Points of order, points of law

[Guest harper]

Periodically, I have raised questions about procedures involving legal matters. I have a fairly clear understanding where RONC stands in the hierarchy of law, bylaws and RONC. But running a meeting and addressing motions that seem in conflict with legal standards for record-keeping is another matter.

So my question today: An important motion that deals with membership issues was not recorded in the minutes of a board of directors meeting. In my organization's jurisdiction (we're an NPO outside the U.S.), all board resolutions must be recorded or the secretary is potentially (extremely unlikely) subject to a fine. But the law is on the books.

In this instance, the secretary was advised in writing about the omission and didn't make the necessary correction.

On Nov. 18, I requested advice on this forum about 'points of order and board resolutions'. The advise was greatly appreciated - essentially that the chair decides the validity of a point of order and that there is a right to appeal the chair's decision. Mr. Huynh, I believe, mentioned the need for a 2/3 majority vote to rescind the previous (main) motion with prior notice.

That seems straight forward.

My followup question: If the main motion wasn't recorded in the minutes (again, in our jurisdiction that could be a legal violation), should the chair insist that the previous (main) motion be read out before any action on the new motion is taken including an appeal? Essentially, a point of law trumping a point of order.

In which case, should the chair read out the law? And does that settle the issue until the next board meeting?

Thank you.

Harper

[Hieu H. Huynh]

7 minutes ago, Guest harper said:

On Nov. 18, I requested advice on this forum about 'points of order and board resolutions'. The advise was greatly appreciated - essentially that the chair decides the validity of a point of order and that there is a right to appeal the chair's decision. Mr. Huynh, I believe, mentioned the need for a 2/3 majority vote to rescind the previous (main) motion with prior notice.

See the referenced thread (and exactly what I wrote) here.

[Joshua Katz]

I'm not quite clear on the scenario.  Please let me know if I have this right:

1.  A motion was made and adopted at a meeting.

2.  It was not put into the minutes.

3.  The minutes were adopted (?)

4.   A conflicting motion was made.  

If this is right, the chair should advise the member to move to amend something previously adopted.  THe minutes should be corrected by a motion to amend something previously adopted, i.e. the minutes.  I don't see what point of law you wish to trump what point of order.  

Now, maybe it's illegal in your jurisdiction for the motion not to be recorded.  The law should be followed, of course, but it doesn't appear to me that such a law is an applicable procedural law, so it does not trump your rules of order.  Instead, it is just something that must be complied with, and you would comply by amending the minutes.  If, for some reason, the membership prefers inaccurate minutes, and the secretary doesn't wish to be liable, the secretary should resign.  There's simply no way for a law to act to push things into your minutes - they have to get put there through your procedures.  

If a law required every organization to adopt a mascot, an organization that failed to adopt one would be out of compliance with the law - the law doesn't operate to simply give you one (what would it be?)  Even if a court of equity intervened to give you a mascot, it's not clear you'd be in compliance with the law requiring you to adopt one.

[Hieu H. Huynh]

29 minutes ago, Guest harper said:

My followup question: If the main motion wasn't recorded in the minutes (again, in our jurisdiction that could be a legal violation), should the chair insist that the previous (main) motion be read out before any action on the new motion is taken including an appeal? Essentially, a point of law trumping a point of order.

In which case, should the chair read out the law? And does that settle the issue until the next board meeting?

Generally, the validity of an adopted motion has nothing to do with whether it was recorded in the minutes. Would you explain what you mean by "a point of law"?

[Josh Martin]

56 minutes ago, Godelfan said:

Now, maybe it's illegal in your jurisdiction for the motion not to be recorded.  The law should be followed, of course, but it doesn't appear to me that such a law is an applicable procedural law, so it does not trump your rules of order.

It seems to me that a law regarding the content of the minutes would be in the nature of a rule of order, so I think this law would take precedence over RONR - not that it matters in this instance, since RONR also requires main motions to be recorded in the minutes.

[harper]

1 hour ago, Godelfan said:

Thank you for your response, Mr. Godelfan.

My responses:

<<1.  A motion was made and adopted at a meeting.>> Yes.

2.  It was not put into the minutes. Yes.

3.  The minutes were adopted (?) Yes, but the mistake was caught shortly after the meeting and the secretary was informed.

<<4.   A conflicting motion was made. >> One will be.

<<If this is right, the chair should advise the member to move to amend something previously adopted. The minutes should be corrected by a motion to amend something previously adopted, i.e. the minutes.>> The wording of the previous motion is important.

Question 1: Should the secretary be asked to read out the previous motion and vote? And if he doesn't have readily available, should he be asked to present it at the next board meeting?

 

Question 2: Since a new motion will be presented that is in conflict with the previous motion, should the 'amend something previously adopted' procedures referred to by Mr. Huynh be enforced - two thirds majority and prior notice?

And Question 3: How does the chair, practically speaking, enforce the 'amend something previously adopted' guideline in the face of a challenge or complaint? Just say "No. Next item on the agenda."

[Joshua Katz]

1.  It doesn't matter that you've informed the secretary.  Once the minutes are adopted, the way to change them is to make a motion.  They no longer belong to the secretary.  At the next meeting, before this matter arises, amend the minutes to include the previous motion.  When the item comes up and a point of order is raised, the chair may find it useful to have the now-amended minutes read.

2.  It's a two thirds vote, or a majority vote with previous notice, or a majority vote the entire membership, any one of which will suffice.  

3.  If I were the chair, I would say "the motion is out of order as an original main motion; it would be in order to move to amend the previously adopted motion."  Or I might just say "The chair will treat the motion as a motion to amend the previously adopted motion, and it will require a 2/3 vote as no notice was given" or something to that effect.  

[Dan Honemann]

I certainly agree that the first thing that ought to happen is correction of the minutes (assuming they need to be corrected).

As matters now stand, it has yet to be established that the first motion to which reference has been made was adopted.

[harper]

To Mr. Goldefan: Thank you.

Harper

 

[harper]

1 hour ago, Daniel H. Honemann said:

I certainly agree that the first thing that ought to happen is correction of the minutes (assuming they need to be corrected).

As matters now stand, it has yet to be established that the first motion to which reference has been made was adopted.

Mr. Honemann, I certainly agree. I was told by the person who made the motion that it was adopted. Nevertheless, secondhand is secondhand. But the organization records its meetings. Therefore, if there is a need to verify by listening to and transcribing the relevant passages on the tape, would that defer any action on the existing and/or amended resolution? And how would one go about doing that? Just defer debate and discussion on the issue until the next board meeting? Or does the two-thirds rule referred to by Mr. Godelfan and Mr. Hyunh stand? Thank you. Harper

 

[Dan Honemann]

As of right now, as far as the board is concerned, the motion was never made, considered or voted on, since the board has approved minutes which give no indication that any such thing happened.

A transcript of the proceedings should certainly make it easier for board members to decide how to act on a motion to amend the previously adopted minutes. 

[harper]

1 hour ago, Daniel H. Honemann said:

As of right now, as far as the board is concerned, the motion was never made, considered or voted on, since the board has approved minutes which give no indication that any such thing happened.

A transcript of the proceedings should certainly make it easier for board members to decide how to act on a motion to amend the previously adopted minutes. 

Thank  you as always. Let me follow up: So then the legal issue takes precedence - of the secretary failing to record a board decision - and the chair can make a ruling independent of RONC if he so wishes, referring back to the exchange we once had on the hierarchy of rules? 

 

[Dan Honemann]

I don't know what legal issue is of concern here, or why a "hierarchy of rules" has anything to do with this.

If a motion is made to amend the minutes to reflect the adoption of this motion, your board will have to decide for itself whether it did or did not happen. As of now, it has approved minutes which give no indication that any such thing happened.

 

[harper]

1 hour ago, Daniel H. Honemann said:

I don't know what legal issue is of concern here, or why a "hierarchy of rules" has anything to do with this.

If a motion is made to amend the minutes to reflect the adoption of this motion, your board will have to decide for itself whether it did or did not happen. As of now, it has approved minutes which give no indication that any such thing happened.

 

The motion was unanimously approved and has legal implications involving capital expenditures. The chair then made a request to amend the minutes, his instruction ignored. If I were the chair, I would insist that the transcript be provided before taking any action if the BOD declines to correct the record. Let the brickbats come. 

Again, thank you.

 

 

 

[Joshua Katz]

As I stated earlier, the chair's request about approved minutes has no effect, except insofar as the assembly chooses to give it an effect.  The chair can't unilaterally change approved minutes, nor can anyone else.  I have no idea how a chair would justify refusing to allow a motion to be made until a transcript is provided; if a chair did that at a meeting and I was present, I would certainly appeal.  If the assembly knows the motion passed, it should amend the minutes to reflect that, and the motion is in any event not out of order; all that is changed is the vote threshold.

[harper]

2 hours ago, Godelfan said:

As I stated earlier, the chair's request about approved minutes has no effect, except insofar as the assembly chooses to give it an effect.  The chair can't unilaterally change approved minutes, nor can anyone else.  I have no idea how a chair would justify refusing to allow a motion to be made until a transcript is provided; if a chair did that at a meeting and I was present, I would certainly appeal.  If the assembly knows the motion passed, it should amend the minutes to reflect that, and the motion is in any event not out of order; all that is changed is the vote threshold.

 

Mr. Godelfan, I am still looking for the source of this passage, but I believe it's RONR. This would be my justification. Just because a resolution wasn't recorded, erroneously apparently, doesn't mean it wasn't approved. And if the chair has a clear recollection, he's bound, I believe, to act on what he believes he knows. We're not talking about the color of drapes. "The order of priority of rules that a body is  subject to are, in this order:  State laws, the Charter or Articles of Incorporation, The constitution, if the society has a separate constitution, the bylaws, special rules of order, the rules of order in the parliamentary authority, standing rules and custom.  If a rule of lesser authority conflicts with a rule of higher authority, the rule of higher authority controls."

 

 

[Joshua Katz]

You won't find that rule, at least not in the 11th edition.  Where you have "state laws," RONR has "applicable procedural laws."  However, Mr. Martin above corrected me that the law under discussion would be a procedural law, so let's suppose it is.  Your chair's interpretation of applicable procedural laws remains subject to appeal by the body.  Your chair is not authorized by the law under discussion to unilaterally insert items into the minutes, any more than the secretary is (at least, that's how I read it, but the point is that your organization has to abide by it).  If you want an interpretation of it, you could ask an attorney (although following an attorney's incorrect advice does not create a mistake of law defense), but the word of your attorney will not be the word of god either.  As I mentioned above, if the law says your organization has to have a mascot, that won't cause it to have one, just to be in violation of the law until it adopts one.  If your minutes are incorrect, and there's a law about them, you are in violation of the law - it doesn't give your chair any special powers; your chair is not a judge or a police officer (even if he were, he couldn't change your minutes).  It matters not if we're talking about drapes or minutes (what if there were laws about the colors of drapes, and you were violating them?  Would that law magically change the color of your drapes?).  Amend your minutes so that they are in compliance.

Consider this:  what if there is debate about what happened at a meeting?  This happens at times.  So the secretary writes one version and presents it for adoption.  A motion is made to amend, and there's debate.  Would it help at all for either (or both) side(s) to cite that law?  Of course not - we agree that the minutes should be correct, and both sides would be trying to get them correct.  The law would resolve nothing.

[Dan Honemann]

7 hours ago, harper said:

 

Mr. Godelfan, I am still looking for the source of this passage, but I believe it's RONR. This would be my justification. Just because a resolution wasn't recorded, erroneously apparently, doesn't mean it wasn't approved. And if the chair has a clear recollection, he's bound, I believe, to act on what he believes he knows. We're not talking about the color of drapes. "The order of priority of rules that a body is  subject to are, in this order:  State laws, the Charter or Articles of Incorporation, The constitution, if the society has a separate constitution, the bylaws, special rules of order, the rules of order in the parliamentary authority, standing rules and custom.  If a rule of lesser authority conflicts with a rule of higher authority, the rule of higher authority controls."

 

 

The sentence you have quoted appears to be reasonably accurate (although it is not from RONR), but it's irrelevant. We may properly be concerned about applicable law taking precedence over other rules when there is a conflict between them, but in this instance there seems to be no conflict. You said, at the outset, that applicable law requires that "all board resolutions must be recorded or the secretary is potentially (extremely unlikely) subject to a fine." Since I assume that your organization has no rule saying that board resolutions do not need to be recorded, we needn't worry about priority of rules.

If a main motion was adopted but not recorded in the minutes, and the minutes have already been approved, it is up to the board to correct those minutes by amending them to include the omitted motion. As best I can determine from what has been posted, no effort has as yet been made to get the board to make such a correction.

On the other hand, if what you are saying is that applicable law provides that the president or the secretary, and not the board, has the power and obligation to decide what is or is not to be included in the board's minutes, then that's a whole different kettle of fish.

[harper]

Mr. Godelfan and Mr. Honemann,

Thank you for your comments. I relayed your procedural suggestions to the chair last evening. As for the rest, the chair of the organization in question is also the chief executive officer. He has fiduciary duties that extend beyond running meetings. With due respect, he's not bound by someone's mistaken minutes, approved or unapproved, if it could damage the organization. If it is the difference between taking action or delaying action - and wait for the record to be corrected - I side with delay. And if the law requires that meeting resolutions be recorded and the secretary was derelict in his duties not to record an important resolution, and then the board was derelict in its duties not to catch the omission immediately (as was the case) but caught it eventually, then I believe the chair would be within his rights to delay action until some remedial measure is taken.

Let me make one final comment to provide some context: The organization has been shaken by lawsuits in recent years, many of these caused by inadequate, inaccurate record-keeping and, more generally, failure to adhere strictly to the law. RONR is a valuable guide for running meetings and its due process prescripts are first-rate. Its biggest shortcoming, in my opinion, is that you don't highlight one short passage - it's equivalent to a footnote - on Page 16 of the 10th edition:

"When a society or an assembly has adopted a particular parliamentary manual—such as this book—as its authority, the rules contained in that manual are binding upon it in all cases where they are NOT INCONSISTENT WITH the bylaws (or constitution) of the body, any of its special rules of order, or any provisions of local, state, or national law applying to the particular type of organization."

I can't speak for organizations around the world that rely on RONR, but based on my organization's experience - winding up in court far too many times, causing huge financial damage - RONR has limits which need to be articulated more clearly in my opinion. I truly believe - and would gladly respond to a survey and use my name rather than a pseudonym - that there is a need to draw clearer lines between parliamentary procedures and parliamentary law and 'the law' in general.

Again, many thanks. And to all, a happy holiday season.

 

 

 

 

[Dan Honemann]

As best I can recall, no one has suggested that the president cannot take action or delay taking action if he is convinced that it is necessary in order to comply with a motion properly adopted by the board but not recorded in the minutes. He will, of course, be doing so at his own risk. If, as you expect, the record is eventually corrected, then all will be well. On the other hand, if the board disagrees with him as to what did, in fact, occur, then he will have a bit of a problem on his hands.

That sentence on page 16 (it's on p. 16 of the current edition as well), is more than a mere footnote, and is echoed elsewhere throughout the current edition (e.g. p. 3, l. 32 to p. 4, l. 2; p. 10, ll. 25-30; p. 125, ll. 10-11; (d) on p. 251; p. 263, ll. 12-14; etc., etc.). How many times do we have to tell you something? 

[harper]

Mr. Honemann, I say this with utter respect and if ever I get down to the Inner Harbor again would be honored to meet you. But the fact of the matter is, the issue of 'Law and Robert's Rules' is not mentioned in the table of contents and the passage I referred to on Page 16 is not highlighted or set apart from the rest of the text. Yes, it's in the index. So point taken. But RONR has sections on 'Disciplinary Procedures' and 'Minutes and Officers' Reports' that could have been written by lawyers. The fact that one needs to go to the index and not the content page indicates that it's a lesser priority. And based on my experience - having had a close friend (like you) who spent X number of years, not X number of courses, studying the law - I would say that you have the advantage of knowing where to draw the line. If I were to offer an unsolicited suggestion, which I guess I'm now doing, expand upon that Page 16 reference, highlight it and put it on Page 1 of the introduction (in bold face) with a disclaimer that if there is any doubt about legal issues, see a lawyer. Anyway, thank you always for taking time out to respond to my 'how many times' questions. 

[J. J.]

I have to disagree with harper.  I think this is something understood by even someone with a "lay knowledge" of both procedure and of the law.

 

About 25 years ago, such a person actually wrote an article on the subject.  The individual, at the time, had no certification as a parliamentarian, was not a member of any bar anyplace on the planet, nor had he ever attended law school. 

[Guest D.Llama]

Mr Harper : 

Without getting into the particulars of the question you raised in this inquiry I would agree that confusion may exist in some quarters, over what RONR actually is , or is proposed  to be, in the context of  actual "law ". 

The first line of the introduction to RONR ( p. XXiX)  states as follows :

"This book embodies a codification of the present day general parliamentary law ".

Who says so ?  It seems one man says so -  ( General Robert ), and those who have followed after, as authors  of RONR . But there are several other texts that also claim to state  the "parliamentary " Law . Robert was not a King or Legislature  onto himself ,so although the claim can be (is)  made  - it is not more than just that - the claim of one man. Indeed , it would seem anyone can write a book of procedure and call it - what the wish . But it might not sell- of course  !

And to refer to these optional  procedural rules  in any way as "law" is arguably problematic- confusing for some   . Law must be applied -RONR is a matter of choice - use some , all, or none . Law is made by assemblies elected to do so or created by the courts ( common law ). RONR is neither- even if from time to time courts find   RONR useful in considering how to resolve a matter of procedural dispute.

RONR is without doubt a great resource - no question . However, it is important to always keep clearly in mind what must be followed and complied with ( law ) and what is a matter of choice . RONR actually does not suggest otherwise on full read - but the lines can easily be confusing for many .

Happy  Hollidays . 

D.Llama

 

 

[Dan Honemann]

I agree that there are quite a few people who do not understand what is meant by the terms “parliamentary law”, “common parliamentary law”, and “general parliamentary law” (including some who ought to know better), but this is not the fault of anything said in RONR.

There are no rules of parliamentary law which are binding upon any organization’s assembly except those rules which it has itself adopted for the governance of its own proceedings, and those which may have been imposed upon it by a parent body (if it has one). Rules of parliamentary procedure imposed upon an organization by applicable law are not rules of parliamentary law. They are, most often, a part of the general corporation law of the state in which the organization is incorporated, although they may also be found in a number of other kinds of laws applicable to particular entities such as community associations, condominium regimes, unions, etc.

[Guest Dllama]

Mr. Honemann:

It's  a high point of any day of mine  - when we agree 100% .Obliged . 

D.Llama