Take Temperature Before you can Vote

[Guest suzanne1423]

Association annual members meeting and election of directors is coming up in a few days.

It is being held out doors on commons property, with only a large pavilion (roof only, no walls) , and the association also rented a couple of tent type canopies (again roof only, no walls).

They are practicing social distancing, masks required, lots of hand sanitizer and wipes available, etc. They are trying to take every precaution possible to protect members. 

However, I just found out that they want to check everyone's temperature at sign in using a touchless thermometer. Out in the open with other members in line to sign in.

It got my attention about this for a few reasons:

Is this an invasion of privacy? Does the association/board have the right to do this? Does a member have a right to refuse? If they refuse can they be denied participation in the meeting. Can they be denied access to the commons property that the meeting is being held at? Thus being denied to vote or the use the common properties? 

This is a members meeting and election of directors with the board present to get the meeting and election going. I know for a fact the board did not make a motion to initiate this. This is just something the President thought this idea up with the help of another board member all on there own. 

Maybe I am over thinking this, but I think this could open up a can of worms if it is "mandatory". I have no problem with voluntary, but mandatory?  What about a refusal to participate if either an elevated temperature or a person does not want their temperature taken? 

I know this is a new era we are in, but I personally think this is going to far. 

[Chris Harrison]

This being a RONR forum we try to stay away from some of those questions.  That being said members can't be deprived of their right to attend meetings or vote except through disciplinary proceedings (RONR p. 3 ll. 1-9).  So unless the Bylaws address this sort of situation I would argue that any attempt to exclude members or disenfranchise them is not only invalid but should lead to disciplinary actions against the President and anyone else who were exceeding their authority.   Of course, if a member is feeling ill they owe it to themselves and everyone else to stay home!

[Joshua Katz]

A challenging subject. I agree with Mr. Harrison, but I'd also note that this arises often outside of this context. Suppose an organization holds a convention. They might require you to wear a delegate badge in order to vote, or to sit in a specified part of the room (with alternates sitting elsewhere). Those aren't requirements in the bylaws, and not allowing a member who is not wearing a badge to vote looks like a denial of a basic right of membership, yet you wouldn't win on that argument - you wouldn't even be able to make it, I'd think, because you wouldn't get the floor without a delegate badge. 

Along the same lines - who is the "they" that is requiring it? The board? Do we really want a board controlling the ability to vote for the board? (And who, exactly, is going to decide what the temperature cut-off is?)

[George Mervosh]

2 hours ago, Guest suzanne1423 said:

9 minutes ago, Joshua Katz said:

Along the same lines - who is the "they" that is requiring it? The board? Do we really want a board controlling the ability to vote for the board? (And who, exactly, is going to decide what the temperature cut-off is?)

I know for a fact the board did not make a motion to initiate this. This is just something the President thought this idea up with the help of another board member all on there own. 

 

[Joshua Katz]

Mr. Mervosh, are you suggesting that it is a good idea to read the whole question before answering it? Craziness.

Anyway, my comments about the board apply even more so to the President. That's why it's suggested that the President not be on the nominating committee, isn't it?

[Josh Martin]

3 hours ago, Guest suzanne1423 said:

Is this an invasion of privacy?

RONR has no guidance on this question. With some exceptions (such as the secrecy of a ballot vote), RONR generally does not address the concept of "privacy."

3 hours ago, Guest suzanne1423 said:

Does the association/board have the right to do this?

Well, that may be jumping ahead a bit, since it doesn't yet seem that the board or the association actually have done this yet. We are told that "This is just something the President thought this idea up with the help of another board member all on there own." The President plus one random board member do not have the authority to adopt this rule, or rules of any kind, unless authorized to do so by the organization's bylaws.

"All of the duties of the presiding officer described above relate to the function of presiding over the assembly at its meetings. In addition, in many organized societies, the president has duties as an administrative or executive officer; but these are outside the scope of parliamentary law, and the president has such authority only insofar as the bylaws provide it." (RONR, 11th ed., pg. 456)

I also do not think that the board has the authority to adopt this rule, or any rule pertaining to meetings of the association, unless authorized to do by the organization's bylaws. A board has the authority to adopt its own rules (provided such rules do not conflict with the rules of the society), but RONR does not grant the board the authority to adopt rules for the association.

"The executive board of an organized society operates under the society's bylaws, the society's parliamentary authority, and any special rules of order or standing rules of the society which may be applicable to it. Such a board may adopt its own special rules of order or standing rules only to the extent that such rules do not conflict with any of the rules of the society listed above." (RONR, 11th ed., pg. 486)

The last question which remains is whether the association has the authority to adopt such a rule, and in that regard, I am inclined to agree with Mr. Katz that such a rule is within the authority of the association to adopt, and is not substantially different than rules which, for example, "require you to wear a delegate badge in order to vote, or to sit in a specified part of the room (with alternates sitting elsewhere)."

4 hours ago, Guest suzanne1423 said:

If they refuse can they be denied participation in the meeting.

If the rule is properly adopted by the association, then in my opinion, yes, members who refuse to comply with the rule may be denied participation in the meeting (including the right to vote).

4 hours ago, Guest suzanne1423 said:

Can they be denied access to the commons property that the meeting is being held at? Thus being denied to vote or the use the common properties? 

As a parliamentary matter, I see no reason why the association cannot deny access to the commons property due to violations of the rule (if the rule is properly adopted by the association), although there may also be legal issues surrounding this.

4 hours ago, Guest suzanne1423 said:

I have no problem with voluntary, but mandatory?  What about a refusal to participate if either an elevated temperature or a person does not want their temperature taken? 

Same answer as above.

4 hours ago, Guest suzanne1423 said:

I know this is a new era we are in, but I personally think this is going to far. 

You are free to express this view if and when a motion is made at a meeting of the association to adopt this rule. Perhaps the other members of the association will agree with you. You might also propose alternative safety procedures for the organization to follow, such as mask wearing and social distancing.

[Joshua Katz]

1 hour ago, Josh Martin said:

Well, that may be jumping ahead a bit, since it doesn't yet seem that the board or the association actually have done this yet. We are told that "This is just something the President thought this idea up with the help of another board member all on there own." The President plus one random board member do not have the authority to adopt this rule, or rules of any kind, unless authorized to do so by the organization's bylaws.

 

The problem, though, is how this will actually play out. What will happen is that members arriving at the place where the meeting is held will be greeted by a thermometer, and those who don't consent to a temperature check will be denied entry. 

And it's not clear to me what the alternative is, actually. Unless the association can vote remotely, holding such a vote at the meeting would defeat its purpose.

[Josh Martin]

5 hours ago, Joshua Katz said:

The problem, though, is how this will actually play out. What will happen is that members arriving at the place where the meeting is held will be greeted by a thermometer, and those who don't consent to a temperature check will be denied entry. 

If this is in fact what occurs, this is improper, since we are told that the "rule" was "adopted" by the "President... with the help of another board member." If members are denied entry to the meeting based on the whims of the President, this is a violation of the fundamental rights of those members, and a violation of this nature constitutes a continuing breach. Hopefully, the other board members can persuade the President to not go through with this, or failing that, prevail upon the persons responsible for checking members in not to go through with it.

5 hours ago, Joshua Katz said:

And it's not clear to me what the alternative is, actually. Unless the association can vote remotely, holding such a vote at the meeting would defeat its purpose.

I don't know that holding the vote at the meeting would entirely defeat the purpose of the rule. Certainly, the rule (which is presumably intended to prevent persons who are likely to be ill from being at the meeting) would be most effective if such members can be prevented from entering the meeting hall at all. My understanding, however, is that the risk of contracting illness is based not only on proximity to a person with the illness, but also based upon the length of time of exposure. So there may still be some benefit in requiring such temperature checks after the meeting has begun, particularly if the vote on the matter can be taken near the start of the meeting. 

EDIT: Struck out the portion relating to public health in order to focus on the parliamentary issues. Members should consult health professionals for advice on matters of public health.

In any event, however, even although the rule will be less effective if it cannot be implemented immediately, the fact remains that only the association has the authority to adopt rules for meetings of the association, unless the organization's bylaws provide otherwise.

I suppose a potential compromise in the interim would be that members would be asked to have their temperature taken upon entry, and those who refuse would nonetheless be admitted into the meeting (but a note would be taken regarding which members refused). This could speed things up if a rule requiring the checks is later adopted, as some members will have already had their temperature taken.

Edited July 17, 2020 at 02:03 AM by Josh Martin

[Guest suzanne1423]

Thank you for the information. This is a big help. 

This "new rule" was not brought before the board or the membership for a vote. The Board President and one other board member decided this without discussing with anyone else. Simple as that. I only discovered by accident and I agree, if someone is sick, please stay home. 

It is the possibility of denial that I am most concerned about, but the point being raised about it being adopted correctly is of course concerning. Part of the reason I raised the question. No, our bylaws do not address this specific issue other than "you must be a member in good standing to be able to vote" (must be current in your dues). 

BYLAWS: "Suspension of privileges of membership for any period during which any association charge, including fines, owed by the member remains unpaid, and for any continuing violation of the declarations, after the existence of the violation shall have been declared by the board, or because of any violations of the bylaws or rules and regulations of the association.

Who is entitled to vote: each member shall be entitled to one vote for each lot owned on the date of voting. No member shall be entitled to vote until he/she has presented satidfactory evidence of membership in good standing." 

The above covers the entire bylaws related to voting (other than some references to absentee ballots and procedures for the annual members meeting.

Maybe the intent is to not deny anyone with a fever, but to ask them to isolate away from the rest of the group (about 100 will be in attendance). The members meeting is on 7/18/20

I suppose this could be the same for those who refuse the temp scan. Isolated but still able to participate, so it is possible there will be no denial of the rights granted to them as a member. 

The rogue decision is concerning and I find the information you provided regarding this, most interesting. 

 

 

[Joshua Katz]

3 minutes ago, Josh Martin said:

In any event, however, even although the rule will be less effective if it cannot be implemented immediately, the fact remains that only the association has the authority to adopt rules for meetings of the association, unless the organization's bylaws provide otherwise.

Oh, I agree, at least from a parliamentary perspective. 

[Josh Martin]

4 minutes ago, Guest suzanne1423 said:

Maybe the intent is to not deny anyone with a fever, but to ask them to isolate away from the rest of the group (about 100 will be in attendance).

Certainly if a rule is to be adopted on this matter, it would be desirable to clarify what exactly the rule is.

Edited July 16, 2020 at 09:37 PM by Josh Martin

[Guest suzanne1423]

I need to mention, this is a members meeting not a board meeting, and the meeting will be conducted outdoors, sorry if I did not mention. Masks and social distancing will also be required.

[Joshua Katz]

26 minutes ago, Guest suzanne1423 said:

Masks and social distancing will also be required.

It seems to me that the same question arises, at least, with respect to masks.

[Guest suzanne1423]

The entire board (seven members) voted on,  and passed the recommendation of social distancing and masks to be worn at the outdoor members meeting. This was done at least one month in advance. I am pretty sure our state recommends the distancing and masks for larger outdoor gatherings also.

No one seems to have an issue with the masks and distancing. 

The temperature taking is the issue.

I just found out, if some one does have a temperature above 99.6 f , then they will check the persons oxygen saturation level, and they will also be asked a series of medical questions by the wife of the rogue board member who was one of the two who made this unauthorized decision. She is a registered nurse.

This is sounding even more intrusive....

[Joshua Katz]

24 minutes ago, Guest suzanne1423 said:

The entire board (seven members) voted on,  and passed the recommendation of social distancing and masks to be worn at the outdoor members meeting. This was done at least one month in advance. I am pretty sure our state recommends the distancing and masks for larger outdoor gatherings also.

 

But, as discussed above, the board has no such authority (unless the bylaws say otherwise). Of course, it is true that if no one objects, nothing will happen.

[Guest suzanne1423]

Yes, thank you for that clarification. I thought the board meeting motion was enough regarding the masks and distancing. Good point. No the bylaws do not mention it but our "Governors Executive Order" regarding covid 19 recommends the masks and distancing for large gatherings. Even outdoors. 

As a matter of a fact, the association was sued about 5 years ago and the judge made a ruling that "if it is not in your bylaws or covenants, then you can not enforce any rules that you make unless approved by a the membership according to your bylaws and covenants". It was taken to the state supreme court on appeal and the supreme court refused to review it. So the original judges ruling stands. 

One needs to take into consideration the times we are in, and I get it. Some people are scared. However all of your points are duly noted and reaffirm my thoughts. Someone is going to challenge this at the meeting, and I wanted to be informed. This could potentially bring on another lawsuit. 

[Joshua Katz]

29 minutes ago, Guest suzanne1423 said:

No the bylaws do not mention it but our "Governors Executive Order" regarding covid 19 recommends the masks and distancing for large gatherings.

This is a substantive law, not a procedural law. While organizations must comply with both, only procedural laws, from a parliamentary perspective, outrank your bylaws. A motion that violates substantive law is not out of order. However, what's being discussed here is not even an illegal motion, but rather, not making a motion has recommended, but not mandated.

[Guest suzanne1423]

19 minutes ago, Joshua Katz said:

This is a substantive law, not a procedural law. While organizations must comply with both, only procedural laws, from a parliamentary perspective, outrank your bylaws. A motion that violates substantive law is not out of order. However, what's being discussed here is not even an illegal motion, but rather, not making a motion has recommended, but not mandated.

Mr Katz, thank you. I had to read it 5 times slowly and look up the definitions, but I understand and I thank you and everyone else who replied for your time and interest in this post. Very interesting and useful information. 

[Shmuel Gerber]

3 hours ago, Josh Martin said:

My understanding, however, is that the risk of contracting illness is based not only on proximity to a person with the illness, but also based upon the length of time of exposure. So there may still be some benefit in requiring such temperature checks after the meeting has begun, particularly if the vote on the matter can be taken near the start of the meeting.

We should not be speculating on public-health measures in the RONR Forum.