Question regarding continous breach

[A Brown]

If I understand this correctly, a point of order can be made at any time including a later meeting when a continuous breach meets one of these criteria (RR pg. 251):

  a) A main motion has been adopted that conflicts with the bylaws (or constitution) of the organization or assembly (side note:  doesn't apply to rules of order)
    b) A main motion has been adopted that conflicts with a main motion previously adopted and still in force, unless the subsequently adopted motion was adopted by the vote required to rescind or amend the previously adopted motion,
    c) Any action has been taken in violation of applicable procedural rules prescribed by federal, state, or local law,
    d) Any action has been taken in violation of a fundamental principle of parliamentary law, or
    e) Any action has been taken in violation of a rule protecting absentees, a rule in the bylaws requiring a vote to be taken by ballot, or a rule protecting a basic right of an individual member

For c, d, or e, does "any action" include ones taken outside of a delegate meeting by a board that overstepped its authority at one of its own meetings according to the bylaws?  In other words, could a delegate raise a point of order at a later meeting stating a certain action taken by the board was unauthorized because the bylaws grant the authority to the delegate body?

[Rob Elsman]

There is nothing in RONR to indicate that a Point of Order can be raised in a superior body with respect to an action taken in an inferior body. There are alternative actions that may be appropriate.

[Atul Kapur]

For example, the assembly could Censure the board (or one or some or all of the members) for taking the action that was outside their authority ("ultra vires" if you want to sound superior or supercilious). You could follow the procedures in Chapter XX if you wish to take stronger disciplinary measures.

Depending on the wording in your bylaws regarding terms of office, you could remove one / some / all of the members from their offices. See RONR 11th ed., p. 574, lines 8-22. The key words to look for are whether the language about terms of office include the words "and until their successors are elected" vs ""or until their successors are elected." If it's "or" then you have can remove them without disciplinary proceedings.

The organization can also consider what action it can take to reverse the actions of the board. If there are costs and the board members truly acted ultra vires, then your organization may try to hold the individuals liable for any costs. That's a legal question, so I'm only raising it as something to consider and get legal advice on.

[A Brown]

Thank you.  FWIW, a lawsuit was filed in a state court and the action was deemed unauthorized by the Supreme Court of that state.  But this is a national organization, so the ruling only applies to the state it was filed under (the issue does concern money).   I truly do not believe members as a whole are out for blood and would rather we all find some way to settle the matter amicably, but at the same time, it might bring some needed closure in some aspects (at least for the time being) and make a statement if the delegate body can bring forward a vote on the action to make it "official."  Unfortunately, it is not as simple as making a motion.  Per the bylaws (really a Constitution in this case), motions are considered proposals, and there is a deadline for submission of proposals, and the board is the one who determines if a proposal is added to the agenda or not (with some exceptions).  We are way past the deadline, and people were waiting to see the result of the ruling which came after the proposal deadline. I was just curious if there was a way to force a vote by way of declaring the board's action a continuous breach.

Edited February 12, 2020 at 12:53 AM by A Brown

[Richard Brown]

4 hours ago, A Brown said:

For c, d, or e, does "any action" include ones taken outside of a delegate meeting by a board that overstepped its authority at one of its own meetings according to the bylaws?  In other words, could a delegate raise a point of order at a later meeting stating a certain action taken by the board was unauthorized because the bylaws grant the authority to the delegate body?

 

2 hours ago, Rob Elsman said:

There is nothing in RONR to indicate that a Point of Order can be raised in a superior body with respect to an action taken in an inferior body. There are alternative actions that may be appropriate.

It seems to me that regardless of whether a point of order may be raised at a membership meeting, unless the board is granted the exclusive authority over the affairs of the society, the membership could have adopted a motion rescinding the action taken by the board as discussed in Official Interpretation 2006-13:  https://www.robertsrules.com/interp_list.html#2006_13

Of course, since a court has already invalidated the action, that seems like a moot point now.

As an aside, I'm not altogether convinced that a point of order that the motion adopted by the board violates the bylaws and is therefore null and void would be out of order at a meeting of the membership which is presumably the superior body.  That may well be the case, and I'm not arguing to the contrary, just stating that I'm not yet fully convinced. If the membership can rescind actions taken by the subordinate board, why can it not also make a determination that a motion adopted by the board is null and void as violating the bylaws?

[A Brown]

Unfortunately, it's not a moot point because of how our organization is structured.  It's a federation of regional entities registered as their own nonprofit in their home state, and the national organization gives charters to these regional entities.  One of the regional entities filed a lawsuit in its state, and that state's Supreme Court found the board's action unauthorized and that the authority is vested with the delegates.  However, the board is still claiming authority over this action even though the ruling was pretty emphatic - but - technically it only applies in that state.  Every regional entity has its own set of delegates and they meet as an assembly during a convention held every three years.

Edited February 12, 2020 at 02:34 AM by A Brown

[Josh Martin]

2 hours ago, Richard Brown said:

As an aside, I'm not altogether convinced that a point of order that the motion adopted by the board violates the bylaws and is therefore null and void would be out of order at a meeting of the membership which is presumably the superior body.  That may well be the case, and I'm not arguing to the contrary, just stating that I'm not yet fully convinced. If the membership can rescind actions taken by the subordinate board, why can it not also make a determination that a motion adopted by the board is null and void as violating the bylaws?

I don’t think anyone is arguing that it can’t. The question is simply whether a Point of Order is the proper tool to do so.

2 hours ago, Richard Brown said:

It seems to me that regardless of whether a point of order may be raised at a membership meeting, unless the board is granted the exclusive authority over the affairs of the society, the membership could have adopted a motion rescinding the action taken by the board as discussed in Official Interpretation 2006-13: 

Yes, but unfortunately, it seems that it may be too late for that.

3 hours ago, A Brown said:

Per the bylaws (really a Constitution in this case), motions are considered proposals, and there is a deadline for submission of proposals, and the board is the one who determines if a proposal is added to the agenda or not (with some exceptions).  We are way past the deadline, and people were waiting to see the result of the ruling which came after the proposal deadline.

 

1 hour ago, A Brown said:

Unfortunately, it's not a moot point because of how our organization is structured.  It's a federation of regional entities registered as their own nonprofit in their home state, and the national organization gives charters to these regional entities.  One of the regional entities filed a lawsuit in its state, and that state's Supreme Court found the board's action unauthorized and that the authority is vested with the delegates.  However, the board is still claiming authority over this action even though the ruling was pretty emphatic - but - technically it only applies in that state.  Every regional entity has its own set of delegates and they meet as an assembly during a convention held every three years.

Do the rules concerning the deadline contain any exceptions?

Alternately, are any of the motions which were submitted before the deadline related to this matter? Perhaps this could be added as an amendment.

Edited February 12, 2020 at 03:29 AM by Josh Martin

[J. J.]

2 hours ago, Richard Brown said:

 

 

As an aside, I'm not altogether convinced that a point of order that the motion adopted by the board violates the bylaws and is therefore null and void would be out of order at a meeting of the membership which is presumably the superior body.  That may well be the case, and I'm not arguing to the contrary, just stating that I'm not yet fully convinced. If the membership can rescind actions taken by the subordinate board, why can it not also make a determination that a motion adopted by the board is null and void as violating the bylaws?

I am convinced that it would not be case in some circumstances, e.g. a board removing a member of the assembly without bylaw authorization permitting the board to do it.

 

[A Brown]

15 hours ago, Josh Martin said:

Do the rules concerning the deadline contain any exceptions?

Alternately, are any of the motions which were submitted before the deadline related to this matter? Perhaps this could be added as an amendment.

There is an exception to the board deciding what proposals go on the agenda, but there is no exception to the deadline.  If a proposal is supported by 15% of the entities then the proposal HAS to go on the agenda if it gets in before the deadline.  However, if it involves a Constitutional amendment, then only the board can approve or deny the proposal.  The board can bring forward additional proposals of its own. There are other sections of our booklet of governance documents that can be amended other than the Constitution.

This is not official yet as the set of proposals to be voted upon by the delegates is due to be released very soon, but supposedly there is one proposal that is related to the topic that was supported by over 15% of entities so it has to be on the agenda.  But amending it to add the actual action taken by the board would definitely be deemed out of scope.  The proposal was released prior to the lawsuit ruling, and it has thrown a big wrench into the works because it assumes the board has the authority - which conflicts with what's in the Constitution.  This is a huge mess!  It won't resolve the matter completely, but I think the delegate body voting on the action itself and making it official will possibly prevent at least some further fallout.  Who knows - maybe the board will surprise me and actually bring what they did to a vote?  I seriously doubt it, but miracles do happen!

Edited February 12, 2020 at 07:13 PM by A Brown

[A Brown]

Actually you know... I am looking at the proposal (assuming it won't be modified), and it just might be possible to amend it to include wording that would "approve" the action the board took.  It's a long shot but I'm going to keep it in mind depending on how some of this plays out.

Edit:  But it would probably give the board the authority of the action from here on out, and that will be an enormous sticking point.  Ugh!  It would be best if the action itself could be done and unrelated to this proposal.

Edited February 12, 2020 at 07:22 PM by A Brown