How to correct improper ruling of results

[Guest Jeffery]

I'm writing to inquire how to handle the situation when the ruling made by the Chair and (theoretically) accepted by the body is later found to have been an incorrect understanding of the rules. We have a municipal body that regularly passes new ordinances. It was recently clarified that passage of all ordinances requires a yea vote from two-thirds of the full body, not just those present. Following this clarification, there was a concern that votes from past sessions, even pass terms, may have been ruled and adopted as passed but had not actually received the requisite votes. Is it on the body to question the ruling and get clarification in that session or at an agreed upon future session, or is the body required to account for the discovery that old motions had not been properly ruled as having failed?

[George Mervosh]

The attorney for the municipal body in question needs to be consulted regarding this for an opinion.

As far as RONR is concerned, a rule requiring a vote of 2/3 of the entire membership protects absentees, if there are any.  A point of order can be raised at any time if a motion was adopted by less than a vote of 2/3 of the entire membership and there were absentees.  RONR (12th ed.), 25:10 and 23:6 e)  

[Atul Kapur]

Under RONR, I would say that the assumption is that the ordinances were adopted appropriately, unless there is clear evidence to the contrary. I agree with Mr. Mervosh that legal advice is required for this municipal body.

On 9/10/2021 at 1:37 PM, George Mervosh said:

As far as RONR is concerned, a rule requiring a vote of 2/3 of the entire membership protects absentees, if there are any.  A point of order can be raised at any time if a motion was adopted by less than a vote of 2/3 of the entire membership and there were absentees.  RONR (12th ed.), 25:10 and 23:6 e)  

I don't see how a requirement of any vote threshold based on the entire membership protects absentees or whether there were absentees makes any difference. If the requirement under statute is a vote of 2/3 of the entire membership, and there is evidence that the vote on any ordinance was less than this threshold, then there is a continuing breach based on 23:6(c). I don't see that (e) comes into it at all.

However, to help me understand Mr. Mervosh's opinion better, let's look at an ordinary society with this rule (2/3 of the entire membership to adopt a motion) and a membership of 30. If a motion is deemed adopted on a 19-8 vote I don't see a continuing breach whether there are three absences or three abstentions.

[Dan Honemann]

On 9/11/2021 at 2:31 AM, Atul Kapur said:

However, to help me understand Mr. Mervosh's opinion better, let's look at an ordinary society with this rule (2/3 of the entire membership to adopt a motion) and a membership of 30. If a motion is deemed adopted on a 19-8 vote I don't see a continuing breach whether there are three absences or three abstentions.

Neither do I, but this is because 2/3 of the entire membership is present.

[Atul Kapur]

On 9/11/2021 at 6:16 AM, Daniel H. Honemann said:

Neither do I, but this is because 2/3 of the entire membership is present.

Okay. If less than 2/3 of the entire membership is present, then this appears to be clear evidence that the ordinance was not adopted appropriately. And thus constitutes a continuing breach under 23:6(c).

But I still don't see that it would create a continuing breach under 23:6(e). I don't see how 23:6(e) is affected by the (non-zero) number of absentees.

[Josh Martin]

On 9/11/2021 at 11:23 PM, Atul Kapur said:

Okay. If less than 2/3 of the entire membership is present, then this appears to be clear evidence that the ordinance was not adopted appropriately. And thus constitutes a continuing breach under 23:6(c).

But I still don't see that it would create a continuing breach under 23:6(e). I don't see how 23:6(e) is affected by the (non-zero) number of absentees.

Suppose that in an ordinary society, the society's bylaws or special rules of order require a vote of 2/3 of the entire membership for a particular motion. As with your earlier example, suppose the society has 30 members. At a particular meeting, 16 members are present. This is a quorum (assuming the default quorum), but it is less than 2/3 of the entire membership. May the members present, through means of a motion to Suspend the Rules, adopt the motion in question?

In my view, the answer is "no," even by a unanimous vote. The reason is because the rule in question protects absentees in the event that less than 2/3 of the entire membership is present. For similar reasons, if the assembly inadvertently adopts a motion of this nature (perhaps because they forgot about the rule), there is a continuing breach.

I would take a look at the particular wording in Official Interpretation 2006-18:

"It should be noted in this connection that a rule requiring a two-thirds vote (or any other fraction) of members present and voting (or of all members present) affords no protection at all to absentees; it affords protection only to a certain fraction of the members present at the time the vote is taken."

By implication, it seems to me this interpretation is saying that a rule which requires a two-thirds vote (or any other fraction) of all members may provide some protection to absentees, depending on the circumstances. Generally, the authors do not include additional words for no reason, so there is presumably a reason for the inclusion of the words "of members present and voting (or of all members present)".

Edited September 12, 2021 at 10:46 AM by Josh Martin