How (and if) to suspend a Rule?

[AFS1970]

Sorry in advance for the paraphrasing, I don't have one of the proposed amendments that I am mentioning in this question.

Our existing bylaws have a section that allow for the rules to be suspended, and require that the suspension is over as soon as the immediate business is transacted. However this section brings up two questions. First I have heard that a rule can only be suspended if it provides for it's own suspension, but is a section that allows for the bylaws to be suspended sufficient? Second does invoking this section actually suspend the entirety of the bylaws since it is a catch all and not included in any specific rule? I think that could potentially be a disaster waiting to happen.

Now as we are about to wrap up our revision process, the committee has proposed changing the catch all section to say that any section or part of the bylaws may be suspended, thus presumably protecting the rest of the rules for however brief a time this is invoked. I wonder if this again is too broad since it is an independent article  and not part of any specific rule.

Lastly, and I think I have found this answer already. The whole reason this section was brought up is because the committee envisions needing to suspend a rule that is not a rule of order and extends primarily outside of the meeting, the eligibility requirements for officers. This is because we changed those last year, made them stricter and have now realized they did not leave us with very many qualified candidates. I am trying to make a good presentation to the committee that these rules can't be suspended so need to be carefully studied and revised if needed as part of our larger revision proposal.

[Richard Brown]

You covered a lot of territory in that post and in order to properly answer your questions we really need to know what the exact wording is of the existing rules and  the proposed rules.

As I imagine you already know, rules in the bylaws cannot be suspended unless they are in the nature of rules of order or if they provide for their own suspension. A bylaw provision which provides that any of the bylaw provisions may be suspended would  accomplish the same purpose.

HOWEVER, I think that all of us who regularly post in this forum will tell you and everyone else that the ability to suspend anything in the bylaws at will is a very bad idea. I will add that if your organization is determined to make certain bylaw provisions suspendable, it should be permitted only with a very high vote threshold. I would urge extreme caution.

 

[Josh Martin]

1 hour ago, AFS1970 said:

Our existing bylaws have a section that allow for the rules to be suspended, and require that the suspension is over as soon as the immediate business is transacted. However this section brings up two questions. First I have heard that a rule can only be suspended if it provides for it's own suspension, but is a section that allows for the bylaws to be suspended sufficient?

Your bylaws take precedence over RONR. If a provision in your bylaws allows for any rule in the bylaws to be suspended, then it seems to me the rule means what it says. The text in RONR assumes a rule which permits a particular provision in the bylaws to be suspended, but the text in RONR does not (and cannot) prohibit an organization from adopting a suspension clause in its bylaws with broader application if it wishes to do so, since the bylaws take precedence over RONR.

I would advise that if the organization desires to keep this rule, it should at least amend it to create certain exceptions - that is, certain rules in the bylaws which cannot be suspended. Since the bylaws contain the most fundamental rules of the society, the ability to suspend any rule in the bylaws could conceivably allow the society to do just about anything, including such problematic actions as depriving individual members of the fundamental rights of membership.

1 hour ago, AFS1970 said:

Second does invoking this section actually suspend the entirety of the bylaws since it is a catch all and not included in any specific rule?

Well, I have not actually seen the rule in question, but I am generally inclined to think that (much like the motion to Suspend the Rules in RONR) the motion suspends the rules to the extent necessary to accomplish the objectives stated in the motion, not that it suspends the bylaws in their entirety, based on Principle of Interpretation #2. (Unless, of course, the provision unambiguously states that it suspends the bylaws in their entirety.)

"When a provision of the bylaws is susceptible to two meanings, one of which conflicts with or renders absurd another bylaw provision, and the other meaning does not, the latter must be taken as the true meaning." (RONR, 11th ed., pg. 589)

I would argue that an interpretation that the rule allows for the society to "suspend the bylaws in their entirety" essentially renders the bylaws in their entirety to be absurd, so I generally would not be inclined towards that interpretation.

1 hour ago, AFS1970 said:

I think that could potentially be a disaster waiting to happen.

Frankly, I think this actually understates the scope of the problem. Keep in mind that the bylaws define the most fundamental characteristics of the society, including its members and even the society's existence. Being able to suspend any rule is bad enough, but being able to suspend every rule is a whole other ballgame.

1 hour ago, AFS1970 said:

Now as we are about to wrap up our revision process, the committee has proposed changing the catch all section to say that any section or part of the bylaws may be suspended, thus presumably protecting the rest of the rules for however brief a time this is invoked.

I don't think this is a good idea for two main reasons.

The bylaws work as a cohesive whole, and it isn't desirable in my view to require the society to identify the specific articles, sections, and subsections the society intends to suspend. It also potentially leads to very complicated questions for the President to resolve as to the effect of particular sections being suspended. Rather, if the society chooses to keep this "catch-all" suspension rule, it should provide that the rules are suspended to the extent necessary for the specific purpose identified in the motion to Suspend the Rules. This is how Suspend the Rules works in RONR, and it works pretty well.

Additionally, as I have noted previously, I think this notion of suspending all the rules (or large portions of them) is only part of the problem. The other issue is that allowing the suspension of any rule in the bylaws is, in itself, problematic. If the society desires to keep this rule, it would be prudent to provide some exceptions.

1 hour ago, AFS1970 said:

I wonder if this again is too broad since it is an independent article  and not part of any specific rule.

It will ultimately be up to the society to determine whether this authority is "too broad." If the society wishes to keep this rule, I at least suggest placing some limits on it, as noted above.

1 hour ago, AFS1970 said:

Lastly, and I think I have found this answer already. The whole reason this section was brought up is because the committee envisions needing to suspend a rule that is not a rule of order and extends primarily outside of the meeting, the eligibility requirements for officers. This is because we changed those last year, made them stricter and have now realized they did not leave us with very many qualified candidates. I am trying to make a good presentation to the committee that these rules can't be suspended so need to be carefully studied and revised if needed as part of our larger revision proposal.

Well, first of all, these rules can be suspended if the bylaws say they can, since the bylaws take precedence over RONR.

Nonetheless, if "The whole reason this section was brought up is... the eligibility requirements for officers," then maybe the rule should be removed and the society should adopt a rule specifically regarding suspending the eligibility requirements for officers (or as you suggest, simply amend the eligibility requirements themselves).

Edited June 26, 2020 at 03:35 PM by Josh Martin

[AFS1970]

Thanks for the quick reply. I did find my copy of the bylaws so I can post the article in question. I think that the situation may not be as bad as I thought due to a provision I forgot was in there. However there may be some other questions. 

So the good news as I see it is that we are restricted to two specific times that we can suspend the rules and those require unanimous consent. So no matter of the wording about which rules or how many of them are actually suspended by this section, it seems to me this is a very rare occurrence at best. As for the in case of emergency, which is not defined or explained, I can see someone suggesting that a lack of candidates is an emergency. I would dispute that because an emergency is generally unforeseen and knowing we passed a By-Law that most member can't meet seems to be something we foresaw. 

Now the new problem I saw is the phrase "vote to the members" which I think should be vote of the members. We have found some other similar strange word choices during the revision process, so I assume this to be another one of them that we will need to correct.

As for the officer requirements, the officers in question have little to no function in the meeting, apart from collectively being a board that makes a report. Their main function is the supervision of members outside of the meeting. So anything to do with how they are elected and serve seems to me to extend well beyond the meeting. 

Quote

ARTICLE XVIII

Suspension of By-Laws

Section 1: The By-Laws of the Company may be be suspended at any meeting of the Company when immediate action is necessary in order to avoid financial loss to the company or in times of emergency and then only by a unanimous vote to the members present and eligible to vote.

Section 2: The suspension of the By-Laws will be deemed to have expired with the immediate action of the Company.

Edited June 26, 2020 at 04:02 PM by AFS1970

[Atul Kapur]

Whether a particular situation qualifies as an emergency is a question that the members will answer by their vote on whether to suspend or not. If a member doesn't think this is an emergency, then that member should vote no, denying the unanimous vote required.

Mr. Martin has described the rule in RONR that you suspend the rules for a particular purpose (eg: to nominate and elect a person who would otherwise not be qualified for a particular office). Once that purpose is met, the suspension is ended. The Section 2 that you quoted appears to have that intent, but it is not as well worded as RONR and I suggest you replace it. 
For example, the section of the bylaws regarding qualification for office is effectively suspended for as long as that person is in the office. The current wording could be interpreted as expiring once the person is elected (the immediate action) but ignoring the time they are in the office.

Please note that I am not signalling that I think this is a good idea, overall. I share the misgivings that others have written above. I'm just limiting myself to comments on the specific wording you have given.

[Gary Novosielski]

1 hour ago, AFS1970 said:

The By-Laws of the Company may be be suspended at any meeting of the Company when immediate action is necessary in order to avoid financial loss to the company or in times of emergency and then only by a unanimous vote to the members present and eligible to vote.

It's not clear to me whether the unanimous vote requirement applies to the situation where financial loss might occur, or whether it applies only to the "emergency" case.  A person motivated to suspend the bylaws might argue that unanimity is only required in the emergency case, and then assert that suspension is in order to avoid the possibility of any financial loss, no matter how small or unlikely.

[Josh Martin]

2 hours ago, AFS1970 said:

So the good news as I see it is that we are restricted to two specific times that we can suspend the rules and those require unanimous consent.

I don't actually know that the "two specific times" is of much comfort, since in my view the two reasons the rules may be suspended are still quite broad. Additionally, this only limits the reasons the rules may be suspended, not what rules may be suspended. The fact that the motion requires "a unanimous vote to the members present and eligible to vote," on the other hand, does make me feel a little better, as this should at least prevent the society from suspending the fundamental rights of the members who are present (although the rights of members who are absent have no such protection).

Personally, when this rule is amended, I would focus on protections regarding 1) what rules may (and may not) be suspended and 2) what vote is required for suspension, rather than creating vague "reasons" why the rules may be suspended, which ultimately will be subject to interpretation. Instead, whether a rule should (or should not) be suspended in a particular instance can be left to the society's judgment.

2 hours ago, AFS1970 said:

I can see someone suggesting that a lack of candidates is an emergency. I would dispute that because an emergency is generally unforeseen and knowing we passed a By-Law that most member can't meet seems to be something we foresaw. 

I certainly agree that a lack of candidates, in and of itself, is not an emergency. I suppose it is conceivable that a lack of candidates could, in certain cases, be the result of an emergency, but that does not seem to be the case here. So it doesn't seem to me to be in order to suspend the rules for this purpose and in this instance on the basis of the "emergency" clause.

Potentially, however, it could be argued that the lack of candidates may be "necessary in order to avoid financial loss to the company," especially if the positions which are lacking candidates are of particular importance to the company's operations.

Ultimately, of course, these are questions for the society to resolve. (Of course, since a unanimous vote is required anyway, I suppose a single member could block the suspension if he does not believe that it meets the criteria.)

2 hours ago, AFS1970 said:

Now the new problem I saw is the phrase "vote to the members" which I think should be vote of the members.

Yes, I expect that is what was meant.

2 hours ago, AFS1970 said:

As for the officer requirements, the officers in question have little to no function in the meeting, apart from collectively being a board that makes a report. Their main function is the supervision of members outside of the meeting. So anything to do with how they are elected and serve seems to me to extend well beyond the meeting. 

Yes, I understand that, but the rule in your bylaws doesn't seem to say anything about the suspension lasting only for the duration of the meeting. RONR says that, but your rules take precedence.

It does say that the suspension expires "with the immediate action of the Company." Potentially, one could argue that the "immediate action" in this case is the election, and that the rules could be suspended for this purpose. On the other hand, one could argue that the breach of the bylaws would continue for as long as these persons are serving and, as a result, the rules could not be suspended for this purpose (since the rule does not permit a longer suspension). Again, this is a question the society will have to resolve for itself. (Of course, since a unanimous vote is required anyway, I suppose a single member could block the suspension if he does not believe that it meets the criteria.)

36 minutes ago, Gary Novosielski said:

It's not clear to me whether the unanimous vote requirement applies to the situation where financial loss might occur, or whether it applies only to the "emergency" case.  A person motivated to suspend the bylaws might argue that unanimity is only required in the emergency case, and then assert that suspension is in order to avoid the possibility of any financial loss, no matter how small or unlikely.

I don't personally find this argument to be terribly persuasive, but I would agree that the rule is not entirely unambiguous in this regard.

Edited June 26, 2020 at 06:12 PM by Josh Martin

[Gary Novosielski]

9 minutes ago, Josh Martin said:

I don't personally find this argument to be terribly persuasive,

Oh, neither do I, but even unpersuasive arguments can waste significant time if an ambiguity affords an opportunist the opportunity to make them.

[AFS1970]

Unambiguous or not, I had never considered that interpretation of the unanimous requirement, so thanks for giving me more food for thought. 

I looked up the section on the requirements for the officers in question and may have found some more ambiguity. I remember from past threads the difference between a requirement to serve and a requirement to be elected. However out bylaws for all 7 of these positions say "in order to be eligible for the position of" which seems to me could be interpreted to be either both election and service or neither, or one or the other. Now I don't mind if our current president has to squirm a bit in making a ruling, but as I plan on running against him, I don't relish this task all that much. 

Here I thought I was asking such a simple question.

[Josh Martin]

1 hour ago, AFS1970 said:

Unambiguous or not, I had never considered that interpretation of the unanimous requirement, so thanks for giving me more food for thought. 

I looked up the section on the requirements for the officers in question and may have found some more ambiguity. I remember from past threads the difference between a requirement to serve and a requirement to be elected. However out bylaws for all 7 of these positions say "in order to be eligible for the position of" which seems to me could be interpreted to be either both election and service or neither, or one or the other. Now I don't mind if our current president has to squirm a bit in making a ruling, but as I plan on running against him, I don't relish this task all that much. 

Here I thought I was asking such a simple question.

The words "in order to be eligible for a position" indicates that the requirements in question are requirements for both service and election, in my view. I don't know how it could be a requirement for neither.

Edited June 26, 2020 at 07:42 PM by Josh Martin

[Joshua Katz]

Since the organization is considering amending the bylaws anyway, why not just modify the requirements for being an officer, and, while you're at it, remove the suspension provision?

[Richard Brown]

10 hours ago, Josh Martin said:

The words "in order to be eligible for a position" indicates that the requirements in question are requirements for both service and election, in my view. I don't know how it could be a requirement for neither.

I agree. That quoted bylaw language, if it is indeed a direct quote, clears things up a lot.

[AFS1970]

17 hours ago, Josh Martin said:

The words "in order to be eligible for a position" indicates that the requirements in question are requirements for both service and election, in my view. I don't know how it could be a requirement for neither.

I was being partially facetious with saying neither, but also considering that If it only applied to one than it didn't apply to the other but which was which could be up to interpretation. Neither was a bit much of an exaggeration. 

7 hours ago, Joshua Katz said:

Since the organization is considering amending the bylaws anyway, why not just modify the requirements for being an officer, and, while you're at it, remove the suspension provision?

These are all things being considered, this is why I asked here. in the last two years we have had 3 attempts at changing various provisions in the officer requirements all but one of which failed. The one that passed was introduced by the committee to fix some problems just before last years election and we were able to get it passed. Mostly because of the absence of some of our more troublesome members. However that revision while it fixed a couple of earlier problems, created a new problem which we are trying to fix in this revision.

As for the suspension part, we definitely need to work on that a bit more, but I think that will be the easy part. I have been a member almost 4 years and have never heard before being on this committee anyone seriously talk about suspending the rules. 

7 hours ago, Richard Brown said:

I agree. That quoted bylaw language, if it is indeed a direct quote, clears things up a lot.

I would like to think so, but I can tell you based on current and past officers and elections, I doubt anything that is clear will remain so for very long.