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Guest Patricia McDougle

Conflict with Client Legal Counsel

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Guest Patricia McDougle

Client bylaws state that “the president shall act as the Chairperson of the Executive Board.” The issue revolves around the admissibility of suspending the rules and removing the chair, albeit temporarily. Referencing Official Robert’s Rules of Order Web Site and Official Interpretation 2006-2, RONR 11th ed., p. 17, ll. 22-25 and p. 652, ll. 3-7 and fn (and others with greater detail) my advice to the client was that a motion to Suspend the Rules and replace the  chair would be in order. However, the client’s legal counsel overruled stating that the bylaws must trump in all cases, no exceptions.  I seek guidance on how to handle this conflict or any similar issue where parliamentary and legal advice might be different.

 

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Client bylaws state that “the president shall act as the Chairperson of the Executive Board.” 

 

my advice to the client was that a motion to Suspend the Rules and replace the  chair would be in order. However, the client’s legal counsel overruled stating that the bylaws must trump in all cases, no exceptions.  I seek guidance on how to handle this conflict or any similar issue where parliamentary and legal advice might be different.

 

This happens all too often with attorneys who know nothing about parliamentary procedure.  Unfortunately, it isn't taught in law schools.... or if so, it is just barely touched on.

 

Important question:  Has your client adopted RONR as its parliamentary authority?  If so (and even if it hasn't), show the attorney the precise language from RONR that you are already aware of.

 

If that fails to convince him, I would suggest obtaining a written opinion on the issue from a professional parliamentarian.... preferably one who is also an attorney.  You can get referrals to credentialed parliamentarians from both NAP (The National Association of Parliamentarians) and AIP (The American Institute of Parliamentarians).   They both have websites.  Just Google the names.  

 

You can also do more online searching to look for credentialed parliamentarians who are also attorneys.  There are quite a few.  By "credentialed parliamentarians", I mean those who have attained the status of "Registered Parliamentarian (RP) or Professional Registered Parliamentarian (PRP) from NAP or "Certified Parliamentarian" (CP) or "Certified Professional Parliamentarian" (CPP) from AIP. 

 

There are a few attorney-parliamentarians who frequent this message board. 

 

Edited to add:  It is important to know what your state's corporation laws have to say on the subject... one area in which your attorney is probably familiar, but which any attorney can also research, though one from out of state may not render advice on what your state's corporation laws provide.  Assuming, of course, that this organization is in fact incorporated. 

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Q1. However, the client’s legal counsel overruled stating that the bylaws must trump in all cases, no exceptions.

Q2. I seek guidance on how to handle this conflict or any similar issue where parliamentary and legal advice might be different.

1.) Legal counsels do not "make rulings." Chairs make rulings.

 

2.) I would clip the relevant text from RONR and send that text to the relevant parties. (Namely, the attorney, and all board members, for instance, to educate them on proper parliamentary practice.)

The organization should hire a parliamentarian, i.e., a neutral third party who has expertise in parliamentary procedure. There needs to be a serious Q-and-A session held.

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1.) Legal counsels do not "make rulings." Chairs make rulings.

 

2.) I would clip the relevant text from RONR and send that text to the relevant parties. (Namely, the attorney, and all board members, for instance, to educate them on proper parliamentary practice.)

The organization should hire a parliamentarian, i.e., a neutral third party who has expertise in parliamentary procedure. There needs to be a serious Q-and-A session held.

 

Agreeing completely with Kim's advice, I want to add that the reason I suggested you consult with an attorney-parliamentarian is purely psychological, not because I believe you will get "better" advice from one.  I think all professional parliamentarians will tell you the same thing.   It is simply because you are trying to convince your own attorney that his interpretation of the right of the assembly to replace the chair is erroneous.  Attorneys generally don't like to be "shown up" by non attorneys.  For that reason, I think that from a psychological standpoint, your attorney will pay more attention to an opinion from an attorney parliamentarian than he will to an opinion from a parliamentarian who is not an attorney.

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Guest Patricia McDougle

1.) Legal counsels do not "make rulings." Chairs make rulings.

True, the chair makes rulings but prior to doing so may consult a parliamentarian or an attorney . . . in this case it was both . . . hence the conflict of responses.

 

2.) I would clip the relevant text from RONR and send that text to the relevant parties. (Namely, the attorney, and all board members, for instance, to educate them on proper parliamentary practice.)

The organization should hire a parliamentarian, i.e., a neutral third party who has expertise in parliamentary procedure. There needs to be a serious Q-and-A session held.

 

All relevant reference from RONR (which by the way is the adopted parliamentary authority) were sent to the chair and to the attorney. I am the parliamentarian for the organization, am a PRP for many years, am a neutral third party, and never had to "lock horns" with a client attorney . . . as of now I have acquiesced.  Part of my concern is that the attorney is saying that what RONR has to say is irrelevant-the bylaws trump Robert in all cases-no exceptions.. Other than quoting from RONR, I did not know how to proceed either with the attorney, the client, or as a consultant on parliamentary procedure. . . hence the posting to the forum. The client is accepting the attorney view.

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In my opinion, when the membership adopts a rule applicable specifically to its executive board, the board may not suspend that rule.

 

Well.  This is an eye-opener.  Thank you indeed.

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In my opinion, when the membership adopts a rule applicable specifically to its executive board, the board may not suspend that rule.

 

 

Well.  This is an eye-opener.  Thank you indeed.

 

Yes, indeed, it is.  That puts a new wrinkle in things.  And here I thought all parliamentarians would agree!  Gotta give this one some thought.   :unsure:

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In my opinion, when the membership adopts a rule applicable specifically to its executive board, the board may not suspend that rule.

 

There are certainly cases where an assembly will adopt a rule in the nature of a rule of order in the bylaws with the intent that the board cannot suspend it. If the bylaws provide, for instance, that the board must take a roll call vote on certain types of motions, or that the board may not meet in executive session except in certain cases, then it seems apparent that the intent of such a rule is to bind the behavior of the board, and the purpose of the rule would be defeated if the board could suspend it.

 

I'm not so certain that this is one of those cases. The intent of the rule could simply be to clarify who is the regular presiding officer of the board, not to prevent the board from temporarily electing a different presiding officer.

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Perhaps I'm missing something here, but is it not true that the "Chairperson" is not always the "chair?" If someone else takes over as the chair of a meeting, that doesn't mean the elected Chairman losses his elected position. So if the bylaws place a particular person in the position of Chairman, why would we conclude that it would prevent someone else from serving as chair?

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There are certainly cases where an assembly will adopt a rule in the nature of a rule of order in the bylaws with the intent that the board cannot suspend it. If the bylaws provide, for instance, that the board must take a roll call vote on certain types of motions, or that the board may not meet in executive session except in certain cases, then it seems apparent that the intent of such a rule is to bind the behavior of the board, and the purpose of the rule would be defeated if the board could suspend it.

 

I'm not so certain that this is one of those cases. The intent of the rule could simply be to clarify who is the regular presiding officer of the board, not to prevent the board from temporarily electing a different presiding officer.

 

Nor am I at all certain that this is one of those cases, since we are again engaged in the interpretation of bylaws which we haven't read.*

 

Context alone usually makes a difference. If the provision that “the president shall act as the Chairperson of the Executive Board” is contained in the article of the bylaws dealing with officers, the assumption concerning its suspendibility by the executive board may be different than it will be if the provision is contained in the article dealing with the executive board itself, where one expects to find "any special rules by which the board is to conduct its business ... "  (RONR, 11th ed., p. 577, ll. 2-4) 

 

--------------------------------------------------------------

 

* This is, of course, entirely my fault. I just couldn't resist taking the opportunity to speculate as to what bylaws may or may not say while answering a question not asked.  :)

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Perhaps I'm missing something here, but is it not true that the "Chairperson" is not always the "chair?" If someone else takes over as the chair of a meeting, that doesn't mean the elected Chairman losses his elected position. So if the bylaws place a particular person in the position of Chairman, why would we conclude that it would prevent someone else from serving as chair?

 

Yes, but to "act as the Chairperson" rather obviously means to preside over meetings.

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There are certainly cases where an assembly will adopt a rule in the nature of a rule of order in the bylaws with the intent that the board cannot suspend it. If the bylaws provide, for instance, that the board must take a roll call vote on certain types of motions, or that the board may not meet in executive session except in certain cases, then it seems apparent that the intent of such a rule is to bind the behavior of the board, and the purpose of the rule would be defeated if the board could suspend it.

 

I'm not so certain that this is one of those cases. The intent of the rule could simply be to clarify who is the regular presiding officer of the board, not to prevent the board from temporarily electing a different presiding officer.

 

 

I was thinking about the converse.  The rule in the bylaws could read:  "The Board shall meet in executive session." 

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We are missing a most important piece of information in this discussion.  Has the organization formally adopted RONR as its parliamentary authority and what are the exact words of THAT section.  As an attorney as well as a PRP, I have seen 'parliamentary authority' articles within Bylaws that would both accept or prohibit reliance on formal opinion 2006-2.  For example:  "Procedures shall be governed by Robert's Rules of Order in all cases where they are not inconsistent with the Bylaws or Operating Rules" is different than "Procedures shall be governed by the bylaws, operating rules, and Robert's Rules of Order in that order."  With the former, you look to RONR first and then decide whether or not a rule of order is inconsistent with the Bylaws or operating rules.   With the latter, if the Bylaws speak to an issue, you never look to RONR at all so what it has to say on the issue is irrelevant.  It can also make a difference whether the President is elected by the members or whether the President is elected, and serves at the pleasure of, the Board.

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We are missing a most important piece of information in this discussion.  Has the organization formally adopted RONR as its parliamentary authority and what are the exact words of THAT section.  As an attorney as well as a PRP, I have seen 'parliamentary authority' articles within Bylaws that would both accept or prohibit reliance on formal opinion 2006-2.  For example:  "Procedures shall be governed by Robert's Rules of Order in all cases where they are not inconsistent with the Bylaws or Operating Rules" is different than "Procedures shall be governed by the bylaws, operating rules, and Robert's Rules of Order in that order."  With the former, you look to RONR first and then decide whether or not a rule of order is inconsistent with the Bylaws or operating rules.   With the latter, if the Bylaws speak to an issue, you never look to RONR at all so what it has to say on the issue is irrelevant.  It can also make a difference whether the President is elected by the members or whether the President is elected, and serves at the pleasure of, the Board.

 

It seems to me that "shall be governed by the bylaws, operating rules, and Robert's Rules of Order in that order" is just a clumsier way of saying "shall be governed by Robert's Rules of Order in all cases where they are not inconsistent with the Bylaws or Operating Rules", but I'm not inclined to argue much about it.

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 . . . As an attorney as well as a PRP, I have seen 'parliamentary authority' articles within Bylaws that would both accept or prohibit reliance on formal opinion 2006-2.  For example:  "Procedures shall be governed by Robert's Rules of Order in all cases where they are not inconsistent with the Bylaws or Operating Rules" is different than "Procedures shall be governed by the bylaws, operating rules, and Robert's Rules of Order in that order."

 

 

It seems to me that "shall be governed by the bylaws, operating rules, and Robert's Rules of Order in that order" is just a clumsier way of saying "shall be governed by Robert's Rules of Order in all cases where they are not inconsistent with the Bylaws or Operating Rules". . . .

 

I tend to agree with Dan here: I don't see a substantive difference between the phrases re the applicability of RONR.  I'm curious as to how the applicability of Official Interpretation 2006-2 in this situation would be affected by the use of one phrase vs the other.

 

Edited to add:  I think I understand the distinction that smb might be making, but, rather than get into speculation, I would rather have him explain it.  I'm confident he has given it more thought than I have and that he has perhaps had to actually deal with the distinction.

Edited by Richard Brown

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Re my earlier comment about the distinction between "shall be governed by the bylaws, operating rules, and Robert's Rules of Order in that order" vs "shall be governed by Robert's Rules of Order in all cases where they are not inconsistent with the Bylaws or Operating Rules." 

 

I based my comments upon principles of statutory construction.  The significance of the first expression "shall be governed by the bylaws, operating rules, and Robert's Rules of Order in that order" means one looks to the bylaws first.  If the bylaws speak directly to the issue you go no further; so what other operating rules or RONR have to say about the issue is irrelevant.  In the situation that started this thread, the bylaws state that the President chairs the executive board meetings.  Issue resolved; what RONR has to say about the issue is of no concern.  If a Bylaw is vague or ambiguous you can go further in your analysis to clarify the ambiguity; but there is nothing vague or ambiguous here.  A provision is ambiguous when it is capable of conveying two or more inconsistent meanings.  We don't have that here.  "An ambiguity must exist before there is any occasion for interpretation."  [RONR 11th ed. p. 588 ll.28-29] In the second form "shall be governed by Robert's Rules of Order in all cases where they are not inconsistent with the Bylaws or Operating Rules" you look to RONR first, where you find the right of the assembly to declare the chair vacant -- then you look to the Bylaws to see if that provision in RONR is inconsistent. Now there is an apparent inconsistency -- and you may now conduct further analysis to resolve the inconsistency.  Some attorneys would say that's easy; the bylaw as the higher authority prevails -- period.  Other attorneys would say, it looks that way but since the Bylaws incorporated RONR by reference we should first read other sections of the bylaws to determine whether there is anything else in the document that allows us to resolve the inconsistency to give effect to both the Bylaws and RONR.   

 

I am not saying which view should or would prevail -- the only point I was trying to make was that you cannot answer the question that began this thread without knowing the exact words used to reference the parliamentary authority.  This may seem a fine case of hair-splitting -- but we already know that our parliamentarian here is up against an attorney.  It's fine to say that most attorneys know nothing about parliamentary procedure -- but many of them do know about the principles of statutory construction when it comes to bylaws.  (Because most nonprofit codes are filled with "Unless otherwise provided by the bylaws...") That's why many attorneys argue that writing bylaws is a legal task, not a parliamentary task. (I am not one of them -- recognizing of course, that sometimes you require both sets of expertise.)

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Re my earlier comment about the distinction between "shall be governed by the bylaws, operating rules, and Robert's Rules of Order in that order" vs "shall be governed by Robert's Rules of Order in all cases where they are not inconsistent with the Bylaws or Operating Rules." 

 

I based my comments upon principles of statutory construction.  The significance of the first expression "shall be governed by the bylaws, operating rules, and Robert's Rules of Order in that order" means one looks to the bylaws first.  If the bylaws speak directly to the issue you go no further; so what other operating rules or RONR have to say about the issue is irrelevant.

 

But if you go no further than the bylaws, you are not giving effect to the word "and" in the clause "Procedures shall be governed by the bylaws, operating rules, and Robert's Rules of Order in that order." (You would be reading it almost as if it said "or," in which case maybe there would be some reason to make a distinction.)

Edited by Shmuel Gerber

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I understand Mr. Gerber's concern.  But, there is another canon of statutory construction that Robert, unfortunately, does not include in section 56.  You must construe in a manner that does not render any of the words superfluous.  By emphasizing the word AND in the manner he suggests, you do not give proper effect to the words "in that order."   

 

The only point I was trying to make is that we still don't know how RONR is referenced in the subject bylaws here and that is a critical piece of information.  I was once hired to opine whether Robert's Rules of Order were followed properly by a homeowner's association when it adopted some new restrictions. The issue had to do with notice.  Everyone in the organization knew that they followed RONR -- but when I actually got a copy here is what it said:

 

"1.     Disciplinary action will be handled according to Roberts Rule of Order." (sic)

 

 Needless to say, the issue had nothing to do with disciplinary action and the question quickly became one of whether RONR had anything to do with with their meeting procedures.   "If the bylaws authorize certain things specifically, other things of the same class are thereby prohibited. (p. 589 ll.33-34).  

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I understand Mr. Gerber's concern.  But, there is another canon of statutory construction that Robert, unfortunately, does not include in section 56.  You must construe in a manner that does not render any of the words superfluous.  By emphasizing the word AND in the manner he suggests, you do not give proper effect to the words "in that order."   

 

The only point I was trying to make is that we still don't know how RONR is referenced in the subject bylaws here and that is a critical piece of information.  I was once hired to opine whether Robert's Rules of Order were followed properly by a homeowner's association when it adopted some new restrictions. The issue had to do with notice.  Everyone in the organization knew that they followed RONR -- but when I actually got a copy here is what it said:

 

"1.     Disciplinary action will be handled according to Roberts Rule of Order." (sic)

 

 Needless to say, the issue had nothing to do with disciplinary action and the question quickly became one of whether RONR had anything to do with with their meeting procedures.   "If the bylaws authorize certain things specifically, other things of the same class are thereby prohibited. (p. 589 ll.33-34).  

 

If the client hasn't adopted Roberts Rules of Order properly, would you conclude that the Executive Board could suspend the rules of order contained in the bylaws adopted by the organization's membership?

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I understand Mr. Gerber's concern.  But, there is another canon of statutory construction that Robert, unfortunately, does not include in section 56.  You must construe in a manner that does not render any of the words superfluous.  By emphasizing the word AND in the manner he suggests, you do not give proper effect to the words "in that order."   

 

Obviously the words "in that order" would mean that in the case of any conflict between the different rules that makes it impossible to give effect to all of them, the bylaws have the highest priority.

Alternatively, it could mean that Robert's Rules has the highest priority, since it is applied last and wipes out the effect of the rules applied first. :)

In any event, this wording is, as Mr. Honemann says, clumsy and not much worth debating.

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