Executive Order from the Chair

[Guest Board Member]

We are a club with annual dues.

We have a board of directors with 5 directors and a President, VP, Treas., Secretary

President is the Chair at the board meeting and refused to have a discussion on the topic of next years dues and invoked "Executive decision" to decide the outcome of the topic.

This was invoked and referenced Robert's Rules.  The By laws do not grant the President special powers.

It seems as though this should be challenged at the general meeting but am unsure of formal process.

[Joshua Katz]

I see a few issues. First, I'm not sure what is meant by "a discussion on the topic of next years dues." The way to have such a discussion is to introduce a motion on the topic, and to then debate that motion. If the body wanted a free-wheeling discussion, there are ways to do that, too, but a chair should, in fact, stop a fruitless discussion that does not appear to be approaching a resolution.

But what the chair cannot do (and I'm not sure if the chair did in this case) is prevent an in-order motion from being made and debated simply because the chair doesn't like it. If that was done, a point of order should have been raised. Since the meeting is over, it is too late to raise one now, but you can do it next time.

Nor can the chair "decide the outcome of the topic," if by that you mean decide whether a motion is adopted or not. That's what the assembly is there to do. If the matter is within the purview of the board, the chair cannot make an "executive decision" on it unless the bylaws authorize him to do so. Unlike the previous issues, if the chair purports to have set the dues, that may be a continuing breach and subject to a point of order at the next regular meeting, or a special meeting if the matter is included in the call of the meeting. 

Finally, whether it can be challenged at a general or a board meeting depends on what powers the bylaws give the board. If the board has the exclusive power to set dues, then it seems to me it can only be challenged at a board meeting. If the general membership has that power, even if the board can set them subject to being changed by the membership, then it seems to me that the chair's effort to decide something he is not empowered to decide can be challenged via a point of order at a membership meeting. 

It would have been better, though, to raise a point of order at the time (assuming you are a board member).

[jstackpo]

Do the bylaws specify what body, or perhaps who, does set the dues?

If the dues amount is in the bylaws it will require a bylaw amendment to change them. Same question, then, but relative to amending the bylaws.

[Guest Board Member]

The dues are set in the by laws and the board has the authority to establish the dues.

The subject of the dues was brought up several times by board members and was deferred to a later discussion by the chair.  finally near the end of the meeting, it was broached again and the chair stated that it was not to be debated as he had made an executive decision to leave the dues unchanged.

[Joshua Katz]

11 minutes ago, Guest Board Member said:

The dues are set in the by laws and the board has the authority to establish the dues.

 

I assume this means that the bylaws say there are dues, but do not set the rate, and the board may set the rate. Does the board have this authority exclusively, though? What are the exact words used to give the board this authority?

12 minutes ago, Guest Board Member said:

 The subject of the dues was brought up several times by board members and was deferred to a later discussion by the chair.  finally near the end of the meeting, it was broached again and the chair stated that it was not to be debated as he had made an executive decision to leave the dues unchanged.

The board should stop letting the chair push it around. The chair may not defer an in-order motion to a later discussion, and may not simply declare a matter within the board's competence off-limits. 

Since the chair can't make an executive order on dues, I would suggest that the dues were improperly set. However, since they remain unchanged, and that is probably (correct me if I am wrong) what would happen if the board took no action, it doesn't seem to me that there is any remedy, other than to try again.

[Richard Brown]

11 minutes ago, Guest Board Member said:

The dues are set in the by laws and the board has the authority to establish the dues.

This is confusing.  What exactly do the bylaws say about the dues and the authority of the board to change them?

12 minutes ago, Guest Board Member said:

The subject of the dues was brought up several times by board members and was deferred to a later discussion by the chair.  finally near the end of the meeting, it was broached again and the chair stated that it was not to be debated as he had made an executive decision to leave the dues unchanged

As has already been pointed out, the chair does not have this authority to make "executive decisions" of this nature unless your bylaws give him this authority.  This is a matter for the board to decide, not the chair, assuming that the board does have the authority to set the dues.

[Guest Board Member]

"The board of directors may determine, from time to time, the amount of the annual dues payable to the corporation by its membership. 

Dues for all active members are currently $xxx per calendar year."

The dues amount is set in the by laws and the bylaws may be altered, amended or repealed or new by laws may be adopted by 2/3 of the board members at any board meeting, provided that notice of the proposed change is contained in the notice of such meeting.

[Joshua Katz]

31 minutes ago, Guest Board Member said:

The board of directors may determine, from time to time, the amount of the annual dues payable to the corporation by its membership. 

 Dues for all active members are currently $xxx per calendar year."

This is a poorly written bylaw and should be amended when possible. For now, it is ambiguous and only the organization can interpret it. What is clear, though, is that the chair cannot set the dues. However, I would stand by my previous remark that there's no real remedy if the chair didn't change them, but rather kept them the same (presumably, the same as is written in the bylaws). The chair was wrong, but it is now too late to raise a point of order. The issue can be brought up again at the next meeting, though, and the board should not let the chair get away with dictatorial behavior at that time.

[Guest Who's Coming to Dinner]

2 hours ago, Guest Board Member said:

The subject of the dues was brought up several times by board members and was deferred to a later discussion by the chair.  finally near the end of the meeting, it was broached again and the chair stated that it was not to be debated as he had made an executive decision to leave the dues unchanged.

You don't have a president, you have a dictator. And will continue to have one so long as you let him get away with it. Read the passage Remedies for Abuse of Authority by the Chiar in a Meeting at RONR (11th ed.), pp. 650–653.

[Gary Novosielski]

2 hours ago, Guest Board Member said:

"The board of directors may determine, from time to time, the amount of the annual dues payable to the corporation by its membership. 

Dues for all active members are currently $xxx per calendar year."

The dues amount is set in the by laws and the bylaws may be altered, amended or repealed or new by laws may be adopted by 2/3 of the board members at any board meeting, provided that notice of the proposed change is contained in the notice of such meeting.

That's confusing language, but if I had to guess, the dues, "currently...$xxx" were those that happened to be in effect when the bylaws were drafted, but the sentence immediately above that appears to give the board the power to set new dues "from time to time" by a simple main motion, without the need to amend the bylaws. 

This is a matter of interpretation, and the way such things get interpreted is like this:

Someone who thinks the board can change the dues without a bylaws amendment moves to set the dues to some new number.

Someone who thinks that would violate the bylaws raises a Point of Order that the motion should not be allowed.

The chair rules on what the bylaws mean and explains why.  If nobody disagrees, that's the interpretation that stands.

If any two members disagree with the ruling, one of them moves to Appeal from the Decision of the Chair and the other one seconds the motion.  The ruling is then up for debate, and a vote is taken on the question "Shall the decision of the chair be sustained?"  It takes a majority No vote to overrule the chair, but if the chair is overruled, that becomes the interpretation that stands.

Either way, you then know what the bylaws mean.  But it's even better to actually amend the bylaws to say clearly what you want them to mean and avoid all this interpretation stuff in the future.

Oh, and your chair is a dictator and should be censured.  It's fine for a chair to make a mistake, but to claim that his actions are supported by a rule in RONR is not a simple error, it's a misrepresentation (we don't use the L-word).

[Gary Novosielski]

2 hours ago, Guest Board Member said:

"The board of directors may determine, from time to time, the amount of the annual dues payable to the corporation by its membership. 

Dues for all active members are currently $xxx per calendar year."

The dues amount is set in the by laws and the bylaws may be altered, amended or repealed or new by laws may be adopted by 2/3 of the board members at any board meeting, provided that notice of the proposed change is contained in the notice of such meeting.

That's confusing language, but if I had to guess, the dues, "currently...$xxx" were those that happened to be in effect when the bylaws were drafted, but the sentence immediately above that appears to give the board the power to set new dues "from time to time" by a simple main motion, without the need to amend the bylaws. 

This is a matter of interpretation, and the way such things get interpreted is like this:

Someone who thinks the board can change the dues without a bylaws amendment moves to set the dues to some new number.

Someone who thinks that would violate the bylaws raises a Point of Order that the motion should not be allowed.

The chair rules on what the bylaws mean and explains why.  If nobody disagrees, that's the interpretation that stands.

If any two members disagree with the ruling, one of them moves to Appeal from the Decision of the Chair and the other one seconds the motion.  The ruling is then up for debate, and a vote is taken on the question "Shall the decision of the chair be sustained?"  It takes a majority No vote to overrule the chair, but if the chair is overruled, that becomes the interpretation that stands.

Either way, you then know what the bylaws mean.  But it's even better to actually amend the bylaws to say clearly what you want them to mean and avoid all this interpretation stuff in the future.

Oh, and your chair is a dictator and should be censured.  It's fine for a chair to make a mistake, but to claim multiple times that his actions are supported by a rule in RONR is not a simple error, it's a misrepresentation (we don't use the L-word).

[Richard Brown]

I agree with almost all of what Mr Novosielski said, but to me, there is no ambiguity. The bylaws initially set the dues at a certain amount and give the board the authority to change that amount. It seems pretty straightforward to me.

[Joshua Katz]

55 minutes ago, Richard Brown said:

I agree with almost all of what Mr Novosielski said, but to me, there is no ambiguity. The bylaws initially set the dues at a certain amount and give the board the authority to change that amount. It seems pretty straightforward to me.

The challenge for me is that it doesn't say "originally" or something like that, but rather "currently." Currently doesn't mean in the past. Also, what's the point of this line being in the bylaws in the first place? It is the case that, for instance, the US Constitution contains transitional rules and provisos which no longer do anything, but I don't think bylaws should.

[Gary Novosielski]

I don't think they should either, but the fact remains that many do.  Currently doesn't mean in the past, but it could be interpreted to mean "at present--i.e., on the date of adoption of these bylaws."   The present has a nasty habit of turning into the past, even if watched like a hawk.

I currently agree that the line should at this point be removed, as it serves no purpose now, even if it once did.  Or at least I did agree in the past when I wrote "currently".

[Richard Brown]

1 minute ago, Joshua Katz said:

The challenge for me is that it doesn't say "originally" or something like that, but rather "currently." Currently doesn't mean in the past. Also, what's the point of this line being in the bylaws in the first place? It is the case that, for instance, the US Constitution contains transitional rules and provisos which no longer do anything, but I don't think bylaws should.

The two provisions need to be read together so as to give effect to both if possible.  There is absolutely no reason for the provision permitting the board to change the dues from time to time unless that was the intent of the drafters. 

See principle of interpretation # 2 on page 589:  "When a provision of the bylaws is susceptible to two meanings, one of which conflicts with or renders absurd another bylaw provision, and the other meaning does not, the latter must be taken as the true meaning."

The interpretation that the bylaws set the dues at $XXX at the time of adoption of the bylaws but that the board may change the amount from time to time is the only reasonable interpretation and the only way to give effect to both provisions.

[Guest Board Member]

In connection with this topic, the chairperson  essentially made the decision to prevent the motion from being brought before the board for a vote. Since the motion was not brought to the board for a vote by the chairperson, step three of the motion process never took place.he has taken the position that he has that right to decide which motions will be brought to the floor.

Sounds a little fishy or underhanded.  What do you all have to say ?

[Joshua Katz]

Unless your bylaws provide otherwise, the chair has no such right. 

[Guest Board Member]

In addition, he has cited page 32 paragraph 25 to support his decision not to present the motion that was made.

[Richard Brown]

21 minutes ago, Guest Board Member said:

In addition, he has cited page 32 paragraph 25 to support his decision not to present the motion that was made.

I think you mean page 32, lines 25 through 27. However, he is misinterpreting that provision. The chair has no choice but to state the question once a proper motion has been made and seconded. He has no discretion to say no, I don't like that motion I'm not going to allow it.

Perhaps you should show the chairman page 37 lines 20 through 26. See also page 39 lines 8 through 11. The chair cannot refuse to state a motion simply because he doesn't like it. He may refuse to state the question only if the motion is out of order or the wording is not clear. In that case, the chair should offer to help the maker perfect the motion.

Edited to add: by the way, if the chair rules that the motion is out of order, his ruling may be appealed to the assembly.

Edited November 12, 2018 at 12:32 AM by Richard Brown
Added last paragraph