Unofficial FAQ: Electronic meetings to replace in-person meetings

[Guest Gary]

Our organization is also caught in a catch-22 of not having e-meetings in the bylaws. We have business which is time sensitive and must be acted upon. Is there an opinion or advice for a process where we could adopt special rules/procedures for conducting business online? Our committees and Executive board already use remote meeting procedures though not outlined to do so in the bylaws.

We are aslo in an area under stay at home restrictions for a few weeks already and another month at a minimum. 

There is a significant debate enthralled on using asynchronous and synchronous procedures to accomplish our emergent issues. 

Our bylaws adopt RRO revised (not ROR newly revised) does that matter?

[J. J.]

48 minutes ago, Guest Gary said:

Our organization is also caught in a catch-22 of not having e-meetings in the bylaws. We have business which is time sensitive and must be acted upon. Is there an opinion or advice for a process where we could adopt special rules/procedures for conducting business online? Our committees and Executive board already use remote meeting procedures though not outlined to do so in the bylaws.

We are aslo in an area under stay at home restrictions for a few weeks already and another month at a minimum. 

There is a significant debate enthralled on using asynchronous and synchronous procedures to accomplish our emergent issues. 

Our bylaws adopt RRO revised (not ROR newly revised) does that matter?

If you have been using electronic means for board meetings you have a problem.

You can take the action and hope that the assembly will approve that action.  You do so at your own risk, however. 

[Josh Martin]

14 hours ago, Guest Gary said:

Our organization is also caught in a catch-22 of not having e-meetings in the bylaws. We have business which is time sensitive and must be acted upon. Is there an opinion or advice for a process where we could adopt special rules/procedures for conducting business online? Our committees and Executive board already use remote meeting procedures though not outlined to do so in the bylaws.

We are aslo in an area under stay at home restrictions for a few weeks already and another month at a minimum. 

There is a significant debate enthralled on using asynchronous and synchronous procedures to accomplish our emergent issues. 

Our bylaws adopt RRO revised (not ROR newly revised) does that matter?

So far as RONR is concerned, electronic meetings (or other methods of absentee voting) are only permitted if authorized in the bylaws. That includes meetings of boards and committees.

It sounds like it is not possible for your organization to meet in person at this time to amend the bylaws, which is the only way you could properly authorize conducting business online. Therefore, I would recommend that the organization tries to limit business to only that which is absolutely necessary and try to get as much support as possible for anything which is adopted. When it is possible to meet again in person, adopt a motion ratifying the actions taken during this time. The reason I suggest limiting business as much as possible is because there are pretty serious risks if the actions are not ratified, since anything adopted in this manner is the actions of the individuals involved (not the organization) unless and until they are ratified.

[Gary Novosielski]

15 hours ago, Guest Gary said:

Our bylaws adopt RRO revised (not ROR newly revised) does that matter?

Quote

[The] Eleventh Edition supersedes all previous editions and is intended automatically to become the parliamentary authority in organizations whose bylaws prescribe “Robert’s Rules of Order,” “Robert’s Rules of Order Revised,” “Robert’s Rules of Order Newly Revised,” or “the current edition of” any of these titles, or the like, without specifying a particular edition. If the bylaws specifically identify one of the ten previous editions of the work as parliamentary authority, the bylaws should be amended to prescribe “the current edition of ‘Robert’s Rules of Order Newly Revised’” (see p. 588). 

 

[Guest Gary]

6 hours ago, Gary Novosielski said:

[The] Eleventh Edition supersedes all previous editions and is intended automatically to become the parliamentary authority in organizations whose bylaws prescribe “Robert’s Rules of Order,” “Robert’s Rules of Order Revised,” “Robert’s Rules of Order Newly Revised,” or “the current edition of” any of these titles, or the like, without specifying a particular edition. If the bylaws specifically identify one of the ten previous editions of the work as parliamentary authority, the bylaws should be amended to prescribe “the current edition of ‘Robert’s Rules of Order Newly Revised’” (see p. 588). 

Would there be a reason for an organization to specify a certain edition so that it can review changes on new editions prior to adopting them? To understand the ramifications on the organization?

[Guest Gary]

8 hours ago, Josh Martin said:

So far as RONR is concerned, electronic meetings (or other methods of absentee voting) are only permitted if authorized in the bylaws. That includes meetings of boards and committees.

It sounds like it is not possible for your organization to meet in person at this time to amend the bylaws, which is the only way you could properly authorize conducting business online. Therefore, I would recommend that the organization tries to limit business to only that which is absolutely necessary and try to get as much support as possible for anything which is adopted. When it is possible to meet again in person, adopt a motion ratifying the actions taken during this time. The reason I suggest limiting business as much as possible is because there are pretty serious risks if the actions are not ratified, since anything adopted in this manner is the actions of the individuals involved (not the organization) unless and until they are ratified.

How would we address provisions in our Bylaws requiring certain actions at prescribed times, which would be impossible if we cannot meet online. Bylaws say you have to do X at this point in time, but we can't meet to accomplish X. Do we violate the Rules or the Bylaws?

 

[J. J.]

19 minutes ago, Guest Gary said:

How would we address provisions in our Bylaws requiring certain actions at prescribed times, which would be impossible if we cannot meet online. Bylaws say you have to do X at this point in time, but we can't meet to accomplish X. Do we violate the Rules or the Bylaws?

 

What do you have to do?

 

[Atul Kapur]

26 minutes ago, Guest Gary said:

How would we address provisions in our Bylaws requiring certain actions at prescribed times, which would be impossible if we cannot meet online. Bylaws say you have to do X at this point in time, but we can't meet to accomplish X. Do we violate the Rules or the Bylaws?

 

The posts at the beginning of this thread gave a few options. Would any of them work for you?

[Joshua Katz]

29 minutes ago, Guest Gary said:

Do we violate the Rules or the Bylaws?

If you must pick one, and assuming the Rules means RONR, then my vote is to violate RONR. But I don't see how that helps you; it looks like you'd need to violate both to take the actions under discussion.

[Gary Novosielski]

15 hours ago, Guest Gary said:

Would there be a reason for an organization to specify a certain edition so that it can review changes on new editions prior to adopting them? To understand the ramifications on the organization?

I haven't seen a truly persuasive argument that it would be a good idea to specify a particular edition, but I suppose it's possible.  Normally, any unusual provisions that a society might need would already be covered by rules in the bylaws, and would therefore be immune to changes in RONR.  The recommendation of RONR is to use “the current edition”.

When a particular edition is specified, the real-life result is usually that the assembly never gets around to reviewing the new edition, and drafting any necessary bylaws changes, including the edition number.

[Josh Martin]

15 hours ago, Guest Gary said:

How would we address provisions in our Bylaws requiring certain actions at prescribed times, which would be impossible if we cannot meet online. Bylaws say you have to do X at this point in time, but we can't meet to accomplish X. Do we violate the Rules or the Bylaws?

If it is possible to get someone (even one person) to arrive at a meeting, they could adopt a motion to adjourn the meeting to a later date. Since this is a continuation of the meeting, this is still in compliance with the organization's rules. You could try to change the location to a member's home, if possible, so one member could attend.

Otherwise, you're back to the option I just discussed.

[smb]

On 3/23/2020 at 7:29 AM, Josh Martin said:

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.

"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."  

I concur that the meaning of a law is a question beyond the scope of RONR.  I'm commenting only because I disagree with the attempt to wed pp. 429  and 580.  I have long argued that p. 429 ll: 10-15 shouldn't be in the book and this query presents a fine example of why.  Whether the statement on pp.429 ll. 10-15 is even valid is, itself, a question of law that depends upon the particular jurisdiction and the language of the statute at issue.  The footnote on p.580 refers to the rules that "shall" govern an association and it simply states the obvious -- statutes supersede RONR unless they authorize otherwise. The Illinois statute quoted here expressly states that members may teleconference unless the bylaws specifically prohibit it.  But, the language on p. 429 does not illustrate a "specific" prohibition in the bylaws;  RONR's prohibition on proxy voting is an implicit conditional restriction, given effect only if the bylaws designate RONR as the parliamentary authority.  Moreover, p. 429 states that adoption of RONR "should be treated" as sufficient provision to accomplish a prohibition of proxy voting, not "shall", as is used on p. 580.   Now one can argue about the different meanings of "specifically" vs "implicitly" and "shall" v. "should", and whether RONR's use of "should" vs "shall" has any significance or is just unfortunate screening -- but that discussion is clearly beyond the scope of this forum.   My only point is that if TSAP is incorporated, whether or not it can meet via teleconference is ultimately a legal question.  It would be nice if RONR were to finally abandon the self-serving lines on p. 429 that fomented my diatribe and simply state that proxy voting is prohibited unless required by the law of their state or other higher authority.

[Gary Novosielski]

I think the language on p. 429 is a valuable clarification.  Without it, it is easy to imagine a conflict arising where some members believe that proxy voting should be allowed, citing a state law that says "proxy voting shall be permitted unless prohibited in the bylaws."  The chair notes the prohibition in RONR, but a member counters that the prohibition is not, in fact, in the bylaws, but rather in the parliamentary authority, and is therefore superseded by state law.

The language on p. 429 makes it clear that the adoption of RONR in the bylaws expresses the intention of the society to treat this prohibition, and arguably others, as if set forth in the bylaws in full.  It would be clear to me in any case, but it is still easy to imagine things going differently, as noted above.  It seems clear that it is not some so-called "self-serving" intention of the authorship team that is being asserted here, but the intention of the society itself, demonstrated  by their adoption of RONR, that proxy voting should be prohibited to the fullest extent possible under law.

[smb]

I continue to dissent -- How can RONR  simply declare, without any citation to authority other than itself, that it supersedes "procedural" state laws that are clear and express? It is an odd anomaly that if someone rose to offer a motion to PROHIBIT proxy voting at the next annual meeting, where proxies are expressly authorized by state law, the motion would have to be ruled out of order.  "Motions that conflict with...procedural rules prescribed by national, state , or local laws, are out of order, and if any motion of this kind is adopted, it is null and void."  [p. 343 ll. 14-17].  Yet RONR can accomplish the same by fiat?  Puh-leez!  I practice non-profit law in California, and if I gave a client the advice required on p.429  I'd be looking at a future increase in malpractice rates.

My concern isn't so much with proxies so much as the misguided attempt to make the rule on p. 429 one of general application by reference to the footnote on p. 580.  There are hundreds of not thousands of Zoom meetings going on right now that are expressly authorized by state law -- and telling organizations that they cannot do so if it isn't also authorized in their bylaws  unwise -- it does nothing more than foment even greater disrespect for RONR among the legal profession and organization managements.  The advice that started this post is spot-on correct when the applicable statute also says 'when authorized by the bylaws" as the D.C. nonprofit code does.  But it is incorrect when the statute says unless otherwise provided by the bylaws, as NY does or when it is an absolute rule of procedure regardless of what your bylaws say, such as in California.  

I recognize this is not a legal forum -- but when it comes to electronic meetings, the FAQ should simply add: "Aside from the rules of parliamentary procedure.....the action of any deliberative body are also subject to applicable procedural rules prescribed by local, state, or national law ..." RONR 11th ed. pp 3-4 ll.32-2.

[Gary Novosielski]

1 hour ago, smb said:

I continue to dissent -- How can RONR  simply declare, without any citation to authority other than itself, that it supersedes "procedural" state laws that are clear and express? It is an odd anomaly that if someone rose to offer a motion to PROHIBIT proxy voting at the next annual meeting, where proxies are expressly authorized by state law, the motion would have to be ruled out of order.  "Motions that conflict with...procedural rules prescribed by national, state , or local laws, are out of order, and if any motion of this kind is adopted, it is null and void."  [p. 343 ll. 14-17].  Yet RONR can accomplish the same by fiat?  Puh-leez!  I practice non-profit law in California, and if I gave a client the advice required on p.429  I'd be looking at a future increase in malpractice rates.

You seem to be missing the point that this only applies when the state rule expressly allows the bylaws to take precedence and prohibit proxies.  The only possible ambiguity that can arise is whether adopting RONR as the parliamentary authority satisfies the condition that the bylaws prohibit proxies.  I would say that is obviously true even if RONR did not go to such lengths to point it out, but I'm glad it does.  By adopting a parliamentary authority the society adopts all of it into the bylaws by reference, just as if it were copied into the Parliamentary Authority article in full.  So the prohibition against proxies is contained in the bylaws, and takes effect if the state law allows the bylaws to apply in this case.  There is nothing done by fiat. One must presume that a state law which says proxies are permitted unless the bylaws say otherwise means what it says, and is intended in this case not to override such rules that societies wish to uphold.

[Dan Honemann]

For what it's worth, I think I should note that Mr. Novosielski has this exactly right and that Mr. Burns doth protest too much. 

This does not mean, of course, that no court will ever hold that inclusion in the bylaws of the language suggested by RONR does not suffice to satisfy the requirement contained in some particular statute. What RONR is doing, and correctly so, is attempting to point the court in the right direction in its determination of the meaning and intent of the language which the organization has incorporated into its bylaws. RONR is not attempting to instruct the court as to the meaning and intent of the applicable statute.

 

 

 

  

[Gary Novosielski]

3 hours ago, Daniel H. Honemann said:

For what it's worth, I think I should note that Mr. Novosielski has this exactly right ..... 

Well, it's worth something to me.  😷

[smb]

And with all due respect, I believe my critics miss the point.

To state it succinctly, the problem as I see it is the assumption by Mssrs. Novelsielski and Honemann that by having a provision in the Bylaws that adopts RONR as the parliamentary authority, an organization  thereby incorporates "all of it into the bylaws by reference, just as if it were copied into the Parliamentary Authority article in full." I don't find any authority in RONR for that proposition and will be pleased if someone can point it out.  Such an assumption raises more questions than just the issue of this FAQ.  Such as:

1) A provision of the bylaws states: "A member may be disciplined pursuant to procedures adopted by the Board of Directors."  Are those procedures also now deemed incorporated into the Bylaws by reference? If not, why not?  And if they are part of the bylaws, is there something amiss with due process if the bylaws require a 2/3 vote for adoption and amendment but the standing rules only a majority vote?  

2) California nonprofit corporation code section 5513 states the following: "...unless prohibited in ... the bylaws any action which may be taken at any regular or special meeting of members may be taken without a meeting if the corporation distributes a written ballot to every member entitled to vote on the matter."  The language in RONR on p. 97 clearly states that "except as authorized in the bylaws" the business of an organization can only be validly transacted at a properly called meeting."  Does that restriction in RONR mean that any California nonprofit organization using RONR as its parliamentary authority is now prohibited from taking action by mail ballot?  And if they have been doing so for the past 20 years, can I still raise a point of order that an action I disagreed with is invalid? [ a continuing breach pursuant to RONR pp.251, 263.]  

3) RONR states [p. 16 ll. 1-2] "Special Rules of Order supersede any rules in the parliamentary authority with which they may conflict."  But how can this be if the parliamentary authority has the higher status of bylaw?  Oh, I get it, the above rule is a bylaw too!

4) And what am I to make of this on p.13 ll. 8-11 "...bylaws...contain [the society's] own basic rules relating principally to itself as an organization, rather than to the parliamentary procedure which it follows." ???

5) What does any of this mean for the many organizations who designate RONR as their parliamentary authority, but do so in their Standing Rules, and not their bylaws?

If I thought about it some more, I could probably come up with more examples... on the other hand, the above questions [and inevitably many others] disappear if we do away with the false equivalency of RONR=Bylaws.

 

 

[J. J.]

13 hours ago, smb said:

1) A provision of the bylaws states: "A member may be disciplined pursuant to procedures adopted by the Board of Directors."  Are those procedures also now deemed incorporated into the Bylaws by reference? If not, why not?  And if they are part of the bylaws, is there something amiss with due process if the bylaws require a 2/3 vote for adoption and amendment but the standing rules only a majority vote?  

 

3) RONR states [p. 16 ll. 1-2] "Special Rules of Order supersede any rules in the parliamentary authority with which they may conflict."  But how can this be if the parliamentary authority has the higher status of bylaw?  Oh, I get it, the above rule is a bylaw too!

4) And what am I to make of this on p.13 ll. 8-11 "...bylaws...contain [the society's] own basic rules relating principally to itself as an organization, rather than to the parliamentary procedure which it follows." ???

5) What does any of this mean for the many organizations who designate RONR as their parliamentary authority, but do so in their Standing Rules, and not their bylaws?

If I thought about it some more, I could probably come up with more examples... on the other hand, the above questions [and inevitably many others] disappear if we do away with the false equivalency of RONR=Bylaws.

 

 

These are the ones that feel comfortable in answering. 

 

1.  It does not make any difference, because, even if in the bylaws, it would still be a rule in the nature of a rule of order (though possibly not subject to suspension).

 

3.  It means that,  by adopting RONR, it has a clause permitting these lower level rules to supersede.  It would be like a  bylaw saying "The board meeting will held on the first Wednesday of the month, unless the board decides otherwise.

4.  The bylaws, however, may contain rules in the nature of a rule of order (p. 17).

5.  It means that, unless RONR was adopted by the vote needed to  adopt a rule of order, it has not adopted RONR.  It may, however, have the custom of using RONR.

I think it would better to post these question in the advanced section. 

[Gary Novosielski]

I thought I answered this in another thread.

[Gary Novosielski]

duplicate, for some reason.

Edited April 21, 2020 at 09:31 PM by Gary Novosielski
remove duplicate

[smb]

I've already moved my concerns to the Advanced Forum; just wanted to thank J.J. for taking the effort to answer my specific questions directly and succinctly.

[Josh Martin]

I have just noticed that three new official interpretations have been released on the main site, all particularly relevant to the current situation. These may be of interest for those of us answering questions on this forum, since pandemic-related questions are most of what we get these days.

They relate to 1) ratifying actions taken by officers pursuant to decisions made at an electronic meeting not authorized in the bylaws, 2) the process to authorize a special committee to meet electronically, and 3) the rules governing filling vacancies caused by the inability of the membership to hold an election, where the bylaws provide a fixed term of office.

Edited May 4, 2020 at 01:38 PM by Josh Martin

[Joshua Katz]

Any suggestions on how to approach the situationin 3 if all board terms expired at the same time?

[Josh Martin]

12 minutes ago, Joshua Katz said:

Any suggestions on how to approach the situationin 3 if all board terms expired at the same time?

Well, as we have discussed on this forum a few times, there is nothing in RONR which prevents preemptively and/or conditionally filling a vacancy. So if the board anticipates that the society will be unable to complete its elections, the board could adopt a resolution appointing someone "to fill the resulting vacancy in the office of (NAME OF OFFICE), in the event that the society is unable to complete the election for that office prior to the expiration of the current officer's term."

If the society doesn't think about this until after the terms of all the board members expire, then they might be out of luck.

This might also be a situation where so many societies insisting on putting the Immediate Past President on the board might actually pay off.

Edited May 4, 2020 at 01:58 PM by Josh Martin