Constitution was never ratified by governing body

[HMOORE]

Our Faculty Senate  constitution was approved by a majority of faculty several years ago.  However, our governing body did not ratify it at the time- I don't know how that happened but it did.

Recently it was sent to them for their review and hopefully their approval will be forthcoming  before the academic year is over.

 

We have term limits for the Senators (2 consecutive terms). Our constitution states the latest version of Robert's Rules of Order will  govern any matter not covered in the constitution itself.  My question  is- Does the years of service under an unratified constitution count towards term limits? I won't think so, but I want to hear what members of this forum think about this matter.

Edited March 4, 2020 at 09:17 PM by HMOORE
forgot to add

[Atul Kapur]

Once the Constitution has been ratified, then the term limits come into force. Any member who has been there for 2 or more consecutive terms total is term-limited when the term limits come into force.

Consider a situation where there were no term limits and they were added by amending the Constitution. A person who had been a senator for 2, 3, or 10 terms consecutively is now subject to the term limit once it is adopted. The clock doesn't re-set to zero when the term limit is adopted, unless you adopt a proviso to do that. And, no, this is not a retrospective application of the term limit. No one is going back in time and saying the previous terms do not count, just that as of the time the term limit comes into force, you have served 2, 3, or 10 terms consecutively so you are barred from re-election.

Edited March 4, 2020 at 10:38 PM by Atul Kapur

[Josh Martin]

On 3/4/2020 at 3:14 PM, HMOORE said:

Our Faculty Senate  constitution was approved by a majority of faculty several years ago.  However, our governing body did not ratify it at the time- I don't know how that happened but it did.

Recently it was sent to them for their review and hopefully their approval will be forthcoming  before the academic year is over.

 

We have term limits for the Senators (2 consecutive terms). Our constitution states the latest version of Robert's Rules of Order will  govern any matter not covered in the constitution itself.  My question  is- Does the years of service under an unratified constitution count towards term limits? I won't think so, but I want to hear what members of this forum think about this matter.

I am a bit uncertain on the details here. When you say that “Our Faculty Senate  constitution was approved by a majority of faculty several years ago. However, our governing body did not ratify it at the time,” do you mean that a revised constitution was adopted, or that a constitution was adopted for the first time?

[HMOORE]

This  constitution  was not ratified by the Trustees, but was only ratified by the Faculty. While the constitution itself does not mention the need for trustees to approve it, both  university policy  and the Trustee bylaws require them to review and vote on such matters.

 

[Josh Martin]

49 minutes ago, HMOORE said:

This  constitution  was not ratified by the Trustees, but was only ratified by the Faculty. While the constitution itself does not mention the need for trustees to approve it, both  university policy  and the Trustee bylaws require them to review and vote on such matters.

Yes, but again, please clarify the situation here. Which of these is the case?

• This is the first constitution ever adopted, and it has not been ratified by the Trustees.
• A constitution (which did not include term limits) was ratified by the Trustees at some time in the past. Subsequent to that, a revised constitution (which includes term limits) was adopted, and that constitution has not been ratified.

I think this is a very important distinction. If it is the latter case, I entirely concur with Dr. Kapur. If and when the revised constitution is ratified the revised provisions will immediately take effect, unless a proviso was adopted stating otherwise (and it appears this was not done). As a result, any time served by current senators will "count" toward the term limits, and any senators who are already in excess of the term limits will immediately lose their positions.

On the other hand, if this is the first constitution ever adopted, that is a very different situation. The adoption of the constitution is what makes the organization exist in a parliamentary sense. If it is required for a constitution to be ratified by the Board of Trustees in order to be final (which is what you appear to be saying), then this is not complete until the constitution is ratified. As a result, any persons who claim to be currently serving as senators are not really senators at all since there is no Faculty Senate, and as a consequence, the terms they are not currently serving will not count against the term limits.

Edited April 13, 2020 at 08:12 PM by Josh Martin

[Atul Kapur]

 

1 hour ago, Josh Martin said:

On the other hand, if this is the first constitution ever adopted, that is a very different situation

If this is the case, I'm not looking forward to the discussion on how to word the motion to ratify what they've been doing for all of these years. 😁

[HMOORE]

(Sorry for the late response. I thought we had dodged the bullet in the Spring but the matter is back before us now that we are no longer in lock down..)

 

The first Senate constitution was adopted by the faculty in 2015 . It was not approved by the university governing body.

In 2019 a new administration informed the Senate that the 2015 constitution should have been approved by the Trustees in accordance with University and Trustee bylaws and procedures.. Before sending the constitution to the Trustees ,the Senate decided to revise some sections of the constitution. A number of sections were amended and approved by the Senate. The 2015 Constitution then requires the full  faculty to vote on the changes before they are recognized by the faculty -but due to time constraints and scheduling conflicts, etc. the constitution as approved only by the Senate was sent to Trustees, at administration's request, for their review and approval. We expect to hear from them soon.

[Josh Martin]

2 minutes ago, HMOORE said:

The first Senate constitution was adopted by the faculty in 2015 . It was not approved by the university governing body.

In 2019 a new administration informed the Senate that the 2015 constitution should have been approved by the Trustees in accordance with University and Trustee bylaws and procedures.. Before sending the constitution to the Trustees ,the Senate decided to revise some sections of the constitution. A number of sections were amended and approved by the Senate. The 2015 Constitution then requires the full  faculty to vote on the changes before they are recognized by the faculty -but due to time constraints and scheduling conflicts, etc. the constitution as approved only by the Senate was sent to Trustees, at administration's request, for their review and approval. We expect to hear from them soon.

Based upon these additional facts, my conclusion is that time "served" prior to the ratification of the constitution will not count toward the term limits. If the constitution was never ratified (and this is required under the rules the organization is formed under), then the organization does not, in fact, exist. As a result, there are no senators, and therefore no one has served any time as a senator.

[HMOORE]

Thank you for your helpful answer.

[Atul Kapur]

1 hour ago, Josh Martin said:

If the constitution was never ratified (and this is required under the rules the organization is formed under), then the organization does not, in fact, exist. As a result, there are no senators, and therefore no one has served any time as a senator.

I am not going to disagree with Mr. Martin.

However, this does also raise other issues because you have not had a valid constitution and have not officially existed until now. You are likely back where you started in 2015.

For example,

• Any actions that have been taken in the name of the Senate since its (non-)founding in 2015 may be null and void
• This 2019 version of constitution will likely also need to be voted on by the full Faculty, even if the Trustees approve it

This is a complicated situation (which is why I used "likely" and "may" so often) and you may wish to obtain an opinion from a professional parliamentarian.

[HMOORE]

Thank you Mr. Kapur. I will share your response with my colleagues.