Point of Order by Non-Member

[OneBookToRuleThemAll]

I recently attended a meeting of a public body that is bound by an Open Meetings law.  Due to lack of a quorum the meeting was rescheduled for 24 hours later by a city official.  An issue arose where an attendee and non-member of the body spoke up and announced that the second meeting was in violation of the Open Meetings law because the agenda wasn't posted a full 24 hours in advance (this is true it was posted with slight modifications fewer than 24h in advance).  

So here's the question:  The meeting is called to order on the second day, there is a quorum present and the non-member insists on being heard to say, "Point of order, Mr. Chairman.  This meeting cannot proceed because it is in violation of [the law]. The agenda was not posted long enough in advance."

Setting aside the relatively trivial nature of the violation, how should the chair have responded?

 

My thinking:  
The Chair say, "Mr. Non-member, you are not a member of the body and the floor is not open to public comment.  You point of order is not well taken."

Or 

In deference to the fact that a law is potentially being broken and the stature of the person making the ruckus the chair could say something like, "Sir, you are out of order and the floor is not open to public comment.  In deference to your being a community member, the chair will hear your concern if you can be brief."  {{Concern is stated}}  "Sir, your point is not well taken, but given the fact that the nature of your complaint involves this body potentially violating a law, I will entertain a motion from this body to adjourn the meeting. Do I hear such a motion?"

 

Thoughts, better ways to handle this?

 

 

[Joshua Katz]

The solution to violating a procedural law, when it is noted, is not entertaining a motion to adjourn. It is simply to do what the law requires. In this case, if you are correct that it makes the meeting invalid, it is probably the case that nothing done at the meeting is valid. You are, of course, correct that the person raising the point of order violated the rules and cannot raise a point of order, not being a member. However, the facts still are what they are. I would do the second, except that, rather than asking for a motion, I'd make a ruling on my own accord that the meeting was not validly called. The body can appeal if it wishes.

[Rob Elsman]

I would avoid saying the Point of Order is not well-taken, which leaves the impression that the Point of Order was admissible.  It would be better to simply say the gentleman is out of order and must remain silent or leave the chamber.

The spectator's remedy for the improper meeting is to file a complaint with the local prosecutor having jurisdiction to investigate and charge those responsible for criminal offenses against the open meeting laws.

[Richard Brown]

40 minutes ago, OneBookToRuleThemAll said:

Thoughts, better ways to handle this?

Like Mr. Katz, I  would go with the procedure in your last option.

Having said that, the important thing to note is that the provisions of Open Meetings Laws trump  the rules in RONR.  Those rules differ from state to state, and interpreting them is a legal question and is beyond the scope of this forum. 

The open meetings law in my state permits the public to speak to every item on the agenda and also to be heard if an item is being added to the agenda without the required notice, so a member of the public could indeed point out, when the first item is up for consideration, that proper notice as required by the open meetings  law has not been provided.  I have personally stood up and objected, with success, to proceedings of local governing bodies that were about to violate or were actually in violation of our open meetings law.  I've seen bodies take corrective immediately, on the spot.

Referring to the comment above that Mr. Elsman posted while I was typing this comment, I believe it is better to first speak up and try to stop the wrong from taking place, if possible, rather than to sit back quietly while they violate the law and then file a complaint later. It might be that everything the public body adopted that day could be declared invalid months later by a court at great cost to the governmental entity.  I believe it is far better to speak up before it happens than to sit back and say nothing.  I have seen councils take corrective action immediately, on the spot, when a problem such as an open meetings law violation is pointed out to them. 

In short, having said all of that, questions and issues concerning state open meetings laws are legal questions which are beyond the scope of this forum.

[Guest Puzzling]

I would have a good look at the law and check what really is written there.   And if in doubt, consult an attorney.

 

[Josh Martin]

17 hours ago, OneBookToRuleThemAll said:

Setting aside the relatively trivial nature of the violation, how should the chair have responded?

My thinking:  
The Chair say, "Mr. Non-member, you are not a member of the body and the floor is not open to public comment.  You point of order is not well taken."

Or 

In deference to the fact that a law is potentially being broken and the stature of the person making the ruckus the chair could say something like, "Sir, you are out of order and the floor is not open to public comment.  In deference to your being a community member, the chair will hear your concern if you can be brief."  {{Concern is stated}}  "Sir, your point is not well taken, but given the fact that the nature of your complaint involves this body potentially violating a law, I will entertain a motion from this body to adjourn the meeting. Do I hear such a motion?"

Thoughts, better ways to handle this?

I would think the chair should say something like this, depending on the chair's view of the matter:

"The speaker is not a member of the body and the floor is not open to public comment. Nonmembers of the body do not have a right to raise a Point of Order. Notwithstanding this, the chair rules that the meeting is indeed invalid on the grounds that insufficient notice was given to the public under the Open Meeting Law."

OR

"The speaker is not a member of the body and the floor is not open to public comment. Nonmembers of the body do not have a right to raise a Point of Order. The chair would entertain a Point of Order regarding this matter from a member of the board."

If the chair thinks the meeting is invalid, then the chair shouldn't wait for a Point of Order. He can and should make a ruling on the matter on his own initiative. That is his responsibility as chair. The chair's ruling is subject to appeal.

On the other hand, if the chair thinks the meeting is valid, then the chair should proceed with the meeting. A member could raise a Point of Order and the chair would then make a ruling. Once again, the ruling is subject to appeal.

I express no view on whether the nonmember is correct that the meeting is in violation of the Open Meeting Law or whether the meeting is invalid as a result. The board should seek legal counsel on that matter.

Edited May 1, 2021 at 01:46 PM by Josh Martin

[Rob Elsman]

Well, Mr. Brown, in my area, "public bodies" are usually attended by armed local law enforcement officers who have no problem wrestling to the ground spectators who "speak up and try to stop the wrong" and arresting them for disorderly conduct.  Off to the pokey they go, with a scheduled audience before the local magistrate the next day.

[Richard Brown]

9 minutes ago, Rob Elsman said:

Well, Mr. Brown, in my area, "public bodies" are usually attended by armed local law enforcement officers who have no problem wrestling to the ground spectators who "speak up and try to stop the wrong" and arresting them for disorderly conduct.  Off to the pokey they go, with a scheduled audience before the local magistrate the next day.

I'm glad I don't live in your area.  In my area, all of the officials are much more tolerant and I have NEVER seen or heard of the local constabulary "wrestling" a member of the public to the ground and hauling him off to the pokey for politely pointing out an error in the proceedings or pointing out that the PA system isn't working and we can't hear.  To the contrary, in my area it is much more common for the presiding officer and others members of the public body to thank the  spectator for being alert and catching the mistake.   I have been thanked several times for speaking up and saving the city and/or parish (county) time, money, embarrassment and the expense and turmoil caused by illegally adopting legislation only to have it set aside by a court months or even years later.  There is a difference between a boisterous spectator trying to disrupt a meeting by shouting obscenities at the body and a spectator who is politely pointing out a breach of the rules or the law.

[Joshua Katz]

45 minutes ago, Rob Elsman said:

Well, Mr. Brown, in my area, "public bodies" are usually attended by armed local law enforcement officers who have no problem wrestling to the ground spectators who "speak up and try to stop the wrong" and arresting them for disorderly conduct.  Off to the pokey they go, with a scheduled audience before the local magistrate the next day.

I have never seen this, including the time a citizen threatened violence towards me and law enforcement did nothing. But that's another story. In this instance, though, the speaking out had already occurred. And, despite not being a valid point of order, it certainly made the chair aware of the problem. Why shouldn't the chair react to it, the same way he would had he noticed the problem himself? 

[Gary Novosielski]

I'm surprised that the notice would be considered insufficient.   If proper notice was given for the first (inquorate) meeting of at least 24 hours, then surely that notice would be in effect for the adjourned portion of that session on the following day.

And if the notice required for the first meeting was slightly short of 24 hours, then surely that would have been cured by the addition of 24 additional hours before the question was taken up at the adjourned meeting.

I'm assuming here that the rules in RONR apply, and are not superseded by other laws.

[Joshua Katz]

7 minutes ago, Gary Novosielski said:

I'm surprised that the notice would be considered insufficient.   If proper notice was given for the first (inquorate) meeting of at least 24 hours, then surely that notice would be in effect for the adjourned portion of that session on the following day.

 

Well, we didn't get a ruling. I probably should not have resolved the issue in my answer; I should have said that, if I were chair, I would have raised the issue and ruled that the meeting lacked proper notice if I thought that to be the case. 

Here, while I agree that RONR is satisfied, I don't think the same for an open meetings law.

[Josh Martin]

26 minutes ago, Gary Novosielski said:

I'm assuming here that the rules in RONR apply, and are not superseded by other laws.

This seems like a poor assumption, since we are specifically told that the question is whether there is a violation of applicable law, not RONR.

The question at issue is whether the meeting "was in violation of the Open Meetings law because the agenda wasn't posted a full 24 hours in advance."

So what RONR has to say about notice doesn't count for much in answering that question.

Edited May 3, 2021 at 08:49 PM by Josh Martin

[Gary Novosielski]

1 minute ago, Josh Martin said:

This seems like a poor assumption, since we are specifically told that the question is whether there is a violation of applicable law, not RONR.

The question at issue is whether the meeting "was in violation of the Open Meetings law because the agenda wasn't posted a full 24 hours in advance."

Fine, but it seems to me that the agenda was posted 24 hours in advance of the first meeting and 48 hours in advance of the adjourned meeting, since the agenda presumably did not change in the interim.

[Josh Martin]

12 minutes ago, Gary Novosielski said:

Fine, but it seems to me that the agenda was posted 24 hours in advance of the first meeting and 48 hours in advance of the adjourned meeting, since the agenda presumably did not change in the interim.

I continue to express no view on whether the nonmember is correct that the meeting is in violation of the Open Meeting Law or whether the meeting is invalid as a result. The board should seek legal counsel on that matter.

[Gary Novosielski]

45 minutes ago, Josh Martin said:

I continue to express no view on whether the nonmember is correct that the meeting is in violation of the Open Meeting Law or whether the meeting is invalid as a result. The board should seek legal counsel on that matter.

Of course they should. 

I was just seeking an opinion on the general case.

[Alicia Percell, PRP]

I will echo all the cautions above that if the question is about whether the second event violated applicable law, ask an attorney.  Some open meeting laws do make specific provisions for  "adjourned meetings" of properly noticed meetings to accommodate a need to continue on a different date in the near future. 

But suppose that the attorney says the applicable law says nothing contrary, and that the body operates under Robert's Rules on that topic.  IF THAT WERE to be the case, then RONR (12th ed.) 22:7 says (in the context of describing the motion Fix the Time to Which to Adjourn) that:

"Whether introduced as a privileged or a main motion, the effect of this motion is to establish an adjourned meeting -- that is, another meeting that will be a continuation of the session at which the motion is adopted.  Unlike a special meeting, an adjourned meeting does not require notice, although it is desirable to give such notice if feasible."

I'm not sure that we have enough information to know what exactly happened when the meeting didn't have quorum.  The OP said, "Due to lack of a quorum the meeting was rescheduled for 24 hours later by a city official."  That doesn't sound to me like the public body called to order, found that a quorum was not present, adopted a motion to Fix the Time to Which to Adjourn, and then adjourned...which would be the process to take advantage of the above notice-preserving feature.

Instead it sounds to me like they either just didn't call the meeting to order at all, or they called to order and immediately adjourned without scheduling an adjourned meeting, and afterwards maybe someone on staff (it says city official) just decided?  That does not clear the hurdles under RONR to qualify as the inquorate body having properly set an adjourned meeting such that no additional notice would be required.

But again, this is only relevant if there are no laws in play which override Robert's Rules on this point.

Even if it's not technically in order for a non-member of the public body to interrupt and raise a point of order, the public body may be opening themselves to a problem if the speaker is factually correct about improper notice, and the body ignores them and proceeds anyway...but that depends on the provisions of your open meeting laws.