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Motion carried but illegal


fixter
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I am really stuck on this one. This is a separate definition in our bylaws that is aside from definitions of membership.

Section 5. Life Membership. Life Membership shall be conferred upon all members of the company who have completed 15 years of active service. Life Members shall retain all privileges of membership in the Company, but shall not be required to pay dues and shall receive a special pin to signify completion of 15 years of service. Life Members will also be entitled to keep their key.

Life Members who do not perform any of the duties of a member of the company for a period of time of one year will have their status changed to Inactive Life Member. They shall forfeit all privileges and rights of membership. If they desire, they may reapply for membership in the regular manner, as a new member.

The member that came into question was the president before me. At that election he ran for chief of the company and lost by one vote. Since then the current chief has been on a mission to run him out. They suspended him a couple times for any reason they could make up. He wound up taking extra jobs and had no time to contribute to our fire company on a regular basis. He did several things though to help.  What the real rub is he is a good friend of mine.

 My interpretation of the above is that after giving 15 years of service you are rewarded. You enjoy everything available in the other definitions of membership. That goes on until you basically disappear for a year. 

 The chief brought this up at executive board that the member had not done anything for a year. Fact is he was suspended in May for answering a call but had not had a yearly physical ( a whole nother hornets nest). He also sold tickets (thousands worth) for our raffles. He has helped me with my job continuously. The executive board forced the issue to general membership. Only about half the membership was there but enough for a quorum. The motion was made and voted on to push this member out under this rule. Secretary sent a nasty letter to him (which I did not see or sign) telling him to turn in his stuff.

 At the meeting we happened to also vote to retain an attorney for the company. I spoke to him about this and he said his first impression was that we had violated General Municipal Law I think it was 290-I. This is removal of a member without due process. My friend could easily sue the company and now I am between the rock and hard place.

 Any suggestions on how I handle this illegal act?

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Legal questions are outside the scope of this forum.

In terms of the parliamentary question, it's largely one of bylaw interpretation, which is also outside the scope of this forum.  The company will need to interpret it by asking whether the tasks you list (selling tickets, helping you, etc.) fall under the category of "duties of a member," which will depend, in turn, on the duties imposed on members by your bylaws.  If you believe that he did not qualify for removal under this rule, then you can raise a point of order to that effect, and appeal if necessary, since the removal of a member would be a continuing breach.  But you'll need to make the case that, in fact, he had performed the duties of a member that year.  

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15 minutes ago, Godelfan said:

Legal questions are outside the scope of this forum.

In terms of the parliamentary question, it's largely one of bylaw interpretation, which is also outside the scope of this forum.  The company will need to interpret it by asking whether the tasks you list (selling tickets, helping you, etc.) fall under the category of "duties of a member," which will depend, in turn, on the duties imposed on members by your bylaws.  If you believe that he did not qualify for removal under this rule, then you can raise a point of order to that effect, and appeal if necessary, since the removal of a member would be a continuing breach.  But you'll need to make the case that, in fact, he had performed the duties of a member that year.  

So at the next meeting I would raise the point of order. When would I do this? As far as making the case, I have been told previously that as the chair I was not supposed to argue the merits? 

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3 minutes ago, fixter said:

So at the next meeting I would raise the point of order. When would I do this? As far as making the case, I have been told previously that as the chair I was not supposed to argue the merits? 

A point of order regarding a continuing breach can be raised at any time.  I had forgotten that you are the chair for company meetings.  I suppose you can just raise it as a ruling, expect it to get appealed, and then, in the debate on the appeal, you are entitled to speak to your ruling.

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Doing a little searching I found this quoted in another thread

> §23    point of order    251      <<

    The only exceptions to the rule that a point of order must
be made at the time of the breach arise in connection with
breaches that are of a continuing nature, in which case a point
of order can be made at any time during the continuance of
the breach. Instances of this kind occur when:

a)     a main motion has been adopted that conflicts with the
    bylaws (or constitution) of the organization or assembly,*
b.)    a main motion has been adopted that conflicts with a
    main motion previously adopted and still in force, unless
    the subsequently adopted motion was adopted by the
    vote required to rescind or amend the previously adopted
    motion,
c)     any action has been taken in violation of applicable pro-
    cedural rules prescribed by federal, state, or local law,
d)     any action has been taken in violation of a fundamental
    principle of parliamentary law (p. 263), 
or
e)     any action has been taken in violation of a rule protecting
    absentees, a rule in the bylaws requiring a vote to be taken
    by ballot, or a rule protecting a basic right of an individual
    member (pp. 263‑64).

In all such cases, it is never too late to raise a point of order
since any action so taken is null and void.

 

I seems that item c) violation of state law would be what this falls under. 

I am just trying to figure out how to handle at the meeting. I just raise a point of order of the motion that voted the member out and declare it null and void since it violated our bylaws and state law? So when the **** flies, I bring them to order and ask if they are appealing the decision and go from there? 

Sorry this is only my second year and I never realized I had that sort of power. I had always thought that the power was in the membership only. It is my job to enforce our bylaws so that is what I lean on for this. I am starting to understand some of this stuff. Our bylaws give the president no real power as far as punishment for enforcement. The chief can suspend someone in certain instances but that is limited and has been actually abused.

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32 minutes ago, fixter said:

I seems that item c) violation of state law would be what this falls under. 

 

That's not clear to me, because it's not clear to me what your law says (and we aren't going to interpret it).  

It seems to me that the argument you wanted to make is that it violates your bylaws, see a in your list.

Either way, though, the presiding officer can make rulings without a point of order being raised (or you can enlist someone else to raise one for you to rule on).  As a good presiding officer, you will not then let the **** fly, but rather keep the assembly in order.  You can ask if there's an appeal, which is recommended when a ruling is expected to be controversial.  

The power is in the membership.  That's why they can appeal your rulings.  You have the power to make initial rulings, though - with the final decision always resting with the assembly.  What we're talking about here has nothing to do with power to discipline, but rather the task of presiding.  The solution to bylaws problems is not usually discipline, but rather points of order.

When you are presiding, it is your job to enforce all applicable rules, not just the bylaws.  

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I am a little unclear on the appeal process.

I would raise a point of order regarding the motion conflicting with our bylaws and state law.

Next I would rule on the point of order and the motion would be null and void

So if someone does motion for an appeal how can the motion be accepted if it is breaking our bylaws of general municipal law? What can they bring on appeal that would send it back to membership for a vote? 

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Once an appeal is made and seconded, the decision automatically goes back to the membership. It's only after the appeal and second that the arguments for and against the chair's ruling begin. If you made the ruling as chair, then you can speak first to give reasons for your ruling. Every other member who wants to speak can speak only once, and you as chair can speak a second time if you wish. The assembly decides whether to accept or reject your ruling. The vote on an appeal is whether the decision of the chair should be upheld - a majority in the affirmative or tie vote upholds the ruling.

But just be aware that no reason needs to be given to force an appeal - only a motion and a second.

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1 hour ago, fixter said:

So if someone does motion for an appeal how can the motion be accepted if it is breaking our bylaws of general municipal law? What can they bring on appeal that would send it back to membership for a vote? 

If the majority votes to overturn the ruling of the chair, then it is overturned. Parliamentary procedure cannot force an assembly to obey its own rules or government regulations. That is the purview of public justice.

The point of order and possible appeal should occur in a meeting of the membership, not the board, because it was the general membership's decision that is being challenged.

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3 hours ago, fixter said:

So if someone does motion for an appeal how can the motion be accepted if it is breaking our bylaws of general municipal law? What can they bring on appeal that would send it back to membership for a vote? 

You seem to be asking a few questions here.  First, you're adopting the viewpoint that there's some objective answer that, yes, something is violating your bylaws/laws, and you want to know why an appeal would be permissible.  However, that's not accurate - these are matters of interpretation, and opinions vary.  If you think there's a violation of law, you can go to court - where, again, you're subject to the opinion of a judge and/or jury deciding the matter.  It's turtles all the way down - everything gets done by humans at every stage, there's no universal computer that, at some level, gives the "right" answers.  It becomes a matter of making compelling arguments.  

Next, you ask what points can be brought on appeal.  As was explained above, though, an appeal is just a motion - it requires a motion and second.  Unlike in courts, where an appeal has to rest on specific grounds, a parliamentary appeal simply says "I think the chair ruled incorrectly" and seeks a vote from the assembly - the ultimate authority - on the matter.  Of course, a successful appeal will probably require explaining why the mover thinks the chair ruled incorrectly.

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On ‎2‎/‎19‎/‎2017 at 9:00 PM, Bruce Lages said:

Once an appeal is made and seconded, the decision automatically goes back to the membership. It's only after the appeal and second that the arguments for and against the chair's ruling begin. If you made the ruling as chair, then you can speak first to give reasons for your ruling. Every other member who wants to speak can speak only once, and you as chair can speak a second time if you wish. The assembly decides whether to accept or reject your ruling. The vote on an appeal is whether the decision of the chair should be upheld - a majority in the affirmative or tie vote upholds the ruling.

But just be aware that no reason needs to be given to force an appeal - only a motion and a second.

With the vote on an appeal, is it majority of the people present or the people voting? I'm certain there will be some that abstain.

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