Multiple notice requirements & membership supremacy

[Sean Hunt]

Unfortunately, I would be lying if I said that this is an entirely hypothetical scenario.

 

The We Like Voting Club has bylaws that provide for certain resolutions to be voted on by the entire membership via the Internet. It also provides that a resolution can be put to vote in this fashion either by the assembly of the members, or by the Board. The assembly of the members has authority over the Board (the Board cannot overrule a decision of the members, and the members can overrule a decision of the Board). By practice, when a resolution is sent out to the members for voting, it is usually the Board which does so.

 

The bylaws provide that the minimum notice period for a vote in this manner is one week, but it also provides that the Board can set the rules governing the voting process as long as they are consistent with the bylaws. The Board's standing rules say that two weeks notice is required, rather than the minimum one provided for in the bylaws. It has been historically held, and no one disagrees, that this requirement is consistent with the bylaws, and on a Board-referred vote, if it is not complied with, then the vote is null and void.

 

Subsequently, the assembly of the members, in August, refers a resolution (say, "Resolved, that we really like voting by Internet.") to an Internet vote, with the voting to take place on October 1.

 

The Secretary erroneously sends out notice of the vote on September 20, more than one week but less than two weeks before October 1, the date set for the vote. This contravenes the notice requirement set out by the Board, but not the one set out by the bylaws. Is the vote null and void?

 

The issue here is that the Board cannot overrule the members. It cannot, for instance, move the vote to a different day. It could definitely not adopt a notice requirement that could not be complied with, because that would also thwart the will of the members. But where does the line get drawn? Do the notice requirements it has previously enacted get overridden by the instruction to hold a vote on a specific date?

[Edgar Guest]

Subsequently, the assembly of the members, in August, refers a resolution (say, "Resolved, that we really like voting by Internet.") to an Internet vote, with the voting to take place on October 1.

 

I'm probably missing something here but since the notice was sent (referred?) by the assembly (i.e. the general membership?) and not the board, why would it be subject to the board's self-imposed two-week rule rather than the bylaws' one-week rule?

[Richard Brown]

The bylaws provide that the minimum notice period for a vote in this manner is one week, but it also provides that the Board can set the rules governing the voting process as long as they are consistent with the bylaws. The Board's standing rules say that two weeks notice is required, rather than the minimum one provided for in the bylaws. It has been historically held, and no one disagrees, that this requirement is consistent with the bylaws, and on a Board-referred vote, if it is not complied with, then the vote is null and void.

 

Subsequently, the assembly of the members, in August, refers a resolution (say, "Resolved, that we really like voting by Internet.") to an Internet vote, with the voting to take place on October 1.

 

The Secretary erroneously sends out notice of the vote on September 20, more than one week but less than two weeks before October 1, the date set for the vote. This contravenes the notice requirement set out by the Board, but not the one set out by the bylaws. Is the vote null and void?

 

 Do the notice requirements it has previously enacted get overridden by the instruction to hold a vote on a specific date?

 

I see the problem here being that the secretary apparently screwed up and sent out the notice eleven days, rather than two weeks, prior to the vote.  The assembly passed the resolution ordering the email vote in August... plenty of time for the secretary to send out a notice two weeks in advance as the Board's standing rules require.

 

So, I see the following questions:

 

1.  Did the assembly intend to shorten the fourteen day time frame in the Board's standing rules?

2.  Do  the Board's standing rules apply just to actions of the board, or do they also address actions of the membership?

3.  Did the resolution ordering the email vote pass by at least a two-thirds vote, which would be the vote required to rescind something previously adopted or to suspend a special rule of order?

4.  Since the board rule is classified as a standing rule, rather than a special rule of order, can it even be suspended?   What is its true nature? 

 

It's a very interesting scenario.  I doubt that the assembly intended to rescind or amend the rule put in place by the board or to have the secretary provide less than two weeks notice.  I'm initially of  the opinion that unless the motion ordering the email vote was adopted by at least a two-thirds vote, insufficient notice has been given and the vote would be null and void.  My opinion may well change as more facts come to light and others weigh in.  

 

It's ultimately an interpretation of your organization's own rules, which you already know, but you wouldn't be asking us unless you want our input. 

[Sean Hunt]

I see the problem here being that the secretary apparently screwed up and sent out the notice eleven days, rather than two weeks, prior to the vote.  The assembly passed the resolution ordering the email vote in August... plenty of time for the secretary to send out a notice two weeks in advance as the Board's standing rules require.

 

So, I see the following questions:

 

1.  Did the assembly intend to shorten the fourteen day time frame in the Board's standing rules?

For the sake of an argument, no.

 

2.  Do  the Board's standing rules apply just to actions of the board, or do they also address actions of the membership?

I'm not sure, in this situation.

 

3.  Did the resolution ordering the email vote pass by at least a two-thirds vote, which would be the vote required to rescind something previously adopted or to suspend a special rule of order?

Notice was given of the resolution ordering the email vote. Let's suppose for the sake of an argument that it also passed by a two-thirds vote (and that this is noted in the minutes).

 

4.  Since the board rule is classified as a standing rule, rather than a special rule of order, can it even be suspended?   What is its true nature?

I think it's really a duck problem. It doesn't matter what it's called (and in fact the organization I'm basing this scenario off does not distinguish in their policy manual), but what its nature is. I'm not sure about its nature.

 

It's a very interesting scenario.  I doubt that the assembly intended to rescind or amend the rule put in place by the board or to have the secretary provide less than two weeks notice.  I'm initially of  the opinion that unless the motion ordering the email vote was adopted by at least a two-thirds vote, insufficient notice has been given and the vote would be null and void.  My opinion may well change as more facts come to light and others weigh in.  

 

It's ultimately an interpretation of your organization's own rules, which you already know, but you wouldn't be asking us unless you want our input. 

It's not my organization any more, I just have the popcorn.

[Edgar Guest]

2.  Do  the Board's standing rules apply just to actions of the board, or do they also address actions of the membership?

 

Do you think a board has the authority to adopt rules that modify the rules in the bylaws?

[Richard Brown]

Do you think a board has the authority to adopt rules that modify the rules in the bylaws?

 

Based on the details provided by Sean, yes, but I look at it as further supplementing the minimum notice requirement contained in the bylaws.

 

 

The bylaws provide that the minimum notice period for a vote in this manner is one week, but it also provides that the Board can set the rules governing the voting process as long as they are consistent with the bylaws. The Board's standing rules say that two weeks notice is required, rather than the minimum one provided for in the bylaws. It has been historically held, and no one disagrees, that this requirement is consistent with the bylaws, and on a Board-referred vote, if it is not complied with, then the vote is null and void.

 

Based on Sean's statement of the bylaw provision, I think the Board has the power to do what it did... and, based on Sean's comments, the members apparently agree. 

[Edgar Guest]

So the bylaws say that only a one-week notice is required. The board decides that a two-week notice is required. And this two-week requirement is somehow consistent with the one-week requirement? According to the bylaws, the notice was sent on time. According to the board, it wasn't. There seems to be an inconsistency here.

 

What if the board decided that six months' notice was required? How about one year?

[Richard Brown]

So the bylaws say that only a one-week notice is required.

No, the bylaws do not say that "only a one week notice is required.  According to Sean, the bylaws require at least one week's notice.  They don't say "one week" or "no more than one week".  They say, in essence, "at least one week".  Here's Sean's  quote again:  "The bylaws provide that the minimum notice period for a vote in this manner is one week, but it also provides that the Board can set the rules governing the voting process as long as they are consistent with the bylaws."

 

Sean goes on to say that the organization has consistently interpreted the bylaw provision and the board enacted rule to be consistent and in harmony.   Edited to add:  It's their bylaw provision and that's the way they have interpreted it.

 

I view this as much like a provision in a state constitution that requires at least one week's notice for certain things.  I think it's generally accepted that when that wording is used, the legislature can require that MORE notice be given, but not LESS.   It's a minimum. 

[Edgar Guest]

No, the bylaws do not say that "only a one week notice is required.  According to Sean, the bylaws require at least one week's notice.  They don't say "one week" or "no more than one week".  They say, in essence, "at least one week".

 

Fair enough.

 

Though I think what the bylaws intended was that you could, of course, provide more than one week's notice but that's the least notice required.

 

The board has removed the option of longer notice and made it a requirement.

[Josh Martin]

Unfortunately, I would be lying if I said that this is an entirely hypothetical scenario.

 

The We Like Voting Club has bylaws that provide for certain resolutions to be voted on by the entire membership via the Internet. It also provides that a resolution can be put to vote in this fashion either by the assembly of the members, or by the Board. The assembly of the members has authority over the Board (the Board cannot overrule a decision of the members, and the members can overrule a decision of the Board). By practice, when a resolution is sent out to the members for voting, it is usually the Board which does so.

 

The bylaws provide that the minimum notice period for a vote in this manner is one week, but it also provides that the Board can set the rules governing the voting process as long as they are consistent with the bylaws. The Board's standing rules say that two weeks notice is required, rather than the minimum one provided for in the bylaws. It has been historically held, and no one disagrees, that this requirement is consistent with the bylaws, and on a Board-referred vote, if it is not complied with, then the vote is null and void.

 

Subsequently, the assembly of the members, in August, refers a resolution (say, "Resolved, that we really like voting by Internet.") to an Internet vote, with the voting to take place on October 1.

 

The Secretary erroneously sends out notice of the vote on September 20, more than one week but less than two weeks before October 1, the date set for the vote. This contravenes the notice requirement set out by the Board, but not the one set out by the bylaws. Is the vote null and void?

 

The issue here is that the Board cannot overrule the members. It cannot, for instance, move the vote to a different day. It could definitely not adopt a notice requirement that could not be complied with, because that would also thwart the will of the members. But where does the line get drawn? Do the notice requirements it has previously enacted get overridden by the instruction to hold a vote on a specific date?

 

In my opinion, the vote is valid, and the historical interpretation on this subject is incorrect. If the bylaws provide that one week of notice is required, then one week of notice is required. It's perfectly fine (perhaps even admirable) for the board to try to provide more notice than this when possible, but the board cannot require more notice than the bylaws require. As such, the rule adopted by the board is null and void.

[Edgar Guest]

It's perfectly fine (perhaps even admirable) for the board to try to provide more notice than this when possible, but the board cannot require more notice than the bylaws require. 

 

I couldn't have said it better.

[Gary Novosielski]

I agree with Josh's logic.  If the board were permitted to set a required notice period that is longer than the minimum in the bylaws, and apply that to actions of the membership, then a supposedly subordinate board could block the progress of any action taken by the assembly.  The board could set an unreasonably long notice requirement, thereby rendering null and void any action that failed to comply with the board's requirement, though fully compliant with the bylaws.

[Edgar Guest]

The board could set an unreasonably long notice requirement, thereby rendering null and void any action that failed to comply with the board's requirement, though fully compliant with the bylaws.

 

Hmmm.

 

What if the board decided that six months' notice was required? How about one year?

[Gary Novosielski]

Hmmm.

Well, you did ask the question.  All I did was answer it.  :-)

[Kim Goldsworthy]

 

 

The bylaws provide that the minimum notice period for a vote in this manner is one week,

but it also provides that the Board can set the rules governing the voting process as long as they are consistent with the bylaws.

 

The Board's standing rules say that two weeks notice is required, rather than the minimum one provided for in the bylaws.

 

It has been historically held, and no one disagrees, that this requirement is consistent with the bylaws, and on a Board-referred vote, if it is not complied with, then the vote is null and void.

[. . .]

But where does the line get drawn?

Do the notice requirements it has previously enacted get overridden by the instruction to hold a vote on a specific date?

Draw the line here:

"Where there is a conflict between rules, the superior rule prevails, as the inferior rule yields."

 

You have conflicting rules.

Which rule is enforceable? Which rule is not enforceable?

 

The choice between two rules, namely, (a.) bylaws; versus (b.) standing rules; is clear

The bylaws are superior. The standing rules are inferior.

 

Since the bylaws define the timeline of previous notice, then the only way to change the timeline of previous notice is to amend the bylaws.

A standing rule never amends a bylaw.

A standing rule never re-defines a definition of a bylaw.

A standing rule never restricts a bylaw-given timeline, and never expands a bylaw-given timeline.

[Sean Hunt]

Mm... unfortunately, it appears that the thread once again got sidetracked I was originally going to suggest that the bylaws said "The Board may set a greater notice period." but then it would be clear that the Board wins in that case, I think.

 

Nonetheless, the opinions are helpful towards my thinking on the situation actually at hand. Thank you.

[Timothy]

Mm... unfortunately, it appears that the thread once again got sidetracked I was originally going to suggest that the bylaws said "The Board may set a greater notice period." but then it would be clear that the Board wins in that case, I think.

 

Nonetheless, the opinions are helpful towards my thinking on the situation actually at hand. Thank you.

 

I don't see why you think the thread has been sidetracked. Perhaps you can explain?

 

As for saying, "The Board may set a greater notice period," why would anyone want to do that? If the notice period isn't sufficient, go through the proper channels to amend the bylaws. Don't confuse things.

[Richard Brown]

I agree with Josh's logic.  If the board were permitted to set a required notice period that is longer than the minimum in the bylaws, and apply that to actions of the membership, then a supposedly subordinate board could block the progress of any action taken by the assembly.  The board could set an unreasonably long notice requirement, thereby rendering null and void any action that failed to comply with the board's requirement, though fully compliant with the bylaws.

 

I disagree.  The society, being the superior body, can simply rescind or amend a rule that was adopted by the inferior board if the society disagrees with that rule.  Sean's original post makes clear that the members can overrule actions of the board.

[Edgar Guest]

The society, being the superior body, can simply rescind or amend a rule that was adopted by the inferior board if the society disagrees with that rule.

But if the board (or the society) adopts a rule that conflicts with the bylaws, the bylaws prevail. In other words, it's not so much about which body adopted the rule, it's where the rule resides.

[Richard Brown]

I don't see why you think the thread has been sidetracked. Perhaps you can explain?

I'm wondering, too, unless it's that Sean's original question was whether the 11 day's notice inadvertently provided by the Secretary renders the vote null and void.

 

As for saying, "The Board may set a greater notice period," why would anyone want to do that? If the notice period isn't sufficient, go through the proper channels to amend the bylaws. Don't confuse things.

Because, based on Sean's original post, the bylaws grant the board the authority to establish rules and procedures to govern voting via the internet. 

 

Edited to add:  Perhaps amending the bylaws to provide for a two-week notice would be the better way to go, but that is not the route the society chose... and the society has consistently interpreted its rules (bylaws and standing rules) as the two week requirement in the standing rules as being valid based on the authority granted in the bylaws to the board to establish procedures for electronic voting.

 

If the assembly had wanted to put an upper limit on the notice requirement, it could have worded its bylaws as providing both a minimum and maximum notice period as is very commonly done with notice provisions.  Instead, it provided only a minimum notice requirement.

 

Edited again to add:  The society has already interpreted its rules to mean that the two week notice period contained in the standing rules is valid.  Who are we to tell them that their interpretation is wrong?

[Gary Novosielski]

I think the board would be allowed to increase the notice period that applies to resolutions that it submits, and live within that notice period.  I don't think it can (successfully) impose that limit on the assembly itself, short of lobbying for a bylaws change.

[Gary Novosielski]

I disagree.  The society, being the superior body, can simply rescind or amend a rule that was adopted by the inferior board if the society disagrees with that rule.  Sean's original post makes clear that the members can overrule actions of the board.

 

They could indeed, but would they have to give adequate notice first?

[Richard Brown]

They could indeed, but would they have to give adequate notice first?

 

I don't know that they have to.   I think they can rescind or amend something previously adopted by the inferior board with a two-thirds vote without notice and a majority vote with notice, etc.  Isn't that normally the case for rescind/amend something previously adopted?  Does it make any difference that the board, rather than the assembly, originally adopted the rule being rescinded or amended? 

 

Edited to add:  According to Sean's posts, those rules are titled "Standing Rules".  However, we should probably look to their true nature rather than the title of the document they are contained in.  If they are to be treated as special rules of order, then, yes, to amend them would require previous notice and a two-thirds vote or a vote of a majority of the entire membership. 

[Edgar Guest]

Who are we to tell them that their interpretation is wrong?

 

If we won't tell them, who will?

[Timothy]

I don't know that they have to.   I think they can rescind or amend something previously adopted by the inferior board with a two-thirds vote without notice and a majority vote with notice, etc.  Isn't that normally the case for rescind/amend something previously adopted?  Does it make any difference that the board, rather than the assembly, originally adopted the rule being rescinded or amended? 

 

Edited to add:  According to Sean's posts, those rules are titled "Standing Rules".  However, we should probably look to their true nature rather than the title of the document they are contained in.  If they are to be treated as special rules of order, then, yes, to amend them would require previous notice and a two-thirds vote or a vote of a majority of the entire membership. 

 

I don't see why they would want to. If the board wants to have a policy of providing notice two weeks ahead instead of one week, why should the membership care? That just means they get notice sooner. The problem is that someone is trying to apply the board's rules to the assembly. If they are going to interpret the board's rule in that way, then the board's rule is out of order, since the board is not permitted to adopt rules in conflict with those of the assembly. There is no need for a motion to rescind the rule, since the most that would be required is a point of order.