Deleting Parliamentary Procedure from by-laws

[Richard Brown]

13 hours ago, Daniel H. Honemann said:

No, because adherence to rules prescribed by an applicable written rule is not at all the same thing as adhering to rules as if they were prescribed by a rule.

 

50 minutes ago, Daniel H. Honemann said:

Well, consistently following a certain practice because it is mandated by a written rule may be referred to as a customary practice in a certain sense, but it will not create a "custom", within the meaning of that term as defined on page 19. 

I agree with Mr. Honemann. That has pretty much been my position throughout this thread, but I wanted to follow the discussion and JJ's arguments before weighing in again. I just don't see how following a certain practice because it is mandated by a rule makes it a custom in the sense used in RONR. Is there a need to continue the practice as if it is a rule if the written rule is rescinded? I think not. 

Edited to add: I also agree with the comments by Josh Martin in his post immediately above. Since it appears on a separate page, I will respond to it in a new post below.

Edited February 1, 2018 at 03:38 PM by Richard Brown
Added and edited last paragraph

[Richard Brown]

36 minutes ago, Josh Martin said:

It would seem to me that the society intends for the practice to end.

Suppose that a society has a rule that requires a certain event to be held each spring. The society has followed this practice for many years. At some point, the rule is repealed. My assertion would be that when this occurs, the event will not be held in the future unless the society adopts a motion to do so. You appear to be suggesting that there is still a residual custom, and therefore the event must still be held unless the assembly adopts a motion not to. So in order to stop the event, the society would need to rescind the rule and then adopt another motion to not hold the event. This makes no sense to me.

I agree and think this sums it up very well.

[Gary Novosielski]

I agree that following a rule does not create a custom.

Organizations routinely do things a certain way for one of two reasons--well, okay three:

1. There is a rule that provides that it shall be done that way.
2. There is a custom that has developed over time to do it that way, in the absence of any rule.
3. There is a rule against it, but everyone forgot about the rule for so long that they think they've got a custom.

Case 3 is a common occurrence among guests here, who have stumbled across something in the bylaws that has been ignored for years, and come seeking advice on how to put things right, and whether a continuing breach exists.  

Cases 1 and 2 are mutually exclusive.  A practice is either a rule or a custom, but not both.   A custom falls to the ground in the face of a written rule, whether newly adopted or discovered and a Point of Order sustained with respect to it.  Rescission of a rule is a decision to cleanly stop following the rule, neither establishing a custom nor reinstating any that may have existed in the past.

[J. J.]

3 hours ago, Josh Martin said:

It would seem to me that the society intends for the practice to end.

Suppose that a society has a rule that requires a certain event to be held each spring. The society has followed this practice for many years. At some point, the rule is repealed. My assertion would be that when this occurs, the event will not be held in the future unless the society adopts a motion to do so. You appear to be suggesting that there is still a residual custom, and therefore the event must still be held unless the assembly adopts a motion not to. So in order to stop the event, the society would need to rescind the rule and then adopt another motion to not hold the event. This makes no sense to me.

On that, I disagree.   The assembly can decide to something else, obviously. 

Hypothetically, the society has a rule that says, "Debate on all debatable motions shall be limited to one speech of 5 minutes for each member."  There are no other that conflict; the society has not adopted RONR, nor does it use RONR by custom.  The rule has been followed for decades.  The assembly repeals this rule.

At a meeting, somebody gains the floor, and begins to run over 5 minutes.  Can a member raise a point of order that there is the five minute custom that is binding.  Yes, but whatever the chair's decision, that can be appealed.  What ever the chair, or the assembly on referral or appeal, decides is the rule, in this case a precedent.

It depends what the event is and if it is subject to a point of order.

 

[Richard Brown]

44 minutes ago, J. J. said:

On that, I disagree.   The assembly can decide to something else, obviously. 

Hypothetically, the society has a rule that says, "Debate on all debatable motions shall be limited to one speech of 5 minutes for each member."  There are no other that conflict; the society has not adopted RONR, nor does it use RONR by custom.  The rule has been followed for decades.  The assembly repeals this rule.

At a meeting, somebody gains the floor, and begins to run over 5 minutes.  Can a member raise a point of order that there is the five minute custom that is binding.  Yes, but whatever the chair's decision, that can be appealed.  What ever the chair, or the assembly on referral or appeal, decides is the rule, in this case a precedent.

It depends what the event is and if it is subject to a point of order.

 

Yes, somebody could raise a point of order that there is a five-minute rule (or custom), but I believe the point would not be well taken and should be ruded as not well taken by the chair. The five-minute rule has been explicitly repealed. Since no parliamentary Authority has been adopted, I suppose you could say there is no rule in place, but it could also be said that the common parliamentary law applies.

I do, however, understand the point you are making and I see how it could be argued either way. It is a very good point and is almost persuasive. Almost, but not quite. 

Edited February 1, 2018 at 08:36 PM by Richard Brown
Added (or custom) to the first sentence

[J. J.]

1 hour ago, Richard Brown said:

Yes, somebody could raise a point of order that there is a five-minute rule (or custom), but I believe the point would not be well taken and should be ruded as not well taken by the chair. The five-minute rule has been explicitly repealed. Since no parliamentary Authority has been adopted, I suppose you could say there is no rule in place, but it could also be said that the common parliamentary law applies.

I do, however, understand the point you are making and I see how it could be argued either way. It is a very good point and is almost persuasive. Almost, but not quite. 

The point of order could go either way.  The chair could rule that while it has been a customary practice, that it is no longer in force.  The chair could rule that it is a customary practice and that it should be followed.  The assembly can reverse either.  The assembly can also adopt a motion to extend debate.

Let's say the point of order is, "That debate should not be limited to one speech of five minutes per member on each debatable motion."

If I am making the ruling, my ruling that would be, "It is the custom that debate be limited one speech per member of no longer than 5 minutes on each debatable question.  Until the assembly chooses to vary from this custom, it should be followed.  This decision is subject to appeal.  The decision will create a precedent."  In many cases I would submit the point of order to the assembly.

If that point of order is found not well taken, the next time this comes up, I will following that precedent, but I would note that this decision is subject to appeal.  It is entirely possible that the precedent could fall to the ground.

The last paragraph is one of the reasons why it is not a good idea to conduct business without written rules. 

 

[Gary Novosielski]

1 hour ago, J. J. said:

The point of order could go either way.  The chair could rule that while it has been a customary practice, that it is no longer in force.  The chair could rule that it is a customary practice and that it should be followed.  The assembly can reverse either.  The assembly can also adopt a motion to extend debate.

Let's say the point of order is, "That debate should not be limited to one speech of five minutes per member on each debatable motion."

If I am making the ruling, my ruling that would be, "It is the custom that debate be limited one speech per member of no longer than 5 minutes on each debatable question.  Until the assembly chooses to vary from this custom, it should be followed.  This decision is subject to appeal.  The decision will create a precedent."  In many cases I would submit the point of order to the assembly.

If that point of order is found not well taken, the next time this comes up, I will following that precedent, but I would note that this decision is subject to appeal.  It is entirely possible that the precedent could fall to the ground.

The last paragraph is one of the reasons why it is not a good idea to conduct business without written rules. 

 

The chair should rule that the former rule has been repealed and is no longer in force.  No custom is anywhere in sight.  The assembly never had a custom on this matter; it had a rule.  And, the assembly explicitly "chose to vary from" the rule (not custom) by repealing it--a clear decision that the rule should no longer be followed.  Since there cannot be two possible interpretations on whether the rule was repealed, the decision is not subject to Appeal.

If the assembly suddenly realizes  that it made a mistake by repealing the only existing limit on the length of debate, let it pass a special rule of order, or at least move to limit debate for the duration of the current meeting.  And may it take a lesson to be more careful on what it repeals in the future.

[Josh Martin]

2 hours ago, J. J. said:

The point of order could go either way.  The chair could rule that while it has been a customary practice, that it is no longer in force.  The chair could rule that it is a customary practice and that it should be followed.  The assembly can reverse either.  The assembly can also adopt a motion to extend debate.

Let's say the point of order is, "That debate should not be limited to one speech of five minutes per member on each debatable motion."

If I am making the ruling, my ruling that would be, "It is the custom that debate be limited one speech per member of no longer than 5 minutes on each debatable question.  Until the assembly chooses to vary from this custom, it should be followed.  This decision is subject to appeal.  The decision will create a precedent."  In many cases I would submit the point of order to the assembly.

If that point of order is found not well taken, the next time this comes up, I will following that precedent, but I would note that this decision is subject to appeal.  It is entirely possible that the precedent could fall to the ground.

The last paragraph is one of the reasons why it is not a good idea to conduct business without written rules. 

J. J., shouldn’t the default assumption be that when an assembly repeals a rule, it is doing so because it intends to no longer follow that rule?

1 hour ago, Gary Novosielski said:

Since there cannot be two possible interpretations on whether the rule was repealed, the decision is not subject to Appeal.

I think this might be going too far. J. J.’s example involves a society which has no adopted parliamentary authority. In such a case, I think there is a lot of ambiguity, and therefore a number of legitimate grounds for an Appeal.

[J. J.]

On 2/1/2018 at 7:49 PM, Josh Martin said:

J. J., shouldn’t the default assumption be that when an assembly repeals a rule, it is doing so because it intends to no longer follow that rule?

 

I think that there is a difference between no rule, and a rule against doing something.  Repealing a rule is not the same as the assembly saying, "We will not do what this rule mandates."  It is different from assembly saying, "We are no longer bound by a rule from that particular source."  

To go to the Five Minute Rule example, if it would be repealed, and the assembly decided it was in no way binding on the society, there is nothing to prevent the assembly from adopting a Five Minute Rule in regard to debate on a specific motion or for the entire session. 

If a society would remove a clause mandating RONR as parliamentary authority from its bylaws, that is not the same as saying "We will not do what RONR mandates."  It is saying, "We are no longer bound by RONR, when it is being applied as our adopted parliamentary authority."

 

Edited February 3, 2018 at 03:58 AM by J. J.

[Josh Martin]

16 hours ago, J. J. said:

I think that there is a difference between no rule, and a rule against doing something.  Repealing a rule is not the same as the assembly saying, "We will not do what this rule mandates."  It is the same as the assembly saying, "We are no longer bound by a rule from that particular source."  

To go to the Five Minute Rule example, if it would be repealed, and the assembly decided it was in no way binding on the society, there is nothing to prevent the assembly from adopting a Five Minute Rule in regard to debate on a specific motion or for the entire session. 

If a society would remove a clause mandating RONR as parliamentary authority from its bylaws, that is not the same as saying "We will not do what RONR mandates."  It is saying, "We are no longer bound by RONR, when it is being applied as our adopted parliamentary authority."

This is well and good, but if the society is no longer bound by RONR, or by the five minute rule, why would the chair rule that the society shall continue to follow those rules until the assembly decides otherwise?

[J. J.]

7 minutes ago, Josh Martin said:

This is well and good, but if the society is no longer bound by RONR, or by the five minute rule, why would the chair rule that the society shall continue to follow those rules until the assembly decides otherwise?

Because the assembly has changed how the rule can be modified, but they have not changed how the rule functions.  I'm going to use the Five Minute rule as an example.

The assembly says, when repealing rule, "this rule will not be binding."  It does not say, "and we are going to handle debate this way" or "we are no longer going to use the Five Minute rule." The assembly has not said anything about what the assembly will do, in that instance, nor has it prohibited use of the Five Minute rule.

It is clear that the Five Minute rule does not conflict with any adopted rule.  Following the Five Minute rule also what the assembly has customarily done.  The assembly has not changed anything about the length of debate itself; it has changed  the method for extending or limiting debate, but it has not changed the actual length of debate.

Perhaps this example of standing rule will work.

A society has adopts a standing rule that "the thermostat be set at 68 degrees."  The rule violates no other rule of the asembly.  The thermostat is set at 68 degrees, in accordance with the rule. 

After three sessions the rule "the thermostat be set at 68 degrees," is properly rescinded. No other rule dealing with the thermostat has been adopted.   What is the temperature set at? 

My answer is 68 degrees.  

 

[Gary Novosielski]

23 hours ago, Josh Martin said:

I think this might be going too far. J. J.’s example involves a society which has no adopted parliamentary authority. In such a case, I think there is a lot of ambiguity, and therefore a number of legitimate grounds for an Appeal.

On many points, this would be true, but in this instance, while the society had no parliamentary authority, it did have a rule, and then repealed it.  If a point of order is then raised that the society is no longer following the rule, well, duh.  The rule was repealed.  

Imagine that a motion to throw a party is defeated, and a member raises a point of order that the party should be held anyway.  Does the lack of a parliamentary authority create enough ambiguity to suggest that two reasonable interpretations exist?

 

[Josh Martin]

4 hours ago, J. J. said:

Because the assembly has changed how the rule can be modified, but they have not changed how the rule functions.  I'm going to use the Five Minute rule as an example.

The assembly says, when repealing rule, "this rule will not be binding."  It does not say, "and we are going to handle debate this way" or "we are no longer going to use the Five Minute rule." The assembly has not said anything about what the assembly will do, in that instance, nor has it prohibited use of the Five Minute rule.

It is clear that the Five Minute rule does not conflict with any adopted rule.  Following the Five Minute rule also what the assembly has customarily done.  The assembly has not changed anything about the length of debate itself; it has changed  the method for extending or limiting debate, but it has not changed the actual length of debate.

Perhaps this example of standing rule will work.

A society has adopts a standing rule that "the thermostat be set at 68 degrees."  The rule violates no other rule of the asembly.  The thermostat is set at 68 degrees, in accordance with the rule. 

After three sessions the rule "the thermostat be set at 68 degrees," is properly rescinded. No other rule dealing with the thermostat has been adopted.   What is the temperature set at? 

My answer is 68 degrees.  

Why should the assumption be that the assembly must continue to follow its past practice until the assembly decides otherwise? Could we not assume instead, that the common parliamentary law is controlling, until the assembly adopts a rule on the subject?

As for the thermostat, I suppose the sergeant-at-arms, or the employee in charge of the facilities, or the chair, or whoever gets to the thermostat first, will decide what temperature the thermostat is set at.

In other words, my view is that when a rule is repealed, the situation is the same as if the rule had never existed.

47 minutes ago, Gary Novosielski said:

On many points, this would be true, but in this instance, while the society had no parliamentary authority, it did have a rule, and then repealed it.  If a point of order is then raised that the society is no longer following the rule, well, duh.  The rule was repealed.  

Imagine that a motion to throw a party is defeated, and a member raises a point of order that the party should be held anyway.  Does the lack of a parliamentary authority create enough ambiguity to suggest that two reasonable interpretations exist?

I have no doubt that the rule no longer exists, but that isn’t the precise question before the assembly.

In the five minute example, the question would arise when someone attempts to speak for more than five minutes. Suppose the chair rules that the member may continue speaking. In doing so, it is not sufficient for him to simply say that the five minute rule was repealed. He also needs to explain what the rule is now. Perhaps he says the rule is ten minutes, as he finds RONR persuasive. Perhaps he says that there is no limit on debate at all. Perhaps, however, a member believes that the common parliamentary law, as applied within this particular assembly, is that a member cannot speak for more than five minutes. The member raises an Appeal from the chair’s ruling. Now, I would not agree with this member, but because the assembly has no reliable manual on what its rules of order are, I do not think I would rule it out of order on the grounds that there cannot be two reasonable opinions on the issue.

The party is a poor example for two reasons (and yes, I know I brought up an event first). There is no particular reason why the society must hold a party of any kind. As a result, if the rule is repealed, obviously no party is held. There is obviously, however, some rule regarding how long members may speak, even if that rule is that there is no limit. Similarly, with J.J.’s thermostat example, the thermostat needs to be set at something.

Additionally, whether the party will be held is not a question of order, and occurs outside a meeting context, so a Point of Order is not the proper way to address the issue.

Edited February 3, 2018 at 12:54 AM by Josh Martin

[J. J.]

32 minutes ago, Josh Martin said:

Why should the assumption be that the assembly must continue to follow its past practice until the assembly decides otherwise? Could we not assume instead, that the common parliamentary law is controlling, until the assembly adopts a rule on the subject?

 

In a large part the assembly should give direction on how the procedure is followed.  The assembly not so given any additional directions; it has not even said "We are no longer limiting debate to one five minute speech, per member, on each debatable motion."   The assembly has not changed its instructions. 

1.  I think general parliamentary law is, well, general.  There may not be any general parliamentary law setting the limits of debate.   General parliamentary law is nebulous, and even if we find a something, it may not part of that general parliamentary law. 

2.  Ranks all the sources of rules relating to parliamentary procedure are stated in RONR.  At the top of the list is the corporate charter, then a constitution, bylaws, special rules of order, the parliamentary authority, and finally custom.  General parliamentary law is not on that list.  That is because the rank of general parliamentary law is lower than anything on that list.  If something from higher source conflicts with something in general parliamentary law, that higher source is controlling.

3.  Sources that do give general parliamentary law a place in the hierarchy of the rules, place it below custom.  I find that persuasive.

4.  Parliamentary procedure, which we are really talking about, is general parliamentary law, "as it is followed in any given assembly," along with any rules the assembly has adopted (p. xxx)  While custom is not adopted, it is created by the assembly.  It is certainly, by its nature, is something that is followed by the assembly, as are higher level rules.  The assembly has chosen to use custom to govern some procedure, at some level. 

And in the case of the thermostat, the officers and employees  will not act without an order; they obey the rules.  The thermostat will remain at 68 degrees. 

[Benjamin Geiger]

Perhaps I'm the last person who should be complaining about angels-dancing-on-pinheads questions (seeing as how I, as a programmer, deal with those sorts of hypotheticals in systems on a regular basis^*), but from a practical angle, how would one change custom? Going back to the 5 minute rule: I'd presume that if the assembly no longer wishes to follow the 5 minute rule, having rescinded the rule that imposed it, then when the chair cuts off a speaker after five minutes, a member can raise a point of order (and appeal if the chair persists)?

* Does it seem to anyone else that programmers and computer-science types (such as myself) are somewhat overrepresented in the parliamentary community? (Of the five bios on the back cover, one includes a reference to a CS degree and another a reference to a degree in mathematics focusing on logic...) Is this just how we think?

Edited February 3, 2018 at 02:49 AM by Benjamin Geiger

[Joshua Katz]

18 minutes ago, Benjamin Geiger said:

* Does it seem to anyone else that programmers and computer-science types (such as myself) are somewhat overrepresented in the parliamentary community? (Of the five bios on the back cover, one includes a reference to a CS degree and another a reference to a degree in mathematics focusing on logic...) Is this just how we think?

Masters in math with research in foundations and computability

[J. J.]

7 minutes ago, Benjamin Geiger said:

Perhaps I'm the last person who should be complaining about angels-dancing-on-pinheads questions (seeing as how I, as a programmer, deal with those sorts of hypotheticals in systems on a regular basis^*), but from a practical angle, how would one change custom? Going back to the 5 minute rule: I'd presume that if the assembly no longer wishes to follow the 5 minute rule, having rescinded the rule that imposed it, then when the chair cuts off a speaker after five minutes, a member can raise a point of order (and appeal if the chair persists)?

 

If the assembly decides that, at any level, it will do something different than the custom, that ends the custom.

These will end the custom.

A point of order is raised that the custom of limiting debate is no longer binding.  The chair rules a the point of order well taken.  That would end the custom.

A point of order is raised that the custom of limiting debate is no longer binding.   The chair rules against a point of order, and a successful appeal is made.

The assembly adopts a rule that sets a limit on debate, that is different from the custom.

The assembly adopts the motion that "the custom of limiting debate shall no longer be in force." 

Over time, the chair and the assembly ignore the rule repeatedly; the custom, eventually, is not in force. 

Over time, the chair and the assembly ignore the rule, but follows another practice in its place.  Eventually that will replace the custom of limiting debate to five minutes with a new custom. 

You could also adopt a rule that "Only written rules adopted by the assembly shall be used to govern parliamentary procedure."  That would have to be special rule or placed in the bylaws.  This would end all custom based practices. 

Rescind would be out of order; that applies to main motions, not a customary practices. 

 

[Benjamin Geiger]

17 minutes ago, J. J. said:

Rescind would be out of order; that applies to main motions, not a customary practices. 

I was going back to the original scenario where the five-minute rule was either in the parliamentary authority that was removed or was a special rule of order that was rescinded, leaving the custom behind.

[J. J.]

I missed this.

1 hour ago, Benjamin Geiger said:

Going back to the 5 minute rule: I'd presume that if the assembly no longer wishes to follow the 5 minute rule, having rescinded the rule that imposed it, then when the chair cuts off a speaker after five minutes, a member can raise a point of order (and appeal if the chair persists)?

 

Yes.  Whatever the chair rules, his decision can be appealed; he can also submit point of order to the assembly. 

What the assembly will do, one way or another, is determine if there is a custom of using the five minute procedure.  They can say that there is no existing custom and that there is no limitation on debate. They can find that there is a custom, and that chair should stop the speech at five minutes.

If I was chairing, I would initially stop debate at 5 minutes.  That is the way the assembly has been doing it, and nobody, at that point, has given the chair the specific instruction not to do it that way or to do it some other way.