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Discretionary power of the chair in ruling conflicts of interest


Guest harper

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This is a legal question, I suppose, but also involves the management of meetings. The bylaws of my organization as well as the laws of the country of jurisdiction are unequivocal that Board members having a conflict of interest in the outcome of a resolution must recuse themselves. The board of directors is conducting an internal investigation and what a particular board member knew or didn't know and when. Without getting into specifics, can the chair rule that the particular individual has a conflict of interest, thus may not be involved in deliberating or voting about the matter in question or any matter that could undermine the investigation.

 

My recollection is that Robert's Rules is rather lenient on the issue of conflicts of interest and voting. However in this case, the law and bylaws are quite crystal clear.

 

Thank you.

 

Harper

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I suspect your initial supposition is correct.

 

Do your bylaws (or the relevant law) spell out just what IS a "conflict of interest" in specific terms?

 

Since RONR doesn't, do the bylaws or law give the chairman a (unilateral-?) authority to rule about these "conflicts"?   Is there any avenue of appeal?

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As far as the rules in RONR are concerned, the chairman may rule that the particular individual has a conflict of interest, and therefore may not be involved in deliberating or voting about the matter in question or any matter that could undermine the investigation, if that is what he thinks the bylaws and/or applicable law mandate, but, as far as the rules in RONR are concerned, such a ruling must be made in a meeting and can be appealed (unless, of course, there cannot possibly be two reasonable opinions concerning the matter).

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As far as the rules in RONR are concerned, the chairman may rule that the particular individual has a conflict of interest, and therefore may not be involved in deliberating or voting about the matter in question or any matter that could undermine the investigation, if that is what he thinks the bylaws and/or applicable law mandate, but, as far as the rules in RONR are concerned, such a ruling must be made in a meeting and can be appealed (unless, of course, there cannot possibly be two reasonable opinions concerning the matter).

Thank you, Mr. Honemann and Mr. Stackpole. I failed to mention, unintentionally, that our bylaws stipulate the order of rules - law and bylaws first, then Robert's Rules. As for an appeal, I don't believe we an appeal process in our bylaws. Which doesn't mean that there shouldn't be one. But so that I understand: Are you referring to appealing the chair's decision or appealing the findings of the investigation? The chair as I understand it, although I'm not a lawyer, is the highest ranking fiduciary in our organization.

 

Thank you again.

 

Harper

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Thank you, Mr. Honemann and Mr. Stackpole. I failed to mention, unintentionally, that our bylaws stipulate the order of rules - law and bylaws first, then Robert's Rules. As for an appeal, I don't believe we an appeal process in our bylaws. Which doesn't mean that there shouldn't be one. But so that I understand: Are you referring to appealing the chair's decision or appealing the findings of the investigation? The chair as I understand it, although I'm not a lawyer, is the highest ranking fiduciary in our organization.

 

Thank you again.

 

Harper

 

I am referring to taking an appeal from the ruling of the chair. If RONR is your organization's parliamentary authority, and your bylaws and applicable law are silent concerning the matter, an appeal may be taken from the ruling of the chair in accordance with the rules in Section 24 of RONR (11th ed.).

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It was my understanding from the original post that there is a legal as well as a bylaws requirement that conflicted members recuse themselves.  Does either legal authority authorize someone else to recuse them?  

 

RONR does not (except in the general sense outlined by Mr. Honemann, where the chair presumably rules, for some reason, that he can, and in fact does, so rule--subject to Appeal).

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It seems to me that it is at least possible that, as Mr. Novosielski pointed out in post # 8 immediately above, that although a member should (or even must) recuse himself in the event of a perceived conflict, that nobody has the power to force the member to do so and that the only remedy for the refusal of the member to recuse himself might be disciplinary action.

 

Perhaps that chair could rule on a point of order that the member's vote shall not be counted since the bylaws mandate that he recuse himself.   I dunno.  It's an interesting scenario. 

 

Edited to add:  In re-reading Mr. Hoonemann's comments in post # 5, I think what he says makes perfect sense and I do not want to disagree with it.    The more I think about it, I think I like what I said in my second paragraph more than what i said in my first paragraph in this post.  :huh:

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It seems to me that it is at least possible that, as Mr. Novosielski pointed out in post # 8 immediately above, that although a member should (or even must) recuse himself in the event of a perceived conflict, that nobody has the power to force the member to do so and that the only remedy for the refusal of the member to recuse himself might be disciplinary action.

 

Perhaps that chair could rule on a point of order that the member's vote shall not be counted since the bylaws mandate that he recuse himself.   I dunno.  It's an interesting scenario. 

 

 

Mr. Brown, Mr. Honemann, Mr. Novosielski,

 

Thank you for your comments. To stay on point: The law of the jurisdiction in question says that board members 'who have a vested interest in a resolution may not vote'.

 

If the chair, who's an elected fiduciary, cannot make such a ruling, then who does? 

 

And if the chair's decision is appealed, does the person with the conflict of interest get to vote on the appeal? And must the chair recuse himself?

 

Harper

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Mr. Brown, Mr. Honemann, Mr. Novosielski,

 

Thank you for your comments. To stay on point: The law of the jurisdiction in question says that board members 'who have a vested interest in a resolution may not vote'.

 

If the chair, who's an elected fiduciary, cannot make such a ruling, then who does? 

 

And if the chair's decision is appealed, does the person with the conflict of interest get to vote on the appeal? And must the chair recuse himself?

 

Harper

 

As previously noted, according to the rules in RONR, it is the presiding officer who makes the initial ruling, which is then subject to appeal. 

 

As far as the rules in RONR are concerned, the person who is alleged to have the conflict should not vote on the appeal, since he has a direct personal interest in the outcome of the vote, but he cannot be compelled to refrain from voting (p. 407, ll. 22-31). The presiding officer, if a member, may vote if it is necessary for him to do so in order to create a tie, and thus sustain his decision (p. 258, ll. 14-18).

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As previously noted, according to the rules in RONR, it is the presiding officer who makes the initial ruling, which is then subject to appeal. 

 

As far as the rules in RONR are concerned, the person who is alleged to have the conflict should not vote on the appeal, since he has a direct personal interest in the outcome of the vote, but he cannot be compelled to refrain from voting (p. 407, ll. 22-31). The presiding officer, if a member, may vote if it is necessary for him to do so in order to create a tie, and thus sustain his decision (p. 258, ll. 14-18).

 

Dear Mr. Honemann,

 

We appear to have a conundrum. The law says 'may not vote' - and in this sense meaning: 'shall not vote'. So if the chair were to allow a person with a conflict of interest to vote, then the chair in effect - and by extension the organization - would be breaking the law.

 

I realize that you're an attorney (who doesn't write screeds), as well as being one of the world's foremost experts on Robert's Rules. But if I were the chair (I am not) I would stick to the law and my own good judgment and disallow the interested party to vote.

 

I believe that you once clarified for me that the hierarchy of rules, even in RONR, which is law (national, state and local), articles of incorporation, and Robert's Rules. It's the same order in my organization's bylaws.

 

Harper

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As far as the rules in RONR are concerned, the person who is alleged to have the conflict should not vote on the appeal, since he has a direct personal interest in the outcome of the vote, but he cannot be compelled to refrain from voting (p. 407, ll. 22-31).

 

Are you saying that the question of whether a member may vote on some particular question is a question in which he has a direct personal interest not common to other members, or only that the question of whether a member may vote on a question in which he has a direct personal or pecuniary interest not common to other members is a question in which he has a direct personal interest not common to other members?

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Far me it from me to disagree with Mr. Honemann, and I'm not - I just want to point out a subtlety with the hierarchy referenced above.  The hierarchy is:

 

Relevant procedural law

Articles of Incorporation
Constitution/Bylaws

Special Rules of Order

Rules of Order (not necessarily RONR)

Standing Rules

 

The key is that the law must be procedural.  The law against murder does not supersede your bylaws, in that a motion to commit murder is not out of order (nor is it, so far as I know, illegal, although the murder itself usually is).  It is only when the law dictates procedures for decision-making that it is relevant.  Is this such a law?  I leave that for my betters, although my thought is no, for the simple reason that saying it is obligates the Chair (and/or assembly) to determine if the person does, in fact, have a personal interest.  That doesn't seem like something the Chair/assembly is equipped to do.  

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Are you saying that the question of whether a member may vote on some particular question is a question in which he has a direct personal interest not common to other members, or only that the question of whether a member may vote on a question in which he has a direct personal or pecuniary interest not common to other members is a question in which he has a direct personal interest not common to other members?

 

The latter.

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It seems to me that it is at least possible that, as Mr. Novosielski pointed out in post # 8 immediately above, that although a member should (or even must) recuse himself in the event of a perceived conflict, that nobody has the power to force the member to do so and that the only remedy for the refusal of the member to recuse himself might be disciplinary action.

Perhaps that chair could rule on a point of order that the member's vote shall not be counted since the bylaws mandate that he recuse himself. I dunno. It's an interesting scenario.

Edited to add: In re-reading Mr. Hoonemann's comments in post # 5, I think what he says makes perfect sense and I do not want to disagree with it. The more I think about it, I think I like what I said in my second paragraph more than what i said in my first paragraph in this post. :huh:

It may be that a procedural rule in applicable law will have the effect of denying a member the right to vote when he has a "conflict of interest," although whether a particular law requires this in a particular instance is a question for a lawyer.

We appear to have a conundrum. The law says 'may not vote' - and in this sense meaning: 'shall not vote'. So if the chair were to allow a person with a conflict of interest to vote, then the chair in effect - and by extension the organization - would be breaking the law.

I realize that you're an attorney (who doesn't write screeds), as well as being one of the world's foremost experts on Robert's Rules. But if I were the chair (I am not) I would stick to the law and my own good judgment and disallow the interested party to vote.

I believe that you once clarified for me that the hierarchy of rules, even in RONR, which is law (national, state and local), articles of incorporation, and Robert's Rules. It's the same order in my organization's bylaws.

If the chair (or the organization, upon appeal) concludes that the member may vote, it is presumably because the chair (or the assembly) either believes that the law does not require what you say it does, or because they believe that the member does not, in fact, have a conflict of interest. They may well be wrong, and they may well land the organization in legal trouble, but that's what they decided. The assembly as a whole outranks the chair, and the chair is obliged to follow the assembly's orders.

In my view, it would not be appropriate for the chair to refuse to obey an order of the assembly, even if he strongly believes that the assembly's order is improper or even illegal. The chair's only course of action is to follow the order or to resign. If I believed I'd get in a lot of legal trouble for following the order, I'd go with the latter. If you insist on refusing to follow the assembly's orders instead, I wouldn't expect to hold your position for long.

The key is that the law must be procedural. The law against murder does not supersede your bylaws, in that a motion to commit murder is not out of order (nor is it, so far as I know, illegal, although the murder itself usually is). It is only when the law dictates procedures for decision-making that it is relevant. Is this such a law? I leave that for my betters, although my thought is no, for the simple reason that saying it is obligates the Chair (and/or assembly) to determine if the person does, in fact, have a personal interest. That doesn't seem like something the Chair/assembly is equipped to do.

A rule regarding voting is absolutely a procedural rule. Your comments about whether the chair or assembly or equipped to make such a determination, in my view, have nothing to do with whether the rule is procedural in nature. It seems they have more to do with whether you think such a law is a good idea. :)

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Are you saying that the question of whether a member may vote on some particular question is a question in which he has a direct personal interest not common to other members, or only that the question of whether a member may vote on a question in which he has a direct personal or pecuniary interest not common to other members is a question in which he has a direct personal interest not common to other members?

 

All issues involve money. I do not believe there has been personal gain, but clearly there has been organizational loss. The organization’s board of directors is trying to extricate itself from multiple lawsuits. It is in this context that I raised the issue of conflict of interest and, although I didn't use the word, recusal.

 

So I would say in response to your question: a 'direct personal or pecuniary interest' in those issues whether common or not common to other board members.

 

As I said at the outset, both the law of the land and bylaws of my organization stipulate that fiduciaries with a conflict of interest may not vote.

 

I actually feel that the answer to this conundrum is in Robert's Rules own rules (page 16 of RONR, 10th edition): "When a society or an assembly has adopted a particular parliamentary manual such as this book…the rules are binding in all cases where they are not inconsistent with the bylaws…or any provisions of local, state or national law applying to the particular type of organization."

 

So, I would argue that Robert's Rules is not binding on questions of conflicts of interest and that the chair can and should cite the law and bylaws to trump a lower-level procedural rule.

 

Just my opinion.

 

I also do not feel that it is wise to involve an attorney every time there is a dispute over procedures. RONR is clear enough, I believe. The law and bylaws trump it.

 

Harper

 

 

 

 

 

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No one here has said that bylaws and applicable law do not take precedence over the rules in RONR.

 

I am confused. If the law and bylaws stipulate that a person with a conflict of interest may not vote, then shouldn't it follow that, since RONR stipulates that the conflicted individual can appeal the chair's decision, RONR defers to the law on this particular matter. 'We take no position that contravenes or even appears to contravene the law'.

 

Granted, there are different interpretations of the law. But this isn't one of those "meaning of 'is'" situations. The law says no. The person who allegedly has a conflict of interest shouldn't vote on his alleged conflict of interest or matters therein. And in this case, the law says he may not.

 

Harper

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I am confused. If the law and bylaws stipulate that a person with a conflict of interest may not vote, then shouldn't it follow that, since RONR stipulates that the conflicted individual can appeal the chair's decision, RONR defers to the law on this particular matter. 'We take no position that contravenes or even appears to contravene the law'.

 

Granted, there are different interpretations of the law. But this isn't one of those "meaning of 'is'" situations. The law says no. The person who allegedly has a conflict of interest shouldn't vote on his alleged conflict of interest or matters therein. And in this case, the law says he may not.

 

Harper

 

 

Did you come here to ask us what your bylaws and applicable law say?

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Well, I agree with most of the statements made above, but not with how they're strung together.  Laws do not enforce themselves or interpret themselves, and I believe Mr. Martin laid out the actual procedures quite well.  As Mr. Martin said above, the chair could rule that he may vote either because he interprets the law differently, or interprets the situation differently.  As Mr. Martin said above, the body can reach its own decision on appeal.  How else can a decision be made?  In short, what procedure can you envision which would ensure that a conflicted person will not vote in a stronger sense than that laid out by Mr. Martin?

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I am confused. If the law and bylaws stipulate that a person with a conflict of interest may not vote, then shouldn't it follow that, since RONR stipulates that the conflicted individual can appeal the chair's decision, RONR defers to the law on this particular matter. 'We take no position that contravenes or even appears to contravene the law'.

 

Granted, there are different interpretations of the law. But this isn't one of those "meaning of 'is'" situations. The law says no. The person who allegedly has a conflict of interest shouldn't vote on his alleged conflict of interest or matters therein. And in this case, the law says he may not.

Does the law also provide that no appeal may be made from the chair's ruling on whether the member has a conflict of interest? If not, I'm still satisfied with my response.

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Does the law also provide that no appeal may be made from the chair's ruling on whether the member has a conflict of interest? If not, I'm still satisfied with my response.

 

Mr. Martin,

 

The specific law governing the organization does not make provisions for an appeal. I'm not sure that that is relevant. Where I am confused is that after the chair (an elected fiduciary) determines that a particular board member has a conflict of interest that the board member in question can vote on his own appeal. If I misunderstood you, then I apologize.

 

But somebody must make a judgment if the person has a conflict of interest. It surely can't be the person himself. And the law in this case is very clear. And in the only RONR reference I can find to the hierarchy of rules (again, page 16, 10th edition) RONR makes no reference to appeals.

 

Harper

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Did you come here to ask us what your bylaws and applicable law say?

 

No, sir. I am concerned - and I hope it's a misunderstanding - that in the event of an appeal that the person judged as having a conflict of interest can vote on his own appeal. We use Robert's Rules. Should a person who's judged to have a conflict of interest - whether by the chair, his board colleagues, his general assembly colleagues - be entitled to vote on an issue involving his particular interest? The answer's no based on the rules and applicable law I referred to. Should the same person be entitled to appeal the decision? The consensus here is yes. Should he be able to vote on his own appeal? That's where I'm getting mixed signals.

 

 

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But somebody must make a judgment if the person has a conflict of interest. It surely can't be the person himself. And the law in this case is very clear. And in the only RONR reference I can find to the hierarchy of rules (again, page 16, 10th edition) RONR makes no reference to appeals.

 

Harper

The person to make the judgment, if one is to be made, is the presiding officer, and the presiding officer's rulings on points of order are always subject to appeal except in a couple of clearly defined circumstances on page 256.

 

Here is what the 11th edition of RONR says about appeals on page 255/256:

 

"By electing a presiding officer, the assembly delegates to him the authority and duty to make necessary rulings on questions of parliamentary law. But any two members have the right to Appeal from his decision on such a question. By [page 256] one member making (or "taking") the appeal and another seconding it, the question is taken from the chair and vested in the assembly for final decision."

 

That seems pretty clear cut to me.  All rulings of the chair are subject to appeal except for the two exceptions noted further down on page 256.

 

Edited to add:  I don't know why you would say the 10th edition is essentially silent as to appeals.  The same language I quoted (or at least similar language... I don't know if it's identical) is on page 247 of the 10th edition.  There is a whole section on appeals.  It's Section 24 on pages 247-252 of the 10th edition.

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