Suspend the Bylaws

[Mark Apodaca, PRP]

I am working with one organization about the meaning of Suspend the Bylaws.  Below is what is read:

ARTICLE VIII. Amendments

VIII. 2. Suspensions.

These bylaws may be suspended for a specific purpose by four-fifths (4/5) vote of the Council of Representatives present and voting. 

As I understand, RONR makes it very clear that you cannot suspend the bylaws.  It does not make sense for the organization to suspend the bylaws. If this happens, then ALL the articles/sections of the bylaws are suspended and there will be no governance.  As I understand, the bylaws are full of rules.  Each article and section covered in any bylaws are rules.  My understanding is that you can suspend a rule (article/section) within the bylaws by 2/3 vote.  This organization requires 4/5 vote and it makes it harder to suspend the rules within the bylaws.

If the bylaws do not have an article covering suspending the rules, the membership can still suspend an article/section with 2/3 vote.  Section 25 of RONR covers Suspend the Rules.

It would make more sense if it read "An article/section of these bylaws may be suspended for a specific purpose by four-fifths (4/5) vote of the Council of Representatives present and voting."

Your comments/thoughts?

Mark

 

[Richard Brown]

23 minutes ago, Mark Apodaca said:

ARTICLE VIII. Amendments

VIII. 2. Suspensions.

These bylaws may be suspended for a specific purpose by four-fifths (4/5) vote of the Council of Representatives present and voting. 

As I understand, RONR makes it very clear that you cannot suspend the bylaws. 

That is only partially true. Although RONR provides that bylaws which are in the nature of rules of order may be suspended, it is clear that non-procedural bylaw provisions may not be suspended unless the bylaws themselves provide for their own suspension. In this case, it appears these bylaws do indeed provide for their own suspension. Therefore, the way I read the information we have been provided, any provision in the bylaws may be suspended for a specific purpose by a 4/5 vote of the council. See 2:8 (4) (b) in the 12th edition. 

Edited March 31, 2021 at 01:28 AM by Richard Brown
Added citation to 2:8 (4) (b)

[Atul Kapur]

24 minutes ago, Mark Apodaca said:

As I understand, RONR makes it very clear that you cannot suspend the bylaws.

I agree with Mr. Brown's comment above.

24 minutes ago, Mark Apodaca said:

These bylaws may be suspended for a specific purpose by four-fifths (4/5) vote of the Council of Representatives present and voting. 

...  It does not make sense for the organization to suspend the bylaws. If this happens, then ALL the articles/sections of the bylaws are suspended and there will be no governance.

No. The bylaws that prevent a specific purpose are the ones that will be suspended.

26 minutes ago, Mark Apodaca said:

If the bylaws do not have an article covering suspending the rules, the membership can still suspend an article/section with 2/3 vote. 

Again, as Mr. Brown said, only if the bylaws provide for their own suspension or are in the nature of a rule of order.

27 minutes ago, Mark Apodaca said:

These bylaws may be suspended for a specific purpose by four-fifths (4/5) vote of the Council of Representatives present and voting. 

It would make more sense if it read "An article/section of these bylaws may be suspended for a specific purpose by four-fifths (4/5) vote of the Council of Representatives present and voting."

The words "for a specific purpose" results in the same meaning.

[Mark Apodaca, PRP]

Richard,

Okay, below is an article/section from a different organization which does not have an article/section covering suspend the bylaws in its bylaws:

ARTICLE VII – ELECTION and APPOINTMENT OF OFFICERS

Section 2, Election Procedures. There shall be alternating elections every two (2) years. Groups of officers to be elected in alternate elections are as follows:

1. The President and Secretary and
2. The Vice President and Treasurer

Elections will take place by electronic ballot through the ASLTA website to be opened at 12:00am on the second day of the biennial meeting in the time zone where the meeting is held and closed at 11:59pm on the second day of the biennial meeting in the time zone where the meeting is held. All voting members in good standing 30 days before the biennial meeting shall be provided with one (1) electronic ballot. Election results will be announced at the regular biennial meeting, in the ASLTA newsletter and on the ASLTA website.

Can the highlighted be suspended?  The organization has a conflict happening on that day.  This appears to be a rule, not procedure.

Mark

[Mark Apodaca, PRP]

I would think that any procedures will be in the Policy and Procedure manual instead of bylaws, leaving the bylaws non-procedural.  What is procedural and non-procedural can be up to interpretation.

[Atul Kapur]

2 hours ago, Mark Apodaca said:

Can the highlighted be suspended?

You asked Richard, but I would say yes it can be suspended. It clearly appears to be a rule "in the nature of rules of order" which are rules that "relate to the orderly transaction of business in meetings and to the duties of officers in that connection." RONR (12th ed.) 2:8(4b) and 2:14.

2 hours ago, Mark Apodaca said:

This appears to be a rule, not procedure.

Well, the title of the section of the bylaws that you quote is "Election Procedures."

More seriously, whether a bylaw is in the nature of a rule of order does not depend on its location (bylaws versus policy and procedure manual) but, rather, on its nature.

2 hours ago, Mark Apodaca said:

I would think that any procedures will be in the Policy and Procedure manual instead of bylaws, leaving the bylaws non-procedural

The fact that 2:8 (4b) anticipates the very situation where procedural rules are in the bylaws shows that that is not always the case.

[Josh Martin]

11 hours ago, Mark Apodaca said:

As I understand, RONR makes it very clear that you cannot suspend the bylaws.

Not exactly.

"Rules contained in the bylaws (or constitution) cannot be suspended—no matter how large the vote in favor of doing so or how inconvenient the rule in question may be—unless the particular rule specifically provides for its own suspension, or unless the rule properly is in the nature of a rule of order as described in 2:14." RONR (12th ed.) 25:7

Furthermore, the bylaws take precedence over RONR in any event.

"Except for the corporate charter in an incorporated society, the bylaws (as the single, combination-type instrument is called in this book) comprise the highest body of rules in societies as normally established today. Such an instrument supersedes all other rules of the society, except the corporate charter, if there is one." RONR (12th ed.) 2:12

Since the bylaws specifically provide "These bylaws may be suspended for a specific purpose by four-fifths (4/5) vote of the Council of Representatives present and voting", the bylaws may be suspended for a specific purpose.

11 hours ago, Mark Apodaca said:

It does not make sense for the organization to suspend the bylaws. If this happens, then ALL the articles/sections of the bylaws are suspended and there will be no governance.

I agree that would make no sense, but that is not what your bylaws provide for. Instead, the rule provides that "These bylaws may be suspended for a specific purpose." This is entirely consistent with how the motion to Suspend the Rules works in RONR.

"In making the incidental motion to Suspend the Rules, the particular rule or rules to be suspended are not mentioned; but the motion must state its specific purpose, and its adoption permits nothing else to be done under the suspension. Such a motion, for instance, may be “to suspend the rules and take up the report of the Building Committee,” or “to suspend the rules and agree to [that is, to adopt without debate or amendment] the resolution…” When the purpose of a motion to Suspend the Rules is to permit the making of another motion, and the adoption of the first motion would obviously be followed by adoption of the second, the two motions can be combined, as in “to suspend the rules and take from the table (34) the question relating to…” The foregoing is an exception to the general rule that no member can make two motions at the same time except with the consent of the assembly—unanimous consent being required if the two motions are unrelated (see also 10:25, 27:10–11)." RONR (12th ed.) 25:4

So a member would not simply say "I move to suspend the bylaws." Instead, the member would say "I move to suspend the bylaws in order to..."

11 hours ago, Mark Apodaca said:

Each article and section covered in any bylaws are rules.  My understanding is that you can suspend a rule (article/section) within the bylaws by 2/3 vote.  This organization requires 4/5 vote and it makes it harder to suspend the rules within the bylaws.

If the bylaws do not have an article covering suspending the rules, the membership can still suspend an article/section with 2/3 vote.  Section 25 of RONR covers Suspend the Rules.

It is not correct that the motion to Suspend the Rules should specify the rule (article/section) to be suspended. The motion to Suspend the Rules may well suspend multiple rules in multiple articles and sections. Instead, the motion specifies what exactly it is desired to do - the specific purpose.

RONR also only permits suspension of rules in the bylaws if the rule is in the nature of a rule of order (and is otherwise a suspendable rule). The rule in your bylaws would make those sorts of rules harder to suspend, but it would also mean that the assembly can also suspend rules which are not in the nature of a rule of order. Those rules ordinarily could not be suspended at all.

11 hours ago, Mark Apodaca said:

It would make more sense if it read "An article/section of these bylaws may be suspended for a specific purpose by four-fifths (4/5) vote of the Council of Representatives present and voting."

I disagree. This would be difficult if the rule(s) to be suspended are found in multiple articles or sections. It's also confusing - if a member simply says, "I want to suspend Article 7, Section 2 of the bylaws," it's not immediately clear what exactly it is the member is trying to do. Instead, the motion should state the specific purpose.

11 hours ago, Mark Apodaca said:

Elections will take place by electronic ballot through the ASLTA website to be opened at 12:00am on the second day of the biennial meeting in the time zone where the meeting is held and closed at 11:59pm on the second day of the biennial meeting in the time zone where the meeting is held. All voting members in good standing 30 days before the biennial meeting shall be provided with one (1) electronic ballot. Election results will be announced at the regular biennial meeting, in the ASLTA newsletter and on the ASLTA website.

Can the highlighted be suspended?  The organization has a conflict happening on that day.  This appears to be a rule, not procedure.

In what manner, specifically, is it proposed that the rule in question be suspended?

I am generally inclined to agree with Dr. Kapur that the rule in question is a rule of order. A rule pertaining to the time at which the polls are opened or closed is in the nature of a rule of order, as it relates to the conduct of business in meetings or the duties of officers in that connection.

11 hours ago, Mark Apodaca said:

I would think that any procedures will be in the Policy and Procedure manual instead of bylaws, leaving the bylaws non-procedural.  What is procedural and non-procedural can be up to interpretation.

It is certainly desirable that, to the extent possible, procedural rules should be kept in documents aside from the bylaws, but there may well still be procedural rules in the bylaws. In any event, whether a rule is in the nature of a rule of order depends on the nature of the rule, not which document the rule is in. It is correct that some cases may be more ambiguous and up to interpretation.

Edited March 31, 2021 at 12:58 PM by Josh Martin

[Richard Brown]

Mr. Apodaca, I agree with  Dr. Kapur and Mr. Martin that the highlighted bylaw provision which you asked me about appears to be in the nature of a rule  of order and may be suspended.  I also agree with the rest of their comments.

I also agree that it is sometimes difficult to determine whether a particular by law provision is in the nature of a rule of order, but it is a judgment call which nonetheless must sometimes be made.  Specifically, in the case of the highlighted rule, it appears to be a provision regarding what time the polls shall be open. This is generally considered to be in the nature of a rule of order and may be suspended unless the bylaws specify that it cannot be suspended.

[Guest Puzzling]

15 hours ago, Mark Apodaca said:

Elections will take place by electronic ballot through the ASLTA website to be opened at 12:00am on the second day of the biennial meeting in the time zone where the meeting is held and closed at 11:59pm on the second day of the biennial meeting in the time zone where the meeting is held. All voting members in good standing 30 days before the biennial meeting shall be provided with one (1) electronic ballot

I am not sure if the yellow section can be suspended, while it is indeed a rule of order it is about voting online (via a website)  and not about voting at a meeting.

I presume in this that also members who are not present at the meeting can vote. 

If it is a completely online meeting and only the members (virtually present) at the meeting can vote then maybe. But if also members not virtually present can vote it is just inviting chaos (especially if you set  the closing time before 11:59 on the second day.  

[J. J.]

Yes, the rule highlighted can be suspended because permit their own suspension.  If this occurred during a meeting (presumably a virtual meeting) it could suspended as a rule in the nature of a rule of order. 

[Richard Brown]

6 hours ago, Guest Puzzling said:

I am not sure if the yellow section can be suspended, while it is indeed a rule of order it is about voting online (via a website)  and not about voting at a meeting.

It doesn’t make any difference whether it is a rule of order about voting at a meeting or voting online. It is still a rule of order and may be suspended. I also note that the voting is apparently taking place during the biennial meeting, just not necessarily at the meeting.

[Richard Brown]

10 hours ago, J. J. said:

Yes, the rule highlighted can be suspended because permit their own suspension.  If this occurred during a meeting (presumably a virtual meeting) it could suspended as a rule in the nature of a rule of order. 

JJ, I agree that the highlighted provision may be suspended, but it is from the bylaws of a different organization, not the organization Mr. Apodaca first referenced which does provide that it’s bylaws can be suspended. There is apparently no such provision in the bylaws of The second organization he mentioned. He is discussing the bylaws of two different organizations with two different provisions.  The bylaws of the first organization say they can be suspended but the bylaws of the second organization contain large no such statement.

Edited April 1, 2021 at 09:39 AM by Richard Brown
Reworded part of my answer and made typographical correction

[J. J.]

2 hours ago, Richard Brown said:

JJ, I agree that the highlighted provision may be suspended, but it is from the bylaws of a different organization, not the organization Mr. Apodaca first referenced which does provide that it’s bylaws can be suspended. There is apparently no such provision in the bylaws of The second organization he mentioned. He is discussing the bylaws of two different organizations with two different provisions.  The bylaws of the first organization say they can be suspended but the bylaws of the second organization contain large such statement.

Oh, thank you. 

[Mark Apodaca, PRP]

Thank you all.  I have to say that this was a good and beneficial discussion.  I had two bylaws committee meetings last night and I could see a number of sections which were procedural.  I advised that they be moved to the policy and procedures manual and try to keep the bylaws more of non-procedural.  I am wondering if there are any reference books which may cover this.

I recently purchased from BoardSource a book, "Better Bylaws: Creating Effective Rules for Your Nonprofit Board".  I am a member of BoardSource and they have good resources.

Mark

[Guest Puzzling]

17 hours ago, Richard Brown said:

It doesn’t make any difference whether it is a rule of order about voting at a meeting or voting online. It is still a rule of order and may be suspended. I also note that the voting is apparently taking place during the biennial meeting, just not necessarily at the meeting.

Still not convinced. 

The way of voting allows absentees to vote, suspending it can depending on the motion violate the this right of absentees and suspending  rules that protect absentees is out of order.

If the rule is changed in a way that does not violates the rights of absentees I think is okay.

Violation would occur if the times that the vote can be done changes so they do not include the period mentioned in the bylaws

[Josh Martin]

33 minutes ago, Guest Puzzling said:

Still not convinced. 

The way of voting allows absentees to vote, suspending it can depending on the motion violate the this right of absentees and suspending  rules that protect absentees is out of order.

If the rule is changed in a way that does not violates the rights of absentees I think is okay.

Violation would occur if the times that the vote can be done changes so they do not include the period mentioned in the bylaws

I actually think Guest Puzzling has a point here. This is one reason why I asked in exactly what manner it was proposed to suspend the rule in question.

The rule is still in the nature of a rule of order, but (depending on the exact manner it is proposed to suspend the rule), this may not be permissible on the grounds that it violates the rights of absentees.

[Mark Apodaca, PRP]

From what I understand, all voting for the officer positions will be done through the Internet. So there will be no absentee votes.  During past conferences, the organization would announce the winners during the membership business meeting after the voting closes which would be the next day.  It was never an issue.

This time the business meeting was going to be held while the election period is still open and there was no schedule for announcing the winners.  They only planned an one-day business meeting.  This caused the problem.

I spoke with the Vice President of the organization this morning and learned that they were able to add an additional business meeting the following day after the election to announce the winners.

Mark

[Guest Puzzling]

2 hours ago, Mark Apodaca said:

From what I understand, all voting for the officer positions will be done through the Internet. So there will be no absentee votes.  During past conferences, the organization would announce the winners during the membership business meeting after the voting closes which would be the next day.  It was never an issue.

This time the business meeting was going to be held while the election period is still open and there was no schedule for announcing the winners.  They only planned an one-day business meeting.  This caused the problem.

I spoke with the Vice President of the organization this morning and learned that they were able to add an additional business meeting the following day after the election to announce the winners.

Mark

No everybody is absentee but I am referring in particular to members who can vote but are  not joining in the (virtual) meeting an therefore are unaware of the adopted rule and might lose their vote because of it.

 

[Josh Martin]

2 hours ago, Mark Apodaca said:

From what I understand, all voting for the officer positions will be done through the Internet. So there will be no absentee votes.

The question is whether persons who are not present at the meeting are permitted to vote. People who are not present at the meeting are, by definition, absentees. It seems unclear whether they are permitted to vote.

On the one hand, the rule provides that the voting occurs during the biennial meeting. On the other hand, the rule provides "All voting members in good standing 30 days before the biennial meeting shall be provided with one (1) electronic ballot." This seems to suggest that persons who are not at the meeting are permitted to vote.

39 minutes ago, Guest Puzzling said:

No everybody is absentee

No, the members who are at the meeting are not absentees. The fact that the voting is conducted by Internet ballots doesn't mean the members who present are at the meeting become absent.