Does RONR have the force of Bylaw?

[smb]

The following is excerpted from the General Discussion of the new informal FAQ concerning electronic meetings during this time of Covid-19. I'm bringing it here because that discussion raised an  issue that I think merits advanced discussion and I don't want to detour the FAQ into something beyond its original purpose.

During the FAQ discussion, it was alleged that having a provision in the Bylaws that adopts RONR as the parliamentary authority,  incorporates "all of it [RONR] 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 think it an unwise proposition.  I also think it inconsistent with the following language in RONR 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." 

While some of my comments were perhaps a bit flippant, here is one practical consequence that I offered: 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 California nonprofit organizations using RONR as their parliamentary authority are prohibited from taking action by mail ballot?  [Needless to say, there are numerous other laws with similar bylaw-referent language throughout CA and the U.S.]

So, here's the crux of the issue :  when a state, federal, or local law has language such as "unless prohibited by the bylaws"  or "if authorized in the bylaws", are those conditions satisfied when 1) the bylaws are silent; but 2) the bylaws adopt RONR as the parliamentary authority, and 3) RONR has an applicable rule.  I am not asking for a legal opinion or your thoughts on how a court might respond. I am only asking how you think RONR is properly applied.

However you answer that question, would your answer be any different if you were responding to an organizations that designates RONR as its parliamentary authority, but does so in its Standing Rules, and not their Bylaws?

Thx

[Gary Novosielski]

54 minutes ago, smb said:

I don't find any authority in RONR for that proposition and think it an unwise proposition.  

Of course you won't find it in RONR.  It is contained in the article adopting the parliamentary authority. It says that, absent any higher rule to the contrary, the rules in RONR will "govern the society in all cases to which they apply" or words to that effect.  That establishes a rule, not in RONR, but rather in the bylaws.  The rules in RONR apply because the bylaws say so, not because RONR says so.  The bylaws may, of course, also determine which of RONR's rules, if any, will not apply, and in their absence which alternative rules, if any, will. 

In the case of the mail-in voting in California, I would say that the provision in the statute should be copied in the bylaws, if it is desired to use that method.  RONR does prohibit the practice unless the bylaws authorize it. It is best to be more specific than may seem necessary when there are different interpretations flying about.  The state statute is as least wise enough to provide that if a mail vote is taken, all votes must then be by mail, and not mixed with in-person votes.  

[Josh Martin]

1 hour ago, smb said:

So, here's the crux of the issue :  when a state, federal, or local law has language such as "unless prohibited by the bylaws"  or "if authorized in the bylaws", are those conditions satisfied when 1) the bylaws are silent; but 2) the bylaws adopt RONR as the parliamentary authority, and 3) RONR has an applicable rule.  I am not asking for a legal opinion or your thoughts on how a court might respond. I am only asking how you think RONR is properly applied.

Yes, as a matter of parliamentary law, RONR's provisions are incorporated in to the bylaws, and it is intended that if a provision states (for instance) that proxy voting, or electronic meetings, or so forth, are permitted unless the bylaws provide otherwise, then if the organization has adopted RONR in its bylaws, it has provided otherwise.

1 hour ago, smb said:

However you answer that question, would your answer be any different if you were responding to an organizations that designates RONR as its parliamentary authority, but does so in its Standing Rules, and not their Bylaws?

I think you mean a rule of order. A standing rule is not sufficient to adopt a parliamentary authority.

But yes, my answer would be different in such a case. "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, emphasis added)

1 hour ago, smb said:

Does that restriction in RONR mean that California nonprofit organizations using RONR as their parliamentary authority are prohibited from taking action by mail ballot?

As a matter of parliamentary law, yes, unless the organization specifically authorizes mail ballots in its bylaws. I have no idea whether this is correct as a matter of statutory interpretation.

[Weldon Merritt]

I refrained from commenting in the other thread, but I will do so here. I concur with Mr. Novosielski and Mr. Martin. And to the anticipated question about the validity of past motions adopted by California non-profits (and those in states with similalr provisions) using the statutory method when the bylaws are silent, I would say it is too late to raise points of order regarding such motions. It was not the motions that violalte a provision of the bylaws, but the procedure by which they were adopted. As we have reiterated many times on this forum, points of order regarding procedural errors generally must be raised immediately.

[smb]

I will take the previous comments in reverse order:

"I would say it is too late to raise points of order regarding such motions. It was not the motions that violate a provision of the bylaws, but the procedure by which they were adopted. As we have reiterated many times on this forum, points of order regarding procedural errors generally must be raised immediately."

Comment: Correct if I was referring to continuing violations (a) or (b) on p. 251 which refer to "motions."  I am referring to (d) "any action has been taken in violation of a fundamental principle of parliamentary law. (p. 263)"  One of those fundamental principles is "the right to vote is limited to the members of an organization who are actually present at the time the vote is taken in a regular or properly called meeting (p. 423)..." [My emphasis.] If the term "action" does not include a procedural irregularity that violates a fundamental right, what does the term mean and where might I find that definition?  

"Yes, as a matter of parliamentary law, RONR's provisions are incorporated in to the bylaws..."

Comment:  This does nothing more than state the conclusion....I asked for a citation to the authority for this statement and was given the following:

"It is contained in the article adopting the parliamentary authority. It says that, absent any higher rule to the contrary, the rules in RONR will "govern the society in all cases to which they apply" or words to that effect.  That establishes a rule, not in RONR, but rather in the bylaws."

Comment:  I concede that is the recommended wording in RONR -- However, that particular sentence continues -- the rules in the parliamentary authority are binding only "where they are not inconsistent with the...provisions of local, state, or national law applying to the particular type of organization." p. 16 ll. 24-27.  So again, I ask, when a provision in RONR is inconsistent with an express provision in state law, by what authority does RONR get to claim superiority over that law simply by virtue of having been adopted as the parliamentary authority?  That paragraph in RONR also states that the rules in the parliamentary authority are binding only "where they are not inconsistent with the bylaws" of the body."   This tells me that the parliamentary authority is apart from the bylaws -- otherwise the suggested wording  would have been something like "inconsistent with a more specific provision of the bylaws." This is reinforced by the language used in RONR's model bylaws on p. 588: "The rules in the current edition...shall govern....in all cases to which they are applicable and in which they are not inconsistent with these bylaws..." [my emphasis.] Or are you saying that the preceding sentences simply mean the whole of RONR can be considered a series of "general statements" in the bylaws that yield to "more specific" statements elsewhere? Principles of Interpretation, p. 589 ll. 18 et seq.  And would this mean that if an organization is uncertain of the meaning of something in its bylaws and is attempting to "decide for itself the meaning of its bylaws", it also needs to read what RONR might have to say on the issue?  And if that is the case, and what is significant is the intention of the society at the time the bylaw was adopted, are they free to disregard this entire discussion if it can be established that there was NO intent that ALL of RONR be incorporated by reference into their bylaws simply by adopting it as parliamentary authority?

I am not trying to be obtuse or difficult.   But saying that all of RONR is incorporated by reference into ones Bylaws is a BIG mistake.   What you are saying to thousands of attorneys, nonprofit managers, community association execs, etc. is this:  if your state law says that your Bylaws may prohibit something, and your bylaws do not do so, you also need to read all 668 pages of RONR closely, because if there is something in there that prevents you from conducting electronic meetings, conducting business with a  "disappearing" quorum, or any of a host of other matters,  you need to amend your bylaws or special rules of order and bring the law in-house.  Oh...and make sure you conduct another review when the 12 edition comes out, just in case.

I already have a number of clients who switched to other parliamentary authorities in recent years.  This isn't going to make the remaining ones happy.

 

[Joshua Katz]

4 hours ago, smb said:

So again, I ask, when a provision in RONR is inconsistent with an express provision in state law, by what authority does RONR get to claim superiority over that law simply by virtue of having been adopted as the parliamentary authority?

Where is the inconsistency? State law says you can vote, for instance, by mail, unless your bylaws say you can't. If the bylaws say you can't, they aren't inconsistent with the state law. If the law said "you can vote by mail," that would be inconsistent with a bylaw provision that says you can't, and would govern. In neither case would we say that the bylaws are claiming superiority. Now, that's the bylaws, and your question is about RONR. But the same logic holds - there just isn't anything in RONR that is inconsistent with state law in the situation you are envisioning - and if there is something inconsistent with a procedural law, then the procedural law wins. 

So you're back at your original question - is a statement in RONR incorporated into the bylaws? I agree that the answer comes from the parliamentary authority article in the bylaws.

4 hours ago, smb said:

What you are saying to thousands of attorneys, nonprofit managers, community association execs, etc. is this:  if your state law says that your Bylaws may prohibit something, and your bylaws do not do so, you also need to read all 668 pages of RONR closely, because if there is something in there that prevents you from conducting electronic meetings, conducting business with a  "disappearing" quorum, or any of a host of other matters,  you need to amend your bylaws or special rules of order and bring the law in-house.

Well, I went to parliamentarian school before law school, but I imagine that, if I found myself practicing in one of those areas, of course I would familiarize myself with RONR. I summered at a firm that was of counsel to many municipalities, and those attorneys there who worked on the general counsel side were quite familiar with parliamentary procedure. Not like PRPs, but they knew things. I had fun discussing the finer points of parliamentary procedure with them.

[Josh Martin]

13 hours ago, smb said:

I am not trying to be obtuse or difficult.   But saying that all of RONR is incorporated by reference into ones Bylaws is a BIG mistake.   What you are saying to thousands of attorneys, nonprofit managers, community association execs, etc. is this:  if your state law says that your Bylaws may prohibit something, and your bylaws do not do so, you also need to read all 668 pages of RONR closely, because if there is something in there that prevents you from conducting electronic meetings, conducting business with a  "disappearing" quorum, or any of a host of other matters,  you need to amend your bylaws or special rules of order and bring the law in-house.  Oh...and make sure you conduct another review when the 12 edition comes out, just in case.

Reading RONR, or occasionally seeking the advice of someone who has done so (such as a professional parliamentarian) is an extremely good idea for an organization which has adopted RONR as its parliamentary authority whether or not RONR is incorporated by reference into the bylaws.

[Dan Honemann]

On 4/21/2020 at 10:29 AM, Josh Martin said:

Reading RONR, or occasionally seeking the advice of someone who has done so (such as a professional parliamentarian) is an extremely good idea for an organization which has adopted RONR as its parliamentary authority whether or not RONR is incorporated by reference into the bylaws.

Yes, but reading and understanding the rules in RONR is much more than merely a good idea for anyone advising an organization which includes a provision in its bylaws to the effect that these rules shall govern the organization in all cases to which they are applicable and in which they are not inconsistent with the organization's bylaws and any special rules of order the organization may adopt.

But I'm afraid, as has been suggested, that there may be "thousands of attorneys, nonprofit managers, community association execs, etc." who have been advising organizations which have adopted bylaws containing just such a provision (have even advised them at the time they were adopted) who haven't done so and don't want to do so.*  We see it all the time. Then when things go wrong, they often try to blame it on RONR.  🙂

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* Present company excepted.