Unofficial FAQ: Electronic meetings to replace in-person meetings

[Shmuel Gerber]

As suggested, here is some discussion about electronic meetings that may be more sought-after than usual at this time.

Members of the forum who would like to contribute to this FAQ by addressing additional questions, or by expanding upon an issue raised here, may add their own questions and answers (one Q&A per message, please) to this topic, or may post links to other recent topics in which related questions have been addressed.

Visitors or members who have questions regarding a specific situation should please start a new topic with such questions.

NOTICE: 

This is a totally unofficial FAQ. Only the text of Robert's Rules of Order Newly Revised and Robert's Rules of Order Newly Revised In Brief (as well as the RONR Official Interpretations and FAQ sections of robertsrules.com and the bonus material on the CD-ROM/USB-stick edition of RONR) represent the official views of the RONR Authorship Team and the Robert's Rules Association.

The fact that material is quoted or referred to here does not mean that the Robert's Rules Association or the authors of RONR, or any of them, endorse everything said therein, but simply that readers of the forum may find it useful and can post discussion about it for further clarification.

Furthermore, readers of this FAQ need to understand that the answers given here to the questions presented are based upon the rules contained in Robert's Rules of Order Newly Revised (as best understood by those posting or quoted in the answers). Those rules govern only if there are no contrary provisions in any federal, state, or other law applicable to the society, or in the society's bylaws, or in any special rules of order that the society has adopted. This fact must always be kept in mind when reading any of the answers given.

[Shmuel Gerber]

Question 1: Can we hold our board meetings by conference telephone call? 
Answer: “You may hold board meetings by conference telephone call only if your bylaws specifically authorize you to do so. If they do, such meetings must be conducted in such a way that all members participating can hear each other at the same time, and rules should be adopted to specify the equipment required to participate, as well as methods for seeking recognition, obtaining the floor, submitting motions in writing, determining the presence of a quorum, and taking and verifying votes.” [RONR In Brief, p. 122, Question 19; based on RONR (11th ed.), pp. 97–99] 

[Shmuel Gerber]

Question 2: What about meetings of the membership of an organization?

Answer: The same rule applies: Meetings of the membership can be held by conference call, or other electronic means, only if such meetings are authorized in the bylaws.

RONR states as follows:

“Except as authorized in the bylaws, the business of an organization or board can be validly transacted only at a regular or properly called meeting—that is, … a single official gathering in one room or area—of the assembly of its members at which a quorum is present.

“Among some organizations, there is an increasing preference, especially in the case of a relatively small board or other assembly, to transact business at electronic meetings—that is, at meetings at which, rather than all participating members being physically present in one room or area as in traditional (or "face-to-face") meetings, some or all of them communicate with the others through electronic means such as the Internet or by telephone. A group that holds such alternative meetings does not lose its character as a deliberative assembly … so long as the meetings provide, at a minimum, conditions of opportunity for simultaneous aural communication among all participating members equivalent to those of meetings held in one room or area. Under such conditions, an electronic meeting that is properly authorized in the bylaws is treated as though it were a meeting at which all the members who are participating are actually present.

“If electronic meetings are to be authorized, it is advisable to adopt additional rules pertaining to their conduct.…” [RONR (11th ed.), p. 97, lines 9-32]

[Shmuel Gerber]

Question 3: What about committee meetings?

Answer: "Committees that are expressly established by the bylaws can hold a valid electronic meeting only if authorized in the bylaws to do so. A committee that is not expressly established by the bylaws, however, may instead be authorized by a standing rule of the parent body or organization, or by the motion establishing the particular committee, to hold electronic meetings." [RONR (11th ed.), p. 98, ll. 22-28]

[Shmuel Gerber]

Question 4: What else does RONR say about electronic meetings?

Answer: Please see Robert's Rules of Order Newly Revised (11th ed.), pp. 97-99. See also the footnote on page 1.

[Shmuel Gerber]

Question 5: What other general guidance is being given about meeting electronically instead of holding an in-person meeting?

Answer: Each organization will need to look to its own bylaws regarding the extent to which electronic meetings are a valid alternative to, or supplement to, in-person meetings, as well as for provisions regarding the possibility of rescheduling, canceling, or changing the location of a meeting.

RONR itself does not provide any default rule regarding the cancellation of meetings — the implication being that once a meeting has been set by, or according to, the rules of the organization, it can be canceled only by operation of some specific provision in those rules.

As an example of the guidance being given to one organization, the following two posts consist of excerpts from a letter recently sent by the president of the National Association of Parliamentarians highlighting the advice of @Tim Wynn, that organization's parliamentarian.

Edited March 16, 2020 at 02:12 PM by Shmuel Gerber
edited to insert the underlined words

[Shmuel Gerber]

Answer to Question 5, continued:

“Recent developments regarding the spread of the coronavirus (COVID-19) has many unit and association leaders re-evaluating their meeting plans. Several of you have asked for NAP's guidance. 

“Above all, your health and safety should be the first priority when deciding whether or not to attend an in-person meeting. Your unit or association should err on the side of caution and practice social distancing as advised by national health authorities. It may become necessary to cancel or postpone an in-person meeting. Or, you may opt to conduct meetings electronically. [See] below for information and guidance from NAP National Parliamentarian Timothy Wynn, PRP, on holding meetings by teleconference or other electronic means.

“The Board and staff will continue to follow the guidance released by the Centers for Disease Control and Prevention (CDC) and other directives shared by the government agencies. Updates will be provided if any changes occur. Please continue to contact NAP headquarters … with your concerns.

“Meanwhile, be vigilant, be safe, be careful, and continue to wash your hands.

“Take care,

“Darlene T. Allen, PRP
President”

[Shmuel Gerber]

Answer to Question 5, continued again:

To: NAP Association and Unit Leaders

From: Timothy Wynn, PRP, NAP National Parliamentarian

Date: March 14, 2020

The following guidelines apply for units and associations that wish to meet electronically in lieu of in-person meetings:

OPTION #1. Bylaws authorize electronic meetings.
If the organization’s bylaws currently authorize the holding of meetings via electronic means, the organization should consult the specific language of the bylaw provision to determine what is necessary to call and hold a meeting via electronic means. (If your bylaws authorize members to participate in an in-person meeting via electronic means, but do not authorize the meeting itself to be held entirely via electronic means, see OPTION #2.)

OPTION #2. Bylaws authorize absent members to participate via electronic means, but do not authorize the meeting itself to be held entirely via electronic means.
There is a difference between an electronic meeting and electronic participation in an in-person meeting. If the organization’s bylaws are worded so as to require in-person meetings, but also authorize members to participate in those meetings via electronic means, the organization should check the quorum and location requirements to determine whether the meeting can be held at one member’s house with only one member in attendance, while other members attend via electronic means.

OPTION #3. Informal electronic meeting without the transaction of business.
Organizations whose bylaws do not authorize the holding of meetings via electronic means may hold an informal gathering of members via electronic means. At such a gathering, the transaction of business would NOT be in order, but the gathering could incorporate parliamentary workshops, Q&A sessions, and informal discussions. In such a gathering, if the members decided upon any business to undertake in the name of the organization, such action would NOT be the action of the organization unless it was later ratified at a meeting in accordance with the organization’s governing documents.

OPTION #4. Bylaws authorize business to be transacted without a meeting.
If the organization’s bylaws authorize business to be transacted without a meeting (e.g., by e-mail, by telephone, etc.), this is a way for the organization to tend to pressing affairs without meeting in person. Matters could be discussed informally as shown in OPTION #3 above, and the actual business could be transacted in the alternate form prescribed in the bylaws.

OPTION #5. Meet electronically with NAP’s assistance. …

Ultimately, the organization’s bylaws, special rules of order, and standing rules will determine which option is appropriate for it.

[Shmuel Gerber]

Question 6: What other resources do the members of the forum recommend?

Answer (part 1):

For those who own the CD-ROM edition of RONR, bonus materials include a document titled "Sample Rules for Electronic Meetings", which includes background discussion and four sets of sample rules for various scenarios.

Additional recommendations (again I emphasize that no one here takes responsibility for the correctness of outside sources):

Here are some recent posts by Jim Slaughter, PRP, at his blog http://lawfirmcarolinas.com/blog/ 

"The Coronavirus, Flu, and HOA/Condo Association Meetings"

“Let’s Have Our Meeting or Convention Online!”

Other members of the forum may wish to post additional recommendations below.

[Shmuel Gerber]

Just to be clear about Question 6, "part 1" of the answer is all that I intend to contribute at this time.

[Joshua Katz]

Question: If a quorum gathers at a meeting after we have encouraged members not to attend, can that quorum conduct business?

Answer: Yes, if the meeting has not been canceled, a quorum in attendance may conduct business. A member of a temporary minority may move to reconsider and enter in the minutes any decision he strongly believes would not have passed without the discouragement of attendance. Again, the chair can immediately adjourn the meeting given the presence of an emergency.

[Joshua Katz]

Question: Where a committee does not (as explained above) have permission to hold electronic meetings, is there any way for it to continue its work without meeting?

Answer: Yes. A committee may include in its report any recommendation agreed to individually by all members. Members can draft recommendations, circulate them, and, if they are approved by ALL committee members, they will form part of the committee's report.

[Dan Honemann]

9 hours ago, Joshua Katz said:

Question: If a quorum gathers at a meeting after we have encouraged members not to attend, can that quorum conduct business?

Answer: Yes, if the meeting has not been canceled, a quorum in attendance may conduct business. A member of a temporary minority may move to reconsider and enter in the minutes any decision he strongly believes would not have passed without the discouragement of attendance. Again, the chair can immediately adjourn the meeting given the presence of an emergency.

I agree with what is said in the first sentence of this answer, and believe that it would have been best to stop there. The second sentence may or may not be correct, depending upon the circumstances, and in any event is not at all responsive to the question asked. I don't think that what is said in the third sentence is correct.

I suppose I should add that, when I say that I agree with what is said in the first sentence, I'm obviously assuming that its qualifier "if the meeting has not been canceled" means that the meeting has not been legitimately and effectively cancelled. Otherwise, the Q&A would be rather meaningless.

Edited March 17, 2020 at 12:23 PM by Daniel H. Honemann
Added the last paragraph.

[Richard Brown]

46 minutes ago, Daniel H. Honemann said:

I don't think that what is said in the third sentence is correct

I agree. I don’t think this situation qualifies as the type of emergency contemplated by RONR when it says that the chairman may simply declare the meeting adjourned In case of a serious emergency. I don’t have the book in front of me, but it clearly contemplates the type emergency that must be acted upon immediately, almost instantly, such as a fire.

[Joshua Katz]

I'm not sure what makes the second sentence incorrect, unless it's the breadth of "decision," but I'm happy to edit it to make it more accurate. As to responsiveness, it addresses the underlying concern that might motivate such a question - that (as Mr. Honemann mentions in his second paragraph) when a meeting is not validly canceled, yet the organization takes steps to prevent it from happening, a particularly motivated group of individuals, amounting to a quorum, may show up anyway, ignoring proper precautions in this emergency, and, constituting a temporary majority, take actions strongly impacting the organization, which may be fully carried out before the organization can meet again. To my understanding, we have reconsider and enter to prevent temporary majorities from doing things like that. 

As to the third, see Mr. Gerber's comments above, and my response and offer. To summarize: I believe we need to offer solutions here, and that my solution sticks closer to the text than any other I can think of while not rewarding people for ignoring public health concerns and spreading disease, but if it is believed that it misrepresents RONR rather than attempting to apply it to unusual circumstances, I will edit or remove if so instructed.

I am, I suppose, what Scalia would call a faint-hearted textualist.

[Dan Honemann]

25 minutes ago, Joshua Katz said:

I'm not sure what makes the second sentence incorrect, unless it's the breadth of "decision," but I'm happy to edit it to make it more accurate. As to responsiveness, it addresses the underlying concern that might motivate such a question - that (as Mr. Honemann mentions in his second paragraph) when a meeting is not validly canceled, yet the organization takes steps to prevent it from happening, a particularly motivated group of individuals, amounting to a quorum, may show up anyway, ignoring proper precautions in this emergency, and, constituting a temporary majority, take actions strongly impacting the organization, which may be fully carried out before the organization can meet again. To my understanding, we have reconsider and enter to prevent temporary majorities from doing things like that. 

Well, I didn't say it was incorrect, I said that it may or may not be correct, depending upon additional unstated facts (the time interval between meetings, for example, and all the other rules relating to the admissibility of such motions), and I think that assuming quite a number of facts not stated in order to answer a question not asked is not the way to respond to questions that are asked.

[Josh Martin]

1 hour ago, Richard Brown said:

I agree. I don’t think this situation qualifies as the type of emergency contemplated by RONR when it says that the chairman may simply declare the meeting adjourned In case of a serious emergency. I don’t have the book in front of me, but it clearly contemplates the type emergency that must be acted upon immediately, almost instantly, such as a fire.

I agree. What RONR says in full on this subject is:

"In the event of fire, riot, or other extreme emergency, if the chair believes taking time for a vote on adjourning would be dangerous to those present, he should declare the meeting adjourned—to a suitable time and place for an adjourned meeting (if he is able), or to meet at the call of the chair." (RONR, 11th ed., pg. 86, emphasis added)

So it is not simply the existence of an emergency which grants the chair the power to adjourn a meeting unilaterally. Specifically, the situation must be that it would be dangerous to take the time to vote on adjourning. While there is no doubt that the current situation is quite serious, I do not think it likely that if an assembly has already convened, the modest incremental time required to take a vote to adjourn is likely to be dangerous to those present - at least, certainly not in the way that a fire or riot may be.

A member certainly could move to adjourn, and this motion may be adopted by majority vote. Alternately, the chair could ask if there is any objection to adjourning, and adjourn the meeting by unanimous consent. Except in the very unusual circumstances discussed on pg. 86, however, the chair may not simply declare the meeting adjourned.

[Guest Charlie Bowles]

It would seem that if the local through federal laws declare in-law (not just a suggestion) that groups cannot meet, then whether it's an immediate emergency or not is irrelevant.  All bylaws are subject to the higher authority.  SO, cancelling or postponing the meeting becomes an exercise in either electronic, phone, or mail notification and, then, by caveat rather agreement.

Our Unit, obviously from an earlier era, has nothing in the bylaws about electronic meetings. There's nothing about the executive committee deciding things for the Unit, other than the time and place of meeting.  We're now locked out from meeting in person by various governments.  SO we need to change the bylaws, but cannot meet to do it.  Catch-22!  We're having a Zoom meeting to discuss it all, but not transact any business.

Here's a second-level question:  NAP bylaws authorizes electronic meetings.  TSAP (Texas) bylaws authorizes electronic meetings.  (Both of those are for regular committee meetings, the only kinds of regular meetings they have.)  We are a UNIT of TSAP, which is a unit of NAP.  Do the higher-level bylaws override our own, limited, bylaws?

[Joshua Katz]

25 minutes ago, Guest Charlie Bowles said:

It would seem that if the local through federal laws declare in-law (not just a suggestion) that groups cannot meet, then whether it's an immediate emergency or not is irrelevant.  All bylaws are subject to the higher authority.  SO, cancelling or postponing the meeting becomes an exercise in either electronic, phone, or mail notification and, then, by caveat rather agreement.

 

A law of this type (or order, etc.) is substantive, not procedural. You still have to follow it, of course, but it's not the basis of a point of order, and has no position in the order of precedence given in RONR. What's my point? Simply that if a quorum-full of people break the law and show up to a properly noticed business, and that meeting has not been cancelled, they can conduct business. I think that's a bad outcome.

25 minutes ago, Guest Charlie Bowles said:

We are a UNIT of TSAP, which is a unit of NAP.  Do the higher-level bylaws override our own, limited, bylaws?

No, the bylaws of NAP or TSAP could be written to apply to the conduct of business in subordinate assemblies, but, so far as I know, they are not. However (I haven't looked in quite a while) IF those organizations have a means to electronically amend their bylaws, they could consider an amendment that would make them applicable to subordinate assemblies. It's an idea, anyway.

Edited March 22, 2020 at 12:46 AM by Joshua Katz

[Richard Brown]

1 hour ago, Guest Charlie Bowles said:

Here's a second-level question:  NAP bylaws authorizes electronic meetings.  TSAP (Texas) bylaws authorizes electronic meetings.  (Both of those are for regular committee meetings, the only kinds of regular meetings they have.)  We are a UNIT of TSAP, which is a unit of NAP.  Do the higher-level bylaws override our own, limited, bylaws?

 

47 minutes ago, Joshua Katz said:

No, the bylaws of NAP or TSAP could be written to apply to the conduct of business in subordinate assemblies, but, so far as I know, they are not.

Having served on the in NAP bylaws committee for the last two terms (four years), I agree with Mr. Katz.

49 minutes ago, Joshua Katz said:

However (I haven't looked in quite a while) IF those organizations have a means to electronically amend their bylaws, they could consider an amendment that would make them applicable to subordinate assemblies. It's an idea, anyway.

I can’t speak for the Texas Association of Parliamentarians (TSAP), but the NAP bylaws can only be amended by the delegates at a convention. There are no provisions for holding an electronic convention.  It’s an intriguing thought, however!

[Guest Charlie Bowles]

SO I think we're back to the Catch-22.  We will electronically meet, but transact no business.  Perhaps we can discuss the changes to bylaws and when we're able to meet again in-person, take up the amendments we need.  Thanks for your advice.

[Guest Concerned in-house counsel]

Our association has a similar catch 22 as stated above.  Illinois law states, "Unless specifically prohibited by the articles of incorporation or bylaws, a corporation may allow members entitled to vote to participate in and act at any meeting through the use of a conference telephone or interactive technology, including but not limited to electronic transmission, Internet usage, or remote communication..." (emphasis added). Our articles and bylaws do not specifically prohibit such meetings. Our articles also state, "The rules contained in the current edition of Robert's Rules of Order Newly Revised shall govern the Association..." Because our bylaws do not specifically prohibit interactive technology meetings, can we rely upon the IL law (without regard to Robert's) and host a virtual meeting of the members entitled to vote?

[Josh Martin]

52 minutes ago, Guest Concerned in-house counsel said:

Our association has a similar catch 22 as stated above.  Illinois law states, "Unless specifically prohibited by the articles of incorporation or bylaws, a corporation may allow members entitled to vote to participate in and act at any meeting through the use of a conference telephone or interactive technology, including but not limited to electronic transmission, Internet usage, or remote communication..." (emphasis added). Our articles and bylaws do not specifically prohibit such meetings. Our articles also state, "The rules contained in the current edition of Robert's Rules of Order Newly Revised shall govern the Association..." Because our bylaws do not specifically prohibit interactive technology meetings, can we rely upon the IL law (without regard to Robert's) and host a virtual meeting of the members entitled to vote?

RONR says the following on this subject: 

"If the law under which an organization is incorporated allows proxy voting to be prohibited by a provision of the bylaws, the adoption of this book as parliamentary authority by prescription in the bylaws should be treated as sufficient provision to accomplish that result (cf. footnote, p. 580)." (RONR, 11th ed., pg. 429)

"Where a particular type of organization is subject to local, state, or national law containing provisions relating to its procedure—as for certain procedures in a labor organization, in condominium associations, or in an incorporated association—it may be desirable to add at this point a phrase such as, "and any statutes applicable to this organization that do not authorize the provisions of these bylaws to take precedence." However, such statutes (those that do not authorize bylaws to take precedence) supersede all rules of the organization which conflict with them, even if no mention is made of it in the bylaws." (RONR, 11th ed., pg. 580, footnote)

My understanding of these provisions, taken together, is that the rule on pg. 429 is also intended to apply to other similar cases (such as meeting remotely). That is, if the law allows remote meetings to be prohibited by the bylaws, adoption of RONR in the bylaws should be treated as sufficient provision to accomplish that result.

With that said, however, the meaning of a particular law is a question which is beyond the scope of RONR and this forum.

[J. J.]

Here are several articles related to procedure during emergencies:

Surviving Doomsday:Emergency Bylaw Provisions

RONR versus the Blizzards

Flexibility of Adjourned Meetings

[J. J.]

I will disagree that the TSAP would apply to the internal workings of the Unit.  The unit is  not a subordinate body of the state.