Online Convention

[Guest Russ]

Okay, our bylaws state that our National Committee shall name the time and place of our convention. Our bylaws also allow for boards and  committees to conduct business via teleconference or video conference. My question is this; since the assembly has the authority to define our bylaws what would be the issue with defining “place” to include online meeting rooms like Zoom? Here is how I see it playing out:

(Meeting is called to order)

Person 1: Point of order Mr. Chairman!

Chair: Chair recognizes Person 1.

Person 1: This meeting is out of order as it violates our bylaws.

Chair: It is my ruling that it does not violate the bylaws. I rule that the word “place” in our bylaws could include an online meeting room. We are in order.

Peson 1: I appeal the ruling of the Chair.

Person 2: I second.

Chair: There has been an appeal of the ruling of the chair and it has been seconded. Is there any discussion?

(back and forth discussion until someone calls the question)

Chair: The question has been called. All those in favor of overturning the ruling of the chair say “aye”. (aye) Those opposed say “Nay”. (NAY!!) The nays have it. The ruling of the chair stands.

 

Now, if that is how it goes then is that above board? Would it face legal scrutiny if challenged in the courts?

[Josh Martin]

50 minutes ago, Guest Russ said:

Okay, our bylaws state that our National Committee shall name the time and place of our convention. Our bylaws also allow for boards and  committees to conduct business via teleconference or video conference. My question is this; since the assembly has the authority to define our bylaws what would be the issue with defining “place” to include online meeting rooms like Zoom? Here is how I see it playing out:

I don't think semantic arguments over the meaning of the word "place" are the problem here. Rather, it seems to me that the problem is as follows:

1.) If the organization has adopted RONR as its parliamentary authority, RONR clearly notes that electronic meetings are prohibited unless authorized by the bylaws. I think one could quite reasonably argue that the word "place" does not prohibit the convention from meeting online, but to suggest that the word "place" authorizes the convention to meet online... seems like a bit of a stretch. If the bylaws do not authorize the convention to meet online, it cannot do so.

Additionally, whatever the word "place" means in your bylaws, it is clear that the words "one room or area" in RONR refer to a physical location at which members are physically present.

"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, as defined on pages 81–82, 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 (see pp. 1–2) 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." (RONR, 11th ed., pg. 97, emphasis added)

2.) You say that your bylaws "allow for boards and committees to conduct business via teleconference and video conference." By extension, this suggests that assemblies which are not boards and committees (such as the convention) are not authorized to conduct business via teleconference and video conference.

"If the bylaws authorize certain things specifically, other things of the same class are thereby prohibited. There is a presumption that nothing has been placed in the bylaws without some reason for it. There can be no valid reason for authorizing certain things to be done that can clearly be done without the authorization of the bylaws, unless the intent is to specify the things of the same class that may be done, all others being prohibited." (RONR, 11th ed., pgs. 589-590, emphasis in original)

The presumption is that the rule was written as it was for a reason. If the intent was to allow all assemblies of the society to meet by teleconference or videoconference, the rule would have said so. Since the rule specifically calls out "boards and committees," however, the presumption is that the rule is limited to boards and committees.

With that said, it is correct that "Each society decides for itself the meaning of its bylaws." (RONR 11th ed., pg. 588) Personally, however, I do not find the argument that the bylaws authorize the convention to meet by videoconference to be persuasive. (Although I should add the caveat that this advice is based on a brief paraphrase of the organization's bylaws, and a careful review of the exact wording of the bylaws would be necessary for a definitive answer.)

50 minutes ago, Guest Russ said:

(Meeting is called to order)

Person 1: Point of order Mr. Chairman!

Chair: Chair recognizes Person 1.

Person 1: This meeting is out of order as it violates our bylaws.

Chair: It is my ruling that it does not violate the bylaws. I rule that the word “place” in our bylaws could include an online meeting room. We are in order.

Peson 1: I appeal the ruling of the Chair.

Person 2: I second.

Chair: There has been an appeal of the ruling of the chair and it has been seconded. Is there any discussion?

(back and forth discussion until someone calls the question)

Chair: The question has been called. All those in favor of overturning the ruling of the chair say “aye”. (aye) Those opposed say “Nay”. (NAY!!) The nays have it. The ruling of the chair stands.

Now, if that is how it goes then is that above board?

It is "above board" as a parliamentary matter, in the sense that the society is the ultimate judge of its own rules in parliamentary law, however, I do not personally find the assembly's interpretation compelling based on the facts provided (in part because the chair and the assembly seem to be focused on the wrong issue).

50 minutes ago, Guest Russ said:

Would it face legal scrutiny if challenged in the courts?

I don't have the slightest idea. That is a question for an attorney.

Edited April 30, 2020 at 05:24 PM by Josh Martin

[Guest Russ]

I recognize this is not optimal. This is merely an emergency situation where we have to convene in order to do important business, yet stay at home orders are preventing us. I recognize that the bylaws need to be adjusted, but we have to convene in order to do so. If we convened in such a fashion then adopted a bylaw allowing electronic conventions would that be kosher? I mean, if we are prohibited from meeting in person then what other option do we have?

[Josh Martin]

1 hour ago, Guest Russ said:

If we convened in such a fashion then adopted a bylaw allowing electronic conventions would that be kosher?

No. The bylaw amendment would need to be adopted at an in-person meeting. You can't adopt a bylaw amendment at a meeting which is (under the current bylaws) invalid.

1 hour ago, Guest Russ said:

I mean, if we are prohibited from meeting in person then what other option do we have?

I would first seriously consider whether the convention absolutely needs to meet at this time. You say that boards and committees are able to meet electronically. It may be that the board has the necessary authority in the bylaws to conduct the necessary business. As for matters which are likely reserved for the convention (such as the election of officers), there may be solutions to that as well. For instance, the bylaws might provide that the officers shall serve "until their successors are elected."

If it is absolutely necessary to have the convention itself meet, then the organization could take the following steps, although it must be understood that this should be used only as an absolute last resort.

• The "convention" meets electronically as you suggest, notwithstanding that it is prohibited from doing so.
• The chairman should explain everything below, so those members who do not wish to put themselves at risk can leave if they wish to do so.
• The "convention" conducts only business which absolutely must be conducted by the "convention" at this time - that is, the business in question cannot be conducted by the board and cannot wait until the next convention.
• In addition, attempt to seek the greatest support possible for all decisions made.
• When the convention actually does meet properly again (at an in-person meeting with a quorum present), adopt a resolution ratifying the decisions made at the previous "convention" (or more precisely, the actions taken by the board and the society's officers to carry out those decisions).

If all of this is done, then when the motion to ratify is adopted, everything is now "above board" as a matter of parliamentary law. The reason I suggest using this option as a last resort - and even then, limiting the use of this tactic to the greatest extent possible - is because if the actions are not ratified, the consequences can be quite severe. Any of these actions are actions of individuals, not of the organization, unless and until they are ratified. As a result, the individuals responsible are taking these actions at their own personal risk, opening themselves up to (for example) the society disciplining them or ordering them to repay any unauthorized expenditures, if the actions are not ratified.

Finally, since you also asked whether this would hold up in court, I again note that I am not an attorney and cannot provide legal advice. If there is a concern that someone might try to challenge this in the courts, you should consult an attorney for legal counsel.

Edited May 1, 2020 at 06:13 PM by Josh Martin

[Guest Russ]

It is actually very important that the convention convene. I believe it would be possible to have all of the elected delegates to the convention participate electronically. Gaining a super majority in favor of holding the convention electronically should not be an issue. Thank you for your guidance. I understand you are not an attorney. 

[Gary Novosielski]

5 minutes ago, Guest Russ said:

It is actually very important that the convention convene. I believe it would be possible to have all of the elected delegates to the convention participate electronically. Gaining a super majority in favor of holding the convention electronically should not be an issue. Thank you for your guidance. I understand you are not an attorney. 

Gaining a so-called "supermajority" in advance of the meeting is not particularly significant.  The only thing that will matter in the long run is whether those same sentiments endure until the ratification vote   The prevailing sentiments during the height an emergency condition have been known to shift dramatically when hindsight and second-guessing enter into the equation.

Just sayin'.

[Guest Zev]

On ‎4‎/‎30‎/‎2020 at 9:31 AM, Guest Russ said:

Chair: The question has been called. All those in favor of overturning the ruling of the chair say “aye”. (aye) Those opposed say “Nay”. (NAY!!) The nays have it. The ruling of the chair stands.

It probably should be observed that the example given deviates from proper practice. To wit:

Quote

 

The chair, after stating clearly the exact question at issue, and the reasons for his decision if he thinks an explanation necessary, states the question on the appeal as follows:

  CHAIR: The question is: "Shall the decision of the chair stand as the judgment of the assembly [or "club," "society," "board," etc.]?"

Or:

  CHAIR: The question is, "Shall the decision of the chair be sustained?"

The question should not be on "sustaining the chair," because the decision, not the presiding officer, is in question.

The vote is taken so that the affirmative will be in favor of sustaining the chair's decision, as follows:

  CHAIR: Those in favor of sustaining the chair's decision, say aye. ... Those opposed to sustaining this decision, say no. ...

 

RONR, 11th edition pages 259-260.

[Josh Martin]

4 hours ago, Guest Russ said:

It is actually very important that the convention convene. I believe it would be possible to have all of the elected delegates to the convention participate electronically. Gaining a super majority in favor of holding the convention electronically should not be an issue. Thank you for your guidance. I understand you are not an attorney. 

The key is not whether the members support holding the convention electronically, but whether they support the business actually conducted at the improperly held electronic convention, since that will be the question before the assembly when a motion is later put forward to ratify those actions.

[Guest Russ]

7 hours ago, Guest Zev said:

It probably should be observed that the example given deviates from proper practice. To wit:

RONR, 11th edition pages 259-260.

Thank you 

[Caryn Ann Harlos]

Mr. Martin that is exactly what I explained to Russ.  And please be advised of a fact pattern not mentioned.  This is not a last resort.  A physical convention is possible.  Some peoole just don't like it, and wish the bylaws to say otherwise.  If wishes were fishes we would all cast nets.  There is no ambiguity in the bylaws.

 

If a physical convention becomes impossible, I absolutely agree with your process.  The bylaws cannot command an impossibility.  But that is not the case here.  It is one group of members wanting to override our bylaws that are not ambiguous and refuse to accept that bylaws cannot be suspended even with unanimous consent.

 

 

[Josh Martin]

2 hours ago, Caryn Ann Harlos said:

Mr. Martin that is exactly what I explained to Russ.  And please be advised of a fact pattern not mentioned.  This is not a last resort.  A physical convention is possible.  Some peoole just don't like it, and wish the bylaws to say otherwise.  If wishes were fishes we would all cast nets.  There is no ambiguity in the bylaws.

If a physical convention becomes impossible, I absolutely agree with your process.  The bylaws cannot command an impossibility.  But that is not the case here.  It is one group of members wanting to override our bylaws that are not ambiguous and refuse to accept that bylaws cannot be suspended even with unanimous consent.

I would suggest that, given the ongoing global pandemic, to simply say that "Some people just don't like it" in regards to holding a physical convention may be a bit of an understatement. To be clear, nothing I have said should be interpreted as advising the organization that it should or must hold a physical convention. This is a decision that the organization will have to resolve for itself, and I would suggest that the organization principally make this decision based on the health and safety of its members and the public at large. In such unusual circumstances as these, it may well be that the organization determines that it is best to take action in violation of its bylaws, notwithstanding that it is not proper to do so.

Quoting myself from another thread (this involved the question of canceling a meeting rather than holding an online meeting, but I think the advice still applies).

On 3/27/2020 at 10:18 AM, Josh Martin said:

In short, while I encourage organizations to try to work within their own rules and the rules of RONR to the greatest extent feasible, this takes a back seat to maintaining the health and safety of the members of the organization and the public at large. We very rarely tell people that it is sometimes OK to break the rules, but this might be a time where we should tell people that. If it's not safe to hold the meeting, don't hold the meeting.

Finally, since there appear to be at least some members who strongly disagree with the possibility of improperly holding the convention online, I strongly reiterate my earlier suggestion for the OP to consult an attorney.

It may also be advisable for the organization to hire a professional parliamentarian to review its governing documents in full and provide further advice on this matter.

Edited May 2, 2020 at 03:04 PM by Josh Martin

[Guest Caryn Ann Harlos]

Mr Martin I understand your position.  But it is that some members don't like it - there are delegates who are willing to go - some people are upset that they cannot.  And I understand that.  Our conventions have been excluding poorer members for years and they have been upset.  I hope this generates some sympathy for those members.  And our Convention Committee is fully prepared to have facilities with tables spaced six feet or over apart and personal protective gear following all safety precautions.  That would be irresponsible if we could not do that.  Life is about choices and sometimes our situations mean that we cannot do some things we might otherwise want to.  

 

[Josh Martin]

4 minutes ago, Guest Caryn Ann Harlos said:

Mr Martin I understand your position.  But it is that some members don't like it - there are delegates who are willing to go - some people are upset that they cannot.  And I understand that.  Our conventions have been excluding poorer members for years and they have been upset.  I hope this generates some sympathy for those members.  And our Convention Committee is fully prepared to have facilities with tables spaced six feet or over apart and personal protective gear following all safety precautions.  That would be irresponsible if we could not do that.  Life is about choices and sometimes our situations mean that we cannot do some things we might otherwise want to.  

Okay. As I have said, it will ultimately be up to the organization to make these decisions.

The only other parliamentary advice I would add is that (since it appears likely that attendance will be lower than usual in the event a physical convention is held), the organization will need to be sure to review its quorum requirements to determine if it will be feasible for a quorum to be present, and be prepared to use the options available in the absence of a quorum (such as adjourning the meeting to a later date and time) if that becomes necessary.

Edited May 2, 2020 at 03:11 PM by Josh Martin

[Caryn Ann Harlos]

The governing body met today and declined an online convention until if and when it is actually impossible to do an in-person convention.  Thank you everyone for your kind gift of your professional time and advice.

[Caryn Ann Harlos]

On quorum, our bylaws on quorum is god-awful.  We have no minimum number of members to be present.  I know, I know.  That needs to be fixed pronto and it isn't like we haven't already had a disaster of a poorly attended convention before.  Once however many members show up and are seated - be it ten, or be it the max of 1046 give or take, quorum is then forty percent of those that registered.  IMHO there needs to a be a minimum number out of the possible maximum to show up.   Our max is always somewhere around 1050 these days

Edited May 3, 2020 at 01:29 AM by Caryn Ann Harlos

[Gary Novosielski]

On 4/30/2020 at 12:31 PM, Guest Russ said:

Chair: There has been an appeal of the ruling of the chair and it has been seconded. Is there any discussion?

(back and forth discussion until someone calls the question)

Well, no.

The rules for the debate of an Appeal are different from normal debate.  With the exception of the chair, members can only speak once, so there will be no back-and-forth.  The chair may speak first, to explain the reasons for his ruling, and may speak again last, before the vote is taken.

[Richard Brown]

1 hour ago, Caryn Ann Harlos said:

On quorum, our bylaws on quorum is god-awful.  We have no minimum number of members to be present.  I know, I know.  That needs to be fixed pronto and it isn't like we haven't already had a disaster of a poorly attended convention before.  Once however many members show up and are seated - be it ten, or be it the max of 1046 give or take, quorum is then forty percent of those that registered.  IMHO there needs to a be a minimum number out of the possible maximum to show up.   Our max is always somewhere around 1050 these days

Caryn Ann, your quorum provisions are not unusual for a convention. It is quite common for the quorum at a convention be a percentage of the delegates who are registered as being in attendance.  In fact, RONR, on page 21, says the following regarding the quorum at a convention:  "In the meetings of a convention, unless the bylaws of the organization provide otherwise, the quorum is a majority of the delegates who have been registered at the convention as in attendance, irrespective of whether some may have departed."

The bylaws of the National Association of Parliamentarians (NAP) establish the quorum at its conventions as follows:  "The quorum at any meeting of any convention shall  be a majority of the voting delegates who have been registered  with the credentials committee as in attendance, provided that  at least one-third of the (state) associations are represented."

I would urge you to think twice about setting a fixed number of delegates as a quorum for a convention.  Putting on a convention is usually a very expensive proposition for both the organization and its members or  delegates.  If for some reason, such as bad weather or other unforeseen circumstance (think pandemic), not enough members or delegates show up to satisfy a fixed or numerical quorum requirement, those members who  did travel to the  convention will be out a lot of money and the cost of the canceled convention to the association can be disastrous.  And whatever business should  have been conducted does not get taken care of.  The next convention will likely be one or two years away.  

In my opinion, your current quorum requirement is quite common and in line with other national organizations.  I would be very hesitant to change it to a fixed minimum number.  The consequences of doing so could be disastrous.   However, if you want some other minimum "safeguard", a provision similar to that in the NAP bylaws might be worth considering. 

Edited to add:  I would  be interested in hearing whether any of our regular contributors have a different opinion or have something they would like to add.  I imagine you would like that, too. 

Edited May 3, 2020 at 03:18 AM by Richard Brown
Added last paragraph

[Weldon Merritt]

I certainly can't speak for any of the other regulars, but I concur with Mr. Brown. The adage, "Be carful what you wish for," comes to mind. Too often, attempts to fix one perceived issue (which may not be a real problem in the first place) wind up causing other (perhaps worse) problems.

[Joshua Katz]

1 hour ago, Richard Brown said:

Edited to add:  I would  be interested in hearing whether any of our regular contributors have a different opinion or have something they would like to add.  I imagine you would like that, too. 

I agree with Mr. Brown.

Edited May 3, 2020 at 04:20 AM by Joshua Katz

[Josh Martin]

12 hours ago, Richard Brown said:

Edited to add:  I would  be interested in hearing whether any of our regular contributors have a different opinion or have something they would like to add.  I imagine you would like that, too.

Respectfully, I disagree.

While I certainly agree with the view that setting a quorum requirement which is too high may indeed be problematic and costly for members of the organization, and may well mean an adjourned meeting must be set for the business of the convention (or that business may need to wait until the next convention), I also think it is the case that there is danger in setting a quorum requirement which is too low, and permitting business to be conducted with a small group of members who may not be representative of the full organization. If a quorum is based solely on a percentage of the members who have registered at the convention, this theoretically means that even a single person (if he is the only one to show up and register) could conduct the business of the convention. I think we would all agree that this would not be a good thing for a society with membership meetings (instead of a convention). I don't know why it would be a good thing for a convention either.

It is correct that RONR provides that a majority of the registered delegates is the quorum if the organization's rules are silent. RONR's default rules for quorum aren't really recommendations, however, they are simply defaults. Instead, what RONR recommends for a quorum is as follows:

"To accomplish their work, voluntary societies that have an enrolled membership generally need a provision in their bylaws establishing a relatively small quorum—considerably less than a majority of all the members. In most such organizations, it is rarely possible to obtain the attendance of a majority of the membership at a meeting. Sometimes the specification of a quorum is based on a percentage of the membership; but such a method has the disadvantage of requiring recomputation and may lead to confusion—for example, when the secretary, or other officer who is in a position to certify as to the current number of members for purposes of the percentage calculation, is absent. There is no single number or percentage of members that will be equally suitable as a quorum in all societies. The quorum should be as large a number of members as can reasonably be depended on to be present at any meeting, except in very bad weather or other exceptionally unfavorable conditions." (RONR, 11th ed., pg. 346)

While this is written principally with full membership meetings (rather than conventions) in mind, I believe the advice (especially the last two sentences) is applicable to conventions as well. Certainly, some modifications must be made for conventions. For a convention, my recommendation would be that the quorum requirement should contain two components, both of which must be met in order for a quorum to be present:

• A component which is based on a fixed number or a proportion of the registered delegates.
• A component which is, in some manner, based on the full society. In a convention, this should probably be expressed somewhat differently than in a membership meeting. Some options include:
  • It could be based on the number of delegates, whether a fixed number of delegates or a proportion of the total number of possible delegates.
  • It could be based on the number of constituent organizations which are represented (that is, having a delegation of at least one delegate), whether a fixed number of them or a proportion of the total number of constituent organizations.

With all that said, that doesn't mean that the second component (or the first component, for that matter) should be set especially high, but they shouldn't be set too low either (e.g. one person). Personally, when looking at setting quorum requirements for an organization, I tend to advise keeping these principles in mind:

• To look at a lower bound for what to set the quorum at, imagine there is a blizzard or something. Most members stay home, but one member shows up and he now has the full power of the organization. Are you comfortable with that? If not, imagine two people showed up instead, then three people, and so forth. Keeping adding people until you reach a number you're comfortable with.
• To look at an upper bound for what to set the quorum at, look back at past attendance. What is the lowest attendance the assembly has ever had - barring extremely unusual circumstances, like a major snowstorm or hurricane?

My advice would be to set the quorum requirement somewhere between those two numbers. If for some reason the lower bound ends up being higher than the upper bound, then it suggests the organization either has some trust issues or some major attendance problems, or both.

The other principle is that, when in doubt, it is better to err on the side of setting a quorum requirement which is too low than one which is too high, since the former is much easier to fix.

Edited May 3, 2020 at 03:56 PM by Josh Martin

[Weldon Merritt]

Mr. Martin makes some good points that are well worth consideration.

[Guest Russ]

We do not know if we will be legally allowed to put over 1,000 people together in one room by July 15. To space them 6 feet apart we would need at least a 37,680  square foot meeting room. I believe it will be practically impossible for us to meet in person by the time we have to. Ms Harlos cannot day for certain that it is possible. 

[Guest Russ]

And, technically, they did not decline an online convention. That was never brought to a vote.

[Joshua Katz]

I believe there are other fora for debating the merits of decisions within an organization.

[Guest After the Fact]

As usual, the difficulty with these forums is that those posting here don't thoroughly review the bylaws of the organization to know whether they are being told the entire story.  That is why those answering questions here often stick to just opining about RONR. 

In this particular case, being familiar with this organization, I know that the things desired to be handled by the online meeting are specifically required in the bylaws to be handled at a convention, which as noted correctly above is not authorized to be conducted electronically.  The board had no power to conduct that business.  A later motion to ratify cannot fix the bylaw violation from the online meeting. 

The group did choose to meet online anyway, did conduct those two items of business, and did adjourn the remaining business to an in-person convention in July.  The group has secured an 80,000+ sqft ballroom with a 6-foot table per delegate to allow for social distancing among 1000 delegates, in a city where the regulations will allow the group to meet.

Even this is not the whole story, and there are potential legal implications for this group.  Had the business conducted online reached a different result, many legal challenges were much more likely.  Perhaps the chances of that are lower now given the alternate outcome, so keep fingers crossed that the group is not tied up in court over it.  It was a very risky move, and we shall see how the history unfolds.