by-law amendment and 2/3 vote

[ptc122]

We changed a by-law and thought that a majority would suffice. Or we may have changed it without knowing that what we were passing affected that by-law. We used the same by-law title so we know the changes affected the wording. It also affected members as their positions and locations changed. 

Is majority ever sufficient? (we do not use RONR's majority of entire membership, our Rules By-Law reads: Previous notice and 2/3 vote.

Does it become a continuing breach? And how do we undo it. Paul

[Chris Harrison]

A majority is sufficient if the Bylaws say it is.  However, your Bylaws say it is not so it isn't. 

That being said, was previous notice given?  If it wasn't then a Point of Order can be raised without regard to the normal timeliness requirement (RONR p. 251[e]).  If previous notice was given then it would be too later to raise a Point of Order regarding a 2/3 vote not being reached (Official Interpretation 2006-18).

[ptc122]

On 10/1/2019 at 11:04 AM, Chris Harrison said:

A majority is sufficient if the Bylaws say it is.  However, your Bylaws say it is not so it isn't. 

That being said, was previous notice given?  If it wasn't then a Point of Order can be raised without regard to the normal timeliness requirement (RONR p. 251[e]).  If previous notice was given then it would be too later to raise a Point of Order regarding a 2/3 vote not being reached (Official Interpretation 2006-18).

The problem is that the vote taken was not 2/3. Are you saying that if previous notice given then NOT having a 2/3 vote is not a breach? The main problem with the vote to amend a by-law was not as per the RULE that previous notice AND a 2/3 vote is needed. Thanks for the quick response and page reference. Paul

[George Mervosh]

14 minutes ago, ptc122 said:

The problem is that the vote taken was not 2/3. Are you saying that if previous notice given then NOT having a 2/3 vote is not a breach? The main problem with the vote to amend a by-law was not as per the RULE that previous notice AND a 2/3 vote is needed. Thanks for the quick response and page reference. Paul

What Mr. Harrison said was, that a point of order regarding the failure to achieve a 2/3 vote must be timely, meaning, it must be made at the time the the mistake is made.  It is not one of the exceptions to the timeliness requirements for points of order found on p. 251 in RONR.  It's simply too late now to raise a point of order.

If the Official Interpretation seems confusing just look at the second paragraph of the Authorship Team's answer.  It focuses in on your question.

[Guest paul]

On 10/2/2019 at 3:52 PM, George Mervosh said:

What Mr. Harrison said was, that a point of order regarding the failure to achieve a 2/3 vote must be timely, meaning, it must be made at the time the the mistake is made.  It is not one of the exceptions to the timeliness requirements for points of order found on p. 251 in RONR.  It's simply too late now to raise a point of order.

If the Official Interpretation seems confusing just look at the second paragraph of the Authorship Team's answer.  It focuses in on your question.

251 9-10 is not confusing. This was a main motion passed that conflict with by-law that reads Previous Notice and a 2/3 vote. The vote was not 2/3. Paul

[Dan Honemann]

52 minutes ago, Guest paul said:

251 9-10 is not confusing. This was a main motion passed that conflict with by-law that reads Previous Notice and a 2/3 vote. The vote was not 2/3. Paul

But a main motion to amend the bylaws does not conflict with the bylaws.  The manner of its adoption may have conflicted with the bylaws, but that's a different matter entirely.

[ptc122]

15 hours ago, Daniel H. Honemann said:

But a main motion to amend the bylaws does not conflict with the bylaws.  The manner of its adoption may have conflicted with the bylaws, but that's a different matter entirely.

It was a motion to change (amend) an existing bylaw. To amend a bylaw requires a 2/3 vote. The amendment was passed without a 2/3 vote. I cannot find anything in RONR that supports a majority being sufficient but I can find several pages that support 2/3 and our own bylaw uses 2/3 (not majority of membership). 

Thanks for input and RONR pages would be helpful. Paul 

 

[George Mervosh]

30 minutes ago, ptc122 said:

It was a motion to change (amend) an existing bylaw. To amend a bylaw requires a 2/3 vote. The amendment was passed without a 2/3 vote. I cannot find anything in RONR that supports a majority being sufficient but I can find several pages that support 2/3 and our own bylaw uses 2/3 (not majority of membership). 

Thanks for input and RONR pages would be helpful. Paul 

 

Because, Paul, it's not sufficient, but it required a timely point of order which was not forthcoming, per your facts. So if the motion was declared adopted, it's adopted, and it's too late now to do anything about it as stated in the Official Interpretation previously cited.

[Josh Martin]

2 hours ago, ptc122 said:

It was a motion to change (amend) an existing bylaw. To amend a bylaw requires a 2/3 vote. The amendment was passed without a 2/3 vote. I cannot find anything in RONR that supports a majority being sufficient but I can find several pages that support 2/3 and our own bylaw uses 2/3 (not majority of membership). 

Thanks for input and RONR pages would be helpful. Paul 

The most relevant rule is that, generally, “If a question of order is to be raised, it must be raised promptly at the time the breach occurs.” (RONR, 11th ed., pg. 250)

Therefore, if we are to suggest that there is a different rule in the present case, it is necessary to find a relevant exception to this rule. You referred to this exception:

“The only exceptions to the rule that a point of order must be made at the time of the breach arise in connection with breaches that are of a continuing nature, in which case a point of order can be made at any time during the continuance of the breach. Instances of this kind occur when: 
a) a main motion has been adopted that conflicts with the bylaws (or constitution) of the organization or assembly.” (RONR, 11th ed., pg. 251)

This exception is not relevant here. The text does not say there is an exception when any action conflicts with the bylaws. Rather, it says that there is an exception when a main motion has been adopted which conflicts with the bylaws. In this situation, the main motion itself does not conflict with the bylaws. The violation here was that the vote did not meet the threshold specified in the bylaws.

Even if one were to dispute this interpretation (as you appear to) and suggest that this constitutes a main motion which conflicts with the bylaws, there is the matter of the footnote to this rule, which reads: “Unless the conflict is with a rule in the nature of a rule of order as described on page 17, lines 22–25, in which case a point of order must be timely.” (RONR, 11th ed., pg. 251, footnote)

There is no doubt that a rule requiring a 2/3 vote is a rule in the nature of a rule of order. So it is clear that this exception is not applicable in the present instance.

Based on the facts presented, it also seems clear that none of the other exceptions on pg. 251 are applicable. The one which may have relevant is the exception concerning rules protecting absentees, but we are told that previous notice was properly given, so this is not an issue.

As a consequence, if a member raises a Point of Order that the motion to amend the bylaws is null and void due to the fact that it did not receive a 2/3 vote, the chair should note that while the member is correct regarding the vote required for an amendment to the bylaws, the point is not well taken on the grounds that the point is not timely.

Edited October 4, 2019 at 05:03 PM by Josh Martin

[Gary Novosielski]

On 10/2/2019 at 3:29 PM, ptc122 said:

The problem is that the vote taken was not 2/3. Are you saying that if previous notice given then NOT having a 2/3 vote is not a breach? The main problem with the vote to amend a by-law was not as per the RULE that previous notice AND a 2/3 vote is needed. Thanks for the quick response and page reference. Paul

Failing to achieve a 2/3 vote when a 2/3 vote is required is undoubtedly a breach, but it is not a continuing breach.  Therefore, the Point of Order must be raised in a timely manner, i.e., at the time when the breach occurs.  Afterward, it is too late.

If the previous notice had not been properly given, that would be a continuing breach, and it is not too late to raise a Point of Order at a future meeting..

[Louise]

Where I live, the law requires that bylaws of our type of organization be amended by means of previous notice and a 3/4 vote, so you may want to ensure there are no legal requirements regarding bylaw changes for your organization.

If there is, then my understanding is that those would reign supreme over both your bylaws and Robert's Rules.

[Josh Martin]

8 minutes ago, Louise said:

Where I live, the law requires that bylaws of our type of organization be amended by means of previous notice and a 3/4 vote, so you may want to ensure there are no legal requirements regarding bylaw changes for your organization.

If there is, then my understanding is that those would reign supreme over both your bylaws and Robert's Rules.

I agree that if applicable law requires a certain voting threshold, that is a different matter. The exception pertaining to violations of law is much broader, and it is certainly correct that procedural rules in applicable law take precedence over RONR.

”c) any action has been taken in violation of applicable procedural rules prescribed by federal, state, or local law” (RONR, 11th ed., pg. 251, emphasis added)

[Guest paul]

It was not a rule of order. A point of order was raised at the time. It was (incorrectly) ruled that majority was adequate. The law states that amendments must be passed by resolution by the Board. Resolutions by the Board are covered by the Board's bylaws stating changes must be by previous notice and a 2/3 vote. There is a RULES bylaw that describes what must be done when a bylaw is amended (previous notice and at at least a 2/3 vote, no options of a majority). The resolution changed the wording and effect of the original bylaw covering these situations, and thereby affected board members and the constituents of the areas changed. Why would this not be a continuing breach? 

The wording of 251 is consistent with what occurred. The wording of what requires a 2/3 vote is consistent throughout RONR 11 and in Brief: p 85  Bylaws should include provisions for their own amendment that require previous notice of proposed amendment and at least a two-thirds vote for them to be adopted. See RONR pages 565-99. With the exception of "a majority of entire membership" all statements on amending require a 2/3 vote. Roberts is our authority, but we use the 2/3 option. 

Tinted pages 10 and 11 and Items 16 and 17 are clear "as provided in bylaws" in 16, and in 17 "previous notice and a 2/3 vote or (b) a majority of entire membership. (we do not use majority of entire membership as we have our own bylaw on amending).

Perhaps the appropriate page references supporting that a 2/3 vote is not required, or that a majority vote is acceptable would be helpful. Or that null and void is not the acceptable outcome would be very helpful. I need to be able to present all sides of these arguments. Thanks to all so far. Paul  

 

[Atul Kapur]

42 minutes ago, Guest paul said:

Why would this not be a continuing breach? 

There are five ways that there can be a continuing breach, which are listed on page 251. None of these is applicable when the chair erroneously rules that a motion requires a majority to adopt when it actually requires a 2/3 vote.

The fact that this is an amendment to the bylaws does not mean that it "conflicts with the bylaws ... of the organization or assembly" (p. 251, lines 9-10).

Furthermore, the requirement for a 2/3 vote is "in the nature of a rule of order" and, therefore, "a point of order must be timely" (p. 251, footnote).

This is different from not following the requirement to give notice, which would create a continuing breach because it would violate "a rule protecting absentees" (p. 251, lines 20-21).

[Gary Novosielski]

8 hours ago, Guest paul said:

It was not a rule of order. A point of order was raised at the time. It was (incorrectly) ruled that majority was adequate. The law states that amendments must be passed by resolution by the Board. Resolutions by the Board are covered by the Board's bylaws stating changes must be by previous notice and a 2/3 vote. There is a RULES bylaw that describes what must be done when a bylaw is amended (previous notice and at at least a 2/3 vote, no options of a majority). The resolution changed the wording and effect of the original bylaw covering these situations, and thereby affected board members and the constituents of the areas changed. Why would this not be a continuing breach? 

The wording of 251 is consistent with what occurred. The wording of what requires a 2/3 vote is consistent throughout RONR 11 and in Brief: p 85  Bylaws should include provisions for their own amendment that require previous notice of proposed amendment and at least a two-thirds vote for them to be adopted. See RONR pages 565-99. With the exception of "a majority of entire membership" all statements on amending require a 2/3 vote. Roberts is our authority, but we use the 2/3 option. 

Tinted pages 10 and 11 and Items 16 and 17 are clear "as provided in bylaws" in 16, and in 17 "previous notice and a 2/3 vote or (b) a majority of entire membership. (we do not use majority of entire membership as we have our own bylaw on amending).

Perhaps the appropriate page references supporting that a 2/3 vote is not required, or that a majority vote is acceptable would be helpful. Or that null and void is not the acceptable outcome would be very helpful. I need to be able to present all sides of these arguments. Thanks to all so far. Paul  

 

The prohibition against adopting a motion that conflicts with the bylaws does not apply to bylaws amendments, since amendments to the bylaws are likely to conflict with what that document currently says in an effort to make it say something else.

[Guest Zev]

What I am not understanding is: (1) who is the "we" in the "We changed a by-law..."; (2) how many bodies in this organization are authorized by the bylaws to make amendments to the same bylaws? Only the board, or can some other body makes amendments also? (3) is there a body that is superior to the board and can issue an order the board must carry out, or is the board the highest authority in this organization? (4) when the motion to amend the bylaws was voted on and the Point Of Order raised, and then incorrectly ruled by the presiding officer, which body was actually meeting?

 

 

 

[Atul Kapur]

Guest Zev, would the answers to your questions change any of the answers to the OP? I don't believe so, but you've raised them, so I'm asking.

[Guest Zev]

Just now, Atul Kapur said:

Guest Zev, would the answers to your questions change any of the answers to the OP?

I just wanted to make sure that the body supposedly making the bylaw change actually had the authority to do so and that there was no superior body that could countermand that change. Number 4 was to alert the OP that they had a method of overriding the presiding officer's incorrect ruling so that at least they would not accept such a ruling without exercising their right to appeal. If my attempt is out of line then I beg forgiveness from all of you.

[Atul Kapur]

I didn't say it was out of line; I was just clarifying whether your questions affected the answers to the OP's original question. The answers given assume that the meeting in question had the authority to amend the bylaws. If not, that's a different can of worms.

[ptc122]

17 hours ago, Guest Zev said:

I just wanted to make sure that the body supposedly making the bylaw change actually had the authority to do so and that there was no superior body that could countermand that change. Number 4 was to alert the OP that they had a method of overriding the presiding officer's incorrect ruling so that at least they would not accept such a ruling without exercising their right to appeal. If my attempt is out of line then I beg forgiveness from all of you.

It is a good question. It is a body that can make decisions and has it's on Bylaws. There is a superior body that could change the results, but they could be changed by the body that performed the improper amendment. Even if it does not fall under P 251 a continuing breach, which makes it automatically null and void,  they could change through Rescind or Amend. 

[ptc122]

Good discussion. I think it is determined that previous notice and a 2/3 vote is needed to amend a by-law. And this amendment should have been done with a 2/3 vote.

Continuing Breach is a question that may require lawyer's interpretations. We could correct something that was improper by Rescind or Amend. 

I have gathered several page references to this if anyone would like them. Paul 

[Shmuel Gerber]

15 hours ago, ptc122 said:

Good discussion. I think it is determined that previous notice and a 2/3 vote is needed to amend a by-law. And this amendment should have been done with a 2/3 vote.

Continuing Breach is a question that may require lawyer's interpretations. We could correct something that was improper by Rescind or Amend. 

I have gathered several page references to this if anyone would like them. Paul 

Well, I'm glad we got that sorted out.