Is it a conflict of interest?

[Tomm]

Situation: The board is to meet in a special meeting to be entirely held in executive session later this week. No purpose of meeting was specified in the call but that's not my concern right now because you have explained that issue in the past. (Meeting is null and void 9:15, & 10:26 (1))

It is suspected that 2 board members may be facing disciplinary actions.

Question 1. Can the members be forced to leave the room while the remaining board members vote on their dismissal?

Question 2. Is it a conflict of interest to allow the board members in question stay in the room and vote against their own dismissal?

I believe that it's their right of membership to remain in the room, and to vote? Yes or No!

 

[Gary Novosielski]

That depends on what rules you're using for this disciplinary action.  The procedure you describe is not something I recognize from RONR.  Can you cite the section you are following?

If you are following your own disciplinary procedures in your bylaws, or something else that would supersede those in RONR then I'm not sure I'll be able to answer your question, since I'm unfamiliar with your rules.

 

[Tomm]

There are no procedures in the Bylaws to discipline a member of the board, but that's a story for another day. The only reference to disciplining or dismissal of a board member are the reasons to do so, which are missing 3 consecutive meetings or unable to perform your duties.

I'm most curious as to whether remaining in the room and voting against any disciplinary action is a conflict of interest!

 

[Gary Novosielski]

On 1/30/2022 at 10:33 PM, Tomm said:

I'm most curious as to whether remaining in the room and voting against any disciplinary action is a conflict of interest!

Even if it were, RONR does not prohibit voting on those grounds.  The right to vote, or to attend meetings can only be abridged by duly applied discipline, which in this case has not (yet) occurred, or by specific rules in the bylaws or the parliamentary authority.

Since you're operating in the absence of any rules, including conducting business in a meeting that is already recognized as null and void, I don't see how I can offer a useful answer on any of this. 

Good luck.

[Josh Martin]

On 1/30/2022 at 9:18 PM, Tomm said:

Situation: The board is to meet in a special meeting to be entirely held in executive session later this week. No purpose of meeting was specified in the call but that's not my concern right now because you have explained that issue in the past. (Meeting is null and void 9:15, & 10:26 (1))

If no purpose of the meeting is specified in the call, then the business conducted at the special meeting is null and void, which really makes these other questions moot. But ignoring that issue for the moment...

On 1/30/2022 at 9:18 PM, Tomm said:

Question 1. Can the members be forced to leave the room while the remaining board members vote on their dismissal?

On 1/30/2022 at 9:33 PM, Tomm said:

The only reference to disciplining or dismissal of a board member are the reasons to do so, which are missing 3 consecutive meetings or unable to perform your duties.

As I recall, they actually say slightly more than that.

"A. By a vote of two-thirds (2/3) of the members of the Board of Directors after a member of the Board is absent from three (3) or more consecutive regular meetings of the Board or who, in the opinion of such two-thirds (2/3) of the Board members, is unwilling or incapable of performing his or her share of the duties and responsibilities of a Director"

https://robertsrules.forumflash.com/topic/38531-timeliness-of-a-parliamentary-inquiry/page/2/

Based on these facts, and assuming this is a complete summary of the rules on this matter, my view is that the board members who are the subject of the motion to remove may not be forced to leave the room during consideration of the motion to remove them.

On 1/30/2022 at 9:18 PM, Tomm said:

Question 2. Is it a conflict of interest to allow the board members in question stay in the room and vote against their own dismissal?

RONR does not use the term "conflict of interest." RONR does discuss a "personal or pecuniary interest not in common with other members." I think there is no doubt that a motion to remove a member is a "personal or pecuniary interest not in common with other members" with respect to the members being removed, however, RONR does not provide that such members should (let alone must) leave the room. Rather, it merely provides that such members should not vote (although they ultimately have the right to do so). See RONR (12th ed.) 45:4.

So in any event, so far as RONR is concerned, the members in question have a right to stay in the room.

It is possible there are other rules on these matters in the organization's bylaws or applicable law, and those rules would take precedence.

On 1/30/2022 at 9:18 PM, Tomm said:

I believe that it's their right of membership to remain in the room, and to vote? Yes or No!

Yes, this is correct (at least so far as RONR is concerned), although the members should not vote on this matter as they have a personal or pecuniary interest not in common with other members.

For a member to violate this rule in regard to a motion to remove does not seem particularly wise, as doing so would provide additional reasoning for why to remove the member.

Edited January 31, 2022 at 04:41 PM by Josh Martin

[Gary Novosielski]

 Since there are two directors who face suspension, it may not be the case that this interest is one that is not in common with other members.

[Josh Martin]

On 1/31/2022 at 6:15 PM, Gary Novosielski said:

 Since there are two directors who face suspension, it may not be the case that this interest is one that is not in common with other members.

Are you pointing this out simply as a technicality or are you arguing that the rule in question does not apply because of this fact?

[Guest Zev]

Perhaps 45:5 should be consulted in this regard.

45:5

Voting on Questions Affecting Oneself.

The rule on abstaining from voting on a question of direct personal interest does not mean that a member should not vote for himself for an office or other position to which members generally are eligible, or should not vote when other members are included with him in a motion. If a member never voted on a question affecting himself, it would be impossible for a society to vote to hold a banquet, or for the majority to prevent a small minority from preferring charges against them and suspending or expelling them (61, 63).

My emphasis.

[Gary Novosielski]

On 1/31/2022 at 8:34 PM, Josh Martin said:

Are you pointing this out simply as a technicality or are you arguing that the rule in question does not apply because of this fact?

More of a technicality.  I suspect that "not in common with other members" is not meant to be read as "any other members" but rather as "other members in general".  But I'm sure all of us have heard arguments made on thinner grounds than this.

[Atul Kapur]

On 1/31/2022 at 7:15 PM, Gary Novosielski said:

 Since there are two directors who face suspension, it may not be the case that this interest is one that is not in common with other members.

I generally recommend that discipline be considered separately for each member. 

On 2/1/2022 at 3:11 AM, Gary Novosielski said:

I suspect that "not in common with other members" is not meant to be read as "any other members" but rather as "other members in general".

But 45:5, which Guest Zev has quoted above, appears to disagree with you: "does not mean that a member should not vote . . . when other members are included with him in a motion."

[Gary Novosielski]

On 2/1/2022 at 3:20 AM, Atul Kapur said:

I generally recommend that discipline be considered separately for each member. 

But 45:5, which Guest Zev has quoted above, appears to disagree with you: "does not mean that a member should not vote . . . when other members are included with him in a motion."

True, but as you noted, in the case of discipline, it is unlikely that the two directors would be lumped into one motion.  45:5 appears to refer to situations where, say, three members are approved for travel expenses to a conference.  

It may not be perfectly defined, but since this is a "should" rather than a "shall", that's not a grave defect.

[Atul Kapur]

On 2/1/2022 at 3:32 AM, Gary Novosielski said:

45:5 appears to refer to situations where, say, three members are approved for travel expenses to a conference.

Yes, and it explicitly also refers to the situation of discipline: "would be impossible . . . for the majority to prevent a small minority from preferring charges against them and suspending or expelling them "

[Josh Martin]

On 1/31/2022 at 8:42 PM, Guest Zev said:

Perhaps 45:5 should be consulted in this regard.

45:5

Voting on Questions Affecting Oneself.

The rule on abstaining from voting on a question of direct personal interest does not mean that a member should not vote for himself for an office or other position to which members generally are eligible, or should not vote when other members are included with him in a motion. If a member never voted on a question affecting himself, it would be impossible for a society to vote to hold a banquet, or for the majority to prevent a small minority from preferring charges against them and suspending or expelling them (61, 63).

Yes, and I agree that the particular circumstances may well affect things, such as if the two directors constitute a majority (or even a large fraction) of the board.

On 2/1/2022 at 2:20 AM, Atul Kapur said:

I generally recommend that discipline be considered separately for each member. 

I agree. Indeed, I would suggest that the motion is divisible upon the demand of a single member.

If the motion is nonetheless considered with both members together, however, I do not think the fact that there are two members, in and of itself, changes the fact that these members should not vote (unless it is a very small board).

On 2/1/2022 at 2:37 AM, Atul Kapur said:

Yes, and it explicitly also refers to the situation of discipline: "would be impossible . . . for the majority to prevent a small minority from preferring charges against them and suspending or expelling them "

But we don't actually know whether that situation is applicable here or not. It depends on how large the board is.

Edited February 1, 2022 at 11:43 AM by Josh Martin

[Atul Kapur]

On 2/1/2022 at 3:37 AM, Atul Kapur said:

Yes, and it explicitly also refers to the situation of discipline: "would be impossible . . . for the majority to prevent a small minority from preferring charges against them and suspending or expelling them "

On 2/1/2022 at 6:37 AM, Josh Martin said:

But we don't actually know whether that situation is applicable here or not. It depends on how large the board is.

I don't believe that the size of the board matters. I read the passage as giving an example of the problem that could be caused, but not saying that it's only relevant if the group in question is a majority.

[Josh Martin]

On 2/1/2022 at 9:18 AM, Atul Kapur said:

I don't believe that the size of the board matters. I read the passage as giving an example of the problem that could be caused, but not saying that it's only relevant if the group in question is a majority.

The relevant passage reads as follows:

"The rule on abstaining from voting on a question of direct personal interest does not mean that a member should not vote for himself for an office or other position to which members generally are eligible, or should not vote when other members are included with him in a motion. If a member never voted on a question affecting himself, it would be impossible for a society to vote to hold a banquet, or for the majority to prevent a small minority from preferring charges against them and suspending or expelling them (61, 63)." RONR (12th ed.) 45:5

The examples in this regard seem instructive to me in interpreting the meaning of this passage. The two examples used are 1) a banquet for the society (which benefits all members), and 2) a motion to suspend or expel a majority of the society's members (which affects a majority of the members).

That is, I understand the rule to be saying that the rule against voting on a question of personal or pecuniary interest is certainly inapplicable if the affected members constitute a majority or more of the assembly. In the event that the question affects a number of members constituting more than member but less than a majority, I think it is a grey area and a judgment call on the part of the affected members.

I do not believe, however, that the rule in 45:5 means that 45:4 is inapplicable anytime a question involves two or more members. Setting aside the disciplinary issue for a moment, suppose that two members each had a pecuniary interest in a question before the assembly. I see no reason why the rule on 45:4 would evaporate simply because there are two members with this interest rather than one.

I don't think there is anything special about 45:5 in regard to motions for discipline. It seems to me the statement regarding discipline is used as an example, nothing more.

Edited February 1, 2022 at 03:31 PM by Josh Martin

[Tomm]

On 2/1/2022 at 4:37 AM, Josh Martin said:

But we don't actually know whether that situation is applicable here or not. It depends on how large the board is.

The board consists of 9 members

[Atul Kapur]

On 2/1/2022 at 10:31 AM, Josh Martin said:

I see no reason why the rule on 45:4 would evaporate simply because there are two members with this interest rather than one.

45:5 does not say the rule evaporates (to use your term) if two members both have an interest, but rather if other members are included in the motion, which I read as a narrower exclusion; it would be relevant if they were being, for example, disciplined, censured, or commended.

[Josh Martin]

On 2/1/2022 at 10:07 AM, Tomm said:

The board consists of 9 members

Thank you. I think it is preferable that the motion be divided so that each removal is processed separately, so that members may consider the merits of the case against each member. If this is not done, however, my own view of it is that the rule of 45:4 is still applicable.

On 2/1/2022 at 10:34 AM, Atul Kapur said:

45:5 does not say the rule evaporates (to use your term) if two members both have an interest, but rather if other members are included in the motion, which I read as a narrower exclusion; it would be relevant if they were being, for example, disciplined, censured, or commended.

Yes, this would be a narrower exclusion. Nonetheless, I continue to disagree with this interpretation of the rule. Ultimately, as in any other application of the rule in question, the affected members will have to exercise their own judgment.

[Tomm]

Thanks to all for all the responses, but I have to honest...I'm still a little confused and not sure how my initial questions were answered!?!?

Question 1. Can the members be forced to leave the room while the remaining board members vote on their dismissal?

Question 2. Is it a conflict of interest to allow the board members in question stay in the room and vote against their own dismissal?

The way I understand all the responses is this; the members can't be forced to leave the room or lose their right to vote unless there was some written rule in the bylaws instructing disciplinary procedures. As members, not yet disciplined, they still have the right to both attend the meeting and vote?

However, it may not be the wisest decision to refuse the chairs request to leave the room during a vote.

Do I have that about right?

[Josh Martin]

On 2/1/2022 at 4:51 PM, Tomm said:

Question 1. Can the members be forced to leave the room while the remaining board members vote on their dismissal?

No.

On 2/1/2022 at 4:51 PM, Tomm said:

Question 2. Is it a conflict of interest to allow the board members in question stay in the room and vote against their own dismissal?

RONR does not use the term "conflict of interest." There is some disagreement among the members of this forum whether this situation constitutes a "personal or pecuniary interest not in common with other members." I believe everyone is in agreement that it constitutes such an interest if a motion is made to remove one member. Some posters appear to believe that it does not constitute such an interest if a single motion is made to remove both members. (I think it still does constitute such an interest.)

In the event that it is a personal or pecuniary interest not in common with other members, RONR provides that they should not vote, however, they ultimately retain the right to do so. Nothing in RONR suggests that they should leave the room.

The relevant rules on this matter read as follows:

No member should vote on a question in which he has a direct personal or pecuniary interest not common to other members of the organization. For example, if a motion proposes that the organization enter into a contract with a commercial firm of which a member of the organization is an officer and from which contract he would derive personal pecuniary profit, the member should abstain from voting on the motion. However, no member can be compelled to refrain from voting in such circumstances.

The rule on abstaining from voting on a question of direct personal interest does not mean that a member should not vote for himself for an office or other position to which members generally are eligible, or should not vote when other members are included with him in a motion. If a member never voted on a question affecting himself, it would be impossible for a society to vote to hold a banquet, or for the majority to prevent a small minority from preferring charges against them and suspending or expelling them (61, 63)." RONR (12th ed.) 45:4-5

On 2/1/2022 at 4:51 PM, Tomm said:

The way I understand all the responses is this; the members can't be forced to leave the room or lose their right to vote unless there was some written rule in the bylaws instructing disciplinary procedures. As members, not yet disciplined, they still have the right to both attend the meeting and vote?

Yes, I think this is correct, although I believe they should not vote on their removal.

On 2/1/2022 at 4:51 PM, Tomm said:

However, it may not be the wisest decision to refuse the chairs request to leave the room during a vote.

I don't believe any of us said that.

[Tomm]

On 2/1/2022 at 5:46 PM, Josh Martin said:

I don't believe any of us said that.

I must have misunderstood your previous comment...sorry!

On 1/31/2022 at 9:33 AM, Josh Martin said:

For a member to violate this rule in regard to a motion to remove does not seem particularly wise, as doing so would provide additional reasoning for why to remove the member.

 

[Josh Martin]

On 2/1/2022 at 6:56 PM, Tomm said:

I must have misunderstood your previous comment...sorry!

I was saying this is an additional reason for the members not to vote on the motion to remove.

[Shmuel Gerber]

On 2/1/2022 at 10:31 AM, Josh Martin said:

 

I do not believe, however, that the rule in 45:5 means that 45:4 is inapplicable anytime a question involves two or more members.

What about when the question involves three or more members? 🙂

(I.e., the member and "other members … included with him")

[J. J.]

On 2/1/2022 at 10:31 AM, Josh Martin said:

The relevant passage reads as follows:

"The rule on abstaining from voting on a question of direct personal interest does not mean that a member should not vote for himself for an office or other position to which members generally are eligible, or should not vote when other members are included with him in a motion. If a member never voted on a question affecting himself, it would be impossible for a society to vote to hold a banquet, or for the majority to prevent a small minority from preferring charges against them and suspending or expelling them (61, 63)." RONR (12th ed.) 45:5

The examples in this regard seem instructive to me in interpreting the meaning of this passage. The two examples used are 1) a banquet for the society (which benefits all members), and 2) a motion to suspend or expel a majority of the society's members (which affects a majority of the members).

 

First, I regard 45:5 as being an example, at not necessarily the only way that the only the rule  could apply.

Second, in that regard, the minority attempting expel most of the majority would not need to prefer charges against the entire majority to achieve a result.  In a 9 member board, where the is a 5 to 4 split, the 4 minority members could charge 3 majority members.   If those three could not vote, the board, by a 4 to 2 vote, could expel those three members.

Based on those things, I would read 45:4 as referring to something in common with at least one other member.

[Josh Martin]

On 2/2/2022 at 5:38 PM, Shmuel Gerber said:

What about when the question involves three or more members? 🙂

As I have previously stated...

The examples in this regard seem instructive to me in interpreting the meaning of this passage. The two examples used are 1) a banquet for the society (which benefits all members), and 2) a motion to suspend or expel a majority of the society's members (which affects a majority of the members).

That is, I understand the rule to be saying that the rule against voting on a question of personal or pecuniary interest is certainly inapplicable if the affected members constitute a majority or more of the assembly. In the event that the question affects a number of members constituting more than member but less than a majority, I think it is a grey area and a judgment call on the part of the affected members.

I do not believe, however, that the rule in 45:5 means that 45:4 is inapplicable anytime a question involves two or more members. Setting aside the disciplinary issue for a moment, suppose that two members each had a pecuniary interest in a question before the assembly. I see no reason why the rule on 45:4 would evaporate simply because there are two members with this interest rather than one.

On 2/2/2022 at 6:14 PM, J. J. said:

First, I regard 45:5 as being an example, at not necessarily the only way that the only the rule  could apply.

Second, in that regard, the minority attempting expel most of the majority would not need to prefer charges against the entire majority to achieve a result.  In a 9 member board, where the is a 5 to 4 split, the 4 minority members could charge 3 majority members.   If those three could not vote, the board, by a 4 to 2 vote, could expel those three members.

Based on those things, I would read 45:4 as referring to something in common with at least one other member.

I am in agreement that the example you provide would be a circumstance in which the rule of 45:5 is applicable. Further, as I have previously indicated, I believe that disciplinary motions are divisible upon demand of a single member, which would seem to resolve the problems as applied to discipline.

I still do not agree that the rule of 45:4 becomes inapplicable anytime an interest is shared in common with at least one other member.