When a Constitution is silent

[Guest Pinky]

Our organization has a constitution that addresses the election of main board members by the general membership, as well as a separate process to fill any vacancies mid-term. It does not provide a removal process though - it is silent. However, it does provide a specific removal process for a single subsidiary board. Can this gap be filled by the bylaws, and RRO, or should the assumption be made that the Constitutional silence means removal of main board members can only be made by another election vote of the membership? That since only the removal process of a single subsidiary board was the only form of approval intended to be allowed?

[Guest Pinky]

**Only form of removal **

[Hieu H. Huynh]

Ultimately it is up to your organization to interpret your constitution. Perhaps it could be amended to address this matter.

[Guest Pinky]

when you say organization, do you mean board, or members that elected them? Can the board give such responsibility to themselves, even if it was not included in the specific list of duties with which the members empowered them in the constitution? Only managing elections and filling vacancies were included on that list, not removals.  

[Chris Harrison]

The body which is empowered to amend the Constitution is the one who is empowered to interpret it.

[Bruce Lages]

Can you please explain what is meant by "main board members" and "subsidiary board"? Are you referring to two different boards, or two different categories of board members?

[Guest Pinky]

Our members elect small subsidiary boards to govern locally, and then we elect others to represent us at regional meetings who then choose members of the state board. The state board has been conferred power constitutionally to remove regional board members for cause, but no such power was given to remove fellow members of the state board. Up until now that was done via the electoral process at regional meetings held every 2 years. That is seen as a gap that is attempting to be filled with either a bylaw change or RRO alignment (our constitution currently confers no such power to either RRO or bylaws.  In fact only our bylaws mention RRO alignment) 

[Bruce Lages]

In general, boards have only those powers that are granted to them by the bylaws or constitution. If your organization's constitution does not authorize the state board to remove its own members, then it has no such power. Presumably, that power would be reserved to the membership, assuming they are the ones who have the ability to amend the constitution. Whether the  membership can remove state board members without cause (i.e., by just electing replacement members at any time), or only through disciplinary action, or only via the biannual election process, depends on how, exactly, your constitution defines the term of office for these state board members.

[Joshua Katz]

It is perfectly proper for the bylaws, not the Constitution, to adopt a parliamentary authority (of course, anything contrary in the Constitution will govern). Similarly, if your Constitution is silent on a question, the bylaws may be amended to speak to that issue - anything may be included in the bylaws that does not contradict the Constitution. Whether a particular proposal does or does not contradict the Constitution is a question of interpretation. 

So I would say it is irrelevant that the Constitution does not adopt RONR if the bylaws do, and the bylaws may grant powers to the board unless the Constitution denies it that power. However, there is a principle of interpretation that the granting of a power is equivalent to the denial of other powers of the same sort, so the question becomes: does the Constitution, by specifying the power to remove regional board members, thereby deny the power to remove state board members? That's one only your organization can answer (my personal answer is no). If not, the bylaws may grant that power to the board; if so, the Constitution would need to be amended.

As far as "RRO alignment," you've already adopted RONR where it is not contrary to higher governing documents, so you're left with much the same question. 

Removal from office is a different question from the electoral process, so I don't think saying that removal was done through the electoral process is helpful; I think it obscures rather than clarifies. 

Finally, the other place to look for rules about removal (by implication) is in the term of office, which might say "or until their successors are elected" or not.

[Josh Martin]

21 minutes ago, Joshua Katz said:

So I would say it is irrelevant that the Constitution does not adopt RONR if the bylaws do, and the bylaws may grant powers to the board unless the Constitution denies it that power. However, there is a principle of interpretation that the granting of a power is equivalent to the denial of other powers of the same sort, so the question becomes: does the Constitution, by specifying the power to remove regional board members, thereby deny the power to remove state board members? That's one only your organization can answer (my personal answer is no). If not, the bylaws may grant that power to the board; if so, the Constitution would need to be amended.

I concur that what the constitution says about removing members of one board has nothing to do with how members of some other board may be removed.

It seems to me, however, that if the election of certain board members is specified in the constitution, any rules the society wishes to adopt concerning the removal of those board members must also be in the constitution. So I do not think it is in order to amend the bylaws to provide a process for removal.

As to whether RONR applies to removing these board members unless and until such rules are adopted in the Constitution, it would seem to me that it does. RONR notes that it may be adopted as a parliamentary authority by the same vote as by a special rule of order (which is a lower level than the bylaws), and there is no suggestion in the text that adopting it in this manner changes the application of the rules therein. 

Since RONR only permits the electing body to remove board members, however, and it seems that this body meets very infrequently, there may be no practical difference between this and the interpretation that the members cannot be removed at all, except through elections (which, as you correctly note, is not really removal).

Edited January 26, 2019 at 05:43 PM by Josh Martin

[Guest Pinky]

4 hours ago, Josh Martin said:

I concur that what the constitution says about removing members of one board has nothing to do with how members of some other board may be removed.

It seems to me, however, that if the election of certain board members is specified in the constitution, any rules the society wishes to adopt concerning the removal of those board members must also be in the constitution. So I do not think it is in order to amend the bylaws to provide a process for removal.

As to whether RONR applies to removing these board members unless and until such rules are adopted in the Constitution, it would seem to me that it does. RONR notes that it may be adopted as a parliamentary authority by the same vote as by a special rule of order (which is a lower level than the bylaws), and there is no suggestion in the text that adopting it in this manner changes the application of the rules therein. 

Since RONR only permits the electing body to remove board members, however, and it seems that this body meets very infrequently, there may be no practical difference between this and the interpretation that the members cannot be removed at all, except through elections (which, as you correctly note, is not really removal).

To clarify - if RONR only permits the electing body to remove state board members, and the members only convene every 2 years, then that means the state board cannot get around that by just writing new bylaws to do this removal process themselves in the interim?  Does chapter XX address this in detail? 

[Bruce Lages]

You seem to be implying now that your organization has both a constitution and bylaws. Whether the state board can amend either document depends on what each document states about how it can be amended. Each document should specify which body has the authority to make amendments, as well as the procedure that must be followed for doing so. If that body is the general membership, then no other body, such as a board, can adopt amendments. The general membership would have to grant the board that authority by making the appropriate amendments. 

Chapter XX of RONR addresses disciplinary procedures. You might want to look at Chapter XVIII, which discusses in detail the process of writing and interpreting bylaws.

 

[Guest Pinky]

1 minute ago, Bruce Lages said:

You seem to be implying now that your organization has both a constitution and bylaws. Whether the state board can amend either document depends on what each document states about how it can be amended. Each document should specify which body has the authority to make amendments, as well as the procedure that must be followed for doing so. If that body is the general membership, then no other body, such as a board, can adopt amendments. The general membership would have to grant the board that authority by making the appropriate amendments. 

Chapter XX of RONR addresses disciplinary procedures. You might want to look at Chapter XVIII, which discusses in detail the process of writing and interpreting bylaws.

 

Yes, as noted earlier, the state board, elected by membership, as required under the constitution, has bylaws, which heretofore had no mention of the power to remove. Since the Constitution is silent on state board member removal, the state board wishes to add it to their bylaws, rather than by constitutional amendment. Some believe that to be out of order, as they believe such a change requires a constitutional amendment by the voting membership, while some do not and point to ChapterXX of RONR. I was seeking clarification as to which entity is the proper authority to make such a change. 

[Bruce Lages]

OK - now I think I see your structure. Mr. Martin seems to have answered this in his statement that since it is the constitution that describes the election of these board members, any removal process must also be in the constitution. Certainly the membership could grant the state board the power to remove their own board members, by adding such a provision to the constitution. Out of curiosity, who wrote the state board's bylaws, and who has the power to amend those bylaws - the state board itself or the general membership?

As noted in my response above, Chapter XX of RONR doesn't address this situation.

[Guest Pinky]

1 hour ago, Bruce Lages said:

OK - now I think I see your structure. Mr. Martin seems to have answered this in his statement that since it is the constitution that describes the election of these board members, any removal process must also be in the constitution. Certainly the membership could grant the state board the power to remove their own board members, by adding such a provision to the constitution. Out of curiosity, who wrote the state board's bylaws, and who has the power to amend those bylaws - the state board itself or the general membership?

As noted in my response above, Chapter XX of RONR doesn't address this situation.

The state board writes its own bylaws, which are subject to the Constitution, which was created and voted on by all members. Unfortunately, those board members that believe they can do this as a bylaws change point to RONR as allowing (RONR §61 p630 lines 2-7), while the others think it should be decided by voting members as a constitutional amendment.  I’m trying to find something specific that can bring resolution. I dont think Ch XVIII doesn’t really help in this case either.  

[Joshua Katz]

I believe Mr. Martin has answered your question (I had initially thought differently, but his comments persuaded me):

6 hours ago, Josh Martin said:

It seems to me, however, that if the election of certain board members is specified in the constitution, any rules the society wishes to adopt concerning the removal of those board members must also be in the constitution. So I do not think it is in order to amend the bylaws to provide a process for removal.

 

 

[Guest Pinky]

2 minutes ago, Joshua Katz said:

I believe Mr. Martin has answered your question (I had initially thought differently, but his comments persuaded me):

 

Yes, I too agree with this assertion being the correct one. But I am now trying to find something in RONR to cite to support this, given others believe it does not, as noted above.  (We have a few sticklers on our board)

[Bruce Lages]

The reference you cited is from the 10th edition of RONR, which is no longer the current edition The current edition is the 11th, published in 2011. However, in both editions RONR makes clear that it is only the society itself which is, or should be, empowered to impose a disciplinary penalty, such as removal from office, on a member. You really need to go through all of Chapter XX to see that this is the case because the entire chapter makes numerous references to the society's responsibility to determine and impose any penalties.

Your reference (which is on p. 643, l.16 - p.644, l.7 in the 11th edition) does indeed say that conduct injurious to the good name of the society is a serious offense subject to disciplinary action whether the bylaws provide for this or not. However, even without a specific procedure included in the bylaws, it is still only the society itself - in your case the general membership - that can impose a disciplinary penalty such as removal from a board position. I believe that the state board would have to report its accusations against one of its members back to the general membership, who will then decide, following the procedures in RONR, whether that member will be removed from office.   The only way the state board would be able to remove one of its own members is if your general membership gives them that power through a constitutional amendment.

[Josh Martin]

17 hours ago, Guest Pinky said:

To clarify - if RONR only permits the electing body to remove state board members, and the members only convene every 2 years, then that means the state board cannot get around that by just writing new bylaws to do this removal process themselves in the interim?  Does chapter XX address this in detail? 

Yes, that is what I am saying.

What Chapter XX addresses is RONR’s procedure for removing board members.

15 hours ago, Guest Pinky said:

The state board writes its own bylaws, which are subject to the Constitution, which was created and voted on by all members. Unfortunately, those board members that believe they can do this as a bylaws change point to RONR as allowing (RONR §61 p630 lines 2-7), while the others think it should be decided by voting members as a constitutional amendment.  I’m trying to find something specific that can bring resolution. I dont think Ch XVIII doesn’t really help in this case either.  

I think the latter is clearly correct. Rules in the bylaws may not conflict with rules in the constitution. In my view, a rule pertaining to removal of a position must be in the same level of rules which provides for election of the position. I find this particularly persuasive in this instance, since the rules are adopted by different bodies. It strains belief to suggest that the board may grant itself the power to remove members elected by the membership.

There will not be a specific statement on the constitution and bylaws issue, as this partly involves interpreting your rules. I suggest reviewing RONR, 11th ed, pgs. 588-591, pgs. 482-483, pg. 486, pgs. 12-15. These discuss principles of interpretation for rules, the authority of boards, and the nature of constitutions and bylaws.

12 hours ago, Bruce Lages said:

Your reference (which is on p. 643, l.16 - p.644, l.7 in the 11th edition) does indeed say that conduct injurious to the good name of the society is a serious offense subject to disciplinary action whether the bylaws provide for this or not. However, even without a specific procedure included in the bylaws, it is still only the society itself - in your case the general membership - that can impose a disciplinary penalty such as removal from a board position. I believe that the state board would have to report its accusations against one of its members back to the general membership, who will then decide, following the procedures in RONR, whether that member will be removed from office.   The only way the state board would be able to remove one of its own members is if your general membership gives them that power through a constitutional amendment.

I think the board is actually hanging its hat on hat on the previous sentence. “If there is an article on discipline in the bylaws (p. 583, ll. 6–11), it may specify a number of offenses outside meetings for which these penalties can be imposed on a member of the organization.” (RONR, 11th ed., pgs. 643-644, emphasis added) So the board is reading this as saying that a bylaws amendment is sufficient.

Presumably, the board never read this: 

“In general, the constitution or the bylaws—or both—of a society are the documents that contain its own basic rules relating principally to itself as an organization, rather than to the parliamentary procedure that it follows. In the ordinary case, it is now the recommended practice that all of a society's rules of this kind be combined into a single instrument, usually called the "bylaws," although in some societies called the "constitution"—or the "constitution and bylaws," even when it is only one document. The term bylaws, as used in this book, refers to this single, combination-type instrument—by whatever name the particular organization may describe it” (RONR 11th ed., pg. 12)

“In organizations that have both a constitution and bylaws as separate documents, however, the constitution is the higher of the two bodies of rules and supersedes the bylaws.” (RONR, 11th ed., pg. 14)

Based on this, I think it is still clear that the language in question does not support the board’s decision. RONR clarifies that when it says “bylaws” this actually means “constitution, bylaws, or both” (or perhaps still other names). Therefore, the language in question is not taking a position on whether, in an organization which has a constitution and bylaws, this rule may be adopted in the bylaws. RONR recommends that these should be a single document, but also clarifies that if an organization has both, the constitution takes precedence.

Edited January 27, 2019 at 03:45 PM by Josh Martin