Is The Question of Bylaws Interpretation Germane to the Special Meeting

[Nicole Allmon-Learson]

A notice for a special meeting of a local chapter (to be held September 25) goes out and the only agenda item is "Election of Officers." The bylaws state that members in good standing may vote. Conversely, you are not in good standing for a litany of reasons including "...not paying the membership dues for the new fiscal year by the designated date." The new year begins October 1. The designated date was September 20 and again the election meeting is September 25. A  few members feel the meaning of the bylaws is ambiguous and thought that good standing would be taken away in the new fiscal year, not the current year which ends September 30 and for which they have been financially and actively in good standing. They want to invoke the principals of interpretation of the bylaws during the special meeting because they are current in their membership dues for the current year and the new year as of September 21.

1) If one of the members brought forth a Point of Order that the election is wrongfully prohibiting members from voting who should be able to vote because they are in fact in good standing for all of the other reasons and the election is being held in the current year for which they are a paid member AND they have paid for the new year by September 21, is that a point well taken?

2) Would it be germane to move to interpret that bylaw section because the meaning of when "not in good standing" status is invoked is unclear AND that ambiguity is adversely affecting members' voting rights for the election?

[Atul Kapur]

It seems like it would be appropriate to raise this issue as a point of order. Whether it will be ruled as well taken or not well taken is for the presiding officer to decide. Inherent in that ruling will be the presiding officer's interpretation of the bylaws.

If two people disagree with the ruling (whether because of the interpretation or any other reason) then they can move and second a motion to appeal from the decision of the chair. During the debate on the appeal (and even, concisely, when making the point of order) members could refer to the Principles of Interpretation in order to support their argument.

[Gary Novosielski]

There is no actual motion to Interpret the Bylaws.   The process is to raise a Point of Order on the grounds you mentioned, or others as appropriate.  The interpretation is determined by the chair's ruling if not Appealed, or if sustained on appeal, and the converse interpretation if not.

[Nicole Allmon-Learson]

Thank you.

For clarification,

I understand that if the issue is raised via a point of order, it would be addressed with the chair's ruling and/or the appeal from the decision of the chair, if needed. And that's how I would advise addressing it.

However, if a member did not raise a POO but simply moved to interpret that section of the bylaws as meaning (whatever their interpretation) and it's seconded by another member, would that motion be in order at this special meeting, thereby allowing the membership to address it rather than the presiding officer?

[Caryn Ann Harlos]

There is no such motion.  It would amount to a point of parliamentary inquiry which is not appealable until it is actually a ruling on a pending controversy.  It would merely be an advisory opinion.

 

ETA: See 24:6

Edited September 21, 2020 at 08:03 PM by Caryn Ann Harlos

[Atul Kapur]

1 hour ago, Nicole Allmon-Learson said:

However, if a member did not raise a POO but simply moved to interpret that section of the bylaws as meaning (whatever their interpretation)

If I were the presiding officer, I would state that the motion is not in order as a motion but would treat it as a point of order.

As the presiding officer in this situation, I would seriously consider not making a ruling but rather putting the question to the assembly.

This may seem like a fine distinction (between letting the member make a motion and having the assembly vote on the point of order), but the difference as I see it is that the method I recommend is actually applying the interpretation to a particular situation, rather than just having a theoretical interpretation.

 

 

[J. J.]

1 hour ago, Nicole Allmon-Learson said:

Thank you.

For clarification,

I understand that if the issue is raised via a point of order, it would be addressed with the chair's ruling and/or the appeal from the decision of the chair, if needed. And that's how I would advise addressing it.

However, if a member did not raise a POO but simply moved to interpret that section of the bylaws as meaning (whatever their interpretation) and it's seconded by another member, would that motion be in order at this special meeting, thereby allowing the membership to address it rather than the presiding officer?

I think the assembly could adopt a motion, "That the society interprets Article V, Section 1. to mean that ___________," assuming that the bylaw is ambiguous.  It would be an incidental main motion.  I would say that, if it is not germane to the conduct or purpose of the meeting, it would be out of order.

[Caryn Ann Harlos]

23 minutes ago, J. J. said:

I think the assembly could adopt a motion, "That the society interprets Article V, Section 1. to mean that ___________," assuming that the bylaw is ambiguous.  It would be an incidental main motion.  I would say that, if it is not germane to the conduct or purpose of the meeting, it would be out of order.

That's an interesting way to handle.  Good point.

[Richard Brown]

45 minutes ago, J. J. said:

I think the assembly could adopt a motion, "That the society interprets Article V, Section 1. to mean that ___________," assuming that the bylaw is ambiguous.  It would be an incidental main motion.  I would say that, if it is not germane to the conduct or purpose of the meeting, it would be out of order.

Hey, Nicole!   It’s good to see you here again!  Personally, I agree with JJ and think the motion he suggested should be permissible. However, Dan Honemann told me very pointedly several years ago when I made that same suggestion that the only way to get such an interpretation is by raising a point of order. I agree with the others that raising a point of Order about the meaning of the bylaws regarding eligibility to vote at the meeting is absolutely appropriate in the special meeting.

[Josh Martin]

2 hours ago, Nicole Allmon-Learson said:

I understand that if the issue is raised via a point of order, it would be addressed with the chair's ruling and/or the appeal from the decision of the chair, if needed. And that's how I would advise addressing it.

However, if a member did not raise a POO but simply moved to interpret that section of the bylaws as meaning (whatever their interpretation) and it's seconded by another member, would that motion be in order at this special meeting, thereby allowing the membership to address it rather than the presiding officer?

A member could, in my view, make a motion of this nature, however, such a motion is purely advisory and is not binding upon the chairman. So it might ultimately be necessary to go with the Point of Order/Appeal route anyway, depending on how stubborn the chairman is.

I don't believe the fact that this is a special meeting poses any issue, since it seems to me this a motion which "may arise in connection with the transaction of such business or the conduct of the meeting."

"The only business that can be transacted at a special meeting is that which has been specified in the call of the meeting. This rule, however, does not preclude the consideration of privileged motions, or of any subsidiary, incidental, or other motions that may arise in connection with the transaction of such business or the conduct of the meeting." RONR (12th ed.) 9:15

[Richard Brown]

I keep thinking about this suggestion of J.J.'.s, it being something that I have myself suggested in the past and for which I "incurred the wrath of" the wrathful one.  Oh, he was quite polite, but made it  plain he thought I needed to "be set straight" about how to arrive at an interpretation of an ambiguous bylaw provision. 

 

2 hours ago, J. J. said:

I think the assembly could adopt a motion, "That the society interprets Article V, Section 1. to mean that ___________," assuming that the bylaw is ambiguous.  It would be an incidental main motion.  I would say that, if it is not germane to the conduct or purpose of the meeting, it would be out of order.

The more I think about it and the more I read about points of order, it seems pretty clear that the motion "a point of order" is to be used when a member believes there has been a breach of the rules.  I do not see that it is intended to be used to get to an interpretation of a bylaw, rule or other document when no one is alleging a breach of a rule.

When I read up on the principles of interpretation, I see nothing indicating that raising a point of order is the only way of arriving at an interpretation of an ambiguous provision.  It's not even mentioned at all.

Since a point of order is to be used when a member believes there has been a breach of the rules and the "principles of interpretation" provide no  guidance on the type motion to be used in arriving at an interpretation, it seems to me that J.J.'s suggested motion "That the society interprets Article V, Section 1. to mean that ___________," seems like  a reasonable alternative.  I agree that it seems to be in the nature of an incidental main motion and should be permissible.  RONR can't possibly list all motions that are permissible or prohibited.  I believe that each society has the inherent right to do pretty much anything it wants to do unless some rule prohibits it.  I think the adoption of such a motion would be more than just "advisory", as Mr. Martin suggested, but I do agree that it would be subject to re-interpretation or change just like a ruling on a point of order or any other motion that is subject to being amended  or rescinded by later action of the assembly.  The interpretation can always be amended by use of the motion to rescind or amend something previously adopted.

So, at the risk of incurring someone's wrath again, I'm taking the position that I think the motion J.J. suggested could be used.  It's not ideal, and it is far better to amend the troublesome bylaw, but I think it will serve its intended purpose very well.

[Caryn Ann Harlos]

38 minutes ago, Richard Brown said:

I keep thinking about this suggestion of J.J.'.s, it being something that I have myself suggested in the past and for which I "incurred the wrath of" the wrathful one.  Oh, he was quite polite, but made it  plain he thought I needed to "be set straight" about how to arrive at an interpretation of an ambiguous bylaw provision. 

 

The more I think about it and the more I read about points of order, it seems pretty clear that the motion "a point of order" is to be used when a member believes there has been a breach of the rules.  I do not see that it is intended to be used to get to an interpretation of a bylaw, rule or other document when no one is alleging a breach of a rule.

When I read up on the principles of interpretation, I see nothing indicating that raising a point of order is the only way of arriving at an interpretation of an ambiguous provision.  It's not even mentioned at all.

Since a point of order is to be used when a member believes there has been a breach of the rules and the "principles of interpretation" provide no  guidance on the type motion to be used in arriving at an interpretation, it seems to me that J.J.'s suggested motion "That the society interprets Article V, Section 1. to mean that ___________," seems like  a reasonable alternative.  I agree that it seems to be in the nature of an incidental main motion and should be permissible.  RONR can't possibly list all motions that are permissible or prohibited.  I believe that each society has the inherent right to do pretty much anything it wants to do unless some rule prohibits it.  I think the adoption of such a motion would be more than just "advisory", as Mr. Martin suggested, but I do agree that it would be subject to re-interpretation or change just like a ruling on a point of order or any other motion that is subject to being amended  or rescinded by later action of the assembly.  The interpretation can always be amended by use of the motion to rescind or amend something previously adopted.

So, at the risk of incurring someone's wrath again, I'm taking the position that I think the motion J.J. suggested could be used.  It's not ideal, and it is far better to amend the troublesome bylaw, but I think it will serve its intended purpose very well.

But wouldn't it be a breach of order if members that others felt were ineligible were allowed to vote or vice versa thus laying the ground work for a Point of Order?

[Gary Novosielski]

3 hours ago, J. J. said:

I think the assembly could adopt a motion, "That the society interprets Article V, Section 1. to mean that ___________," assuming that the bylaw is ambiguous.  It would be an incidental main motion.  I would say that, if it is not germane to the conduct or purpose of the meeting, it would be out of order.

I think the appropriate remedy in the case of an ambiguous bylaw which it is agree, is ambiguous is to amend it.

[Gary Novosielski]

1 hour ago, Richard Brown said:

The more I think about it and the more I read about points of order, it seems pretty clear that the motion "a point of order" is to be used when a member believes there has been a breach of the rules.  I do not see that it is intended to be used to get to an interpretation of a bylaw, rule or other document when no one is alleging a breach of a rule.

I'm trying to imagine a situation where business is proceeding normally, there is no one alleging that any rules are being breached, and yet suddenly there is a bylaw which, even if it is ambiguous, does not bear on current business, yet needs immediate interpretation.

I agree that such a motion, if adopted, would be simply advisory because while it may establish the sense of the assembly, it does not constitute a Special Rule of Order, to which the bylaws would yield.

Edited September 22, 2020 at 01:35 AM by Gary Novosielski

[J. J.]

2 hours ago, Gary Novosielski said:

I think the appropriate remedy in the case of an ambiguous bylaw which it is agree, is ambiguous is to amend it.

I absolutely agree that it is far better to amend the bylaws.  That wasn't the question.

42:3:2a mentions a motion adopted in regard to the subject of an appeal.  The assembly could choose to interpret its bylaws by some other method that a Point of Order with a possible appeal.  In theory, they could adopt a motion to hire a parliamentarian and let her interpret the bylaws. 

[Atul Kapur]

4 hours ago, Richard Brown said:

The more I think about it and the more I read about points of order, it seems pretty clear that the motion "a point of order" is to be used when a member believes there has been a breach of the rules.  I do not see that it is intended to be used to get to an interpretation of a bylaw, rule or other document when no one is alleging a breach of a rule.

When I read up on the principles of interpretation, I see nothing indicating that raising a point of order is the only way of arriving at an interpretation of an ambiguous provision.  It's not even mentioned at all.

Since a point of order is to be used when a member believes there has been a breach of the rules and the "principles of interpretation" provide no  guidance on the type motion to be used in arriving at an interpretation, it seems to me that J.J.'s suggested motion "That the society interprets Article V, Section 1. to mean that ___________," seems like  a reasonable alternative.  I agree that it seems to be in the nature of an incidental main motion and should be permissible.  RONR can't possibly list all motions that are permissible or prohibited.  I believe that each society has the inherent right to do pretty much anything it wants to do unless some rule prohibits it. . . .

Richard, you're a lawyer. What would a judge say if you came before them and said, "I have no case where the interpretation of this law has come into question, but I am asking you to rule on the law"? Wouldn't they send you away and tell you to come back if and when that law had a bearing on a particular case? (To "stay in my lane" it's the same thing I would tell someone who has no symptoms but wants me to scan their belly to see if they have appendicitis. I would tell them to come back if and when they had belly pain. But I'm using the legal analogy here because no one has ever talked about "parliamentary medicine" 😉)

Similarly here, if there is no one claiming that a rule has been broken under one interpretation of the bylaws, why waste the assembly's time in making an interpretation? On the other hand, if you are saying you want to reduce the chances of someone making a point of order, start the process of amending the bylaw.

[J. J.]

8 minutes ago, Atul Kapur said:

Richard, you're a lawyer. What would a judge say if you came before them and said, "I have no case where the interpretation of this law has come into question, but I am asking you to rule on the law"? Wouldn't they send you away and tell you to come back if and when that law had a bearing on a particular case? (To "stay in my lane" it's the same thing I would tell someone who has no symptoms but wants me to scan their belly to see if they have appendicitis. I would tell them to come back if and when they had belly pain. But I'm using the legal analogy here because no one has ever talked about "parliamentary medicine" 😉)

Similarly here, if there is no one claiming that a rule has been broken under one interpretation of the bylaws, why waste the assembly's time in making an interpretation? On the other hand, if you are saying you want to reduce the chances of someone making a point of order, start the process of amending the bylaw.

 

There are situations where the court, on it's own initiative, chooses to intervene, an example being "King's Bench Jurisdiction."  The assembly has a continuous ability to enforce its rules, and therefore must have a continuous ability to determine what those rules are. 

I would also note that some bylaws obviously are not rules in the nature of a rule of order and do not have applicability within a meeting.  I would question how a question how a Point of Order could be raised to interpret bylaws not in the nature of a rule of order. 

[Dan Honemann]

15 hours ago, Nicole Allmon-Learson said:

However, if a member did not raise a POO but simply moved to interpret that section of the bylaws as meaning (whatever their interpretation) and it's seconded by another member, would that motion be in order at this special meeting, thereby allowing the membership to address it rather than the presiding officer?

No, such a motion is dilatory. It accomplishes nothing and is a waste of the assembly's time. It will not remove any ambiguity (the only way to do this is to amend the bylaws) and it will not decide anything at all. 

When and if, during a meeting, a question actually arises concerning the eligibility of a person to vote, the question arising in this specific instance will be decided by, and in accordance with, the Point of Order and Appeal process described in Sections 23 and 24 of RONR, and this will be the case regardless of whether or not a motion such as the one described has been previously adopted. This Point of Order and Appeal process will decide the question that arose in this particular instance (unless reversed on reconsideration).

 

 

[Rob Elsman]

^{An "interpretive motion" is really just a horse dressed in striped pajamas.  In reality, such a motion is an amendment to the bylaws, but the procedure being used does not conform to the characteristics of a motion to amend bylaws previously adopted.  Like, @Daniel H. Honemann *, I believe such a motion is not in order; however, I believe the reason is not so much that the motion is dilatory, but that the use of an "ordinary" incidental main motion violates the rules in the bylaws for amending them or the standard rule found in RONR (12th ed.) 57:1.}

Edited September 22, 2020 at 04:23 PM by Rob Elsman
* For some odd reason, the member's name does not display. You have to put your pointer over the blank spot to see who is there. How fun!

[Al Dunbar]

Further to the comments of Mr. Honemann, if a motion to interpret a bylaw in a particular way was considered reasonable such that it would bind the organization to that interpretation into the future, that would be, effectively, a bylaw amendment. And that cannot be achieved without proper notice in advance of the special meeting.

[Richard Brown]

12 minutes ago, Al Dunbar said:

Further to the comments of Mr. Honemann, if a motion to interpret a bylaw in a particular way was considered reasonable such that it would bind the organization to that interpretation into the future, that would be, effectively, a bylaw amendment. And that cannot be achieved without proper notice in advance of the special meeting.

No, it would not at all be in the nature of a bylaw amendment. It would simply be the assembly’s interpretation of what a bylaw provision means as of the date of adoption of the motion, much like a ruling or appeal on a Point of Order.
 

Some of us disagree as to just how binding it is or for how long. I think it would be binding just as would any motion until rescinded or amended by the assembly. However, unlike amending a bylaw, which usually requires previous notice and a 2/3 vote, the motion interpreting the bylaws can be amended without notice by 2/3 vote and by a majority vote if notice is given. Therefore, it’s not even close to being in the nature of a bylaw amendment. It is no more a bylaw amendment then would be a Point of Order and an appeal.

Edited September 23, 2020 at 04:55 AM by Richard Brown
Edited first paragraph

[Al Dunbar]

1 minute ago, Richard Brown said:

No, it would not at all be in the nature of a bylaw amendment. It would simply be the assembly’s interpretation of what a bylaw provision means as of the date of adoption of the motion.
 

Some of us disagree as to just how binding it is or for how long. I think it would be binding just as would any motion until rescinded or amended by the assembly. However, unlike amending a bylaw, which usually requires previous notice and a 2/3 vote, the motion interpreting the bylaws can be amended without notice by 2/3 vote and by a majority vote if notice is given. Therefore, it’s not even close to being in the nature of a bylaw amendment. It is no more a bylaw amendment then would be a Point of Order and an appeal.

Sorry that I misspoke slightly. I didn't mean to suggest that it would actually qualify as a bylaw amendment, just that it might be seen as having a similar effect if the members thought that it set a precedent that could not be challenged.

 

[J. J.]

1 hour ago, Al Dunbar said:

Sorry that I misspoke slightly. I didn't mean to suggest that it would actually qualify as a bylaw amendment, just that it might be seen as having a similar effect if the members thought that it set a precedent that could not be challenged.

 

That is kind of a different question. 

It gets very close to a paradox.  The assembly, by a main motion can, at that point in time, determine what a bylaw means.  That would not prevent the assembly, at a future meeting from deciding that the bylaws mean something else.

The majority has the ability to determine if a motion is dilatory or not, and may overrule the chair's decision.  It may then decide that the ambiguous bylaw mean X without resorting to a point of order.  That would not prevent a future meeting from deciding the same ambiguous bylaw now means Y.  The enforcement of the rules is always within the control of the majority, and the majority makes the decision about what an ambiguous bylaw means.

[Caryn Ann Harlos]

I am back to my original position.  No such motion exists.  I won't reiterate what Mr. Honemann already said better than I.

 

The court analogy mentioned is a good one - most courts will not issue an advisory opinion without an actual controversy already before them.  Federal courts are prohibited from doing so. And I tend to agree that such a motion would be for all intents and purposes a clarifying bylaw amendment and thus improper on those grounds as well.

[Josh Martin]

9 hours ago, Richard Brown said:

No, it would not at all be in the nature of a bylaw amendment. It would simply be the assembly’s interpretation of what a bylaw provision means as of the date of adoption of the motion, much like a ruling or appeal on a Point of Order.
 

Some of us disagree as to just how binding it is or for how long. I think it would be binding just as would any motion until rescinded or amended by the assembly. However, unlike amending a bylaw, which usually requires previous notice and a 2/3 vote, the motion interpreting the bylaws can be amended without notice by 2/3 vote and by a majority vote if notice is given. Therefore, it’s not even close to being in the nature of a bylaw amendment. It is no more a bylaw amendment then would be a Point of Order and an appeal.

I do not agree that the motion "would be binding just as would any motion until rescinded or amended by the assembly." A motion of this nature is not binding upon the chairman. If the assembly adopts a motion of this nature, the chairman is nonetheless free to act contrary to this motion, even if a situation immediately arises which is identical to the situation contemplated in the motion. This doesn't seem particularly wise on the chairman's part, as it would seem likely that his ruling will be promptly overturned on appeal, but I think he is nonetheless free to do so.

This is why I refer to this motion as "advisory."