Hypothetical Limit on Debates and/or comments

[Tomm]

Members can attend open Board of Director Meetings but of course have no vote, but they do have the opportunity to comment.

Bylaws state: "Robert's Rules of Order shall govern procedure at all meetings of the Corporation..."

Bylaws state: "Members in good standing may vote, serve on the Board or Committees, speak at Membership and Board meetings..." 

Bylaws state "Meetings of the Board: All meetings of the Board, excluding Executive Session, shall be open and video recorded with time allotted for Members to make comments"

Question: If for some reason the Board didn't want to hear comments, but couldn't suspend the rule because it's in the Bylaws, could they limit the time of the comments, for example to 15 seconds or would those limits default back to RONR allowing 2 times, 10 minutes each? 

Typically, during the Boards debate process, and before they vote, Member comments are allowed and limited to one time for 3 minutes.

[Joshua Katz]

1 hour ago, Tomm said:

If for some reason the Board didn't want to hear comments, but couldn't suspend the rule because it's in the Bylaws,

It seems to me that the rule is in the nature of a rule of order and may be suspended.

1 hour ago, Tomm said:

could they limit the time of the comments, for example to 15 seconds or would those limits default back to RONR allowing 2 times, 10 minutes each? 

The board could adopt a special rule of order for the session limiting the board members' speech lengths, and certainly can do so for non-members. More generally, though, I'm not convinced that a rule in the bylaws permitting non-members to speak at meetings implies that they get all the details RONR provides for debate, and in particular that they get 2 speeches of 10 minutes each. On the other hand, I'm not sure what the limit would be if not that. In any case, I think the board could modify it but could not (without suspending the rule) modify it so as to render the rule a nullity - say, by giving them 1 second.

The opposing argument is that the rule may not be suspended because it grants a right, and a rule granting a right to a single member may not be suspended absent unanimous consent. But note that this is true only for rules granting rights to members. Here, we're talking about non-members. To see how key this distinction is, just ask it this way - what would unanimous consent consist of, and why would it matter here? Ordinarily, it matters because rules may not be suspended in such a manner that those whose rights are protected could not oppose it. Here, unanimous consent means the entire board - and still wouldn't include any of the non-members who wish to speak. 

 

[Tomm]

Interesting!!

The Bylaws also state: "Members in good standing shall be considered as the Membership of the Corporation" right before it states "Members in good standing may vote, serve on the Board or Committees, speak at Membership and Board meetings..."  as stated above.

So...even though the Members in attendance at the Board meeting aren't themselves members of the Board, they are considered a Member of the same Corporation as the Board members, so why can their rights be taken away by a Board's unanimous consent and who's members belong to the same Corporation? Is this where we get into "additional classes of membership"? 

 

[Atul Kapur]

Because we're talking about two different bodies: the Corporation and the Board. Being a member of the board gives you the right to attend, get notice of, speak, move motions, and vote at board meetings. Your bylaws say that members of the corporation have the right to speak at board meetings, but none of the other things.

So it's not different classes of membership but membership in two different bodies.

So I'm agreeing with Mr. Katz's "opposing argument" that the bylaws grant a right to members of the corporation to speak at the board and that this right cannot be taken away but can be (reasonably) limited.

I don't know that limiting it to 15 seconds is reasonable. A minute I'd have no problem with.

Edited August 4, 2019 at 07:44 PM by Atul Kapur

[Joshua Katz]

26 minutes ago, Tomm said:

So...even though the Members in attendance at the Board meeting aren't themselves members of the Board, they are considered a Member of the same Corporation as the Board members, so why can their rights be taken away by a Board's unanimous consent and who's members belong to the same Corporation? Is this where we get into "additional classes of membership"? 

 

I apologize, but I'm having trouble following this paragraph. First, I'll note that if we're talking about a corporation, you also have to consider your state's corporate laws, which are beyond the scope of this forum. Second, you can't take away rights in general that are established in the bylaws because anything in the bylaws not clearly in the nature of a rule of order may not be suspended. Beyond that, I'm not entirely sure what you're asking.

You might be asking about the fact that my argument revolves around the word "members," and the people under discussion are members - but of what? We always need to keep track of what body is meeting and what body people are members of.

[Joshua Katz]

1 minute ago, Atul Kapur said:

So I'm agreeing with Mr. Katz's "opposing argument" that the bylaws grant a right to members of the corporation to speak at the board and that this right cannot be taken away but can be (reasonably) limited.

Okay, that's fine. But do you have anything to add on the reasons I rejected that answer? Also, in that case, why can they be limited - and do you agree that the 10 minutes, 2 speeches rule is a good starting point?

[Richard Brown]

1 hour ago, Joshua Katz said:

The opposing argument is that the rule may not be suspended because it grants a right, and a rule granting a right to a single member may not be suspended absent unanimous consent.

That is the way I look at it and is the position I would take. I think the bylaw provision at issue grants a right to members of the corporation / organization. I don't think the board has the authority to suspend that bylaw provision even if it is in the nature of a Rule of Order.. However, it might be that the board could adopt reasonable rules regarding the length of speeches, etc.

[Joshua Katz]

1 minute ago, Richard Brown said:

I think the bylaw provision at issue grants a right to members of the corporation / organization.

Interestingly, we then have a rule of order that cannot be suspended by any vote...by any body. In particular, the general membership cannot suspend it either, presumably, although of course they could amend the bylaws. But that rule grants no rights at all to members of the body meeting (the board) than they already have without it. That strikes me as odd, but I seem to be in the minority. I'm still confused why, on that view, the board can restrict those rights - even though I said as much, and I'm pretty sure it's true, I'm not sure why it's true. 

[Atul Kapur]

6 minutes ago, Atul Kapur said:

So I'm agreeing with Mr. Katz's "opposing argument" that the bylaws grant a right to members of the corporation to speak at the board and that this right cannot be taken away but can be (reasonably) limited.

 

4 minutes ago, Joshua Katz said:

But do you have anything to add on the reasons I rejected that answer?

Yes, by quoting a wise man

1 hour ago, Joshua Katz said:

rules may not be suspended in such a manner that those whose rights are protected could not oppose it

In this case, where the bylaws give a right to a non-member of the board, even unanimous consent does not protect that non-member, so it's not suspendible. Because the bylaws are going beyond RONR (by granting a right to a non-member), we have to extrapolate. In this case consider the protection given to the non-member of the board similar to the protection given to absentees, where unanimous consent similarly is not enough.

[Atul Kapur]

5 minutes ago, Joshua Katz said:

I'm still confused why, on that view, the board can restrict those rights - even though I said as much, and I'm pretty sure it's true, I'm not sure why it's true. 

I would say it's part of the "careful balance" of the rights of the members of the board and the right given by the bylaw to non-members of the board.

[Joshua Katz]

1 minute ago, Atul Kapur said:

Yes, by quoting a wise man

1 hour ago, Joshua Katz said:

You then go on, unfortunately, to quote a not so wise man. 😉

2 minutes ago, Atul Kapur said:

In this case, where the bylaws give a right to a non-member of the board, even unanimous consent does not protect that non-member, so it's not suspendible. Because the bylaws are going beyond RONR (by granting a right to a non-member), we have to extrapolate. In this case consider the protection given to the non-member of the board similar to the protection given to absentees, where unanimous consent similarly is not enough.

This an interesting take to me, and one I hadn't thought of before. I always assumed that the rule in question - that a rule protecting a minority may not be suspended except by a majority so large as to overlap with the minority - only applied to members of the body that is meeting, because absent that, the "overlap" becomes meaningless. However, you've suggested an opposite take on the same observation. I'm not sure I agree, but I get it.

[Tomm]

23 minutes ago, Joshua Katz said:

Interestingly, we then have a rule of order that cannot be suspended by any vote...

Seems to me that the "right to speak/comment" is not a "rule of order"? The "rule of order"  would be the limits to speak once for 3 minutes. The "right" is the ability to speak?

[Joshua Katz]

Well, I agree that the right is not itself a rule of order. But I would say that the rule that such a right exists at a meeting is a rule for the conduct of the meeting. 

[Tomm]

2 minutes ago, Joshua Katz said:

Well, I agree that the right is not itself a rule of order. But I would say that the rule that such a right exists at a meeting is a rule for the conduct of the meeting. 

I would then, respectfully, argue that it's not really a rule of conduct but it's an actually a Bylaw?

Would I be correct in assuming that the general consensus is the Member's (non-board member) right to speak/comment at the Board meetings cannot be taken away but can only be limited to a reasonable amount of time? 

 

[Joshua Katz]

22 minutes ago, Tomm said:

I would then, respectfully, argue that it's not really a rule of conduct but it's an actually a Bylaw?

 

And, to some extent, you'd be in the majority here, it seems. I'd just note that these are not mutually exclusive categories; sometimes rules for the conduct of meetings appear in the bylaws (and are suspendable, subject to certain limits as discussed in this thread).

 

23 minutes ago, Tomm said:

 Would I be correct in assuming that the general consensus is the Member's (non-board member) right to speak/comment at the Board meetings cannot be taken away but can only be limited to a reasonable amount of time? 

 

That seems to be the consensus, at least so far.

[J. J.]

1 hour ago, Richard Brown said:

That is the way I look at it and is the position I would take. I think the bylaw provision at issue grants a right to members of the corporation / organization. I don't think the board has the authority to suspend that bylaw provision even if it is in the nature of a Rule of Order.. However, it might be that the board could adopt reasonable rules regarding the length of speeches, etc.

Wouldn't that prevent adopting the Previous Question?

[J. J.]

3 hours ago, Tomm said:

Members can attend open Board of Director Meetings but of course have no vote, but they do have the opportunity to comment.

Bylaws state: "Robert's Rules of Order shall govern procedure at all meetings of the Corporation..."

Bylaws state: "Members in good standing may vote, serve on the Board or Committees, speak at Membership and Board meetings..." 

Bylaws state "Meetings of the Board: All meetings of the Board, excluding Executive Session, shall be open and video recorded with time allotted for Members to make comments"

Question: If for some reason the Board didn't want to hear comments, but couldn't suspend the rule because it's in the Bylaws, could they limit the time of the comments, for example to 15 seconds or would those limits default back to RONR allowing 2 times, 10 minutes each? 

Typically, during the Boards debate process, and before they vote, Member comments are allowed and limited to one time for 3 minutes.

  I will take what looks like the minority view.  The ability to speak in debate is not a "basic right of an individual member."   If it were, it could not curtailed by a 2/3 vote (see p. 264, ll. 6-12). 

The rules relating to debate are clearly rules in the nature of a rule of order, as deal with the orderly transaction of business within a meeting.   Even if in the bylaws, that rule may be suspended, for as long as the duration of the session. 

The second rule, ""Meetings of the Board: All meetings of the Board, excluding Executive Session, shall be open and video recorded with time allotted for Members to make comments" does not deal with debate.  It requires a time to be allotted for members to speak.  This is not attached to a particular pending question.  A time can be allotted at the start of of the meeting, or at the end; there is no guidance on what that time is.

 

[Tomm]

 

32 minutes ago, J. J. said:

  The ability to speak in debate is not a "basic right of an individual member."  

We're not concerned about the right to speak in debate per se, we are, however, concerned about being allowed to speak at all by stating our "comments", which the Bylaws expressly allow. 

[Atul Kapur]

2 hours ago, J. J. said:

Wouldn't that prevent adopting the Previous Question?

No. As Tomm says above, the question is not about the right to debate, it's the right to speak.

[Tomm]

1 hour ago, Atul Kapur said:

No. As Tomm says above, the question is not about the right to debate, it's the right to speak.

Exactly! It's my understanding that if a member is given a right in the Bylaws, it cannot be taken away without changing the Bylaws. All we want is to make sure that the right to comment cannot be taken away.  

[Joshua Katz]

17 minutes ago, Tomm said:

Exactly! It's my understanding that if a member is given a right in the Bylaws, it cannot be taken away without changing the Bylaws. All we want is to make sure that the right to comment cannot be taken away.  

Well, you now have 3 answers. Two say the rule relates to debate on pending motions and may not be suspended. One says it relates to debate on pending motions and may be suspended. One says it is satisfied if you have time for public comment and need not allow debate on any motion, and so suspension isn't much of an issue. I might suggest that this is ultimately a bylaw interpretation issue, and one that isn't particularly simple given the diversity of answers.

[Tomm]

Okay, "assuming" that it is in fact a right given to all the member's as stated in the Bylaws and it is allowable to comment; if the Board chair states that no comments will be allowed from the non-board members who are in attendance at the Board meeting, can the non-member call a "point of order" or "parliamentary inquiry"  and be recognized?  Or because the non-member is not actually part of the Board meeting the chair can simply ignore a call for "point of order" or Parliamentary Inquiry"?

[J. J.]

1 hour ago, Tomm said:

Exactly! It's my understanding that if a member is given a right in the Bylaws, it cannot be taken away without changing the Bylaws. All we want is to make sure that the right to comment cannot be taken away.  

First, there is not a right to speak in debate.  Secondly, a rule in the nature of a rule of order within the bylaws may be suspended (p. 17,  ll.19-27).

 

[Joshua Katz]

1 hour ago, Tomm said:

Or because the non-member is not actually part of the Board meeting the chair can simply ignore a call for "point of order" or Parliamentary Inquiry"?

This is correct, and I think all of us here will agree with that. Thus, in practice, some board member has to raise a point of order. In theory, a member should raise a point of order if he believes the rule is being violated, regardless of his opinion of the content of what the non-member is likely to say. In practice, that is not always the case, sadly.

[Josh Martin]

20 hours ago, Tomm said:

Members can attend open Board of Director Meetings but of course have no vote, but they do have the opportunity to comment.

Bylaws state: "Robert's Rules of Order shall govern procedure at all meetings of the Corporation..."

Bylaws state: "Members in good standing may vote, serve on the Board or Committees, speak at Membership and Board meetings..." 

Bylaws state "Meetings of the Board: All meetings of the Board, excluding Executive Session, shall be open and video recorded with time allotted for Members to make comments"

Question: If for some reason the Board didn't want to hear comments, but couldn't suspend the rule because it's in the Bylaws, could they limit the time of the comments, for example to 15 seconds or would those limits default back to RONR allowing 2 times, 10 minutes each? 

Typically, during the Boards debate process, and before they vote, Member comments are allowed and limited to one time for 3 minutes.

I concur with the view of Mr. Kapur and Mr. Brown. It seems clear to me that a rule of this sort is in the nature of an instruction from the membership to the board, and therefore, it is not in order for the board to suspend it entirely, as this would defeat the purpose of the rule. On the other hand, I also agree that the board may adopt reasonable limits on the length of these comments, and that the rule in RONR concerning how long members of the assembly may speak in debate has no bearing here.

11 hours ago, Tomm said:

Okay, "assuming" that it is in fact a right given to all the member's as stated in the Bylaws and it is allowable to comment; if the Board chair states that no comments will be allowed from the non-board members who are in attendance at the Board meeting, can the non-member call a "point of order" or "parliamentary inquiry"  and be recognized?  Or because the non-member is not actually part of the Board meeting the chair can simply ignore a call for "point of order" or Parliamentary Inquiry"?

No, a nonmember may not make a motion.

If the board refuses to permit members to speak, it may be necessary to discipline the board members and/or by clarifying this rule in the bylaws, such as by adding a provision specifically stating that the board may not eliminate these comments or reduce them below a certain amount of time.