 

Thanks for reading this, looking forward to your comments.

 

Okay, a couple of thoughts...

• It was improper for the President to suggest that the board invalidate the decision of the membership. A decision of the membership can only be invalidated at a meeting of the membership. The President could have made such a ruling at the next membership meeting (and still can). I would note, however, that this isn't quite a silver bullet, and it's probably no loss that the President forgot about it at the meeting which was flooded by members in support of the applicant. The President's decision may be overturned on Appeal by majority vote. It is ultimately up to the assembly itself to enforce its rules.

   

• The rules in the bylaws on this subject remain in force and will continue to remain in force unless and until they are amended, notwithstanding that the society has improperly ignored them in a particular case. The parliamentarian's claims to the contrary are absolute nonsense.

   

• On the other hand, the parliamentarian is absolutely correct that, since this is a continuing breach, members are free to challenge this decision... even years later. So there's the risks you were asking about. (If you have any especially litigious members who are upset about the decision, then you may have other risks that you should consult a lawyer about).

   

• There is no rule in RONR that the names of the tellers be recorded in the minutes, so the basis for challenging the validity of the first vote was nonsense.

So, with all that said, the best way to balance the needs of following the rules and promoting comity within the organization would probably be to amend the bylaws to make it easier to reapply, agree to admit this member (properly) under the new rules, and move on.

 

The argument that was made was that precedents reign supreme, citing the Supreme Court and the Constitution of the US. The counter argument, it seems to me (not a lawyer) is that any good lawyer would argue that there may be a precedent but that not all situations are equal. JMO.

 

Still trying to find a way out of this hole.

 

Well, I think my first counter argument would be that your organization is not the Supreme Court and that the common parliamentary law and U.S. constitutional law are not quite the same thing.

 

After that, you can clarify the following points to shoot down the "precedents reign supreme" argument in the context of RONR.

 

For starters, there is no actual precedent on this subject yet. A precedent, in parliamentary terms, is created by a ruling of the chair and by any subsequent appeal. Neither of these things has yet occurred. Therefore, all you have right now is a custom, and RONR provides that "if a customary practice is or becomes in conflict with the parliamentary authority or any written rule, and a Point of Order (23) citing the conflict is raised at any time, the custom falls to the ground, and the conflicting provision in the parliamentary authority or written rule must thereafter be complied with. If it is then desired to follow the former practice, a special rule of order (or, in appropriate circumstances, a standing rule or a bylaw provision) can be added or amended to incorporate it." (RONR, 11th ed., pg. 19)

 

Even supposing there was a precedent on the subject, precedent is used to interpret ambiguous provisions in the rules, not to ignore the rules. Precedent in RONR is a guide, not a binding rule, so incorrect precedents can and should be changed. Lastly, as you note, "not all situations are equal." Each circumstance must be evaluated on its own merits to determine whether a precedent applies.

 

RONR has the following to say on precedent: "The minutes include the reasons given by the chair for his or her ruling (see p. 470, ll. 15–17). The ruling and its rationale serve as a precedent for future reference by the chair and the assembly, unless overturned on appeal, the result of which is also recorded in the minutes and may create a contrary precedent. When similar issues arise in the future, such precedents are persuasive in resolving them—that is, they carry weight in the absence of overriding reasons for following a different course—but they are not binding on the chair or the assembly. The weight given to precedent increases with the number of times the same or similar rulings have been repeated and with the length of time during which the assembly has consistently adhered to them. 

 

If an assembly is or becomes dissatisfied with a precedent, it may be overruled, in whole or in part, by a later ruling of the chair or a decision of the assembly in an appeal in a similar situation, which will then create a new precedent. Alternatively, adoption, rescission, or amendment (35) of a bylaw provision, special rule of order, standing rule, or other motion may alter the rule or policy on which the unsatisfactory precedent was based." (RONR, 11th ed., pgs. 251-252)