“Substantial Compliance” & RONR

[BabbsJohnson]

Has anyone ever heard of the idea of “substantial compliance” been applied to RONR?

 

 

 

 

Edited March 7, 2019 at 01:35 PM by Nosey
generalizing the question

[Guest Zev]

Ask him the following question: If the Congress of the United States decides to observe every single word in the Constitution with the exception of the First Amendment, would they still be in "substantial compliance" with that document?

[BabbsJohnson]

6 minutes ago, Guest Zev said:

Ask him the following question: If the Congress of the United States decides to observe every single word in the Constitution with the exception of the First Amendment, would they still be in "substantial compliance" with that document?

Good one...I will do that.

[Nathan Zook]

With no disrespect for any members of the bar in this forum, many of us have had to deal with this general problem:  lawyers are the worst when it comes to parliamentary law.

The problem is that parliamentary law is a very distinct body of law from the body of law that lawyers normally spend their time on--and they do not know this.  What is more, they have the confidence in the profession when they expound on their ignorance.

Of course, this is not true of all lawyers, and a lawyer that decided to pursue his PRP would likely have a significant leg up.

====

But there is no such thing as "substantial compliance" in RONR.  A fact that opposing counsel would doubtless exploit should a court case arise.

 

[BabbsJohnson]

7 hours ago, Nathan Zook said:

With no disrespect for any members of the bar in this forum, many of us have had to deal with this general problem:  lawyers are the worst when it comes to parliamentary law.

The problem is that parliamentary law is a very distinct body of law from the body of law that lawyers normally spend their time on--and they do not know this.  What is more, they have the confidence in the profession when they expound on their ignorance.

Of course, this is not true of all lawyers, and a lawyer that decided to pursue his PRP would likely have a significant leg up.

====

But there is no such thing as "substantial compliance" in RONR.  A fact that opposing counsel would doubtless exploit should a court case arise.

 

This is good to know. I found nothing when initially looking around for any mention connecting RONR with the term.

 

Edited March 7, 2019 at 01:35 PM by Nosey
Generalizing

[Dan Honemann]

6 hours ago, Nosey said:

Has anyone ever heard of the idea of “substantial compliance” been applied to RONR?

Well, this is something I said in an earlier thread:

"If and when a point of order is raised concerning the effectiveness of the one day late notice given for the proposed bylaw amendment, S. Nelson's organization's assembly will have to decide for itself whether or not there has been what amounts to substantial compliance with its rule, and if so, whether or not such compliance is sufficient to permit its consideration and adoption of the proposed amendment.

The assembly's decision will be final unless, of course, the amendment is declared to be adopted and someone feels that his ox has been gored to such an extent that he is willing to sue, in which event the question may ultimately be decided by a court. The court, of course, will be looking at applicable contract law, not parliamentary law, to reach its decision."

But since I'm just a dumb lawyer who don't know nothing about parliamentary law, pay me no mind.  🙂

 

[BabbsJohnson]

If someone asked during a meeting, after you had made a request, if their compliance was going to ‘make you happy’ is that  kind of comment considered out of order?

 I think he meant it in a “are you going to drop it or shut up about this” sense..

 

Edited March 7, 2019 at 01:37 PM by Nosey

[Joshua Katz]

8 hours ago, Nathan Zook said:

But there is no such thing as "substantial compliance" in RONR.  A fact that opposing counsel would doubtless exploit should a court case arise.

 

OC might do many things, but a) this is not a legal forum, and b) just as lawyers are sometimes bad at parliamentary law, parliamentarians who attempt legal prognostications are also likely to be wrong. Substantial compliance is a concept in contract law, and the only ways parliamentary questions are likely to arise in court are as matters of fiduciary or corporate law, or contract law. It's also a concept in agency law, of which fiduciary law is a part. So, should a suit develop out of a parliamentary question, substantial compliance is likely to be a relevant factor, the words not appearing in RONR notwithstanding. Furthermore, the concept arises from equity, not law, and such suits are quite likely to be equitable in nature.

But that has nothing to do with whether or not a motion is in order. Organizations using RONR should not set as their test "will we be sued?" but rather a higher standard - let alone "will we win if we're sued?" Plus, most non-attorneys (and many attorneys who practice in other areas) don't know what "substantial compliance" means.

 

[Josh Martin]

10 hours ago, Nosey said:

Has anyone ever heard of the idea of “substantial compliance” been applied to RONR?

I hesitate to answer such sweeping questions devoid of any context, but I would note that “substantial compliance” is not a parliamentary term.

Taking a wild stab at what is the intent of this question (is an organization required to comply with RONR in all respects or merely to “substantially comply”), I would say that in an organization which has adopted RONR, the organization has adopted it as a binding manual in matters of parliamentary law, to the extent that it does not conflict with other rules of the organization. In this context, however, it is also important to note the following:

• There are a number of proper procedures within RONR for the assembly to choose to deviate from RONR on particular matters, whether temporarily or permanently.
• Generally speaking, when a violation occurs, a Point of Order must be raised at the time of the breach, and only in the most extreme cases does a violation invalidate a prior action.

1 hour ago, Nosey said:

If someone asked during a meeting, after you had made a request, if their compliance was going to ‘make you happy’ is that  kind of comment considered out of order?

 I think he meant it in a “are you going to drop it or shut up about this” sense..

In and of itself, I don’t think so.

As a practical matter, these comments suggest that it may be prudent to pick your battles and stick to pointing out the violations which are most damaging.

Edited March 7, 2019 at 02:59 PM by Josh Martin

[BabbsJohnson]

Understood.

What if they wished to not attend to the rules of decorum, did not allow points of order (nor appeals), and did not engage any of the discipline procedures in RONR.

And most of what they did do was basic motion making, and voting, and a very occasional amendment or withdrawal of a motion, and that was mostly it.

 Do you think that could be argued to be substantially compliant with following Roberts Rules and it governing? 

[Joshua Katz]

12 minutes ago, Nosey said:

 Do you think that could be argued to be substantially compliant with following Roberts Rules and it governing? 

No, but I'm also not litigating the case (which is not yet a case). 

But I do question where we're going. We get it - you have a board that doesn't care about the rules and violates them left and right. You know that, and we know it (at least, we've heard your side of it). What does continuing to catalog violations do? We can't intervene. If you want to sue about it, you'll need a lawyer. Now legal terminology has come into the mix. I don't think this forum can do much for you - we can answer questions when the answers matter. I mean, we can also answer questions when the answers don't matter, and we're happy to, but it's not particularly useful. 

Ultimately, you can make the board care, you can make the membership care (and elect a different board and/or amend the bylaws to limit the board's power), you can sell/move, you can accept the situation, or you can sue. Beyond that, I think you're out of options.

[BabbsJohnson]

Yes, well... I’m kind of gathering information, I guess. Each meeting is another opportunity to nudge it into play.

[Atul Kapur]

Yes, but you'll note that none of the five options Mr. Katz has listed has a parliamentary solution. So I have to agree with Mr. Katz that I don't see the benefit of continuing to pile up examples of transgressions of parliamentary procedure.

The solutions appear to be interpersonal/political or legal.

[BabbsJohnson]

4 minutes ago, Atul Kapur said:

Yes, but you'll note that none of the five options Mr. Katz has listed has a parliamentary solution. So I have to agree with Mr. Katz that I don't see the benefit of continuing to pile up examples of transgressions of parliamentary procedure.

The solutions appear to be interpersonal/political or legal.

I’m holding out for option 1, since we are getting new members, and one person is keen on the idea that the assembly has the ultimate power,  I think if he sees examples where the chair can’t admit to being wrong, or won’t budge on something that’s maybe unreasonable...

[Josh Martin]

2 hours ago, Nosey said:

Understood.

 What if they wished to not attend to the rules of decorum, did not allow points of order (nor appeals), and did not engage any of the discipline procedures in RONR.

And most of what they did do was basic motion making, and voting, and a very occasional amendment or withdrawal of a motion, and that was mostly it.

 Do you think that could be argued to be substantially compliant with following Roberts Rules and it governing? 

Again, I note that “substantial compliance” is not a parliamentary term, so there is no parliamentary meaning to saying that a particular assembly is (or is not) in “substantial compliance” with RONR.

With that said, with regard to the particular complaints:

• I would be highly concerned with an assembly which did not attend to the rules of decorum. The rules of decorum are critical to maintaining harmony within the assembly. While potentially certain of these rules could be relaxed if the circumstances warrant, an assembly which permitted personal attacks against members, for instance, would be highly concerning.
• I would be highly concerned with an assembly which did not permit Points of Order or Appeals, since these are the only parliamentary mechanisms available for the assembly to enforce any compliance with the parliamentary authority or the other rules of the organization. Without these tools, the assembly is entirely at the whims of the chair.
• I am not entirely sure what is meant by “did not engage any of the disciplinary procedures in RONR.” If you mean that the assembly has chosen not to pursue disciplinary action against a person who, in your opinion, should be subjected to such action, I would note that this is a substantive decision that is at the assembly’s discretion, so this fact would not give any concerns for parliamentary reasons. (If I were a member, I may or may not be concerned with the substantive decision, but that is beyond the scope of this forum.) On the other hand, if you mean that the assembly did take disciplinary action against a member, but did not afford the member the due process protections in RONR or in your organization’s rules, then that would be highly concerning.
• The fact that “most of what they did do was basic motion making, and voting, and a very occasional amendment or withdrawal of a motion, and that was mostly it.” is not concerning at all. This is an accurate and appropriate description of how meetings should generally operate. Meetings are intended for the assembly to conduct its business in the most efficient manner possible while also protecting the rights of the minority and the individual members. These objectives can generally be accomplished with the basic tools of parliamentary procedure. More advanced tools are available for those circumstances where they are needed.

Edited March 7, 2019 at 05:57 PM by Josh Martin

[Nathan Zook]

13 hours ago, Daniel H. Honemann said:

But since I'm just a dumb lawyer who don't know nothing about parliamentary law, pay me no mind.  🙂

 

 

[Josh Martin]

Expanding on my previous comments, it occurs to me that the following passage may also be relevant to this discussion of “substantial compliance.”

“In ordinary meetings it is undesirable to raise points of order on minor irregularities of a purely technical character, if it is clear that no one's rights are being infringed upon and no real harm is being done to the proper transaction of business.” (RONR, 11th ed., pg. 250)

This is not intended to suggest that the matters raised in this thread are points of order of the nature discussed in that citation.

[BabbsJohnson]

7 hours ago, Josh Martin said:

Again, I note that “substantial compliance” is not a parliamentary term, so there is no parliamentary meaning to saying that a particular assembly is (or is not) in “substantial compliance” with RONR.

With that said, with regard to the particular complaints:

• I would be highly concerned with an assembly which did not attend to the rules of decorum. The rules of decorum are critical to maintaining harmony within the assembly. While potentially certain of these rules could be relaxed if the circumstances warrant, an assembly which permitted personal attacks against members, for instance, would be highly concerning.
• I would be highly concerned with an assembly which did not permit Points of Order or Appeals, since these are the only parliamentary mechanisms available for the assembly to enforce any compliance with the parliamentary authority or the other rules of the organization. Without these tools, the assembly is entirely at the whims of the chair.
• I am not entirely sure what is meant by “did not engage any of the disciplinary procedures in RONR.” If you mean that the assembly has chosen not to pursue disciplinary action against a person who, in your opinion, should be subjected to such action, I would note that this is a substantive decision that is at the assembly’s discretion, so this fact would not give any concerns for parliamentary reasons. (If I were a member, I may or may not be concerned with the substantive decision, but that is beyond the scope of this forum.) On the other hand, if you mean that the assembly did take disciplinary action against a member, but did not afford the member the due process protections in RONR or in your organization’s rules, then that would be highly concerning.
• The fact that “most of what they did do was basic motion making, and voting, and a very occasional amendment or withdrawal of a motion, and that was mostly it.” is not concerning at all. This is an accurate and appropriate description of how meetings should generally operate. Meetings are intended for the assembly to conduct its business in the most efficient manner possible while also protecting the rights of the minority and the individual members. These objectives can generally be accomplished with the basic tools of parliamentary procedure. More advanced tools are available for those circumstances where they are needed.

Re: did not engage with discipline

What I meant is: a situation arose that called for discipline, and no one knew any procedures for it, and instead of consulting RONR it’s at the subjective whim of the board and the individuals there at the time.

The impression I got was they were more concerned with not  ruffling the feathers of certain individuals, rather than following procedure (like moving to censure, for instance, if it was found there was some inappropriate action)

 

[Guest Zev]

Eventually OP Nosey will discover that for parliamentary procedure to work then the individuals in a meeting must believe that it is better to follow them and get a measure of order rather than some form of controlled chaos.

26 minutes ago, Nosey said:

What I meant is: a situation arose that called for discipline...

And what did you do? Consider calling out a Point Of Order and saying something like, "I call the member to order." Perhaps this will get the member to behave.

29 minutes ago, Nosey said:

The impression I got was they were more concerned with not  ruffling the feathers of certain individuals, rather than following procedure...

Yes, but if people allow themselves to be intimidated by others there is not much that parliamentary procedure can do.

Another suggestion. Perhaps there is an NAP Study Unit or a parliamentarian nearby that this group would allow to come and give them some pointers about this subject. Go to the NAP web site  http://www.parliamentarians.org/directory/ and see if you can find one in your area. Maybe these dudes will listen to an outsider.

[BabbsJohnson]

On 3/7/2019 at 2:58 AM, Daniel H. Honemann said:

Well, this is something I said in an earlier thread:

"If and when a point of order is raised concerning the effectiveness of the one day late notice given for the proposed bylaw amendment, S. Nelson's organization's assembly will have to decide for itself whether or not there has been what amounts to substantial compliance with its rule, and if so, whether or not such compliance is sufficient to permit its consideration and adoption of the proposed amendment.

The assembly's decision will be final unless, of course, the amendment is declared to be adopted and someone feels that his ox has been gored to such an extent that he is willing to sue, in which event the question may ultimately be decided by a court. The court, of course, will be looking at applicable contract law, not parliamentary law, to reach its decision."

But since I'm just a dumb lawyer who don't know nothing about parliamentary law, pay me no mind.  🙂

 

Just to clarify: The question I meant was... is there such a thing as being "substantially compliant" in using Robert's Rules at all.

If a board member says to the assembly: "Robert's Rules are our adopted Parliamentary Rules, since the By-Laws name it"

and the response they get is: "We use Robert's Rules enough to be substantially compliant with that requirement"

and the board member says: "Yes, but what about decorum, the limits of debate, and Points of Order when they are needed?"

and the assembly says: "Limits of debate? Decorum... why what do you mean?"

the boar dmember says: "Like being able to speak without being inturrupted, talked over, or directly responded to... or pesonal attacks for instance..."

and the assembly says: "Personal attacks? Who gets to decide what that is? It's too subjective!"

and the board member says: "What about Points of Order?"

and the assembly says: "What is that for?"

and the board member says: "It's for when the rules of Decorum are broken, or the limits of debate are violated"

and the assembly says: "I think we do just fine. We are using enough Robert's Rules! Doesn't it look like we are using Robert's Rules?"

and the board member says: "We are using the voting parts only."

and the assembly says: "We are using enough to be substantially compliant. That's all we have to do."

 

Edited April 30, 2019 at 06:50 PM by Nosey
Sorry for the smei-obnoxious format

[Joshua Katz]

Two things:

First, it is easier to get an organization to follow the rules of parliamentary procedure by pointing out their benefits than by insistence that "we must." This is because, short of pushing enough to go to court, the rules are not enforceable upon an assembly that doesn't wish, as a general matter, to follow them. So the better idea is to persuade.

Second, if you wish to raise an issue, I think it is better to raise it in the concrete than the abstract. Don't engage in conversations at a meeting about whether or not you're using RONR. Instead, if someone gets cut off in debate, raise a point of order at that point (i.e. rather than discussing the notion of a point of order or rule of decorum shorn of context). If the chair rules against you and is upheld on appeal, that's part of how RONR works, too. But it is easier to persuade when someone is interrupting Bob (at least, Bob is likely to agree) than if you try to have a free-wheeling conversation about cutting people off - which, by the way, would likely be out of order anyway, which makes it hard to persuade people to follow the rules. 

[BabbsJohnson]

13 minutes ago, Joshua Katz said:

Two things:

First, it is easier to get an organization to follow the rules of parliamentary procedure by pointing out their benefits than by insistence that "we must." This is because, short of pushing enough to go to court, the rules are not enforceable upon an assembly that doesn't wish, as a general matter, to follow them. So the better idea is to persuade.

Second, if you wish to raise an issue, I think it is better to raise it in the concrete than the abstract. Don't engage in conversations at a meeting about whether or not you're using RONR. Instead, if someone gets cut off in debate, raise a point of order at that point (i.e. rather than discussing the notion of a point of order or rule of decorum shorn of context). If the chair rules against you and is upheld on appeal, that's part of how RONR works, too. But it is easier to persuade when someone is interrupting Bob (at least, Bob is likely to agree) than if you try to have a free-wheeling conversation about cutting people off - which, by the way, would likely be out of order anyway, which makes it hard to persuade people to follow the rules. 

Noted... thank you

[Josh Martin]

3 hours ago, Nosey said:

Just to clarify: The question I meant was... is there such a thing as being "substantially compliant" in using Robert's Rules at all.

I am still satisfied with the answers I gave above concerning this as a general question.

As to some of the specific questions:

3 hours ago, Nosey said:

and the assembly says: "Personal attacks? Who gets to decide what that is? It's too subjective!"

As with all questions of order, the chair rules, subject to appeal. Ultimately, the assembly itself decides.

3 hours ago, Nosey said:

and the assembly says: "We are using enough to be substantially compliant. That's all we have to do."

Well, whether or not this is correct, the only way to change this would be to persuade the members of the importance of parliamentary procedure or to replace some or all of the members of the assembly with members who understand its importance. It is ultimately up to the assembly itself to enforce its rules, and if the assembly is only willing to enforce them to the level of “substantial compliance,” whatever the assembly decides that means, then I suppose that is what will happen.

3 hours ago, Joshua Katz said:

First, it is easier to get an organization to follow the rules of parliamentary procedure by pointing out their benefits than by insistence that "we must." This is because, short of pushing enough to go to court, the rules are not enforceable upon an assembly that doesn't wish, as a general matter, to follow them. So the better idea is to persuade.

I would also note that the rules of parliamentary procedure, in and of themselves, are not enforceable by the courts. It may well be that certain aspects of parliamentary procedure are also codified in statute for a particular jurisdiction, or that those aspects which are included in an organization’s rules (especially its bylaws) may form a sort of contract, and therefore could be enforced by a court, but courts cannot and do not enforce “parliamentary procedure” itself.

Edited April 30, 2019 at 10:28 PM by Josh Martin

[Joshua Katz]

1 minute ago, Josh Martin said:

I would also note that the rules of parliamentary procedure, in and of themselves, are not enforceable even by going to court. It may well be that certain aspects of parliamentary procedure are also codified in statute for a particular jurisdiction, or that those aspects which are included in an organization’s rules (especially its bylaws) may form a sort of contract, and therefore could be enforced by a court, but courts cannot and do not enforce “parliamentary procedure” itself.

Thank you; I was sloppy in light of the above discussion. 

[BabbsJohnson]

This is all very clarifying.

Thank you all for your time today.