Org doesn't want to follow parliamentary procedure?

[GigiA]

Experienced Parliamentarians—

 

What do you do if your organization just doesn't want to follow your advice/roberts rules?

 

For example, bylaws require a ballot, but there is only one candidate for each position so they are planning on announcing candidates elected by acclamation, even though this is clearly against the bylaws, because they don't want to bother with the ballot.

 

How do you handle this kind of situation?

Edited February 6, 2021 at 04:31 PM by GigiA
typo

[Josh Martin]

49 minutes ago, GigiA said:

What do you do if your organization just doesn't want to follow your advice/roberts rules?

I haven't generally had this problem.

To the extent that this would occur, I imagine it would depend on the particular circumstances. This could include factors such as whether this is an organization I am personally a member of or one of my clients, the degree to which the rules on the matter seemed ambiguous and open to interpretation, the importance of the issue, and whether this seemed to be a one-off problem or a continuing issue.

49 minutes ago, GigiA said:

For example, bylaws require a ballot, but there is only one candidate for each position so they are planning on announcing candidates elected by acclimation, even though this is clearly against the bylaws, because they don't want to bother with the ballot.

 

How do you handle this kind of situation?

This would be a severe violation. If this was a client, I would inform the chair that the rules in RONR are clear on this matter (and I will assume for the sake of argument that the rules in the bylaws are as well). In particular, I would note the following:

"If the bylaws require the election of officers to be by ballot and there is only one nominee for an office, the ballot must nevertheless be taken for that office unless the bylaws provide for an exception in such a case. In the absence of the latter provision, members still have the right, on the ballot, to cast “write-in votes” for other eligible persons." RONR (12th ed.) 46:35

"However, a rule in the bylaws requiring that a vote—such as, for example, on the election of officers—be taken by (secret) ballot cannot be suspended so as to violate the secrecy of the members’ votes unless the bylaws so provide (see also Voting by Ballot, 45:18–24)." RONR (12th ed.) 25:7

"When the bylaws require a vote to be taken by ballot, this requirement cannot be suspended—even by a unanimous vote—so as to take the vote by a nonsecret method." RONR (12th ed.) 45:20

"The only exceptions to the requirement that a point of order must be made promptly at the time of the breach arise in connection with breaches that are of a continuing nature, whereby the action taken in violation of the rules is null and void. In such cases, a point of order can be made at any time during the continuance of the breach—that is, at any time that the action has continuing force and effect—regardless of how much time has elapsed. Instances of this kind occur when:

...

e) any action has been taken in violation of a rule protecting absentees, a rule in the bylaws protecting the secrecy of the members’ votes (as on a ballot vote), or a rule protecting a basic right of an individual member (25:7, 25:10–11)." RONR (12th ed.) 23:6

Therefore, I would explain that based upon these rules...

1) There is no doubt that a ballot vote is required, that this requirement cannot be suspended (even by unanimous consent), and that if the requirement is nonetheless improperly suspended, a Point of Order and Appeal regarding the validity of the election could be raised at any time during the term of service of the officers so elected.

2) As a result of all these facts, not only is it clear that a ballot vote is required, but is also clear that neglecting to take a ballot vote would expose the officers so elected to severe risks in the form of challenges to the validity of their elections.

3) Because the candidates are uncontested, the odds are that a ballot vote will be completed in a single round of voting anyway. Therefore, given the severe risks associated with not taking a ballot vote, it does not seem prudent to refuse to take one on the basis that "they don't want to bother with the ballot."

4) If the society wishes, it may amend its bylaws through the proper procedures to do so to permit an exception to the ballot vote requirement in a case where the candidates are uncontested. If such an amendment is adopted, that will permit the society to forego a ballot vote if a similar situation arises in the future.

If there was still hesitation on the part of the client to follow this advice, I believe I would inform the client that, because the issue at hand involves the fundamental rights of members, I might need to consider whether I would have an ethical obligation to cease my employment with the client (at a time which would not cause undue detriment to the client and which did not violate any contractual obligations to the client) if the client were to disregard my advice on this matter.

If I were a member, I would make much the same arguments, although I would do so by raising a Point of Order (and an Appeal), and the last paragraph above would not be applicable.

Interestingly enough, this very situation did arise for a client, although it was resolved quite amicably and did not require the level of explanation described above. The client's bylaws required a ballot vote, with no exceptions. A candidate was uncontested for one office and the chair asked if a ballot vote was still required. I informed the chair that a ballot vote was still required due to the rule in the bylaws, and also explained that the organization could amend its bylaws in the future to provide an exception for this situation if it wished to do so. The client followed this advice, took the ballot vote as required, and proceeded to follow the procedures to amend its bylaws to permit an exception for this situation.

Edited February 6, 2021 at 04:08 PM by Josh Martin

[GigiA]

Thank you—I agree, but wasn't sure if I was being overdramatic.

[Richard Brown]

5 hours ago, GigiA said:

bylaws require a ballot, but there is only one candidate for each position so they are planning on announcing candidates elected by acclamation, even though this is clearly against the bylaws, because they don't want to bother with the ballot.

 

4 hours ago, Josh Martin said:

I haven't generally had this problem

Oh, i’ve seen it quite a few times. In fact, I have found it to be fairly common.  Some organizations just do not want to take the time it takes for even an uncontested ballot vote.

5 hours ago, GigiA said:

How do you handle this kind of situation?

I think Mr. Martin answered that question very well.  Basically, the rules require it, it is a rule that cannot be suspended, and the consequences of not doing it properly can be rather significant.

[Guest Bdw2003]

What if an organization whose quorum was of those attend the meetings, and it's generally the same members that attend each meeting.

If the assembly voted to go against its bylaw requirement for a ballot vote with no exceptions and elected the sole nominee to office, could it be said those who were in attendance and knew what was going on had the ability to cease with following through contrary to its bylaws, and since they continued on regardless, then they have no right to raise a point of order?

Furthermore, in such an instance, could it be said only minorities and absentees (if there are any) could properly raise a point of order since it's these members' rights that are potentially violated?

Lastly, if there were no minorities or absentees to protect, could this ever keep a point of order being raised when foregoing a required ballot vote when there is only one nominee?

[Dan Honemann]

2 hours ago, Guest Bdw2003 said:

What if an organization whose quorum was of those attend the meetings, and it's generally the same members that attend each meeting.

If the assembly voted to go against its bylaw requirement for a ballot vote with no exceptions and elected the sole nominee to office, could it be said those who were in attendance and knew what was going on had the ability to cease with following through contrary to its bylaws, and since they continued on regardless, then they have no right to raise a point of order?

Furthermore, in such an instance, could it be said only minorities and absentees (if there are any) could properly raise a point of order since it's these members' rights that are potentially violated?

Lastly, if there were no minorities or absentees to protect, could this ever keep a point of order being raised when foregoing a required ballot vote when there is only one nominee?

I would answer each of these questions in the negative.

[GigiA]

To continue the question from the first example....

 

Let's say

Officers were declared elected by acclamation despite the bylaw provision requiring a ballot vote and against the parliamentarian's advice.

If a point of order is raised, and the chair rules the point NOT well taken (against the parliamentarian's advice), 

and an appeal is raised, and the assembly sustains the decision of the chair (again, because they they don't want to bother with a ballot).

Is the matter closed?  Or, since it's a continuous breech, can a point of order be raised at each continuing session? Or are there further steps that a member can take?

 

 

[Guest Puzzling]

I am not sure if the case is closed.

But the decision of the chair needs to be recorded in the minutes (even if the chair finds the point well taken and the appeal not) so there is a record of it in the minutes.

I leave it to more experienced parliamentarians to answer the rest, but it looks grim.

If your organization is also ruled by other laws that have something to say about this you should consult a lawyer.

But also: If you were  planning to vote for another candidate, Why did you not nominate this person (or yourself, John Doe ,a strawman , or another)  in the first place and force a ballot vote because then there would be two candidates 

[Josh Martin]

5 hours ago, Guest Bdw2003 said:

What if an organization whose quorum was of those attend the meetings, and it's generally the same members that attend each meeting.

I don't think these facts would at all change my answer to the original question.

5 hours ago, Guest Bdw2003 said:

If the assembly voted to go against its bylaw requirement for a ballot vote with no exceptions and elected the sole nominee to office, could it be said those who were in attendance and knew what was going on had the ability to cease with following through contrary to its bylaws, and since they continued on regardless, then they have no right to raise a point of order?

No. RONR is clear that there are certain circumstances in which a violation creates a continuing breach, that in such cases a Point of Order regarding the matter may be raised at any time during the continuance of the breach, and that failing to take a ballot vote when the bylaws require it is such a case. There is no suggestion that the fact that a member was present at the time of the breach, that the quorum is the members present, or that it is generally the same members that attend each meeting has any bearing on the application of these rules.

I also don't know that we necessarily should assume that the members present did, in fact, know what was going on.

2 hours ago, GigiA said:

Is the matter closed?

No.

2 hours ago, GigiA said:

Or, since it's a continuous breech, can a point of order be raised at each continuing session?

Yes, in my view, a Point of Order, followed by an Appeal, could be renewed at a later session when the Point of Order in question relates to a continuing breach which is still in effect. In theory, this could be done at each session. (Although in practice, I imagine members might eventually conclude that their efforts in this regard are futile.) This can continue to be done until 1) the term of office ends or 2) the society properly conducts the election by ballot.

"Any motion that is still applicable can be renewed at any later session, except where a specific rule prevents its renewal; and such an impediment to renewal at a later session normally can exist only when the first motion goes over to that session as not finally disposed of, in which case the question can then be reached through the first motion (see 9:7–11, 38:8–9)." RONR (12th ed.) 38:3

2 hours ago, GigiA said:

Or are there further steps that a member can take?

I can't think of any other steps which would be appropriate from a parliamentary perspective.

2 hours ago, Guest Puzzling said:

But also: If you were  planning to vote for another candidate, Why did you not nominate this person (or yourself, John Doe ,a strawman , or another)  in the first place and force a ballot vote because then there would be two candidates 

I'm not certain that the OP is suggesting that the OP, or anyone else to the OP's knowledge, actually intended to vote for some other person.

Nonetheless, the rule is clear that (due to the right to cast a write-in vote), if the bylaws require that a ballot vote be taken, a ballot vote must be taken even if there is only one nominee, unless the bylaws provide an exception for such a case.

There may be persons who wish to vote for some other person but do not wish to make their views on this matter known. In a ballot vote, that is their right. If a society wishes to provide that there is an exception when there is only one nominee, it is free to do so, but if the bylaws provide that a ballot vote shall be taken in an election, period, that is what must be done.

Edited February 7, 2021 at 05:44 PM by Josh Martin

[Guest Puzzling]

49 minutes ago, Josh Martin said:

There may be persons who wish to vote for some other person but do not wish to make their views on this matter known. In a ballot vote, that is their right

The member does not need to mention the person he (really) wants to vote for, any nominee (including himself will do, then  there are 2 nominees so the ballot has to be held, and he can vote animously for the person he really wanted to vote for. 

But I agree just holding the ballot in the first place would be better.

Ronr does think not allow anonymous nominees , not sure if the bylaws allow acclamation if members can still insist on a ballot in an other way.

 

[Richard Brown]

1 hour ago, Guest Puzzling said:

The member does not need to mention the person he (really) wants to vote for, any nominee (including himself will do, then  there are 2 nominees so the ballot has to be held, and he can vote animously for the person he really wanted to vote for.

There does not need to be a second nominee.  The right to a ballot vote includes the right to write in the name of a person who has not been nominated.  That is the whole purpose of write-in votes.  I do agree, though, that if the bylaws provide that a ballot vote shall not be necessary if there in only one nominee, a member can force a ballot vote by simply nominating himself or anyone else.

 

1 hour ago, Guest Puzzling said:

But I agree just holding the ballot in the first place would be better.

It's not only better, it's required.

1 hour ago, Guest Puzzling said:

Ronr does think not allow anonymous nominees , not sure if the bylaws allow acclamation if members can still insist on a ballot in an other way.

I do not understand what you mean by that comment.

[Weldon Merritt]

1 hour ago, Guest Puzzling said:

Ronr does think not allow anonymous nominees , not sure if the bylaws allow acclamation if members can still insist on a ballot in an other way.

 

16 minutes ago, Richard Brown said:

I do not understand what you mean by that comment.

It's not completely clear to me either, but I think Guest Puzzling may be wondering if there is a way to force a ballot vote even if there is only one nominee and the bylaws allow for acclamation in that circumstance. The answer is "Yes," by nominating someone else (as noted by Richard Brown).

[Josh Martin]

3 hours ago, Guest Puzzling said:

The member does not need to mention the person he (really) wants to vote for, any nominee (including himself will do, then  there are 2 nominees so the ballot has to be held, and he can vote animously for the person he really wanted to vote for. 

I understand what you are saying, but it is not and should not be required for members to undergo such shenanigans in order to exercise their right to cast a secret ballot vote as granted by the bylaws. If the organization wishes to provide in the bylaws that a ballot vote is only required if there is more than one nominee, it is free to do so.

3 hours ago, Guest Puzzling said:

But I agree just holding the ballot in the first place would be better.

It's not just better, it's required, unless the bylaws provide an exception in an instance where there is only one nominee.

3 hours ago, Guest Puzzling said:

Ronr does think not allow anonymous nominees , not sure if the bylaws allow acclamation if members can still insist on a ballot in an other way.

It is correct, of course, that there is no way for an "anonymous nominee."

I am assuming that the bylaws the OP is referring to do not allow for acclamation in a case where there is only one nominee, because if they do, there would not seem to be any point in asking the question. I agree that if the bylaws allow for acclamation in a case where there is only one nominee, then this may be done. If the bylaws do not include such a provision, however, then a ballot vote must be taken.

In the event that the bylaws permit acclamation if there is only one nominee, the assembly could still order that a ballot vote be taken by majority vote, but an individual member could not demand a ballot vote. As you suggest, it would be simpler in such cases for a member to simply make a nomination.

Edited February 7, 2021 at 09:55 PM by Josh Martin

[GigiA]

 

45 minutes ago, Josh Martin said:

I am assuming that the bylaws the OP is referring to do not allow for acclamation in a case where there is only one nominee, because if they do, there would not seem to be any point in asking the question. I agree that if the bylaws allow for acclamation in a case where there is only one nominee, then this may be done. If the bylaws do not include such a provision, however, then a ballot vote must be taken.

There is no mention of election by acclamation in the bylaws. "Election shall be by ballot."

Of course, the easiest thing to do would be to just hold the ballot vote now and amend the bylaws to remove the requirement for a ballot vote—it just seems there is resistance to doing things differently than they have been (incorrectly) doing things, regardless of what the bylaws and RONR say.

[Joshua Katz]

On 2/6/2021 at 10:18 AM, GigiA said:

What do you do if your organization just doesn't want to follow your advice/roberts rules?

 

I have never had an issue with this at what I'd consider the precise level of "severity" of this situation. It happens all the time on less severe things, and I react by reminding myself my job is to give advice.

It has happened to me twice on what I'd consider more severe issues than this. I quit once. The other time, it came up when planning for the meeting shortly after accepting the job. I made it clear I couldn't come and do the job if the plan was as they were suggesting. They decided to do it the way I suggested.