Rescind and conflicting Rules

[Texas_Guy77]

Here’s one for you guys. While Robert’s is clear on the procedure, our other governing documents muddy the waters.

 

The controlling documents are as follows City Code, Bylaws, Adopted Special Rules and Robert’s (RONR)

 

Issue: This is an 11 member board. Board voted and approved an item. A member later announced that at the next meeting he will post an item on the next agenda to rescind action on the item that was approved (previous notice to rescind).

 

At the next meeting when it came time to vote on the rescind the member was informed that it would “require” a 2/3^rd vote.

 

Reasoning:

 

 

1)   Adopted Special Rules covers the action to rescind (RONR only used if not covered) and requires 2/3^rd vote.

 

2)   RONR only applies except wheninconsistent with Code, Bylaws or Adopted Rules. Adopted Rules state “may be effected by affirmative of two-thirds majority of the commission”. This is a requirement and not discretionary, therefore RONR previous notice (majority vote) is inconsistent to the rules.

 

 

Below are the sections.

 

Code:

 

Definitions – 

 

• (A) "Shall" imposes a duty.

• (B) "May" creates discretionary authority or grants permission.

• (C) "Must" creates or recognizes a condition precedent.

• (D) "May not" and "shall not" are synonymous, and impose a prohibition.

• (E) "Is entitled to" creates or recognizes a right.

• (F) "Is not entitled to" negates a right.

• (G) "Is not required to" negates a condition precedent.

 

 

Board meetings are governed by Robert's Rules of Order and the board's bylaws.

 

Boards may adopt special rules of procedure as required. A board's special rules of procedure may not conflict with state or federal law, the board's bylaws, or the City Code.

 

A board action must be adopted by an affirmative vote of the number of members necessary to provide a quorum. For an 11 member board, a board action must be adopted by an affirmative vote of six board members.

 

Bylaws:

 

Board meetings shall be governed by Robert’s Rules of Order.

 

The rules contained in the current edition of Robert’s Rules of Order shall govern the board in all cases to which they are applicable, except when inconsistent with these bylaws or with special rules of procedure which the board or city council may adopt.

 

To be effective, a board action must be adopted by an affirmative vote of the number of members necessary to provide a quorum.

 

 

Adopted Special Rules:

 

The decision to rescind or amend may be effected by an affirmative vote of a two-thirds majority of the Commission.

 

Parliamentary Authority. Robert’s Rules of Order shall govern all questions of parliamentary procedure not covered by these Rules.

 

RONR:

 

A two-thirds vote, without notice.

 

A majority vote when notice of intent to make notion, has been given at a previous meeting or the call of the present meeting.

 

My thoughts are the rescind vote should have required 6 votes.

 

1)   The Code takes precedent over Bylaws, Adopted Special Rules and RONR

2)   Code and Bylaws require 6 votes. “a board action must be adopted by an affirmative vote of six board members”

3)   Adopted Special Rules requiring a 2/3^rd vote of an 11 member board conflicts with Code.

4)   The member gave previous notice to rescind per RONR, majority, 6 votes.

5)   RONR applies as previous notice is consistent with Code, Bylaws and Adopted Special Rules and Adopted Special Rules does not cover the parliamentarian procedure of providing previous notice.

[Hieu H. Huynh]

What's your question?

[Guest Who's Coming to Dinner]

 

8 hours ago, Texas_Guy77 said:

Adopted Special Rules:

The decision to rescind or amend may be effected by an affirmative vote of a two-thirds majority of the Commission.

Parliamentary Authority. Robert’s Rules of Order shall govern all questions of parliamentary procedure not covered by these Rules.

Special rules of order supersede the parliamentary authority. Thus, I agree that the proposed rescission requires a two-thirds vote for its adoption regardless of previous notice.

[Guest Zev]

26 minutes ago, Guest Who's Coming to Dinner said:

Thus, I agree that the proposed rescission requires a two-thirds vote for its adoption regardless of previous notice.

I'm seeing the same thing.

[Josh Martin]

3 hours ago, Hieu H. Huynh said:

What's your question?

The question appears to be what vote is required for a motion to rescind in the OP’s organization.

1 hour ago, Guest Who's Coming to Dinner said:

Special rules of order supersede the parliamentary authority. Thus, I agree that the proposed rescission requires a two-thirds vote for its adoption regardless of previous notice.

Yes, there is no doubt on this point, but the complication appears to be that this is a municipal board, and we are told that the City Code provides “A board action must be adopted by an affirmative vote of the number of members necessary to provide a quorum. For an 11 member board, a board action must be adopted by an affirmative vote of six board members.”

There is no doubt that the city code takes precedence over the board’s special rules of order, since the code itself explicitly provides as much. “Boards may adopt special rules of procedure as required. A board's special rules of procedure may not conflict with state or federal law, the board's bylaws, or the City Code.”

Therefore, it would seem that the board’s rule is null and void, and that the required vote is “the number of members necessary to provide a quorum.” It is not clear why the rule is worded in this manner, but it appears based on the example that this is equivalent to a requirement of a vote of a majority of the entire membership of the board for all actions of the board (unless, of course, some other provision of the city code provides otherwise).

[Nathan Zook]

I agree with Josh Martin that the majority requirement refers to a majority of the total membership.

I disagree with his interpretation that this is a conflict.  I believe that we disagree with the object of the "must" in the code.  It appears that Josh Martin believes that "must" applies to adopt.  That is, if a majority of total members votes for an action, it "must be adopted".  In isolation, this is a strong interpretation.  My view, however, is that the "must" applies to the vote itself.  That is, in order for an action to be adopted, it must have the affirmative vote of a majority of membership.  This leaves the board free to restrict itself to only adopt certain actions based on a higher threshold.  It would be surprising to me if the code would intend to prevent the board from approving rules that protect large minorities.  It would be surprising to me if the code would intend to replace all thresholds for voting in Robert's Rules of Order with a majority of membership.  Furthermore, according to https://en.wikipedia.org/wiki/Condition_precedent, which is certainly NOT a legal authority (nor am I), "A condition precedent is an event or state of affairs that is required before something else will occur."  If this is accurate, then it would appear to me (who is not a lawyer and who is not giving legal advice) that this supports my interpretation.

Lawyers are paid in no small part to look up court cases that may have occurred over the interpretations of the code, and to suggest how a particular matter would be resolved by a court.  Code interpretation substantially different thing than what this forum is primarily about.  (Not that I'm complaining against the question, far from it.)

Having said that, I do have some pointed questions for whomever wrote this code:

1) When you say "Roberts Rules of Order", are you aware that the last edition of Roberts Rules of Order (the Third edition) was published in 1893?  I have heard strong arguments that this must be the interpretation.

2) What constitutes a board "action"?  Is the ending of debate an action?  If not, the versions of Roberts Rules of Order that I am familiar with (in fact, RONR, 9th, 10th, and 11th eds) provide that each member may speak twice for ten minutes each time in a given day on any debatable motion.  What about the removal of a member?  The adoption of a special rule?  What about matters that Roberts Rules of Order states may be demanded by a single member, such as dividing a divisible motion?  Would acceding to this demand be an "action"?

Yes, I'm having a bit of fun here.  But it is HARD to write code like this and not have people be able to get clever about it.  I really do believe that these point would "need to be litigated".  But I am not a lawyer, so who knows?

 

 

 

 

 

 

[Guest Zev]

If this is indeed a municipal board, is the City Council the parent body of this board or not? If so, why doesn't the board just ask the city attorney for his opinion or ask the City Council directly for a ruling on this subject and be done with it?

 

[Benjamin Geiger]

3 hours ago, Nathan Zook said:

Yes, I'm having a bit of fun here.  But it is HARD to write code like this and not have people be able to get clever about it.

This is precisely why I'm not at all surprised that among the authors of the 11th edition we find a mathematician and a computer scientist, professions that deal extensively with large, complex systems of rules.

And there's no way to perform automated unit testing on rules of order.

[Nathan Zook]

1 minute ago, Benjamin Geiger said:

This is precisely why I'm not at all surprised that among the authors of the 11th edition we find a mathematician and a computer scientist, professions that deal extensively with large, complex systems of rules.

And there's no way to perform automated unit testing on rules of order.

So, I'm a mathematician whose been earning a living as a programmer for the last twenty-three years.  Maybe that's why I'm feeling so much at home here?

"Give me six bylaws proposed by the most careful of bylaws committees, and I will find something which will hang them".

"There are only three known types of bylaws:  incomplete, self-contradictory, and both."

"Automated unit testing of rules of order"--yep, people are going to be looking at me funny tomorrow as I occasionally start giggling to myself.

 

 

[Guest Zev]

2 hours ago, Benjamin Geiger said:

And there's no way to perform automated unit testing on rules of order.

The flowchart on RONR would take decades if not centuries to create. And the regression testing document would be out of sight.

[Josh Martin]

9 hours ago, Nathan Zook said:

I disagree with his interpretation that this is a conflict.  I believe that we disagree with the object of the "must" in the code.  It appears that Josh Martin believes that "must" applies to adopt.  That is, if a majority of total members votes for an action, it "must be adopted".  In isolation, this is a strong interpretation.  My view, however, is that the "must" applies to the vote itself.  That is, in order for an action to be adopted, it must have the affirmative vote of a majority of membership.  This leaves the board free to restrict itself to only adopt certain actions based on a higher threshold.  It would be surprising to me if the code would intend to prevent the board from approving rules that protect large minorities.  It would be surprising to me if the code would intend to replace all thresholds for voting in Robert's Rules of Order with a majority of membership.

I actually would not find it all that unusual for it to be intended (probably without much thought for the consequences) to require a vote of a majority of the entire membership for all actions. I concede, however, that another possible interpretation of the rule is that it does not prevent the board from adopting greater thresholds in its special rules or in its parliamentary authority. If this is correct, then it would seem the required threshold is “a 2/3 vote or a vote of a majority of the entire membership, whichever is greater.” Which is greater will vary depending on the number of absences and abstentions.

I also concur with Zev that this is ultimately a legal question which should be addressed to the city attorney.

Edited February 15, 2019 at 01:07 PM by Josh Martin

[Joshua Katz]

10 hours ago, Nathan Zook said:

This leaves the board free to restrict itself to only adopt certain actions based on a higher threshold. 

Okay, but 2/3 is not a higher threshold than a majority of the entire membership.

10 hours ago, Nathan Zook said:

Lawyers are paid in no small part to look up court cases that may have occurred over the interpretations of the code, and to suggest how a particular matter would be resolved by a court.  Code interpretation substantially different thing than what this forum is primarily about.  (Not that I'm complaining against the question, far from it.)

 

Yes, but in parliamentary procedure, as in everyday life, we sometimes have to make decisions (can I turn right here?) about the law without consulting lawyers. For instance, if I make a motion, and someone raises a point of order that it conflicts with an applicable procedural statute, the chair will need to determine if it does or not, despite likely not being a lawyer. This is the ordinary procedure by which most people, most of the time, try to comply with laws. So parliamentary procedure does include doing our best (well, not our best, the assembly's best) to determine what applicable procedural laws actually require. 

[Dan Honemann]

6 minutes ago, Joshua Katz said:

Okay, but 2/3 is not a higher threshold than a majority of the entire membership.

It may well be, especially since the OP says it's an eleven member board.

[Joshua Katz]

Just now, Daniel H. Honemann said:

It may well be, especially since the OP says it's an eleven member board.

In certain cases, not as a rule. One person voting yes and the rest abstaining is a 2/3 vote, but certainly not a majority of an eleven member board. 

[Dan Honemann]

1 hour ago, Joshua Katz said:

Okay, but 2/3 is not a higher threshold than a majority of the entire membership.

 

1 hour ago, Daniel H. Honemann said:

It may well be, especially since the OP says it's an eleven member board.

 

1 hour ago, Joshua Katz said:

In certain cases, not as a rule. One person voting yes and the rest abstaining is a 2/3 vote, but certainly not a majority of an eleven member board. 

Yes, I suppose I should have said that "It may well be in certain instances ...", instead of assuming that it would be understood.

[Joshua Katz]

Okay, but my question then is: what is the effect of adopting a rule which sometimes conflicts with a higher-order rule, and sometimes does not? I would think it would have no effect because, as a rule, it conflicts with the higher-order rule, and thus is null and void. You seem to be suggesting, if I'm following you correctly, that it, in fact, has effect in those cases where it does not conflict - or, to put it another way, that conflicts with a higher-order rule should be viewed "as applied," not "facially." Do I have that right?

[Dan Honemann]

No, all I was doing was pointing out that a two-thirds vote sometimes constitutes a higher threshold to attain than does a majority of the entire membership.

[Joshua Katz]

This looks like word play. Of course sometimes it takes more votes to get to 2/3 than to get a majority of the entire membership, but, in my understanding of words, that doesn't make it a higher threshold. Regardless, what I care about is the effect on this rule. My response was to Mr. Zook, who seemed to think that the rule could be validly adopted.

[Josh Martin]

5 hours ago, Joshua Katz said:

This looks like word play. Of course sometimes it takes more votes to get to 2/3 than to get a majority of the entire membership, but, in my understanding of words, that doesn't make it a higher threshold. Regardless, what I care about is the effect on this rule. My response was to Mr. Zook, who seemed to think that the rule could be validly adopted.

As I said earlier, if Mr. Zook’s Interpretation is correct, then it would seem the required threshold is “a 2/3 vote or a vote of a majority of the entire membership, whichever is greater.” Which is greater will vary depending on the number of absences and abstentions.

[Joshua Katz]

53 minutes ago, Josh Martin said:

As I said earlier, if Mr. Zook’s Interpretation is correct, then it would seem the required threshold is “a 2/3 vote or a vote of a majority of the entire membership, whichever is greater.” Which is greater will vary depending on the number of absences and abstentions.

I agree that this is the best interpretation of Mr. Zook's interpretation. I question whether the whole rule isn't simply null and void, though. 

[Texas_Guy77]

Thank you everyone one for chiming in! I do want to emphasize that I posted this for discussion and not seeking professional advice.

Here are additional points to consider:

 

1. For our board a vote count is always based on entire membership (11 members). Abstained, recusals and absences are not counted towards the vote count.
2. 6 votes for an item to be approved (except may be the 2/3rd vote in question - still based off entire membership.Abstained, recusals and absences are not counted towards the vote count.)
3. I included the definitions of “May” because in the Adopted Special Rules the term “may be” is used 8 times, including the sentence regarding the 2/3rds vote to rescind. In all the other sentences the term “may be” is not an instruction of requirement. Other terms like “shall” and “must” are specifically used to note requirements. It’s my opinion the authors of the Adopted Special Rules obviously understood and took into account the difference between “may”, “must”, “shall” etc. Therefore it’s permitted, but not required as other rules in RONR (not covered in the Adopted Rules) may change the vote count (which is questionable due to the Code requiring 6 votes). To confuse the matter (or maybe clarify) a different Board’s Adopted Special Rules state, “Shall be effective by a 2/3rd vote”.
4. The Adopted Rules is clear that parliamentarian procedures provided by RONR  are  allowed including the use of previous notice. Now, going to the fundamentals of  rescind and notice. In RONR the 2/3rd vote is require if no previous notice was provided. By law, for our board all items to be acted upon must be placed on an agenda and the agenda must be provided 72 hrs in advance of the meeting. So members will always be provided notice “in the calling” of the meeting. 

Edited February 16, 2019 at 03:43 PM by Texas_Guy77

[Gary Novosielski]

Item #1 is self-contradictory.  If you always vote based on a majority of the entire membership, then abstentions and absences do affect the result.  Although not counted for or against the motion, they have the same effect as a No vote.

The only way to have abstentions and absences truly not affect the result is to vote based upon a majority (or other fraction) of those present and voting.

[Nathan Zook]

On 2/14/2019 at 6:05 AM, Texas_Guy77 said:

The code:

To be effective, a board action must be adopted by an affirmative vote of the number of members necessary to provide a quorum.

 

Adopted Special Rules:

The decision to rescind or amend may be effected by an affirmative vote of a two-thirds majority of the Commission. 

The language "two-thirds majority of the Commission" is not the same as "two-thirds of those present and voting".  I agree that the latter would conflict in many scenarios with the code.  But the language shown to us requires two-thirds of the Commission, which is 8 of an 11 member board, even if only seven members are present.

 

11 hours ago, Gary Novosielski said:

Item #1 is self-contradictory.  If you always vote based on a majority of the entire membership, then abstentions and absences do affect the result.  Although not counted for or against the motion, they have the same effect as a No vote.

The only way to have abstentions and absences truly not affect the result is to vote based upon a majority (or other fraction) of those present and voting.

It is either self-contradictory, or relates to the situation in a different manner than we usually do.  Abstentions and absentees do "count" in our usual procedure in that they affect the computation of the threshold for a vote to succeed.  It seems to me, given the code requires a majority of membership for all actions (whatever that means), that this is the intent of #1.  Also, the rule in dispute, again states "two-thirds of the Commission", which again, means that abstentions and absentees do not affect the threshold.

[Nathan Zook]

On 2/15/2019 at 6:20 AM, Joshua Katz said:

...

Yes, but in parliamentary procedure, as in everyday life, we sometimes have to make decisions (can I turn right here?) about the law without consulting lawyers. For instance, if I make a motion, and someone raises a point of order that it conflicts with an applicable procedural statute, the chair will need to determine if it does or not, despite likely not being a lawyer. This is the ordinary procedure by which most people, most of the time, try to comply with laws. So parliamentary procedure does include doing our best (well, not our best, the assembly's best) to determine what applicable procedural laws actually require. 

This is certainly the case.  But the question asked of us, as I understand it, is "does the adopted rule violate the code?", which implies "what does the code mean?"  Questions of the form "does X violate the code?" or "what does the code mean?" are primarily of a legal nature, not a parliamentary one.  I am not suggesting that the board not act at all out of fear of being wrong.  And by participating in the discussion beyond asserting that we are the wrong ones to ask, I am agreeing that, even though most of us appear not to be lawyers, we can read the law and offer our thoughts.  I am merely asserting that the matter is outside our expertise.  I certainly had to look up the phrase "condition precedent".  And since I no longer have easy access to a law library, I'm in no condition to look up the court cases on this code, even if I knew the jurisdiction.

 

[Joshua Katz]

5 minutes ago, Nathan Zook said:

But the question asked of us, as I understand it, is "does the adopted rule violate the code?", which implies "what does the code mean?"

I understood the question to be about the parliamentary situation.