Executive Committee Constituted in VIolation of the Bylaws

[Guest Bruce Carter]

I'm the Parliamentarian for a University Senate. Senate bylaws require that members of our Agenda Committee (the Executive Committee of the Senate) are elected from the various schools and colleges comprising the University and that no more than four members of the Committee can come from a single school or college. Last Spring (before I was appointed Parliamentarian, the Agenda Committee proposed a slate of candidates that, once the candidates were elected violated this prohibition in the Bylaws. An additional 2 individuals from the same college were elected to serve, bringing the total number of members to 6 (violating the bylaw). (The prohibition was designed to prevent the faculty from the largest school on campus which has the most senators from also dominating the Agenda Committee).

I have advised that the Agenda Committee could either void the election, allowing the serving members to complete their terms and electing 2 new individuals from other schools and colleges OR that two current members (3 of whom have terms expiring in May) could resign, effectively creating vacancies that could then be filled by persons representing other faculty constituencies.

An ad hoc committee (already seated by the Agenda Committee to examine the existing bylaws) has suggested the following ByLaw amendment: " for the 2017-2018 Senate term only, up to six of the eight persons representing the faculty, the staff, and the ex officio members of the Senate may be from one college or school." They propose to introduce this amendment to the Bylaws to eliminate the need for resignation or a new election.

I am puzzled by how to respond. Any help would be appreciated.

[jstackpo]

If the members of the FacSen wish to amend the bylaws to accommodate the (I guess) improper elections, I don't see that you as parliamentarian have any particular need to respond, unless the procedures for amending bylaws are not followed.

One thing however:  even if the amendment is adopted it will most likely (depending on detailed facts) be necessary to at least formally re-do the election so there will be no question that it has a proper outcome.

[SaintCad]

Until the bylaw is adopted (and even assuming it is not) what is the status of the 6 (non?)members of the Agenda committee?

And would the actions of the Agenda Committee need to be ratified at some point when this is settled since the composition violates the bylaws?

[Guest Zev]

If a violation of the bylaws cannot be fixed with an amendment to the bylaws, then I am at a loss to determine what action would actually fix the problem.

[Josh Martin]

5 minutes ago, Guest Zev said:

If a violation of the bylaws cannot be fixed with an amendment to the bylaws, then I am at a loss to determine what action would actually fix the problem.

Even if the bylaws are amended, the election of the committee will still be null and void, because its election conflicted with the bylaws in effect at that time. Bylaw amendments take effect immediately, but they are not retroactive.

If the society wishes to keep the members it has chosen, it will be necessary to amend the bylaws and to hold a new election.

[Guest Who's Coming to Dinner]

A point of order may be raised that the election of the last two committee members to come from the same school is null and void. If well taken or sustained on appeal, then the election for those two positions is incomplete; give previous notice and then fill them properly. It would be wise to take SaintCad's implied advice and formally ratify all committee actions taken during the period when the improperly elected members could have voted on them.

[Bruce Carter]

On 11/12/2017 at 4:54 PM, jstackpo said:

Thanks to everyone for your input in this regard. The former chair of our Agenda Committee has suggested the following bylaw amendment. Does it make sense?

Motion to amend the Bylaws of the University Senate

 

Whereas Article IV. Section 1 of the bylaws of the University Senate states regarding the composition of the Agenda Committee that “Of the eight persons representing the faculty, the staff, and the ex officio members of the Senate, no more than four may be from one college or school”;

Whereas the current composition of the Agenda Committee does not comply with said rule with six such members from Arts and Sciences;

Whereas all six members of the Agenda Committee are elected members, and their appointment to the Agenda Committee was in good faith;

Whereas a solution other than a temporary bylaw amendment, such as two current members resigning and electing two replacements from schools/colleges other than Arts and Sciences, would disrupt the operation of the Agenda Committee and the Senate; now, therefore,

Article IV, Section 1 shall be amended to include the following sentence:

However, for the 2017-2018 Senate term only, up to six of the eight persons representing the faculty, the staff, and the ex officio members of the Senate may be from one college or school.

-----------------------------------------------------------------------------------

In the following, Article IV, Section 1 of the Senate Bylaws of is shown with the additional content of the proposed amendment in underlined boldface.

BYLAWS OF THE SENATE OF xxx UNIVERSITY

 

ARTICLE IV. THE AGENDA COMMITTEE

Section 1.

 

There shall be an Agenda Committee consisting of a Vice Chancellor or a Vice President designated by the Chancellor and eleven other members of the Senate to be elected by the Senate. Seven of the eleven shall be chosen from the faculty and staff, three from the student representatives, and one from among the ex officio members. Of the eight persons representing the faculty, the staff, and the ex officio members of the Senate, no more than four may be from one college or school; two shall be elected in one year, three the next, and three (including the representative of the ex officio members) in the third year.  However, for the 2017-2018 Senate term only, up to six of the eight persons representing the faculty, the staff, and the ex officio members of the Senate may be from one college or school. The eleven elected members shall serve for a term of three years beginning on August 15 following their election. They may not succeed themselves after completing a full three-year term. Vacancies in the Committee shall be filled by Senate election at the next meeting after a vacancy occurs. Students elected to fill vacancies shall be deemed to be filling new three-year terms, beginning on August 15 of the academic year in which they take office. Otherwise, elected replacements shall serve the remainder of the terms vacated. In all elections of members of this Committee, nominations shall be made to the Senate by the Agenda Committee. The number of nominations shall be at least twice the number of vacancies; additional nominations may be made from the floor. The Committee annually shall elect its chairperson from its own membership.

 

Thanks.

 

Edited November 15, 2017 at 07:12 PM by Bruce Carter
assuring confidentiality of the query

[Dan Honemann]

Didn't Mr. Martin answer this question?

[Bruce Carter]

 

I concur that the body can modify the bylaws, that the modification takes effect immediately and is not retroactive, and that a new election should be held to correct the earlier error. The current suggestion (above) is modifying the bylaws to excuse this violation IN ORDER to avoid a second election (and disrupting the currently functioning committee). Thus, the proposed amendment to the bylaws would suspend the prior bylaw provision in order to accommodate the flawed election on a one-time basis.

I'm concerned about changing the Bylaws to accommodate the violation (basically introducing into the text of the Bylaws a statement to make a one-time exception). This seems to go against the principles about "encumbering bylaws with provisions which have an effect for only a limited time" (Robert's Rules, 11 ed., p. 597 line 15). I'm also concerned that the current chair of the ad hoc Bylaws Committee was chair of the Executive Committee when the original election occurred; his proposal is to amend the bylaws so that no election will be necessary (which I think violates Robert's). This bylaw amendment to change the allocation of senators on the Executive Committee could be adopted by the body of the whole on which, as might be expected, the representation of faculty from the liberal arts college is higher than the representation of senators from other schools just as is the case with the over-representation of faculty from the liberal arts college on the Executive Committee.

One final query. My reading of Robert's Rules would indicate that those faculty who are currently on the Executive Committee (and who could continue serving if the proposed bylaw passes) should not vote on the bylaw revision as they have a conflict of interest (Robert's Rules, p. 407, lines 20-30). Am I just being a stick in the mud?

[George Mervosh]

1 minute ago, Daniel H. Honemann said:

You're not being a stick in the mud, you're just stubbornly refusing to pay much attention to Mr. Martin's response.  

Not paying much attention to Mr. Martin's replies usually causes the mud to turn into quicksand.  

[Dan Honemann]

Okay, quick draw McGraw. 

As you can see, I determined, shortly after I posted what you have quoted, that I should let Mr. Martin respond for himself, and so I deleted it. But anyway, I agree with you.

[Gary Novosielski]

4 hours ago, Bruce Carter said:

 

I concur that the body can modify the bylaws, that the modification takes effect immediately and is not retroactive, and that a new election should be held to correct the earlier error. The current suggestion (above) is modifying the bylaws to excuse this violation IN ORDER to avoid a second election (and disrupting the currently functioning committee). Thus, the proposed amendment to the bylaws would suspend the prior bylaw provision in order to accommodate the flawed election on a one-time basis.would indicate that those faculty who are currently on the Executive Committee (and who could continue serving if the proposed bylaw passes) should not vote on the bylaw revision as they have a conflict of interest (Robert's Rules, p. 407, lines 20-30). Am I just being a stick in the mud?

Perhaps, but you seem to be missing the fact that although you might wish to avoid another election, you can't.  Since the bylaws are not retroactive, the prior election is already null and void, whether you want to keep those members or not.  

Conflict of interest is not a factor.  A person supporting their own candidacy is expected, and does not disqualify them.  What would disqualify them would be if they were improperly elected by the election that is now null and void,  and are therefore not actual members.

[Bruce Carter]

Actually, I agree that there has to be another election, that the prior election was contrary to the bylaws and that the bylaws revisions are effective immediately but not retroactive. The former chair of the Executive Committee (who would have been involved in nominating the "illegal" members) has proposed the bylaw revision to allow the current committee to stand WITHOUT an election because they (1) were elected, (2) acted in good faith in holding an election, and (3) are functioning as a committee, and (4) electing new members (and others resigning) would affect the work of the Executive Committee negatively. My understanding from all the replies to my query is that you can't retroactively change the bylaws and that another election has to be held to remain consistent with the organizational bylaws and Robert's.

My question about conflict of interest is focused largely on the fact that the Bylaws Committee (which includes 2 of the contested members and the former Exec Chair; 3 of the 5 Committee members) is being asked to propose the bylaw amendment described above. This would mean that a fair number of the members of this ad hoc committee would be voting on proposing an amendment that legitimizes their currently illegitimate positions (which is where I see the conflict of interest). The proposed amendment would then go to the Executive Committee (which is where the problem lies anyway) where the members who were "illegally" elected could vote as could the current members who put forward the "illegal" slate. One of these members has raised the issue of whether anyone has suffered "material harm" as a result of the election and pointed out that new elections will be held at the end of the spring semester anyway.

My queries are to see if my interpretations of Robert's are correct (at least there is concurrence here) and to bolster arguments by appealing to authorities for the interpretations. Of course, as parliamentarian I can only advise, but I am on the verge of resigning that role so that I can speak freely as a senator on the issues.

[Dan Honemann]

Mr. Carter, I wonder if you could let us know what procedure, if any, has been established or employed in the past to either (a) prevent too many members from a single school or college from being elected to the Agenda Committee, or (b) immediately cope with the problem if too many are apparently the winners of an election. It seems to me that, when this provision was placed in your bylaws, some procedure should have been established to prevent this sort of thing from happening.

[Bruce Carter]

I've been a University Senator for nearly 30 years and have served on the Executive Committee 6 or 7 times, chairing it on 4 different occasions. This part of the bylaws predates me and I am unaware if something preceding my tenure resulted in its inclusion in the bylaws. I suspect it was done to ensure that the larger schools and colleges did not dominate the administration of the Senate and that the smaller schools were included. We have never had this occasion arise to my knowledge. The administrative assistant who was the "memory of the Senate" retired and a new AA, unfamiliar with the Senate or Robert's Rules, was appointed to fill her slot. I suspect that the new person unwittingly allowed this election to occur where the former assistant would have pointed out the flaw in the election process. The only procedure that keeps this from happening, as far as I can tell, is the bylaw rule (and institutional memory).

[Dan Honemann]

I don't see how this can be blamed on one person, since apparently no one at all paid any attention to what was happening. How are these elections held? Are they held during a meeting? Are the results of the election announced at a meeting?

[Bruce Carter]

The Executive Committee prepares a ballot which is then distributed as a written ballot. Voting occurs via mail and election results were announced at a subsequent meeting. College affiliation of members was not part of the announcement nor the ballot. In the past there was no parliamentarian and the administrative assistant (who retired) advised Executive Committee on compliance with bylaws.

 

[SaintCad]

11 hours ago, Bruce Carter said:

My question about conflict of interest is focused largely on the fact that the Bylaws Committee (which includes 2 of the contested members and the former Exec Chair; 3 of the 5 Committee members) is being asked to propose the bylaw amendment described above. This would mean that a fair number of the members of this ad hoc committee would be voting on proposing an amendment that legitimizes their currently illegitimate positions (which is where I see the conflict of interest). The proposed amendment would then go to the Executive Committee (which is where the problem lies anyway) where the members who were "illegally" elected could vote as could the current members who put forward the "illegal" slate. One of these members has raised the issue of whether anyone has suffered "material harm" as a result of the election and pointed out that new elections will be held at the end of the spring semester anyway.

 

First things first.  Those people on the board in violation of the bylaws ARE NOT MEMBERS OF THE AGENDA or EXECUTIVE COMMITTEE!!.  Their election was invalid and as soon as a Point of Order is held up to that effect everyone should be aware they have NO RIGHTS!!  They CANNOT vote for the Bylaw Amendment either as members of the Agenda Committee or as members of the Executive Committee as they are not members and never were.

 

Honestly the best solution would be for the Presiding Officer to inform them ahead of time that since their election violated the Bylaws they are not members of the committees and cannot attend any meetings unless they are legally elected.

 

 

[Dan Honemann]

23 hours ago, Bruce Carter said:

The administrative assistant who was the "memory of the Senate" retired and a new AA, unfamiliar with the Senate or Robert's Rules, was appointed to fill her slot. I suspect that the new person unwittingly allowed this election to occur where the former assistant would have pointed out the flaw in the election process. The only procedure that keeps this from happening, as far as I can tell, is the bylaw rule (and institutional memory).

 

22 hours ago, Daniel H. Honemann said:

I don't see how this can be blamed on one person, since apparently no one at all paid any attention to what was happening. How are these elections held? Are they held during a meeting? Are the results of the election announced at a meeting?

 

15 hours ago, Bruce Carter said:

The Executive Committee prepares a ballot which is then distributed as a written ballot. Voting occurs via mail and election results were announced at a subsequent meeting. College affiliation of members was not part of the announcement nor the ballot. In the past there was no parliamentarian and the administrative assistant (who retired) advised Executive Committee on compliance with bylaws.

 

Your Senate's bylaws very clearly state that, of a total of eleven elected members of its Agenda Committee, seven shall be chosen from the faculty and staff, and one from the ex officio members of the Senate, and that no more than four of these eight members may be from one college or school. This Committee, which you say is the Executive Committee of the Senate, acts as a nominating committee in submitting nominations for election to itself, and, I gather, also prepares the ballot used for a vote by mail.

There can be no doubt but that it is the duty of every member of this committee, and especially its chairman, to be fully familiar with the bylaws of the Senate, and especially the bylaw provisions which set forth the eligibility requirements for election to membership on the Agenda Committee. Nevertheless, at the time when this committee decided who it would nominate for election to itself, it apparently nominated at least two persons who were clearly ineligible for election, and then these persons were declared to have been elected.  

Since you are now serving as parliamentarian, and if the rules in Robert's Rules of Order are controlling in this connection, I suggest you read what is said on pages 444-446 in RONR (11th ed.) very carefully. 

By the way, I hope your Senate is aware of the fact that Robert's Rules of Order Newly Revised tells us that it is a fundamental principle of parliamentary law that the right to vote is limited to the members of an organization who are actually present when a vote is taken, and that exceptions to this rule must be expressly stated in the bylaws, including any exception allowing for voting by mail. In other words, absentee voting, which includes voting by mail, is strictly prohibited unless some provision in the bylaws specifically permits it. 

 

 

Edited November 17, 2017 at 03:22 PM by Daniel H. Honemann
Added the last paragraph.

[J. J.]

On 11/13/2017 at 9:00 PM, Josh Martin said:

Even if the bylaws are amended, the election of the committee will still be null and void, because its election conflicted with the bylaws in effect at that time. Bylaw amendments take effect immediately, but they are not retroactive.

If the society wishes to keep the members it has chosen, it will be necessary to amend the bylaws and to hold a new election.

Agree in part and dissent in part.

The bylaw amendment, as proposed, would not "legitimize" the election.

That said, there could be a bylaw amendment that would permit the result to stand.  For example, an amendment that said, "The results of the election of the _____ Committee, as announced at the meeting of _________,  shall be legitimate and shall not be questioned," or something similar.    It would not be necessary to hold an election, in that case.

I would think that, usually, this would be like using an elephant gun to kill a fly, but it could be done.

Edited November 17, 2017 at 06:16 PM by J. J.

[Dan Honemann]

2 hours ago, J. J. said:

Agree in part and dissent in part.

The bylaw amendment, as proposed, would not "legitimize" the election.

That said, there could be a bylaw amendment that would permit the result to stand.  For example, an amendment that said, "The results of the election of the _____ Committee, as announced at the meeting of _________,  shall be legitimate and shall not be questioned," or something similar.    It would not be necessary to hold an election, in that case.

I would think that, usually, this would be like using an elephant gun to kill a fly, but it could be done.

Actually, proposing an amendment along these lines may well be a good idea for more than one reason, and not at all comparable to using an elephant gun to kill a fly.  

[J. J.]

1 hour ago, Daniel H. Honemann said:

Actually, proposing an amendment along these lines may well be a good idea for more than one reason, and not at all comparable to using an elephant gun to kill a fly.  

There can be other good reasons, especially if mail ballots are not authorized in the bylaws.  I just think it would be easier to hold another election; that would solve this particular problem.

Edited November 17, 2017 at 10:13 PM by J. J.

[Guest Zev]

4 hours ago, J. J. said:

That said, there could be a bylaw amendment that would permit the result to stand

For a second there I thought I had been shot with an elephant gun.

[Richard Brown]

5 hours ago, J. J. said:

 . . . .The bylaw amendment, as proposed, would not "legitimize" the election.

That said, there could be a bylaw amendment that would permit the result to stand.  For example, an amendment that said, "The results of the election of the _____ Committee, as announced at the meeting of _________,  shall be legitimate and shall not be questioned," or something similar.    It would not be necessary to hold an election, in that case.

I agree with JJ and started to make a post to that effect several times, but ultimately decided to just not "go there".  Thank you, JJ.

[SaintCad]

8 hours ago, J. J. said:

Agree in part and dissent in part.

The bylaw amendment, as proposed, would not "legitimize" the election.

That said, there could be a bylaw amendment that would permit the result to stand.  For example, an amendment that said, "The results of the election of the _____ Committee, as announced at the meeting of _________,  shall be legitimate and shall not be questioned," or something similar.    It would not be necessary to hold an election, in that case.

I would think that, usually, this would be like using an elephant gun to kill a fly, but it could be done.

But the point still remains that those ellected illegally could not vote for that amendment which is a concern of the OP.