Motions that Conflict with Bylaws

[Guest Scott L]

I'm presiding over a board and we expect a disgruntled member to make a motion that conflicts with the bylaws at our upcoming membership meeting.  I know a prior version of Robert's states "No motion is in order that conflicts with the laws of the nation, or state, or with the assembly’s constitution or by-laws, and if such a motion is adopted, even by a unanimous vote, it is null and void."  I know this language is not in the RONR, but it still allows for a point of order for motions that conflict with a bylaw on page 251.  I'm trying to figure out what I, as the president and presiding officer, should do.

If the motion is made and second should I then call a point of order, and declare the motion invalid as it conflicts with the bylaws?

Provided I do so and an appeal is made, do I have to allow the appear to go to a membership vote?

And if the appeal wins, what then?  The RONR on page 263 says bylaws cannot be suspended, which is effectively what this would do.  So how is that conflict handled?

Would appreciate citation to page/line numbers with answers.  Thanks in advance, this seems like a great forum!

[Richard Brown]

The language which you quoted in your first paragraph is still in the 11th edition of RONR, but the wording has been changed slightly.  Here is the current wording from the 11th edition:  "No main motion is in order that conflicts with the corporate charter, constitution, or bylaws (although a main motion to amend them may be in order; see 35, 57); and to the extent that procedural rules applicable to the organization or assembly are prescribed by federal, state, or local law, no main motion is in order that conflicts with such rules. "

So, a motion which conflicts with the bylaws is out of order and you should rule it out of order.  If no member raises a point of order, you may rule it out of order on your own.  Your ruling is subject to an appeal.  You cannot "deny" the appeal.  If your ruling is upheld, that's that.  If your ruling is overruled, then the motion can be considered and adopted no matter how strongly you believe it is out of order.  The assembly will have spoken with its determination of the appeal.  The decision of the assembly is final.

Note:  You don't declare the motion "invalid".  You rule that it is "out of order" because it conflicts with the bylaws.

Edited to add:  Here is the language from the bottom of page 255 and top of page 256 regarding the decision of the assembly in an appeal  being final:  "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."  (Emphasis added)

Edited September 18, 2017 at 09:15 PM by Richard Brown
Added last paragraph

[Gary Novosielski]

One thing to add:

Quote

 

    [W]hen the chair rules on a question about which there cannot possibly be two reasonable opinions, an appeal would be dilatory and is not allowed.

 

You've said that the motion will violate the bylaws, at least as you currently understand the motion.  Is this clear on its face, or could two reasonable people, or even marginally reasonable people, disagree on that fact?  If they could, then an Appeal (§24) must be entertained.  If not, then the chair can rule that the appeal is dilatory and not allowed.

In debate on an appeal, no member may speak more than once, except the chair, who may speak both first and last.

When putting the question on the appeal, it should be stated,"Shall the decision of the chair be sustained", and made clear that a No vote is a vote to overrule.  When taking a vote on the appeal, a majority in the negative is required to overrule the chair's decision, so tie votes or better will sustain it.   This is, I think, the only time that a tie vote approves a question.

[Richard Brown]

Mr. Novosielski is correct and perhaps I should have added that caveat.  I urge caution, though, in assuming that your interpretation of the effect of a motion is the only interpretation that is reasonable.  Besides, if your interpretation is so obviously the only reasonable interpretation, what do you have to fear from an appeal?   On the other hand, refusing to allow an appeal when others obviously believe your interpretation is wrong could make it appear that you are abusing your power and being dictatorial in order to get your way, thereby injuring your standing as a good, fair and impartial presiding officer.  If you know that a problematic motion is coming, I think it is better to be prepared with good arguments as to WHY it violates the bylaws and is out of order and what the consequences of adopting an illegal motion might be. As chair, you do get to speak twice on an appeal. 

 

[Guest Scott L]

Richard, thanks so much.  I guess what I'm grappling with is if the bylaws cannot be changed except subject to certain rules by their own terms (e.g., 30 day notice, 2/3 vote, etc), a motion and/or a successful appeal to approve something in conflict would be an end around.  Plus going to an appeal would seem to contradict that such an order is always out of order.  So I dont think it makes sense that you can have an appeal.  Also the RNOR states the appeal only applies to "questions of parliamentary law" (page 255).  Wouldnt the bylaws be outside of that, and hence not subject to appeal?  That would be why a conflict always is out of order.  

As for a fear from an appeal, out situation is a former board wanting to take action the current board believes is incorrect, and it appears the former board is trying to stack the deck at the members meeting with friends and supporters who really don't the issue, but are now caught up in emotion.  The new board is inexperienced and is trying not get rolled. 

[Joshua Katz]

A few things:

1.  If the bylaws require notice and a 2/3 vote for their amendment, and a motion is made to amend them without (that's an if statement, I don't know exactly what your bylaws provide, and wouldn't without reading them in their entirety, and even then we don't interpret bylaws) then, in my opinion, there cannot be two reasonable opinions as to whether or not that motion is in order.  I believe an appeal would be dilatory.  However, if it somehow isn't clear that the bylaws do require this (including because of provisions in RONR), then an appeal would not be dilatory.

2.  I don't accept your argument, though, that an appeal is dilatory because "such an order is always out of order."  The question on appeal is precisely whether the order in question is "such an order."  

3.  The interpretation of bylaws is part of parliamentary law, and questions of bylaw interpretation are questions of parliamentary law.  An appeal is perfectly in order if something is ruled out of order because it contradicts the bylaws, if there is any ambiguity as to a) the order, or b ) the bylaw provision.

4.  The new board is free to likewise politic and get supporters to come to the membership meeting.  Presumably, they have supporters or else they wouldn't have gotten onto the board.

[Josh Martin]

17 hours ago, Guest Scott L said:

I guess what I'm grappling with is if the bylaws cannot be changed except subject to certain rules by their own terms (e.g., 30 day notice, 2/3 vote, etc), a motion and/or a successful appeal to approve something in conflict would be an end around.  Plus going to an appeal would seem to contradict that such an order is always out of order.  So I dont think it makes sense that you can have an appeal.

Yes, there is no question that a motion which conflicts with the bylaws is out of order. The question on appeal is whether the motion does, in fact, conflict with the bylaws. An organization's bylaws are not always perfectly clear, and there may be more than one reasonable interpretation.

17 hours ago, Guest Scott L said:

Also the RNOR states the appeal only applies to "questions of parliamentary law" (page 255).  Wouldnt the bylaws be outside of that, and hence not subject to appeal?

No, the chair's rulings on the meaning of the society's bylaws are subject to appeal.

[J. J.]

17 hours ago, Joshua Katz said:

A few things:

1.  If the bylaws require notice and a 2/3 vote for their amendment, and a motion is made to amend them without (that's an if statement, I don't know exactly what your bylaws provide, and wouldn't without reading them in their entirety, and even then we don't interpret bylaws) then, in my opinion, there cannot be two reasonable opinions as to whether or not that motion is in order.  I believe an appeal would be dilatory. 

Agreeing, I will note that in the first case, even if an appeal, presumably placed from the floor, was successful, there would be a breach of a continuing nature, and subject to a point of order at a future meeting (pp. 251, ll. 2-7; ll 20-23).

[Guest Bassick19]

I have a question concerning this thread.

If a motion, that was in clear conflict with the bylaws, was voted on and passed, is that passed motion automatically null and void, without further action?

[Hieu H. Huynh]

1 hour ago, Guest Bassick19 said:

I have a question concerning this thread.

If a motion, that was in clear conflict with the bylaws, was voted on and passed, is that passed motion automatically null and void, without further action?

Please start a new thread. Also, more details may be helpful in the new topic.

[Rob Elsman]

The "then what" in the last question is best answered by noting that the assembly has expressed its best judgment in sustaining the ruling of the chair with the Appeal.  Hopefully, this judgment was arrived at after persuasive and illuminate debate (Parliamentary Law).  The matter is closed; presumably, the correct interpretation of the bylaw has been arrived at.  There is no further "conflict".  Those who are on the losing side have an obligation to accept the decision "gracefully" and move along "cheerfully".

[Richard Brown]

7 hours ago, Guest Bassick19 said:

I have a question concerning this thread.

If a motion, that was in clear conflict with the bylaws, was voted on and passed, is that passed motion automatically null and void, without further action?

 

5 hours ago, Hieu H. Huynh said:

Please start a new thread. Also, more details may be helpful in the new topic.

10 minutes ago, Rob Elsman said:

The "then what" in the last question is best answered by noting that the assembly has expressed its best judgment in sustaining the ruling of the chair with the Appeal.  Hopefully, this judgment was arrived at after persuasive and illuminate debate (Parliamentary Law).  The matter is closed; presumably, the correct interpretation of the bylaw has been arrived at.  There is no further "conflict".  Those who are on the losing side have an obligation to accept the decision "gracefully" and move along "cheerfully".

For openers, the suggestion/request  by Mr. Huynh  to ask the question in a new thread was appropriate and should have been followed for the reasons I will mention below..

Mr. Elsman then posted an answer which I take issue with.

Mr. Elsman seems to be answering the original question asked by Guest Scott L almost three years ago rather than the NEW AND DIFFERENT question asked by Guest Bassick19 earlier today.  The questions might be similar but they are not identical.  That is why we ask that members and guests ask new questions by starting new threads.

I disagree with the response by Mr. Elsman for two reasons:  First, he seems to be answering the question asked three years ago by Guest Scott L rather than the slightly different question asked this morning by Guest Bassick19.  There is no mention of an appeal in the new question asked by Guest Bassick19.  Guest Bassick19's question is "If a motion, that was in clear conflict with the bylaws, was voted on and passed, is that passed motion automatically null and void, without further action?"

In addition, RONR is quite clear on page 251 that a main motion that has been adopted that conflicts with the bylaws is null and void and constitutes a continuing breach and that it is never too  late to raise a point of order that the motion is null and void.  This  would apply even if there is an immediate point of order and an appeal finding that the motion does not violate the bylaws and is valid.  Because of the continuing nature of the breach, the adoption of the motion can still be challenged again in the future with a new point of order and a new appeal.  Still further, regardless of whether the assembly upheld the validity of the motion on an appeal, such a situation is always subject to a court challenge. That doesn't happen often, but rest assured it does happen.  RONR does say that the decision of the assembly is final, but that is true only if the matter doesn't wind up in court.

I think the correct answer to Guest Bassick19's question is that according to RONR an adopted motion which is in conflict with the bylaws is indeed null and void.  However, the best way of obtaining a determination that the motion is indeed null and void is for the chair to make a ruling that the motion conflicts with the bylaws and is therefore null and void.  But, as stated above, such a breach is a breach of a continuing nature which can be challenged at any time by a point of order (and possible appeal) regardless of whether one was raised at the time the motion was adopted.  It can be challenged even years after its adoption.

 

  

[George Mervosh]

1 hour ago, Richard Brown said:

In addition, RONR is quite clear on page 251 that a main motion that has been adopted that conflicts with the bylaws is null and void and constitutes a continuing breach and that it is never too  late to raise a point of order that the motion is null and void.  This  would apply even if there is an immediate point of order and an appeal finding that the motion does not violate the bylaws and is valid.  Because of the continuing nature of the breach, the adoption of the motion can still be challenged again in the future with a new point of order and a new appeal.   

It does seem Mr. Elsman was replying to the original question but I don't understand this part of your answer.  Once it is decided there is no conflict, why isn't it over and done?

[Dan Honemann]

As H.H.H. so wisely noted, "more details may be helpful in the new topic."  🙂

[Rob Elsman]

I beg everyone's pardon.  I did not notice the age of the original post and thought I was just answering the question that was being asked.

It would be helpful if folks would ask new questions on new topics. 🙃

[Weldon Merritt]

5 hours ago, Rob Elsman said:

It would be helpful if folks would ask new questions on new topics. 🙃

I agree. And I will reiterate a suggestion I made quite a while ago which, for reason I don't understand, many regulars opposed. That is, that after some period of time (as determined by the moderators) a thread be locked so that no new questions or responses could be added to it. If this would be too time consuming or labor-intensive, I can understand that. But otherwise, I don't know why anyone would object, since the thread still would be available for anyone to find and research.

[Guest Guest PF Pelot]

 

I have a similar question about the body appealing the ruling of the Chair. The Chair ruled a  motion was out of order because it unquestionably was in conflict with the organizations' s By Laws. In this instance, the By Laws stated a member who has not paid their organizational dues 30 days in advance of a vote taking place in a meeting, cannot vote at that meeting. There is no ambiguity in the By Laws.  A member of the body puts forward a motion to allow a specific member (who was not in "good standing" due to the non-payment of dues as is required in the By Laws) to vote and the Chair ruled it out of order as it conflicted with By Laws. A subsequent appeal was entered by another member to allow the vote of this member who was not in good standing to vote. If the general body votes in favor of the appeal to overturn the Chair's ruling of the original motion being out of order, does that member who is not in good standing get to vote even though doing so conflicts with the By Laws?

[Joshua Katz]

This question will engender a fair amount of discussion, so please ask it in a new topic. The board works better that way.