Motion status changes after discovery of voters' ineligibility

[Guest aliris]

Similar to the situation described below, please consider a 13 member elected neighborhood council with eligibility rules imposed externally that change pass/fail status for a specific motion after consideration of voter-eligibility which was only noticed after adjournment.  The affected motion was moved and seconded by eligible members.  However the vote count was 4/6 ("fails") (2 abstain, 1 absent) for all members including ineligible, while after excluding the ineligible it would have been considered to have passed, 4/3.  Quorum is 7 and was met at all times.

Yikes now what?  TIA

 

[Joshua Katz]

Well, you can plumb the depths of parliamentary procedure on this, but I think there's probably an easier answer, given that it failed initially. Just make the motion again at the next meeting, and (unless there are attendance issues) it should pass. I think that's easier because a point of order challenging the initial failure would need to happen at a meeting anyway.

[Josh Martin]

2 hours ago, Guest aliris said:

Similar to the situation described below, please consider a 13 member elected neighborhood council with eligibility rules imposed externally that change pass/fail status for a specific motion after consideration of voter-eligibility which was only noticed after adjournment.  The affected motion was moved and seconded by eligible members.  However the vote count was 4/6 ("fails") (2 abstain, 1 absent) for all members including ineligible, while after excluding the ineligible it would have been considered to have passed, 4/3.  Quorum is 7 and was met at all times.

Could you provide some additional details regarding the alleged eligibility issues? It is not clear to me why it is believed that three of the votes were cast by ineligible voters.

[Guest aliris]

1 hour ago, Josh Martin said:

Could you provide some additional details regarding the alleged eligibility issues? It is not clear to me why it is believed that three of the votes were cast by ineligible voters.

We're a Neighborhood Council under the aegis of Los Angeles; they have "operating" rules and eligibility specifications including periodic ethics training, which is delinquent (barely).

[Guest aliris]

And Mr. Katz - thanks for the good point about how this would be resolved ultimately anyway.  Given that the issue has been so contentious already, and already subject to delay, and pursuing this technicality won't matter in the long run, it seems wise to simply re-agendize it in an abundance of caution (well or maybe just of necessity) for next meeting without calling anything back.  OTOH the two still-ineligible members must look sharp.....  Thanks.

[Joshua Katz]

2 minutes ago, Guest aliris said:

OTOH the two still-ineligible members must look sharp.....

I don't know what this means, but I'm glad you found my comment helpful.

[Richard Brown]

Guest Aliris, is this California "Neighborhood Association" considered a public body in California or subject to the California "Brown Act" regarding public  bodies?   If so, it might have something to say about this.

[Guest aliris]

Mr. Brown (any relation?  lol) .... yes, in fact we are "Brown Acted" for reasons that kinda escape me as we're not legislative.  But no one asked me and I am All Wide Open Ears to hear what you have to say about this related to the Brown Act.  I am so confused by that thing...

Mr. Katz, I meant that this ineligibility is conditional on renewing an online ethics course and these folks need to do that pronto or they'll be *knowingly* ineligible next time, a significantly different scenario (maybe)...   .  And yes, it's really helpful to tip toe through this really jagged and fine line of being reasonable, legal, responsible, ethical, fair, appropriate ... a complete minefield which elevates to new levels "Sayre's Law".

[Guest Who's Coming to Dinner]

As far as RONR is concerned, a member is a person with the right to vote. If some of your participants do not have the right to vote, then they are not members. Allowing nonmembers to vote gives rise to an ongoing breach of the rules if their votes could have affected the outcome and an action has been taken. I would say the defeat of a motion amounts to no action being taken, and besides, the issue is moot since the motion can simply be made again at a future meeting.

[Josh Martin]

4 hours ago, Guest aliris said:

We're a Neighborhood Council under the aegis of Los Angeles; they have "operating" rules and eligibility specifications including periodic ethics training, which is delinquent (barely).

 

1 hour ago, Guest aliris said:

Mr. Katz, I meant that this ineligibility is conditional on renewing an online ethics course and these folks need to do that pronto or they'll be *knowingly* ineligible next time, a significantly different scenario (maybe)...   .  And yes, it's really helpful to tip toe through this really jagged and fine line of being reasonable, legal, responsible, ethical, fair, appropriate ... a complete minefield which elevates to new levels "Sayre's Law".

I am still confused about these “eligibility” rules. In the ordinary case, if a member of an elected body becomes ineligible to serve, they are no longer a member of that body. This seems somewhat different. Very few details have been provided, but I have gathered that:

• Rules (possibly found in applicable law?) imposed by an external authority, which are binding upon the assembly, provide that members must periodically renew an “online ethics course.”
• These rules further provide that members who have not renewed this course by a certain date remain members of the body, but their right to vote (and possibly other rights) are suspended.
• Upon completion of the ethics course, the suspension is lifted, and members regain their right to vote (and possibly other rights).
• At a meeting, a motion was defeated, with four members voting in the affirmative, six voting in the negative, and two abstaining.
• After the meeting, it was discovered that three of the members who were voting in the negative were, in fact, delinquent in their ethics courses at the time the vote was taken, and pursuant to the rules discussed above, were not eligible to vote at that time. They will, however, regain their right to vote if and when they complete their ethics courses, and one of the three members has already done so (but the other two have not).

Is this an accurate and complete summary of the relevant facts and rules?

[aliris]

3 hours ago, Guest aliris said:

Mr. Brown (any relation?  lol) .... yes, in fact we are "Brown Acted" for reasons that kinda escape me as we're not legislative.  But no one asked me and I am All Wide Open Ears to hear what you have to say about this related to the Brown Act.  I am so confused by that thing...

Mr. Katz, I meant that this ineligibility is conditional on renewing an online ethics course and these folks need to do that pronto or they'll be *knowingly* ineligible next time, a significantly different scenario (maybe)...   .  And yes, it's really helpful to tip toe through this really jagged and fine line of being reasonable, legal, responsible, ethical, fair, appropriate ... a complete minefield which elevates to new levels "Sayre's Law".

BTW - I'm not confused by the principle of the Brown Act, but by its practice on occasion and also its unintended consequences which strike me often, ironically, as achieving the opposite of its aims.  All of which I'm willing to believe is related to my misunderstanding or subpar execution....

And Mr. Martin - yes, that is absolutely perfect.  A person could learn a lot about precision-writing studying your summary; thank you!

[Gary Novosielski]

A member is someone with the right to vote.  If these votes were cast by members, then they were valid votes. 

If the rules in RONR apply, a member who fails to complete requirements such as financial disclosure or ethics training, it is not up to other members or even the chair to declare that they are eligible to vote or not.  The right to vote can be removed only by disciplinary action which complies with due process.  Removal from office is one of the possible penalties for failing to comply with the rules, but unless these members have actually been removed from office, they are members, and have the right to vote.

For public bodies, you'll need to consult with an attorney familiar with your state laws to determine by what process members can be removed from office.  

[aliris]

So many angles to consider; thank you!  What, then, is the difference between a committee and a board?  A committee is subservient to a board, right?  The board can presumably impose contingencies for eligibility.  I wonder then if these neighborhood councils are actually more like committees, contingent on a hierarchically imposed eligibility criteria?  But .... board members' elections get "certified".  Yet to be a voting member requires "good standing" aka "eligibility".

[Joshua Katz]

We're not going to resolve this, in part because we don't know all the details, and in part because it almost certainly involves legal questions. But they seem to know who can and cannot vote, and I'm not about to question it from across the country. Since the council knows who can vote, and there's no issue of attempting to declare an adopted motion invalid, I stick with my answer - just make the unadopted motion again at another meeting.

[Josh Martin]

15 hours ago, aliris said:

BTW - I'm not confused by the principle of the Brown Act, but by its practice on occasion and also its unintended consequences which strike me often, ironically, as achieving the opposite of its aims.  All of which I'm willing to believe is related to my misunderstanding or subpar execution....

And Mr. Martin - yes, that is absolutely perfect.  A person could learn a lot about precision-writing studying your summary; thank you!

Thank you. RONR only addresses this situation in the context of a ballot vote (presumably because this situation is most likely to arise in that context). In that context, the text states that “If one or more ballots are identifiable as cast by persons not entitled to vote, these ballots are excluded in determining the number of votes cast for purposes of computing the majority.” (RONR, 11th ed., pg. 417) If this principle is equally applicable here, then that would suggest that the votes cast by the three persons who were not eligible to vote would be discarded, and the motion would therefore be adopted. Accomplishing this would require a Point of Order, upon which the chair would rule, and which would be subject to appeal. Ultimately, the assembly itself would decide the matter.

It seems at least hinted, however, that the rules in question on this subject are the result of provisions in applicable law, and any questions related to the proper interpretation of applicable law are beyond the scope of RONR and this forum.

4 hours ago, Joshua Katz said:

We're not going to resolve this, in part because we don't know all the details, and in part because it almost certainly involves legal questions. But they seem to know who can and cannot vote, and I'm not about to question it from across the country. Since the council knows who can vote, and there's no issue of attempting to declare an adopted motion invalid, I stick with my answer - just make the unadopted motion again at another meeting.

But why can the council not determine that the votes were cast by persons not eligible to vote and, as a consequence, the motion is already adopted?

11 hours ago, Gary Novosielski said:

A member is someone with the right to vote.  If these votes were cast by members, then they were valid votes. 

If the rules in RONR apply, a member who fails to complete requirements such as financial disclosure or ethics training, it is not up to other members or even the chair to declare that they are eligible to vote or not.  The right to vote can be removed only by disciplinary action which complies with due process.  Removal from office is one of the possible penalties for failing to comply with the rules, but unless these members have actually been removed from office, they are members, and have the right to vote.

It seems, however, that the rules of RONR may not apply in this instance. We have been told that rules imposed by an external authority (applicable law?), which are binding upon the organization, provide that the members in question were not eligible to vote at the time the vote was taken.

6 hours ago, aliris said:

So many angles to consider; thank you!  What, then, is the difference between a committee and a board?  A committee is subservient to a board, right?  The board can presumably impose contingencies for eligibility.  I wonder then if these neighborhood councils are actually more like committees, contingent on a hierarchically imposed eligibility criteria?  But .... board members' elections get "certified".  Yet to be a voting member requires "good standing" aka "eligibility".

I am not certain that this has anything to do with your original question, but nonetheless...

A board may be a standalone entity or it may be subordinate to some other body, such as the general membership of a society. A committee is always subordinate to another body (which may or may not be a board). Even if it is subordinate, a board has more authority to act indepently than a committee does. I am not certain whether these “neighborhood councils” are committees or boards (or neither). Nonetheless, rules for eligibility, good standing, and other such topics could be imposed by the appropriate level of rules in any case.

Elections are not “certified” under the rules of RONR, but this may be required by your rules or applicable law.

”Good standing” and “eligibility” are not quite the same thing. Suppose that a society’s bylaws provide that a member must have served on the board for at least four years in order to be President. It is discovered that the person who was elected as President actually only served on the board for three years. As a result, he is not eligible - that is, he must lose his office as President.

A member who is not in “good standing” is one whose rights are under disciplinary suspension. So far as RONR is concerned, members’ rights are only suspended if the member is disciplined through formal disciplinary procedures. At a certain point, the members’ rights may be suspended, at the society’s discretion. Some societies may provide that a member’s rights are automatically suspended if they are delinquent in their dues for a certain period of time, and they regain their rights when their dues are paid. Such a member is still eligible for membership, but he is not currently in “good standing” because his rights are under suspension. The requirement you refer to is more analogous to this than to eligibility requirements.

Edited July 19, 2018 at 05:20 PM by Josh Martin

[Joshua Katz]

5 minutes ago, Josh Martin said:

But why can the council not determine that the votes were cast by persons not eligible to vote and, as a consequence, the motion is already adopted?

11 hours ago, Gary Novosielski said:

Well, it seems they determined the people were not eligible to vote, and half of this forum is determined to undermine their determination. That aside, what difference does it make? Points of order can only be made at meetings. They'll need to wait for the next meeting to take that path anyway. The motion can be freely renewed with no problems. Why go through the motions of determining whether it was actually adopted in the past (knowing that there's an unfortunate tendency, anyway, for people to vote on appeals based on the outcome) if you can just make and pass a motion? It would be a useful lesson, perhaps, for the council members to get deep into the weeds on this issue - but the General taught us that meetings are for conducting business, not lessons in parliamentary procedure. Just making and adopting the motion is the most efficient way to resolve this issue. 

There's only one practical difference. The "no" voters could requalify (whatever that takes) before the next meeting, and prevent adoption of the motion - but, if you could show that it was adopted, maybe they wouldn't have the votes to rescind (although the numbers suggest they would, or someone could give notice). Is that really the better outcome in terms of fairness and parliamentary principles? It's not clear to me that it is.

[Gary Novosielski]

3 minutes ago, Josh Martin said:

It seems, however, that the rules of RONR may not apply in this instance. We have been told that rules imposed by an external authority (applicable law?), which are binding upon the organization, provide that the members in question were not eligible to vote at the time the vote was taken.

That's certainly a possibility.  And I'm no lawyer, and have only been to California a few times anyway, which is why I suggested seeing one.

I do know from serving on a public board in NJ that although there are all sorts of things that can theoretically land you in a disciplinary or shady ethics situation, it's only by actual discipline that you can be thrown out.  But I stress that anecdotal information is no substitute for real legal advice and that NJ is not CA.

[Josh Martin]

20 minutes ago, Joshua Katz said:

That aside, what difference does it make? Points of order can only be made at meetings. They'll need to wait for the next meeting to take that path anyway. The motion can be freely renewed with no problems. Why go through the motions of determining whether it was actually adopted in the past (knowing that there's an unfortunate tendency, anyway, for people to vote on appeals based on the outcome) if you can just make and pass a motion?

If nothing else, this would serve the purpose of establishing a precedent for what to do if this happens again.

Certainly, however, if the assembly prefers to let sleeping dogs lie in this matter and simply make the motion anew, I see no harm in that.

20 minutes ago, Joshua Katz said:

There's only one practical difference. The "no" voters could requalify (whatever that takes) before the next meeting, and prevent adoption of the motion - but, if you could show that it was adopted, maybe they wouldn't have the votes to rescind (although the numbers suggest they would, or someone could give notice). Is that really the better outcome in terms of fairness and parliamentary principles? It's not clear to me that it is.

This is exactly what would have occurred if the assembly had correctly identified, at the time of the vote, that the members in question were not eligible to vote at the time. Perhaps this is what the drafters of the law in question intended. It certainly does add more “teeth” to the requirement.

18 minutes ago, Gary Novosielski said:

That's certainly a possibility.  And I'm no lawyer, and have only been to California a few times anyway, which is why I suggested seeing one.

I do know from serving on a public board in NJ that although there are all sorts of things that can theoretically land you in a disciplinary or shady ethics situation, it's only by actual discipline that you can be thrown out.  But I stress that anecdotal information is no substitute for real legal advice and that NJ is not CA.

Yes, and it is all well and good to advise the OP to consult with a lawyer to confirm that their interpretation of applicable law is in fact correct, but when the OP has stated repeatedly that (so far as they understand it) applicable law provides that members who are delinquent in their ethics courses are not eligible to vote, isn’t it a bit misleading to suggest to the OP that “A member is someone with the right to vote.  If these votes were cast by members, then they were valid votes.”?

While we can’t interpret applicable law here, when an OP provides their own statement regarding their understanding of applicable law, I don’t think it is helpful to respond with a post that simply ignores what the OP has said on the subject.

Edited July 19, 2018 at 05:50 PM by Josh Martin

[aliris]

"A member who is not in “good standing” is one whose rights are under disciplinary suspension. So far as RONR is concerned, members’ rights are only suspended if the member is disciplined through formal disciplinary procedures. At a certain point, the members’ rights may be suspended, at the society’s discretion. Some societies may provide that a member’s rights are automatically suspended if they are delinquent in their dues for a certain period of time, and they regain their rights when their dues are paid. Such a member is still eligible for membership, but he is not currently in “good standing” because his rights are under suspension. The requirement you refer to is more analogous to this than to eligibility requirements. "

Mr Martin - yes this was what I was getting it in wondering about "committee" vs "board", wondering whether in actuality because this board is subservient to the Charter of LA which created it, and a Department in the City thereof, whether we then became essentially like a Committee, and we have members in "good standing" in this sense that you note.

I really like Mr. Katz practical reminder that the point  here is to run a meeting, not get tangled in debatable, conditional intricacies.  I think that's his point, apologies if I'm getting that wrong.  Again, given the political climate of hair-trigger fury and hyper-organization, holding that in mind is wise too.

Mr. Novsielski is wise to remind me this does impinge on critical legalities and I suppose we may refer to the lawyers yet.  I just hoped there was a clearer, non-ambiguous way forward and I think with the exception of Mr. Katz' perspective, this may not be as simple as I hoped.

Thanks all, and I hope the details don't make this uninteresting to others in a generalized way.

[Josh Martin]

4 minutes ago, aliris said:

Mr Martin - yes this was what I was getting it in wondering about "committee" vs "board", wondering whether in actuality because this board is subservient to the Charter of LA which created it, and a Department in the City thereof, whether we then became essentially like a Committee, and we have members in "good standing" in this sense that you note.

Actually, this term is likely to be used more often in connection with a board (and even more often in connection with the general membership of a society). In any event, as I said earlier, I don’t think what type of body you are will change the answer to your question, so don’t worry about it.

Edited July 19, 2018 at 05:56 PM by Josh Martin

[Joshua Katz]

4 minutes ago, aliris said:

 I really like Mr. Katz practical reminder that the point  here is to run a meeting, not get tangled in debatable, conditional intricacies.  I think that's his point, apologies if I'm getting that wrong.  Again, given the political climate of hair-trigger fury and hyper-organization, holding that in mind is wise too.

 

You've got my point correct. I do agree with Mr. Martin that, had the issue been caught when the motion was (not) adopted, the point of the law would be precisely to ensure it passed (I'm allergic to 'intent' so I substituted 'point.') I'm not so sure how it should work, from a parliamentary standpoint, when that didn't happen - and I'm even less sure because I don't know the laws involved. 

[aliris]

BTW, just to add a little of the contentious-climate to the picture, the motion in question that reversed with exclusion of votes (potentially), was *already* a motion to reconsider something already adopted.  So as you can imagine, tensions were high, as another noted, the reconsideration-vote fell out probably on "outcome" lines as much as anything, it was *not* adopted after delay, then, of the original motion, and reversing it again .... oh my what a mess.

Though a slightly amusing-one given that the hyper-politicization is kind of the point too.  Or at least some of why the reason is that if you blink, this may look like a mess and if you blink again, it may all look rather amusing.  Blink again, and it's quite the teachable moment (maybe) ... blink again and you get in ethical hot-water I bet.

[Joshua Katz]

2 minutes ago, aliris said:

BTW, just to add a little of the contentious-climate to the picture, the motion in question that reversed with exclusion of votes (potentially), was *already* a motion to reconsider something already adopted.  So as you can imagine, tensions were high, as another noted, the reconsideration-vote fell out probably on "outcome" lines as much as anything, it was *not* adopted after delay, then, of the original motion, and reversing it again .... oh my what a mess.

 

Well, that changes everything. Reconsider can no longer be moved. Reconsideration, as opposed to the vote on appeal, is properly based on the merits, as an aside. 

But it is likely that you don't mean reconsider, but rescind. In that case, the motion required a 2/3 vote or a majority vote of the entire membership, neither of which was present on these facts. Thus, it failed initially anyway, unless there was previous notice. Was there?

[aliris]

OMG changes "everything"?!  I'm really sorry if I missed a critical point.  I am so blown away by how hard and finicky this all is.  The specific motion was to 'amend something already adopted' ... I believe.  Is that the same as "reconsider" or not?  Sorry but I am not used to so much precision in words.  I believe "rescind" was not on the table but "amend" was.  It was agendized and long-noticed so does that mean a majority rather than 2/3 was required?  Because you're right, if 2/3 was required we definitely didn't discuss that and I don't think any of us knew it. But the matter was well-noticed, if that matters.

[Josh Martin]

4 minutes ago, aliris said:

The specific motion was to 'amend something already adopted' ... I believe.  Is that the same as "reconsider" or not?

No.

4 minutes ago, aliris said:

It was agendized and long-noticed so does that mean a majority rather than 2/3 was required? 

Yes, if previous notice was given, then only a majority vote was required. So maybe it doesn’t change much after all.

Edited July 19, 2018 at 10:24 PM by Josh Martin