What matters are "exclusively under the control of the board"?

[Alex Meed]

RONR states that "except in matters placed by the bylaws exclusively under the control of the board, the society's assembly can give the board instructions which it must carry out" (11th ed., p. 483, ll. 9–12).

That is relatively clear when the assembly seeks to rescind or amend a board action by the motions to Rescind or Amend Something Previously Adopted. But apart from that, what sort of bylaws language is sufficient to grant the board exclusive control over a matter, and what form should the instructions take?

For instance, suppose the bylaws provide: "The Executive Board may do X by two-thirds vote." Is this language sufficient to place X under the exclusive control of the board? If not, what vote margin is required for the assembly to instruct the board to do X? And how would the board carry out those instructions; for instance, would the board then have to vote to do X at its next meeting, or does the assembly's instruction obviate the need for the board to take the vote?

[Josh Martin]

43 minutes ago, Alex M. said:

That is relatively clear when the assembly seeks to rescind or amend a board action by the motions to Rescind or Amend Something Previously Adopted. But apart from that, what sort of bylaws language is sufficient to grant the board exclusive control over a matter, and what form should the instructions take?

It is generally advisable for rules to be written as clearly as possible. So if it is desired to grant a board exclusive authority over a matter, I advise explicitly stating this in terms such as “exclusive authority” or “sole authority.” Whether particular language in the bylaws grants the board exclusive authority is, however, a judgment call. RONR has some Principles of Interpretation on pgs. 588-591 which may be of assistance.

I think that one particularly important principle in this regard is POI #4, in particular, the second sentence. “If the bylaws authorize certain things specifically, other things of the same class are thereby prohibited. There is a presumption that nothing has been placed in the bylaws without some reason for it. There can be no valid reason for authorizing certain things to be done that can clearly be done without the authorization of the bylaws, unless the intent is to specify the things of the same class that may be done, all others being prohibited.” (RONR, 11th ed., pgs. 589-590)

Suppose, for instance, that the bylaws contain a statement granting the board very broad authority over the society’s business, and then also contain a statement authorizing the board to take certain, specific actions (which are arguably already encompassed under the broad authority). Since it is assumed that nothing is in the bylaws without a reason, there must be some reason to include the specific actions. It may well be that the reason is to give the board exclusive authority over those items of business.

43 minutes ago, Alex M. said:

For instance, suppose the bylaws provide: "The Executive Board may do X by two-thirds vote." Is this language sufficient to place X under the exclusive control of the board?

Without knowing what “X” is, or knowing what else the bylaws say regarding the board’s authority, I don’t think I have sufficient information to attempt to answer this question.

43 minutes ago, Alex M. said:

If not, what vote margin is required for the assembly to instruct the board to do X?

Assuming that the board does not have exclusive authority in this area, and that the instructions do not conflict with any actions previously taken by the board or by the society, a majority vote is sufficient. If the instructions do conflict with action previously taken by the board or by the society, then this would be a motion to Rescind or to Amend Something Previously Adopted, and would therefore require a 2/3 vote, a vote of a majority of the entire membership, or a majority vote with previous notice.

(Depending on what “X” is, there may also be other reasons why more than a majority vote would be required.)

43 minutes ago, Alex M. said:

And how would the board carry out those instructions; for instance, would the board then have to vote to do X at its next meeting, or does the assembly's instruction obviate the need for the board to take the vote?

I think this depends on a variety of circumstances including, but not limited to, the exact wording of the rule in question (and other relevant rules), the exact wording of the motion, the nature of the situation, and what “X” is.

[Alex Meed]

Very well, here's an example. This is a political organization, and we endorse candidates for public office, but under our bylaws this can only be done by ballot at an endorsement meeting that is called by the executive board. "X" is to call an endorsement meeting (at least, that's the language of what I hope eventually become our revised bylaws, because our current ones are a mess). There are many other things in the bylaws (both current and the potential revision) that are written with similar language, but I think that's a useful concrete example.

Our organization has long functioned primarily as a social organization, delegating most administration to the board, so I think it's appropriate for the board to be expected to call endorsement meetings under normal circumstances. But I do want to understand what impact that would have on the relationship between the board and the membership, and whether the general membership would be able to call an endorsement meeting under abnormal circumstances (such as if the board refuses to do so).

10 minutes ago, Josh Martin said:

(Depending on what “X” is, there may also be other reasons why more than a majority vote would be required.)

I'm also curious about what exactly this means.

[Josh Martin]

15 hours ago, Alex M. said:

Very well, here's an example. This is a political organization, and we endorse candidates for public office, but under our bylaws this can only be done by ballot at an endorsement meeting that is called by the executive board. "X" is to call an endorsement meeting (at least, that's the language of what I hope eventually become our revised bylaws, because our current ones are a mess). There are many other things in the bylaws (both current and the potential revision) that are written with similar language, but I think that's a useful concrete example.

Our organization has long functioned primarily as a social organization, delegating most administration to the board, so I think it's appropriate for the board to be expected to call endorsement meetings under normal circumstances. But I do want to understand what impact that would have on the relationship between the board and the membership, and whether the general membership would be able to call an endorsement meeting under abnormal circumstances (such as if the board refuses to do so).

Thank you. This is very helpful. In my view, the endorsing meetings are in the nature of special meetings. RONR is quite clear that meetings may only be called through the procedures specified in the bylaws. So if the board refuses to call a meeting, the membership’s only recourse would be to remove board members and replace them with persons willing to call a meeting (if the membership can meet in time to do so).

In the long run, it may be prudent to amend the bylaws to provide other methods of calling endorsing meetings.

15 hours ago, Alex M. said:

I'm also curious about what exactly this means.

I was thinking of, for example, if “X” was adopting special rules of order.

[Alex Meed]

Interesting, thanks. As another example, what about authorizing an expenditure of funds? Our proposed revised bylaws provide that "an expenditure is approved ... by a two-thirds vote of" the board if it is above a certain amount. Can the membership vote to approve an expenditure that the board did not approve? Or can the membership Rescind the board's approval of an expenditure? (I'm using this example because it doesn't have a clear relation to an existing Robert's Rules concept, like a special meeting.)

I should also note that the board has full power and authority (should have mentioned that at the start, drat), except for certain enumerated powers and "to take any other action that this Constitution expressly reserves to the full membership." But "the general membership may rescind or amend any [board] action as provided by the parliamentary authority, unless this Constitution expressly forbids it." I'm curious how those provisions affect your responses—but based on this thread they probably need to be rewritten anyway.

As for allowing other means of calling endorsement meetings "in the long run"—I'm chairing a bylaws committee that's doing a full rewrite, so anything is fair game. Most of my current draft (based on the committee's discussions) phrases managerial things as powers of the board, though, since the general membership historically stays out of the management of the organization (and probably believes it has no power to intervene). But I agree that the membership should be able to call things like this if the board fails to—I just want to draft it in a good way that still clarifies that calling endorsement meetings is still usually the board's job.

And I presume it would take two-thirds with previous notice for the membership to impose a special rule on the board? Or, if I'm misremembering, the same vote margin that is required for the membership to impose a special rule on itself?

Edited October 23, 2019 at 11:56 PM by Alex M.
justify my example; add last sentence; small nonsubstantive revisions

[Josh Martin]

2 hours ago, Alex M. said:

Interesting, thanks. As another example, what about authorizing an expenditure of funds? Our proposed revised bylaws provide that "an expenditure is approved ... by a two-thirds vote of" the board if it is above a certain amount. Can the membership vote to approve an expenditure that the board did not approve? Or can the membership Rescind the board's approval of an expenditure? (I'm using this example because it doesn't have a clear relation to an existing Robert's Rules concept, like a special meeting.)

I should also note that the board has full power and authority (should have mentioned that at the start, drat), except for certain enumerated powers and "to take any other action that this Constitution expressly reserves to the full membership." But "the general membership may rescind or amend any [board] action as provided by the parliamentary authority, unless this Constitution expressly forbids it." I'm curious how those provisions affect your responses—but based on this thread they probably need to be rewritten anyway.

This provision is extremely helpful in interpreting the board’s authority in this regard. It seems to me that since the Constitution does not “expressly forbid” the general membership to act in this regard, the membership may indeed approve expenditures the board has not, and may rescind expenditures which have been approved (assuming, of course, the expenditure has not already occurred, since a motion cannot be rescinded if action has been taken which is impossible to undo).

Indeed, based on this provision, I may have to rethink my earlier response as well.

2 hours ago, Alex M. said:

And I presume it would take two-thirds with previous notice for the membership to impose a special rule on the board? Or, if I'm misremembering, the same vote margin that is required for the membership to impose a special rule on itself?

A special rule of order is adopted by a 2/3 vote with notice or by a vote of a majority of the entire membership.

[Alex Meed]

2 hours ago, Josh Martin said:

This provision is extremely helpful in interpreting the board’s authority in this regard. It seems to me that since the Constitution does not “expressly forbid” the general membership to act in this regard, the membership may indeed approve expenditures the board has not, and may rescind expenditures which have been approved (assuming, of course, the expenditure has not already occurred, since a motion cannot be rescinded if action has been taken which is impossible to undo).

Indeed, based on this provision, I may have to rethink my earlier response as well.

So it's more helpful as an aid to interpretation than I thought. Good to know. I'll keep it in then, since I think that's consistent with what my fellow bylaws contributors want, and with my desire to keep the board firmly under the members' authority (even if they seldom flex that authority outside of elections).

Then the question remains about instructions from the assembly to the board that aren't in the nature of rescinding or amending a board action. I think Robert's Rules are too bare-bones on that subject for me to just say "the membership can instruct the board as provided in the parliamentary authority", since then there are questions about required vote margins and all that. But what the instructions clause looks like is probably going to be a policy question for the bylaws committee. It might be easiest to just make the vote margin for instructions of any form the same as the requirements for a motion to rescind. (EDIT: On the other hand, for actions that require two-thirds of the board, it does feel quite odd to have a lower vote margin in the assembly than in the board to take the same action.)

Quote

A special rule of order is adopted by a 2/3 vote with notice or by a vote of a majority of the entire membership.

As I thought. But it's interesting that the special-rule two-thirds-and-notice requirement applies both when a board sets its own rules (it can do that, right?) and when the assembly sets the board's rules—but if the bylaws say the board can "do X" by two-thirds, but its authority is not exclusive, the assembly can instruct the board to do X by only a majority unless the bylaws say otherwise. (EDIT: Or I guess a majority of the board's entire membership could set a special rule? Still, the point stands.)

Edited October 24, 2019 at 05:00 AM by Alex M.
Add the marked parentheticals about vote margins

[Dan Honemann]

4 hours ago, Alex M. said:

As I thought. But it's interesting that the special-rule two-thirds-and-notice requirement applies both when a board sets its own rules (it can do that, right?) and when the assembly sets the board's rules—but if the bylaws say the board can "do X" by two-thirds, but its authority is not exclusive, the assembly can instruct the board to do X by only a majority unless the bylaws say otherwise. (EDIT: Or I guess a majority of the board's entire membership could set a special rule? Still, the point stands.)

No, a subordinate board may not set its own rules (see p. 486, ll. 13-19).

 

 

[Alex Meed]

5 minutes ago, Daniel H. Honemann said:

No, a subordinate board may not set its own rules (see p. 486, ll. 13-19).

 

 

And that's why I'm not an RP. Thanks. (To be fair, I'm probably the only person in my organization who knows what a special rule of order is, so it's unlikely to be a concern for me.)

[Alex Meed]

Or perhaps my interpretation differs from yours? To me that passage means the board can set its own rules as long as they don't contravene the society's rules.

But that is probably off topic in this thread.