Bylaws temporarily suspension request

[Quietstorm]

Good day all. I have a question. In our bylaws it specifically states that anyone running for an elected office must have been a  member for one year, and attended 7 general membership meetings during the previous year. Now, here's the kcicker. One person submitted their "Membership Application" 5 months ago and has only attended 4 meetings. This person submitted his "Letter of Intent" to run for an elected postion October 2018. A couple of individuals on our Board intend to try and have those provisions of our bylaws, the Election Eligibility Requirements, (stated above) "temporarily suspended" in order to accommodate this individual. They also intend to bring this to a vote by the membership at our next membership meeting this Saturday. My question is: Do they have the right to do this? I feel as though, based upon our bylaws, they may not bring this to the membership. Help!

[Joshua Katz]

Rules in the bylaws may not be suspended unless clearly in the nature of rules of order. Rules regarding qualifications for office are not rules of order. But the membership could always amend the bylaws, depending on your procedures for doing so. (By the way, if he intends to run in October 2018, Saturday would appear to be too late.) The exception is if a rule specifically allows for its own suspension. Does this rule?

Do people have the "right" to bring out of order motions to the membership? Depends what you mean by right. Anyone can make a motion, and the chair can rule it out of order.

All this is premised, of course, on your interpretation of the bylaws. But the organization has the right to interpret the bylaws. If anything, either in the qualifications or the rules for suspended rules, is ambiguous, it will be for the organization to decide if this is allowed. Based solely on what we've been told, it would appear not to be in order.

[Richard Brown]

27 minutes ago, Quietstorm said:

I have a question. In our bylaws it specifically states that anyone running for an elected office must have been a  member for one year, and attended 7 general membership meetings during the previous year.

Quietstorm, please quote EXACTLY what  the bylaws say about this requirement.  Please quote the provision exactly....  don't  paraphrase. 

It is ultimately up to your organization to interpret its own bylaws, but it might well be that your bylaw provision prohibits such a member from  RUNNING for office (or perhaps even from  being nominated for office), but does not prohibit such a member from  being ELECTED to office or from  SERVING in that office.  It is a very fine distinction which comes up from time to time in this forum.   In such cases, it is sometimes possible for someone who isn't eligible to be a CANDIDATE to nonetheless be elected to office as a write in candidate.   A search of the forum might locate some of those discussions.

[George Mervosh]

I've never been fond of the running/elected distinction, generally, as RONR notes, "There is a presumption that nothing has been placed in the bylaws without some reason for it."  RONR (11th ed), p. 589-90.  I can't fathom a society that would say "nope, you can't run for office unless you meet these criteria............but sure, you can be elected to that same office without meeting them."  

But as Mr. Brown notes, exact language usually helps answer these questions.

[Richard Brown]

28 minutes ago, George Mervosh said:

I've never been fond of the running/elected distinction, generally, as RONR notes, "There is a presumption that nothing has been placed in the bylaws without some reason for it."  RONR (11th ed), p. 589-90.  I can't fathom a society that would say "nope, you can't run for office unless you meet these criteria............but sure, you can be elected to that same office without meeting them."  

But as Mr. Brown notes, exact language usually helps answer these questions.

Interesting!  You seemed to have a somewhat different view one year and twelve days ago in this thread!   The bylaw language does seem to be rather clear, though.   

Edited to add:  As you said in the current thread, the devil is in the details.... in this case (and in most such cases), the exact language in the bylaws.

 

Edited October 31, 2018 at 03:22 PM by Richard Brown
Added last paragraph

[Quietstorm]

The current bylaws read: "Any member seeking a constitutional office must be a member of the Association for one (1) year and must notify the Election Officer in writing not less than sixty (60) days before the elections, stating the name of that office to which he/she intends to seek election and the Elections Officer must certify through the records of the Financial Secretary and or Treasurer that said member has been "Financial" (up-to-date with membership dues) at least ninety (90) days prior to filing their intention to run for said office". There is no "rule" in our bylaws that addresses "suspension" of (part) the bylaws. The only thing addressing changes to the bylaws refers to "Amending" Bylaws.

[Richard Brown]

2 minutes ago, Quietstorm said:

The current bylaws read: "Any member seeking a constitutional office must be a member of the Association for one (1) year and must notify the Election Officer in writing not less than sixty (60) days before the elections, stating the name of that office to which he/she intends to seek election and the Elections Officer must certify through the records of the Financial Secretary and or Treasurer that said member has been "Financial" (up-to-date with membership dues) at least ninety (90) days prior to filing their intention to run for said office". There is no "rule" in our bylaws that addresses "suspension" of (part) the bylaws. The only thing addressing changes to the bylaws refers to "Amending" Bylaws.

Do your bylaws prohibit write in votes?  If not, then it is my opinion, based on the quoted language, that this individual is eligible for election to office and to hold office.  In my opinion, he is  prohibited only from "seeking" the office by following the bylaw provisions for  "seeking" the office. 

Do your bylaws prohibit nominations from the floor?  If not, (though not nearly as clear), I think this person can also be nominated from the floor.  I interpret your bylaw provision as only prohibiting "seeking" or running for an office in the manner described. 

Ultimately, however, this is a matter of bylaws interpretation.  That is something only your own members can do through a ruling and possible appeal on a point of order.

One thing that does seem clear is that your organization cannot "suspend" that bylaw provision unless they bylaws themselves permit such a suspension.

Keep checking back.  There might well  be other opinions! 

[Joshua Katz]

Well, if someone wants to allow an unqualified (per the bylaws) candidate into office, he should move to amend the bylaws, in my opinion.

That said, it would appear (in my personal opinion - it is up to your organization to interpret your bylaws) that these are requirements for "seeking" office, not for serving in office. Your organization will have to decide what "seeking" means, but in my opinion, a write-in who wins can serve without meeting these qualifications. However, the facts here are somewhat more complicated, since you say this individual notified the Election Officer of intent to seek election, which is what is specifically prohibited.

However, under these particular circumstances, it seems to me that this interpretation makes little sense. For one, it's impossible to enforce, and hence the interpretation would render a bylaw provision meaningless: you can't do anything to actually stop a person from sending a letter, and if the bylaw violation is noted, they can always "withdraw" (or whatever) their notice, then ask to be written in without notice. It just reduces it to surplusage. Furthermore, it is inconceivable to me that an organization would provide that people who have been members only briefly can only become officers by springing their candidacy as a surprise, rather than by using the elections process. If there is any ambiguity, the intent of the people adopting the bylaw becomes relevant, and it seems to me that this intent, even if it is not clear in general "candidacy" provisions, is entirely clear here. Thus, even if we accept the standard candidacy/qualification distinction (I tend to agree with Mr. Mervosh's new opinion on that, but I think it's still the accepted interpretation and thus is what I apply) and even if we think this language is more like candidacy than qualification, I think this, in light of the provision for what seeking entails, falls on the prohibited side.

But, again, none of that really matters. Your organization, not me, gets to interpret it. Rather than moving to suspend, though, they should just assert that the candidacy is legitimate, and appeal a point of order in order to get a decision from the organization.

[Joshua Katz]

3 minutes ago, Richard Brown said:

In my opinion, he is  prohibited only from "seeking" the office by following the bylaw provisions for  "seeking" the office. 

What of the fact that he has already sought the office using that bylaw provision? It seems to me that, if he remains eligible, there's no penalty, and so that prohibition is unenforceable. 

[George Mervosh]

21 minutes ago, Richard Brown said:

Interesting!  You seemed to have a somewhat different view one year and twelve days ago in this thread!   The bylaw language does seem to be rather clear, though.   

Edited to add:  As you said in the current thread, the devil is in the details.... in this case (and in most such cases), the exact language in the bylaws.

 

I don't think it's the same set of facts at all.

Edited October 31, 2018 at 03:41 PM by George Mervosh

[Joshua Katz]

2 minutes ago, George Mervosh said:

I don't think it's the same set of facts at all.

I agree (unless, possibly, this person will have met the qualifications before taking office).

[Quietstorm]

11 minutes ago, Richard Brown said:

Do your bylaws prohibit write in votes?  If not, then it is my opinion, based on the quoted language, that this individual is eligible for election to office and to hold office.  In my opinion, he is  prohibited only from "seeking" the office by following the bylaw provisions for  "seeking" the office. 

Do your bylaws prohibit nominations from the floor?  If not, (though not nearly as clear), I think this person can also be nominated from the floor.  I interpret your bylaw provision as only prohibiting "seeking" or running for an office in the manner described. 

Ultimately, however, this is a matter of bylaws interpretation.  That is something only your own members can do through a ruling and possible appeal on a point of order.

One thing that does seem clear is that your organization cannot "suspend" that bylaw provision unless they bylaws themselves permit such a suspension.

Keep checking back.  There might well  be other opinions! 

Write-in votes and nominations from the floor are not allowed in our current bylaws.

 

Edited October 31, 2018 at 03:47 PM by Quietstorm
reply

[Weldon Merritt]

8 minutes ago, Quietstorm said:

Write-in votes and nominations from the floor are not allowed in our current bylaws.

 

By "not allowed," do you mean that they are specifically prohibited, or just that the bylaws don't provide for them. The defualt is that they are allowed, unless the bylaws prohibit them.

[Quietstorm]

They (write-ins) are not even addressed in the bylaws.

 

[Bruce Lages]

You stated in your initial post that anyone running for office must also have attended 7 general membership meetings during the previous year, yet that requirement is not included in the bylaw quotation you cited above. Is that requirement listed somewhere else in your bylaws, or is it included in some other rule?  Any requirements for running - or holding - office must be included in the bylaws.

[Gary Novosielski]

24 minutes ago, Quietstorm said:

They (write-ins) are not even addressed in the bylaws.

 

Then they must be allowed under the rules in RONR, since the bylaws do not prohibit them.  Ballots that are printed with names should also carry the appropriate number of blank lines where write-in votes can be cast.  But even if they don't, members have the right to write in names of eligible individuals, even if not nominated.

And like Mr. Lages, I'm wondering where the requirement to attend a certain number of meetings is supposed to have come from.  If it's not in the bylaws, it's not an enforceable qualification.

Edited October 31, 2018 at 05:42 PM by Gary Novosielski

[Guest Zev]

This "Election Officer" raises some questions. I suspect that there exists other election-related items scattered in the bylaws that we are unaware of. One possibility is that they require a report by the Election Officer prior to the election and that only those individuals named in the report may be voted by the assembly. Such a scheme would be their method of prohibiting write-in votes and why their bylaws are silent on that subject. But this is only a guess.

[Gary Novosielski]

Well, yes, saying "only the following people are eligible for election" is the same as saying write-ins are prohibited, although the text string "write-in" is not present in the rule.  But I don't think I'd count that as being silent on write-ins.  Literally maybe, but effectively no.

[Richard Brown]

1 hour ago, Gary Novosielski said:

Well, yes, saying "only the following people are eligible for election" is the same as saying write-ins are prohibited, although the text string "write-in" is not present in the rule.  But I don't think I'd count that as being silent on write-ins.  Literally maybe, but effectively no.

Perhaps we are quibbling and being a bit nit-picky, but I don't think that a statement in the bylaws that "only the following people are eligible for election" is the same thing thing as saying that write in votes are prohibited. 

If write in votes are permitted, write in votes cast for persons ineligible for election are counted.  They are not credited to any candidate but are counted and treated as votes cast.  Said votes can therefore affect the number of notes needed to obtain a majority vote and to be elected to office.   See tinted page 48 in RONR.

However, If write in votes are actually prohibited, it is my understanding they are not counted.  It would be just like some members trying to vote by mail when mail ballots are not permitted.  They are ignored and treated as blanks or abstentions or as votes cast by non-members. It is as if they don't exist.  They have no effect on the vote result.

If there is a provision in RONR that says when write in ballots are prohibited by the bylaws they are nonetheless counted in the total votes cast, then please point it out to me and I will stand corrected.  Otherwise, it seems that if write in votes are prohibited, any such votes should be treated the same way mailed in ballots would be treated if they too are prohibited.  They are simply ignored.

[Josh Martin]

7 hours ago, Richard Brown said:

However, If write in votes are actually prohibited, it is my understanding they are not counted.  It would be just like some members trying to vote by mail when mail ballots are not permitted.  They are ignored and treated as blanks or abstentions or as votes cast by non-members. It is as if they don't exist.  They have no effect on the vote result.

If there is a provision in RONR that says when write in ballots are prohibited by the bylaws they are nonetheless counted in the total votes cast, then please point it out to me and I will stand corrected.  Otherwise, it seems that if write in votes are prohibited, any such votes should be treated the same way mailed in ballots would be treated if they too are prohibited.  They are simply ignored.

I disagree. It seems to me that in an instance where write-in votes are prohibited, such votes should be treated as illegal votes, although there is of course nothing in RONR which explicitly states as much, since write-in votes are permitted in RONR. It will ultimately be a question of bylaws interpretation.

I do not think it is at all comparable to a member attempting to vote by mail when the bylaws do not permit voting by such a method. It is a fundamental principle of parliamentary law that only members who are present may vote. Instead, I think this is comparable to a member who votes for an ineligible candidate.

“In recording the votes cast, the principle followed is that a choice has no mandate from the voting body unless approval is expressed by more than half of those entitled to vote and registering any evidence of having some preference. Accordingly, the tellers ignore blank ballots and other ballots that indicate no preference, treating them as abstentions. (Blank ballots are sometimes cast by members to conceal the fact that they do not wish to vote.) 

All ballots that indicate a preference—provided they have been cast by persons entitled to vote—are taken into account in determining the number of votes cast for purposes of computing the majority.” (RONR, 11th ed., pg. 415)

A voter who cast a write-in vote has quite clearly expressed a preference in the election. I do not think such votes should be counted as abstentions unless this is explicitly stated. A mail-in vote is quite different, as a person who is not present is not a person entitled to vote.

Edited November 2, 2018 at 01:34 AM by Josh Martin