Process to amend the Constitution involving a referendum from another body

[Joel Fish]

Hello, I have some questions about the process involved in amending the constitution.  I quote the relevant section below, but the full Constitution can be found here:

https://www.umb.edu/editor_uploads/images/provost/The_Constitution_of_the_Faculty_Council.pdf

Also, our bylaws can be found here:

https://www.umb.edu/faculty_staff/faculty_council/bylaws_and_constitution

 

For reference, our deliberative assembly is the Faculty Council, with members of Faculty Council elected by the faculty of our institution.  Below, "the appropriate University officials" refers to our Chancellor.  Here are our Constitutional Amendment Procedures:

10. Constitutional Amendment Procedures

A. Amendments to this Constitution shall be submitted for referendum by the faculty by vote of a majority of the voting members of the Faculty Council.

B. All faculty eligible to vote in elections to the Faculty Council shall be eligible to vote in a referendum. The Faculty Council Executive Committee shall conduct such a referendum within thirty days (excluding vacation) of Faculty Council action. Minutes of the Faculty Council debate on the proposed amendment shall be distributed with the ballots. At least two weeks, excluding vacation, shall be provided by the return of the ballots.

C. A proposed constitutional amendment shall be approved by a two-thirds vote of those faculty participating in a duly conducted election.

D. Any amendment approved by referendum shall be forwarded to appropriate University officials and to the Board of Trustees for approval.

 

There seems to be some substantial confusion about the amendment process, and so my first question is:

1. Does the Faculty Council vote to approve Amendments the Constitution?

My confusion stems from the fact that Robert's Rules state that a deliberative assembly directly votes on amendments to its Constitution, and it doesn't have a referendum or approval from other bodies.  On the other hand, Section 10 above appears only to reference a faculty referendum to approve Amendments, and there is no mention of a Faculty Council vote to approve Amendments.  So in some sense, do the above procedures replace Robert's Rules insofar as a "Faculty Council vote to approve Amendments" is replaced by a "faculty referendum to approve Amendments", or does the above procedure "stack" onto Robert's Rules insofar as both a "Faculty Council vote to approve" and a "faculty referendum to approve" are necessary?

Relatedly, the relevant motions in Faculty Council to initiate the Amendment process were as follows:

Moved: The FC accepts the amended changes to the Constitution made by the Constitution Committee.

Moved: The FC recommends the amended Constitution to the faculty of UMass Boston for a vote to adopt.

And thus my second question is:

2. Are the above motions by Faculty Council constitutional?

Part of the issue is that because of Section 10 above I would have expected that Faculty Council does not amend the Constitution directly, but rather it votes to approve Amendments, and (or instead) it votes to send Amendments to the faculty for approval via referendum; in either case Faculty Council does not amend the Constitution directly, and it does not send an "amended Constitution" to the faculty to adopt -- or at least that's what I would have expected.  Thus it is unclear to me whether or not the above motions are constitutional.

 

Unfortunately, confusion about the purpose of the faculty referendum does not stop there.  In particular, some have suggested that the purpose of the referendum is not to approve Amendments, but rather its purpose is only to approve of Faculty Council's decision to approve the Amendments.  This idea was elaborated via correspondence as follows:

Just to be clear, faculty are not exactly being asked whether or not they approve of these amendments. Rather, they are being asked to vote on whether or not they approve the Faculty Council’s decision to approve these amendments. That’s why it’s called a referendum. It is the FC who deliberated on the changes, argued and discussed them, and ultimately decided to approve them. As the Constitution states, the next step in the amendment process is then to take the FC vote to the broader faculty for a referendum, which is what we have done. Thus your vote indicates whether or not you approve of the action already taken by the FC.

Of course, in deciding how to vote, you should by all means discuss and debate these issues—in your department, college, and beyond—as well as talk with colleagues and attempt to persuade them how to vote if you wish. But, for better or for worse, as the Constitution is currently written, the faculty are not deciding on whether or not to adopt the amendments, but rather whether or not they approve of the FC’s decision to adopt the amendments.
 

Collecting my above two questions with several new ones, I would like clarification on the following:

1. Does the Faculty Council vote to approve Amendments to the Constitution? (And more generally, is there ambiguity about this, and if ambiguity exists then how is it resolved?)

2. Are the above motions by Faculty Council constitutional?

3. Is there ambiguity about the purpose of the referendum? (For example, is it a vote to approve Amendments, or is it a vote to approve of Faculty Council's decision to approve the Amendments?)  If there is ambiguity, then how is that ambiguity resolved?  If there is no ambiguity, then what is the purpose of the referendum?

4. Robert's Rules has a section on "Giving Notice of Amendments" and in general states that notice for amending bylaws should be given.  Does this apply to the referendum?  That is, should the proposed Amendments to be carefully stated and distributed to faculty well in advance of the referendum itself (as would be done in the amendment process detailed in the usual Robert's Rules). 

 

Your time spent reading this and trying to clarify it for me is very much appreciated.  I apologize for the length (and my general confusion).

 

 

 

[Guest Puzzling]

Just a first impression

It looks that amendments to the constitution needs 3 rounds of voting.

1) adoption by the faculty council (by majority)

2) adoption by the faculty (in referendum 2/3 vote, organised by the Faculty Council Executive Committee )

3) adoption by the board of trustees (not checked how this is done yet)

If an amendment fails in any round it is not passed. None of these three rounds on its own adopt an amendment.

Because this is all regulated in the bylaws these rules overrule roberts rules.

There could be questions if the adoption by the faculty council needs previous notice,  but I guess that notice will be given anyway regardless if it was needed or not.

Hope this helps I guess more replies will follow (hopefully they agree with mine :) )

 

[Richard Brown]

2 hours ago, Guest Puzzling said:

1) adoption by the faculty council (by majority)

Assuming you mean “by majority vote”, No, that is not correct. The quoted language from the constitution  calls for the “vote of a majority of the voting members of the faculty council” 

3 hours ago, Joel Fish said:

A. Amendments to this Constitution shall be submitted for referendum by the faculty by vote of a majority of the voting members of the Faculty Council

That is not the same thing as a regular majority vote. The quoted language, at least in my opinion, requires the vote of a majority of the entire faculty council. See RONR (12th Ed .) 44:8 and 44:9 (b). When reading the other voting requirements in the constitution, it strikes me that the drafters knew what they were doing and what vote threshold they were requiring when they used that language.

 At this time I am commenting only on that one point. It is a rather long and complicated original post and I have not yet read it carefully and do not have the time to do so right now.   I did, however, pick up immediately on the point that I made above.

Edited April 3, 2021 at 08:19 PM by Richard Brown
Edited first sentence

[Joel Fish]

Thanks for the responses "Guest Puzzling" and Richard.

Richard, by the same token, how do you interpret the following:

4 hours ago, Joel Fish said:

C. A proposed constitutional amendment shall be approved by a two-thirds vote of those faculty participating in a duly conducted election.

Is it a two-thirds vote, or is it two-thirds of all those who are eligible to vote?  Or perhaps it is something else.

[Richard Brown]

1 minute ago, Joel Fish said:

Thanks for the responses "Guest Puzzling" and Richard.

Richard, by the same token, how do you interpret the following:

 

2 minutes ago, Joel Fish said:

C. A proposed constitutional amendment shall be approved by a two-thirds vote of those faculty participating in a duly conducted election.

 

3 minutes ago, Joel Fish said:

Is it a two-thirds vote, or is it two-thirds of all those who are eligible to vote?  Or perhaps it is something else.

 I interpret it as an ordinary two thirds vote. I interpret the phrase “those participating in a duly conducted election“ as being equivalent to those who actually voted. If a member didn’t participate, he didn’t vote, and vice versa.  So, my interpretation is that that provision means the same thing as “a two thirds vote of those present and voting”. 

Ultimately, however, it is up to your organization to interpret that provision in your constitution or bylaws and to determine what it means.
 

[Josh Martin]

4 hours ago, Joel Fish said:

1. Does the Faculty Council vote to approve Amendments the Constitution?

As I understand the facts, your Constitution requires for its amendment 1) approval by the Faculty Council, 2) subsequent approval by a vote of "All faculty eligible to vote in elections to the Faculty Council," 3) final approval by the Board of Trustees.

4 hours ago, Joel Fish said:

My confusion stems from the fact that Robert's Rules state that a deliberative assembly directly votes on amendments to its Constitution, and it doesn't have a referendum or approval from other bodies.

Your constitution takes precedence over RONR, and RONR advises that an organization should adopt its own rules for amending its Constitution.

I would also add that, while it is correct that the default arrangement in RONR for amending a constitution is for the membership to meet as a deliberative assembly and to vote on it directly, the concept of a vote by mail by the full membership and the concept of approval by other bodies for amendments are both discussed in RONR.

"The bylaws should always prescribe the procedure for their amendment" RONR (12th ed.) 56:50

"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. In organizations that have both a constitution and bylaws as separate documents, however, the constitution is the higher of the two bodies of rules and supersedes the bylaws." RONR (12th ed.) 2:12

"The motion to ratify (also called approve or confirm) is an incidental main motion that is used to confirm or make valid an action already taken that cannot become valid until approved by the assembly. Cases where the procedure of ratification is applicable include:

...

• action taken by a local unit that requires approval of the state or national organization; or

• action taken by a state or national society subject to approval by its constituent units." RONR (12th ed.) 10:54

"A vote by mail, when authorized in the bylaws, is generally reserved for important issues, such as an amendment to the bylaws or an election of officers—on which a full vote of the membership is desirable even though only a small fraction of the members normally attend meetings." RONR (12th ed.) 45:57

5 hours ago, Joel Fish said:

On the other hand, Section 10 above appears only to reference a faculty referendum to approve Amendments, and there is no mention of a Faculty Council vote to approve Amendments.  So in some sense, do the above procedures replace Robert's Rules insofar as a "Faculty Council vote to approve Amendments" is replaced by a "faculty referendum to approve Amendments", or does the above procedure "stack" onto Robert's Rules insofar as both a "Faculty Council vote to approve" and a "faculty referendum to approve" are necessary?

I don't think there is any "stacking" involved. Your organization's rules supersede RONR.

It seems to me, however, that your Constitution does in fact require a vote by the Faculty Council. You say that "there is no mention of a Faculty Council vote to approve Amendments," but there is a rule which says "Amendments to this Constitution shall be submitted for referendum by the faculty by vote of a majority of the voting members of the Faculty Council." Therefore, it seems to me that a vote by the Faculty Council is required to submit an amendment to the constitution for a referendum.

5 hours ago, Joel Fish said:

Relatedly, the relevant motions in Faculty Council to initiate the Amendment process were as follows:

Moved: The FC accepts the amended changes to the Constitution made by the Constitution Committee.

Moved: The FC recommends the amended Constitution to the faculty of UMass Boston for a vote to adopt.

And thus my second question is:

2. Are the above motions by Faculty Council constitutional?

Part of the issue is that because of Section 10 above I would have expected that Faculty Council does not amend the Constitution directly, but rather it votes to approve Amendments, and (or instead) it votes to send Amendments to the faculty for approval via referendum; in either case Faculty Council does not amend the Constitution directly, and it does not send an "amended Constitution" to the faculty to adopt -- or at least that's what I would have expected.  Thus it is unclear to me whether or not the above motions are constitutional.

A revision is a form of amendment in which the current Constitution is replaced in its entirety with a new constitution. It seems to me this is the sort of amendment which is being proposed.

The first motion perhaps could have been worded slightly more precisely, but it seems to me that the motions are proper.

5 hours ago, Joel Fish said:

Unfortunately, confusion about the purpose of the faculty referendum does not stop there.  In particular, some have suggested that the purpose of the referendum is not to approve Amendments, but rather its purpose is only to approve of Faculty Council's decision to approve the Amendments.  This idea was elaborated via correspondence as follows:

Just to be clear, faculty are not exactly being asked whether or not they approve of these amendments. Rather, they are being asked to vote on whether or not they approve the Faculty Council’s decision to approve these amendments. That’s why it’s called a referendum. It is the FC who deliberated on the changes, argued and discussed them, and ultimately decided to approve them. As the Constitution states, the next step in the amendment process is then to take the FC vote to the broader faculty for a referendum, which is what we have done. Thus your vote indicates whether or not you approve of the action already taken by the FC.

Of course, in deciding how to vote, you should by all means discuss and debate these issues—in your department, college, and beyond—as well as talk with colleagues and attempt to persuade them how to vote if you wish. But, for better or for worse, as the Constitution is currently written, the faculty are not deciding on whether or not to adopt the amendments, but rather whether or not they approve of the FC’s decision to adopt the amendments.

I don't personally understand what distinction this person is trying to make. It doesn't seem to me that there is any meaningful difference between asking faculty "Do you approve of the amendments?" or "Do you approve of the Faculty Council's decision to approve the amendments?" In either event, my understanding is that if the referendum results in a "no" vote, the amendments shall not be part of the constitution.

5 hours ago, Joel Fish said:

1. Does the Faculty Council vote to approve Amendments to the Constitution? (And more generally, is there ambiguity about this, and if ambiguity exists then how is it resolved?)

As I have indicated above, my own interpretation is that is a three-step process, which involves 1) approval by the Faculty Council, 2) subsequent approval by a vote of "All faculty eligible to vote in elections to the Faculty Council," 3) final approval by the Board of Trustees. I don't think there is any ambiguity on this point, but if there is any ambiguity on this point, it would be resolved by the Faculty Council. (Ultimately, it would also be desirable to amend the Constitution for clarity if it is unclear.)

5 hours ago, Joel Fish said:

3. Is there ambiguity about the purpose of the referendum? (For example, is it a vote to approve Amendments, or is it a vote to approve of Faculty Council's decision to approve the Amendments?)  If there is ambiguity, then how is that ambiguity resolved?  If there is no ambiguity, then what is the purpose of the referendum?

I don't think there is any ambiguity in your rules about the purpose of the referendum. It seems clear that the purpose of the referendum is to ratify the amendments.

5 hours ago, Joel Fish said:

4. Robert's Rules has a section on "Giving Notice of Amendments" and in general states that notice for amending bylaws should be given.  Does this apply to the referendum?  That is, should the proposed Amendments to be carefully stated and distributed to faculty well in advance of the referendum itself (as would be done in the amendment process detailed in the usual Robert's Rules). 

Your organization should have its own rules on this subject.

"The bylaws should always prescribe the procedure for their amendment, and such provision should always require at least that advance notice be given in a specified manner, and that the amendment be approved by a two-thirds vote." RONR (12th ed.) 56:50

In any event, it would certainly seem desirable to give notice.

19 minutes ago, Joel Fish said:

Is it a two-thirds vote, or is it two-thirds of all those who are eligible to vote?  Or perhaps it is something else.

I certainly do not think it is of all those who are eligible to vote. The rule says "approved by a two-thirds vote of those faculty participating in a duly conducted election." Persons who do not vote at all in the election are not "participating" in the election.

There may still be some ambiguity, however, as it is somewhat unclear whether it would need to be adopted by 1) two-thirds of those voting on the amendment or 2) two-thirds of those voting in the election at all. For example, if the election of officers is held on the same ballot, and a person votes for officers but abstains on the amendment, is that person "participating" in the election in the sense that term is used in this rule? I'm not sure.

[Joel Fish]

Josh, thank you very much for that extended response.  Just a couple minor follow up questions.  First, how does a deliberative assembly become aware that a proposed amendment is a revision versus isolated changes.  Should this be stated explicitly in the motion and/or notice?  I ask because 57:5 RONR states "...in the case of a revision, the assembly is not confined to consideration of only the points of change included in the proposed revision as submitted by the committee that has drafted it" and so it seems that when debating the proposal there are more options to change it if it is a revision.  I'm not sure when members would become aware that they had theses options.

Second, regarding the motions:

9 hours ago, Joel Fish said:

Relatedly, the relevant motions in Faculty Council to initiate the Amendment process were as follows:

Moved: The FC accepts the amended changes to the Constitution made by the Constitution Committee.

Moved: The FC recommends the amended Constitution to the faculty of UMass Boston for a vote to adopt.

 Is the first motion actually part of the amendment process?  Given that our Constitution takes precedent over RONR, and our Constitution does not require an direct vote of approval from Faculty Council, is the first motion necessary?  Or is the purpose of the first motion to clarify precisely what is being sent for referendum?

[Josh Martin]

37 minutes ago, Joel Fish said:

Just a couple minor follow up questions.  First, how does a deliberative assembly become aware that a proposed amendment is a revision versus isolated changes.  Should this be stated explicitly in the motion and/or notice?

I don't think it needs to be stated explicitly, although it doesn't hurt.

It should be fairly apparent whether it is a revision or isolated changes. If it's isolated changes, the individual changes will be described and listed. If it's a revision, it will be a completely new document.

39 minutes ago, Joel Fish said:

I ask because 57:5 RONR states "...in the case of a revision, the assembly is not confined to consideration of only the points of change included in the proposed revision as submitted by the committee that has drafted it" and so it seems that when debating the proposal there are more options to change it if it is a revision.  I'm not sure when members would become aware that they had theses options.

That doesn't really seem relevant in this context since you're submitting it to a vote by mail, so there isn't really any opportunity for the revision to be amended.

40 minutes ago, Joel Fish said:

 Is the first motion actually part of the amendment process?  Given that our Constitution takes precedent over RONR, and our Constitution does not require an direct vote of approval from Faculty Council, is the first motion necessary?  Or is the purpose of the first motion to clarify precisely what is being sent for referendum?

I see what you're getting at. Yes, I agree that the first motion is unnecessary - the second motion would seem to be sufficient.

[Guest Puzzling]

3 hours ago, Joel Fish said:

Relatedly, the relevant motions in Faculty Council to initiate the Amendment process were as follows:

Moved: The FC accepts the amended changes to the Constitution made by the Constitution Committee.

Moved: The FC recommends the amended Constitution to the faculty of UMass Boston for a vote to adopt.

Neither motion is very clear.

The minutes should contain the motion as adopted, not as it was made.

Also the motion should give very precisely the details of the amendment 

A better alternative would be

The motion "we ask the executive committee to organize a referendum for the members of the faculty  where these members can vote on the bylaws amendments as noted in the attached document" was adopted