wording of and rescinding a resignation

[JeffUrsillo]

actually, there are several questions here....

About 6 months ago, I asked the current President of an organization to which I belong to find a replacement for me as the organizations newsletter editor, a board position. I told him I would stay on, no time limit, until he had a replacement. There was no formal letter or email to him resigning my position The request to the membership for a replacement in the newsletter was worded that I had asked the President to find a replacement for me. After 5 months of no responses, I told the President I would stay on and to stop looking for a replacement. There is talk that my rescinding of my request for a replacement needed to be voted on by the Board...

Recently, a vote was taken by the Board on a new set of bylaws proposed by the bylaws committee. I was not allowed to vote due to a claim that I was not editor, and that when he received my resignation, the President appointed ME as Interim Editor and therefor not on the Board. They also excluded the President from this vote, because he had initially not wanted to be part of the bylaws committee discussions. So because of that, they felt it was within their right to exclude him from their vote.

My questions are these:

Is asking to be replaced with no time limit and doing the job until I am replaced considered a resignation, and does the withdrawal of that request need to be voted upon by the Board?

Was the Bylaws committee within their right to exclude myself and the president from the vote for the reasons they gave?

 

Jeff Ursillo

[Joshua Katz]

39 minutes ago, JeffUrsillo said:

Is asking to be replaced with no time limit and doing the job until I am replaced considered a resignation, and does the withdrawal of that request need to be voted upon by the Board?

 

No, and in any case, it doesn't seem it was acted upon.

39 minutes ago, JeffUrsillo said:

Was the Bylaws committee within their right to exclude myself and the president from the vote for the reasons they gave?

 

Assuming your board has the ability to vote on bylaw amendments, how exactly did the bylaws committee manage to decide who can vote at a board meeting?

[JeffUrsillo]

Thanks for your reply, Joshua...The vote was conducted via email, so they just did not send the proposed bylaws and ballot to myself and the President...

[Joshua Katz]

5 minutes ago, JeffUrsillo said:

Thanks for your reply, Joshua...The vote was conducted via email, so they just did not send the proposed bylaws and ballot to myself and the President...

What do your bylaws say about email voting?  I find it hard to believe that they permit your board to vote via email and permit others not on the board to make or distribute motions, and to send them only to selected board members.  Nothing about this sounds proper.

[JeffUrsillo]

The Bylaws allow email voting in cases such as this.  Executive Council is the Board. Here is the Section from the Bylaws on voting for the Bylaws:

"Article XI Amendments
These By-Laws may be amended by a majority vote of the ballots cast. Voting shall be by mail ballot (regular
mail or e-mail). Proposed amendments shall be signed by a minimum of three members and shall be directed to
the Executive Council for their perusal. Once the language of the amendment is approved by the Executive
Council it shall be published in the newsletter along with a ballot to be voted upon by the general membership. A
deadline shall be established for return of all ballots."

 

Also, what they are proposing is a complete replacement of the current Bylaws not an amendment, and they will not release a document that shows what changes were made....

[Joshua Katz]

1 hour ago, JeffUrsillo said:

These By-Laws may be amended by a majority vote of the ballots cast. Voting shall be by mail ballot (regular
mail or e-mail). Proposed amendments shall be signed by a minimum of three members and shall be directed to
the Executive Council for their perusal. Once the language of the amendment is approved by the Executive
Council it shall be published in the newsletter along with a ballot to be voted upon by the general membership. A
deadline shall be established for return of all ballots."

Well, that's quite confusing language.  It doesn't appear to me, though, to allow the EC to vote by email - it allows the vote to amend the bylaws to be by email (presumably by the general membership?) after the board "perus[es]" and, impliedly, approves the "language of the amendment."  Is there something else empowering your board itself to vote by email?

[JeffUrsillo]

Joshua, the second sentence states that voting can be by mail or email. Since it does not say the EC can't vote by email, there is nothing prohibiting them from doing so...

Three steps to amend the Bylaws:

1: Three members draft a proposed amendment and sign off on it

2: The amendment goes to the EC for approval allowing for discussion.

3: once approved by the EC, the proposed amendment and ballot are sent to the membership via email or regular mail...

[Josh Martin]

3 hours ago, JeffUrsillo said:

Is asking to be replaced with no time limit and doing the job until I am replaced considered a resignation, and does the withdrawal of that request need to be voted upon by the Board?

Based on the facts provided, this does not appear to have been a proper resignation. A resignation must be submitted orally during a meeting, or submitted in writing to the Secretary or appointing power. It does not appear that either of these things occurred. As a result, the board does not need to approve the withdrawal of the request.

3 hours ago, JeffUrsillo said:

Recently, a vote was taken by the Board on a new set of bylaws proposed by the bylaws committee. I was not allowed to vote due to a claim that I was not editor, and that when he received my resignation, the President appointed ME as Interim Editor and therefor not on the Board. They also excluded the President from this vote, because he had initially not wanted to be part of the bylaws committee discussions. So because of that, they felt it was within their right to exclude him from their vote.

Was the Bylaws committee within their right to exclude myself and the president from the vote for the reasons they gave?

No. For one, the bylaws committee appears not to have been correct in its interpretation that you are not a member of the board. The bylaws committee is certainly not correct that they had the right to exclude the President from the vote on the basis that he had initially not wanted to be part of the bylaws committee discussions.

Furthermore, unless your bylaws provide otherwise, the bylaws committee has no business whatsoever conducting the board’s vote, and therefore has no power to be sending out the votes or deciding who may or may not vote. The board is perfectly capable of conducting its own votes. Votes are generally conducted by the President, although the Secretary sometimes takes on that role when the vote is taken by mail or e-mail. The bylaws committee should have submitted its report of recommended amendments to the bylaws, and then patiently awaited action from the board.

Edited February 26, 2018 at 05:21 PM by Josh Martin

[Joshua Katz]

16 minutes ago, JeffUrsillo said:

Joshua, the second sentence states that voting can be by mail or email. Since it does not say the EC can't vote by email, there is nothing prohibiting them from doing so...

 

It's up to your organization to interpret your bylaws.  My opinion is, as you say:

16 minutes ago, JeffUrsillo said:

1: Three members draft a proposed amendment and sign off on it

2: The amendment goes to the EC for approval allowing for discussion.

3: once approved by the EC, the proposed amendment and ballot are sent to the membership via email or regular mail...

and this:

 

2 hours ago, JeffUrsillo said:

These By-Laws may be amended by a majority vote of the ballots cast. Voting shall be by mail ballot (regular
mail or e-mail).

is clearly referring to step 3, not step 2.  Is there something authorizing your board to vote by email, because this provision does not seem to do so.  If your board can generally conduct business by email, no problem.  This, though, is not true:

18 minutes ago, JeffUrsillo said:

Since it does not say the EC can't vote by email, there is nothing prohibiting them from doing so...

Unless your bylaws empower your board to vote by email (all I've seen is that they empower your membership to do so, in the context of bylaw amendments), the rules in RONR prohibit the board from voting by email, or any other method outside of meetings.

In any case, nothing I've seen from your bylaws authorizes your bylaws committee to, in any manner, make motions at your board, or administer email ballots of the board, much less decide that certain board members can't vote on them.  Step 2 of your procedure requires action (i.e. an adopted motion) from your board, which must be made by a board member at a meeting, or via email by whatever process your organization has adopted for email voting (assuming, as described above, that's permitted at all).  I would be very surprised if those provisions said that some other committee can send out an email ballot, and not even send it to the full board.

[JeffUrsillo]

Josh, Thanks for your reply...

unfortunately the Bylaws do allow the bylaws Committee to conduct the vote, as it does not specify who DOES handle it.... Here is the bylaw in question:

"These By-Laws may be amended by a majority vote of the ballots cast. Voting shall be by mail ballot (regular
mail or e-mail). Proposed amendments shall be signed by a minimum of three members and shall be directed to
the Executive Council for their perusal. Once the language of the amendment is approved by the Executive
Council it shall be published in the newsletter along with a ballot to be voted upon by the general membership. A
deadline shall be established for return of all ballots.""

[Joshua Katz]

2 minutes ago, JeffUrsillo said:

unfortunately the Bylaws do allow the bylaws Committee to conduct the vote, as it does not specify who DOES handle it.... Here is the bylaw in question:

 

Simply because the language doesn't say who can handle it, doesn't imply that the Committee can, any more than it implies that I can.  The ordinary course of business is that motions may be made in an assembly by members of that assembly.  Changing that requires a statement, not silence.

[JeffUrsillo]

Joshua, 

please accept the following:

"

Nulla poena sine lege ( lat. - no penalty without a law) is a legal principle, requiring that one cannot be punished for doing something that is not prohibited by law. This principle is accepted and codified in modern democratic states, including the United States, as a basic requirement of the rule of law.  It’s based on old English law which states:  Everything which is not forbidden is allowed."

Applying the above to the discussion, since the bylaws do not forbid or rule a specific entity to conduct the vote, then the committee is allowed to do so....at least IMHO...

[Joshua Katz]

23 minutes ago, JeffUrsillo said:

please accept the following:

 

First, as noted, there is a prohibition on non-members making motions, and on voting by email: in RONR, assuming that is your parliamentary authority.  It makes an exception, as always, where your bylaws or special rules of order say something different.  Either they do or they don't; the statement quoted does not, and you've declined (so far) to point to anything else that does.  Note the language in your bylaws (hopefully) adopting RONR.

Second, parliamentary procedure is not law (although the general principles of bylaw interpretation do bear a striking resemblance to certain canons of statutory interpretation) and legal concepts cannot be imported into parliamentary procedure without, at least, some care.

Third, there are other canons.  For example - where something is permitted, other things of the same sort are prohibited.  Canons are applied holistically, not in isolation.  As a result, I don't think this canon, even if it were applicable here, would give you the result you describe.  Or, as I hinted at before - do you think I can make motions, by email, in your board, and pick and choose which board members I send them to, simply because your bylaws don't say I can't?

In short, given only the information you've provided (there may be other things in the bylaws which would persuade me otherwise) I think your organization's behavior is entirely at sea with respect to parliamentary law - which, I might note, is the answer that benefits you (it has no benefit to me either way since I'm not a member).  But, to answer your questions, assuming (against all odds) that email ballots are permitted somewhere in your bylaws for the board, and that this committee can distribute and administer them (as opposed to making recommendations as committees usually do) - both you and the President have the right to vote (subject to the normal expectation that the President not exercise that right under most circumstances).

[JeffUrsillo]

ok...you keep discussing making motions to the Board. The bylaws committee prepared their report, submitted it to the EC for approval, and getting the approval of a 2/3 majority, they sent it out to the membership, as the bylaws unfortunately say they can do.

 

Not being a jerk, but I fail to see where the confusion is. I quoted the bylaws section that specifies how the amendment is to be handled, they followed it. There has never been any question about if they violated any procedures. My original question had to do with their being able to exclude members of the EC from voting....

 

Thanks again for your input on the questions I asked...

 

Jeff

[Gary Novosielski]

It's important to note the difference between the bylaws saying that something can be done, and the bylaws not saying that something cannot be done.

If RONR is adopted as your parliamentary authority, then silence in the bylaws on a particular matter does not imply consent; rather, it implies that the rules in RONR apply.   For example, in RONR committees have no rights beyond making non-binding recommendations to their parent  body, unless explicitly authorized.  The failure of the bylaws to address this point does not expand the role of committees to include any power-grab they're capable of imagining.  

And no, committees do not have the right to dictate to their parent body who may and who may not vote.  In fact, if the president's single vote could have affected the outcome, the entire vote is null and void.

[JeffUrsillo]

Gary...Thank you for clarifying that for me....Someone in an organization I used to belong to used Nulla poena sine lege as a rationale as to why they COULD do something that our bylaws at the time did not say they could or couldn't. Too late to revisit it at this point...

 

Jeff

[Joshua Katz]

1 hour ago, JeffUrsillo said:

ok...you keep discussing making motions to the Board. The bylaws committee prepared their report, submitted it to the EC for approval, and getting the approval of a 2/3 majority, they sent it out to the membership, as the bylaws unfortunately say they can do.

 

I keep discussing making motions to the Board because motions are how assemblies take actions.  Your bylaws require (it seems, they aren't entirely clear) an action from the Board before amendments go to the membership.  A committee report to an assembly, unless there is a rule to the contrary or the reporting member is a member of the assembly, does not compel the assembly to take up a motion.  That aside, though, the real issue is the bylaws committee claiming it can (if it made such a claim) administer the vote, and that it, therefore, gets to decide who can vote, handling such questions as your resignation and the President's, well, whatever reason they imagine for not permitting him to vote.  If there is a question of voting rights in the assembly, it is the assembly which must answer it, not the reporting committee.

1 hour ago, JeffUrsillo said:

Not being a jerk, but I fail to see where the confusion is. I quoted the bylaws section that specifies how the amendment is to be handled, they followed it. There has never been any question about if they violated any procedures. My original question had to do with their being able to exclude members of the EC from voting....

 

The bylaws do specify how the amendment is to be handled.  I remain unconvinced that they followed it, and I am particularly unconvinced by the implication (apparently; again, I haven't seen the rest of your bylaws) that giving the membership the power to accept an amendment via an email vote allows the Board to act through an email vote.  If your Board separately has the power to hold email votes (that is, through another bylaw provision), it presumably says how they are administered, which most likely is not "the reporting committee sends it to those Board members the reporting committee thinks are allowed to vote."

[Josh Martin]

20 hours ago, JeffUrsillo said:

unfortunately the Bylaws do allow the bylaws Committee to conduct the vote, as it does not specify who DOES handle it....

I disagree entirely. If the society has adopted RONR as its parliamentary authority, then the default is that the assembly conducts its own votes.

20 hours ago, JeffUrsillo said:

Nulla poena sine lege ( lat. - no penalty without a law) is a legal principle, requiring that one cannot be punished for doing something that is not prohibited by law. This principle is accepted and codified in modern democratic states, including the United States, as a basic requirement of the rule of law.  It’s based on old English law which states:  Everything which is not forbidden is allowed."

Applying the above to the discussion, since the bylaws do not forbid or rule a specific entity to conduct the vote, then the committee is allowed to do so....at least IMHO...

Well, for starters, you do understand that in addition to your bylaws, your assembly also follows the rules in RONR? RONR does have a prohibition on non-members making motions.

In addition, this principle is simply not accurate so far as this situation is concerned. Quite the opposite. Under parliamentary law, all power rests with the society. Other bodies and other people - the board, the executive committee, officers, the bylaws committee, etc. only have such powers as are delegated to them by the bylaws or the society.

19 hours ago, JeffUrsillo said:

ok...you keep discussing making motions to the Board. The bylaws committee prepared their report, submitted it to the EC for approval, and getting the approval of a 2/3 majority, they sent it out to the membership, as the bylaws unfortunately say they can do.

Sorry, we should have said the executive committee instead of the board.

Our confusion may have arisen from the fact that you said in your original post that “Recently, a vote was taken by the Board on a new set of bylaws proposed by the bylaws committee.”

19 hours ago, JeffUrsillo said:

My original question had to do with their being able to exclude members of the EC from voting....

Yes, and they cannot do so, not only because their reasoning was incorrect, but because that isn’t the bylaws committee’s decision to make in the first place.

Edited February 27, 2018 at 02:31 PM by Josh Martin

[JeffUrsillo]

Josh....Thank you for your input....

I was making an assumption when reading the bylaws where it said "Proposed amendments shall be signed by a minimum of three members and shall be directed to
the Executive Council for their perusal". I was assuming that to mean THEY conducted the vote. I now understand that they are not entitled to do so by that language. I appreciate the clarification by all who tried to get it through my thick skull...LOL

And, yes, I am aware that we follow RR as well.... and yes, my original post was confusing in hindsight..apologies... 

[Richard Brown]

Mr. Ursillo, I agree with my colleagues on every point they have made in this thread.  This was not at all handled correctly.  The Executive  Committee (or the Board) cannot vote by email or any other form of absentee voting unless specifically authorized by your bylaws.  The bylaws committee has no business conducting the vote of the  Executive Committee or trying to exercise authority over it in any way.  Your request to the president to find a replacement for you... no rush... was not a resignation in my opinion.  But, even if it was, it had not been acted on and you had the absolute right to withdraw it.  So, that is a moot point. You were (and presumably still are) a full fledged voting member of the board (or executive committee...whichever). You were entitled to notice of all meetings and votes and to participate fully.  The president almost certainly was so entitled as well unless you have an applicable rule that prohibits it, at least if this is a board of no more than about a dozen members.  If RONR is your organization's parliamentary authority, whether by adoption in the bylaws or by motion or by custom, you are bound to follow it whenever it is not in conflict with your own rules.  It specifically prohibits any and all forms of "absentee voting" (email, snail mail, phone, text message... whatever) unless specifically approved in the bylaws.  Granting the membership the right to vote on certain things by mail or email does not grant the same right to the Board, Executive Committee or any other committee or subordinate body.

Please understand that the colleagues who have responded know what they are talking about and their answers are correct.

 

 

[JeffUrsillo]

Mr. Brown,

I apologize if anything I said could be construed that I did not think any of the responses I was given were inaccurate. That is not the case....As I stated in my recent post, I was operating under a wrong assumption, which was corrected.  I also was frustrated by a seeming tangent that did not really pertain to my 2 original questions.

 

I appreciate you taking the time to respond and sum up the answers to my questions.

 

Jeff Ursillo