by-law changes Reversing adoption of revised by-laws

[Guest RealityCheck]

We had two members (of a 9 member volunteer resident council) expedite the adoption of major revisions/amendments to our by-laws before some of the Council members fully understood the implications.   At a regularly scheduled Council meeting, a majority of the Council approved posting the revisions for comment.   After the two-week posting period, the Chair called a special meeting to ratify/approve the by-laws.   At the special meeting there were 6 council members present (3 absent) and the vote was 4 yes for ratification and 2 abstain.   Because the yes vote was a majority of those present, it was assumed the by-laws were ratified.   However, we now realize that both the original and the revised by-laws say, in addition to the posting requirement, that "These By-laws can be amended by a simple majority vote of the Council members."   How is that to be interpreted?  Is it just a majority of those present, or literally that 5 out of 9 Council members would need to approve the vote?   Did the vote for ratification actually fail as there were not 5 approving?   

In a related question, if the vote for ratification is valid, we would like to take subsequent action to rescind this if the majority of the Council approves.   Would it be legitimate at the next Council meeting to propose a motion to revoke the ratification?  What options do we have?  Thanks!  

 

[Atul Kapur]

The wording is ambiguous, so it is up to the organization to interpret the language and determine whether the meaning is

a "majority vote" (of those council members present and voting)
or
a "vote of the majority of the Council members",

which are the two standard wordings for the two alternatives.

If the bylaws have been changed, then that decision cannot be rescinded/revoked. To go back to the old words, or to make any other changes, you need to follow the rules on how to amend your bylaws.

[Gary Novosielski]

I agree that it's poorly worded, but the use of the word simple majority, although deprecated by parliamentarians, is usually inserted to indicate an ordinary majority vote, i.e., a majority of those present and voting.

[Atul Kapur]

Usually, I see the term "simple majority" used to differentiate it from "two-thirds majority". So I do not presume that it adds clarity to the meaning. Rather, the opposite: it indicates a complete unfamiliarity with the standard terminology.

[RealityCheck]

Thanks, those answers are extremely helpful.   So there is nothing we can do until we go through another amendment process?   Can we make a motion to put implementation of the revised by-laws on hold and halt any further publication during the revision process?    Still looking for a way out as the revision process will take a couple months at least.   We really made a big mistake letting the revised by-laws get through and now a majority of the Council is very concerned and there is a backlash from the residents we serve.  We are searching for a way to at least mitigate the situation some while we work on amendments.   The majority of the Council is meeting next week to start work on amendments.         

[Richard Brown]

5 hours ago, RealityCheck said:

Thanks, those answers are extremely helpful.   So there is nothing we can do until we go through another amendment process? 

Yes, that is correct. 

5 hours ago, RealityCheck said:

 Can we make a motion to put implementation of the revised by-laws on hold and halt any further publication during the revision process? 

Not according to the rules in RONR. 

 

5 hours ago, RealityCheck said:

Still looking for a way out as the revision process will take a couple months at least.

I think your solution is to do as Dr. Kapur suggested, and that is to follow your bylaw amendment process to either rescind or amend the bylaw amendments which were hastily adopted. 

i also suggest You clarity  the language regarding the vote required for a bylaw amendment. You need to make clear whether it is to be “a majority vote of the council” or “the vote of a majority of all council members present” or  “The vote of a majority of the entire council“. All three of those vote requirements mean something different. RONR (12th Ed.) 44:1 - 44:10.

 You might also consider  whether you want to leave the requirement as a majority vote of some sort or change it to a 2/3 vote requirement of some sort. The most common requirement, and that which is recommended in the sample by laws in RONR, is “a two-thirds vote“, meaning a two-thirds vote of those members present and voting. RONR (12th Ed.) 56:67 and 44:3. 

Edited October 17, 2020 at 09:22 AM by Richard Brown
Typographical correction and added citation to vote requirements

[Atul Kapur]

9 hours ago, RealityCheck said:

the revision process will take a couple months at least. 

I don't see why it needs to take this long. The simplest solution would be to propose changing the bylaws back to the original language. This is, effectively, the same as rescinding the change you just made, but using proper procedure.

After the proposal has been posted for the required amount of time, call for a special meeting to consider and vote on that proposed change. If your first change (the one you now wish didn't happen) only took a couple of weeks, then there's no reason why this one should take longer. If majority of the council has misgivings about the change they just adopted, then you should definitely have enough people to require a special meeting to be held.

 

[RealityCheck]

You are very right and I appreciate so much your guidance and assistance.  I do have one other important question related to this.  I found something online that indicates you cannot have a special meeting unless your by-laws provide for that.   I can't see anything (in the original or revised) by-laws about special meetings of the Council however there is the language below in the Council Constitution that provides for special meetings.  The Chair and Vice Chair were the ones promoting the revisions and the Chair called for the special Council meeting on October 6 to do the ratification (immediately after the 2 week posting period ended).  They did send out a notice and agenda ahead of time to the Council members about the meeting and its purpose but I am quite sure there was no public notice.  Also the language says such a meeting should be called by the Executive Committee that is made up of 5 officers (I am one of them).   Per the wording below, can the Chair and Vice Chair call a special Council meeting on their own without the consent of the majority of the Executive Committee?   It seems like there was no reason to call a special Council meeting as the next regularly scheduled full Council meeting was October 13 (only a week later) so it could have easily waited until then.  I am wondering if we can dispute the ratification on the basis that it was done at an illegally called meeting as there was no public notice as required and that it wasn't called by a majority of the Executive Committee.  Would we have a case?   

ARTICLE VI COUNCIL MEETING
SECTION 1. The Council will meet once per calendar month on a regular basis, from July 1 through June 30, on the second Tuesday of the month, at a time and
place to be announced at each meeting for the subsequent meeting.
SECTION 2. Special meetings of the Council may be called by the Executive Committee, to be held at any time, upon reasonable public notice

 

 

 

[Atul Kapur]

First, to answer the unasked question, your constitution outranks your bylaws so if the provision for a special meeting is in the constitution, that meets the requirement that it be in your bylaws. (I am also a little concerned about your online research because the version of RONR that is available online is the 4th edition, the latest one that is in the public domain, rather than the current 12th edition.)

It certainly sounds like the special meeting was improperly called, both because it wasn't called by the executive committee and because public notice wasn't given. However, that it's not a determination I can make but needs to be made by the organization, by the raising of a point of order and, if necessary, an appeal from the presiding officer's ruling on that point.

The remaining question now is whether it is too late to make that point of order. The point of order would have had to have been made at the special meeting, unless there is a continuing breach of the rules, either in the holding of the special meeting or in the way that the bylaws were amended at that meeting or both. I don't have time to consider that question at this moment but, if no one else opines, I will return to it when I get a chance.

I will note that this situation is complex enough that you would probably benefit from having a professional parliamentarian give you a formal opinion. This would allow them to fully review the events and your governance documents.

Edited October 17, 2020 at 03:59 PM by Atul Kapur

[RealityCheck]

Thank you!

 

[Richard Brown]

1 hour ago, RealityCheck said:

I am wondering if we can dispute the ratification on the basis that it was done at an illegally called meeting as there was no public notice as required and that it wasn't called by a majority of the Executive Committee.  Would we have a case?   

 

1 hour ago, RealityCheck said:

ARTICLE VI COUNCIL MEETING
SECTION 1. The Council will meet once per calendar month on a regular basis, from July 1 through June 30, on the second Tuesday of the month, at a time and
place to be announced at each meeting for the subsequent meeting.
SECTION 2. Special meetings of the Council may be called by the Executive Committee, to be held at any time, upon reasonable public notice

If the special meeting was called by someone or some group of people not authorized to call a special meeting and/or if  proper notice as required by the bylaws or constitution was not was given, the special meeting was illegal and all business conducted at that meeting can be declared null and void by raising a point of order at the next meeting As Dr. Kapur pointed out.

I cannot provide you with a citation to the current 12th edition of RONR at the moment but will try to do so in a few minutes. In the meantime, someone else may provide you with the citation. I share the same concern that Dr. Kapur has about you doing online research. As Dr. Kapur stated, the only online version of Roberts rules of order is from the fourth edition which is over 100 years old. You really should purchase the brand new current 12th edition which was just released about two months ago.

[Richard Brown]

@RealityCheck here are some citations to the current (and brand new) 12th edition of RONR that show that a special meeting improperly called or called without proper notice is an illegal meeting and that actions taken at such a meeting constitute a continuing breach and may be declared null and void upon a point of order being made at a subsequent meeting:  9:13 - 9:15 (special meetings), 23:6 (continuing breaches), 25:9 (violation of a fundamental principle of parliamentary law), and 45:56 (right to vote limited to members at a regular or properly called meeting). Section 56:36 provides that the bylaws (or constitution) must authorize special meetings and provide for the method of calling them or they are not permitted).

Edited to add:  You might also refer to Section 1:6 (to be valid, action must be taken at a regular or properly called meeting) and section 44:1 (another reference that to be valid action must be adopted at a regular or properly called meeting).

Edited October 17, 2020 at 06:30 PM by Richard Brown
Added last paragraph

[Richard Brown]

@RealityCheck I edited my comment immediately above to add two more citations that you might refer to: Section 1:6 (to be valid, action must be taken at a regular or properly called meeting) and section 44:1 (another reference that to be valid action must be adopted at a regular or properly called meeting).

[RealityCheck]

Very helpful!   Our next Council monthly meeting is Nov 10.   Sounds like at that meeting I need to raise a point of order regarding the Oct 6 special meeting for the two reasons that a majority of the Executive Committee did not call the meeting and that there was no public notice and this constitutes a continuing a breach?  Would we then vote on invalidating that meeting and any action taken at that meeting and see if the majority of the Council agrees that is what happened?   It that is how to do it, does that topic need to be an agenda item?  If so, do I need to give adequate notice to the Chair to add it to the agenda and can he refuse to do so?   Can I simply ask at the meeting to be recognized and take the floor?   I feel sure the Chair is going to avoid recognizing me and try to state that at whatever point in the meeting I try to do that, I am not doing it at an allowable time (that has been his practice).  These meetings used to be fairly informal, friendly, and relaxed, but the new Chair and Vice Chair are using every parliamentary angle they can find to control the meeting and the decision making process.   The majority of the Council is scrambling to try to learn the rules so as to make them accountable to do things correctly and legitimately.  Appreciate your help so much!   

[Atul Kapur]

You do not need to give advance notice for a point of order. I would try to raise it at the earliest possible time during the meeting.

Initially, your point of order needs to be ruled on by the chair. Assuming that the chair rules against you, then you need to appeal from the decision and have someone second the appeal. There is limited debate on an appeal and then the body gets to vote on whether to sustain or overrule the chair's decision. While you may not want to give advance notice of this, that does not mean you should not be discussing it with said least some of your fellow council members so that they will be able to second your appeal and so that they will understand the process and be able to participate fully instead of being confused or bullied into supporting the chair.

Again, I will suggest that you bringing a professional parliamentarian to do some training for you in how the rules of order are supposed to be properly used. This does not need to be an official decision of the group; those of you who are interested in the training can get it informally.

One of the things that you could also get trained in is how to use the provisions of RONR that apply when the chair is acting improperly, such as not considering a valid point of order.

 

[RealityCheck]

Thanks so much for the additional information and advice.   To all who support this forum, it is very much appreciated!

[Caryn Ann Harlos]

Why can't they simply rescind?

[Atul Kapur]

As long as they follow the rules for amending the bylaws, which usually require notice, they can. In an earlier post above, I mentioned that that would be the effect of what they are doing.

However, we are now considering whether the change was valid at all. Rescind means that you accept that the original change you want to rescind was valid.

[Richard Brown]

8 hours ago, Caryn Ann Harlos said:

Why can't they simply rescind?

 

19 minutes ago, Atul Kapur said:

As long as they follow the rules for amending the bylaws, which usually require notice, they can. In an earlier post above, I mentioned that that would be the effect of what they are doing.

However, we are now considering whether the change was valid at all. Rescind means that you accept that the original change you want to rescind was valid.

The problem, as Dr. Kapur points out, is that there is a claim and a very distinct possibility that the meeting was illegal and that the bylaw amendments have not been adopted. A motion to rescind, according to RONR, is appropriate only when something has been validly adopted.  RONR purists take the position that you cannot rescind something that has never been validly adopted.

Also, even if the motion to rescind is used, it will be rescinding (or repealing) a bylaw amendment which means it would have to be handled as an amendment to the bylaws and not as an ordinary motion to rescind something previously adopted.

It is a bit of a catch 22 which frequently generates differing opinions as to how best to handle such a situation.  The easiest way to resolve it, at least initially, is probably by means of someone raising a point of order at the next meeting. If the amendments are declared to be invalid, that is the end of it unless they are resubmitted and the process starts over again.

[RealityCheck]

The majority of the Council met informally today and plan at the next meeting to raise a point of order that the Special Meeting of Oct 6 was illegal.   This is due to it being called by the Chair (when it had to be called by the Executive Committee) and that no public notice was given (as required).  I verified today that at least three out of 5 members of the Executive Committee were not contacted about approving the call of a special meeting.  The Chair just sent the Council members a notice and brief agenda.  I also verified with the person who posts notice items that nothing was publicly posted.  Assuming we raise that point of order and the vote is favorable, I believe that will nullify the ratification of the by-law amendments that was done at that special meeting.   So am correct in assuming the original unamended by-laws will now be in effect again?   I would think so as nothing was approved to change them.   Also, if we have the votes, would we be wise to vote again on the by-law amendments at that same meeting (the one where we address the point of order) and vote them down?   That way I think we would be assured the amendment process would have to begin again.   If we don't do that, could the ratification of the amendments be brought up again at a future meeting, perhaps when we don't have everyone present and the ratification motion could potentially pass?   Thanks again for your help.   It is very much appreciated!

[Nathan Zook]

11 hours ago, Richard Brown said:

The easiest way to resolve it, at least initially, is probably by means of someone raising a point of order at the next meeting. If the amendments are declared to be invalid, that is the end of it unless they are resubmitted and the process starts over again.

It is probably also worth mentioning that if decision of the chairman to accept the point of order is appealed, that it is a majority vote to overturn the decision of the chair.  So if the chair ruled that the point was not well taken, ie: meeting was valid, then a majority could overrule the chair and declare that the meeting was not valid.  (Likewise, if the chair ruled that the point of order was well taken, a majority could declare that the meeting was in fact valid.)

[Atul Kapur]

1 hour ago, RealityCheck said:

Also, if we have the votes, would we be wise to vote again on the by-law amendments at that same meeting (the one where we address the point of order) and vote them down?   That way I think we would be assured the amendment process would have to begin again.   If we don't do that, could the ratification of the amendments be brought up again at a future meeting, perhaps when we don't have everyone present and the ratification motion could potentially pass?

It depends on the rules regarding notice that are in your bylaws whether you could even vote on them at the meeting. We haven't been given the details necessary to answer these questions (whether you can vote on them at this meeting and whether, if you don't vote on them at this meeting, they may still be voted on at a later meeting.

[Josh Martin]

12 hours ago, RealityCheck said:

Also, if we have the votes, would we be wise to vote again on the by-law amendments at that same meeting (the one where we address the point of order) and vote them down? 

The bylaws will generally require previous notice for their amendment, so it may not be possible to vote again on the amendments at that same meeting. In any event, I do not think there is any point on voting on them again simply to defeat them.

12 hours ago, RealityCheck said:

If we don't do that, could the ratification of the amendments be brought up again at a future meeting, perhaps when we don't have everyone present and the ratification motion could potentially pass?

The motion to ratify may not be applied to actions taken at an improperly called meeting.

The amendments themselves, however, could be brought up again at a future meeting, so long as any notice requirements are complied with. This could be done whether or not the amendments have previously been defeated.

Edited October 21, 2020 at 02:28 PM by Josh Martin