Question on USPS informed deliverty

[randigb]

Is USPS informed delivery the same as a postmark? Situation - a nominee for a board position mailed a nomination application and it was received by the club secretary on March 14. The secretary has USPS informed delivery because she travels. The issue is the envelope was not postmarked for some reason. The board is planning to reject the nomination application because of the lack of a bar code.

This is the section from the club's bylaws:

"Additional nominations of voting members in good standing may be made by written petition addressed to the secretary and postmarked on or before March 15th. "

Thoughts?

[Rob Elsman]

If the election is being held in the general membership assembly, the executive board has no authority to accept or reject nominations, postmarked or not.

[randigb]

On 3/25/2022 at 8:29 PM, Rob Elsman said:

If the election is being held in the general membership assembly, the executive board has no authority to accept or reject nominations, postmarked or not.

This is not during a general membership assembly. Voting is done electronically because the membership is spread across the United States.

[Rob Elsman]

So, exactly what does the board cite as its authority to pass judgment on the acceptability of submitted petitions?  It doesn't come from RONR (12th ed.).  Unless there is something more that I do not know, I am of the opinion that the board is out-of-bounds, here.  This is not the board's election, so a good explanation is needed for the board's interjecting itself.

[Atul Kapur]

I was initially going to say that this is a question best addressed to USPS.

However, in my opinion this is an egregious example of focusing on the details of the rules and ignoring their purpose. Bottom line, any rejection of the application would be a ridiculous and illogical application of the letter of the rule over its purpose.

The bylaws require that applications be postmarked on or before March 15. It appears quite clear that the purpose is to set a deadline for applications to be submitted. Due to the vagaries of postal delivery times, the bylaws set that deadline as the date that the application enters the postal system, rather than the date it is actually delivered, which is necessarily some days after March 15. The postmark is a verifiable indication, applied by an independent agency, to determine the date the application entered the postal system.

So any application delivered before March 15 (as we are told this one did, on March 14) must also have entered the postal system before the deadline. 

Unless the bylaws provision has a different purpose (such as serving as a quality control check for the USPS's postmarking equipment), the logic of refusing an application received before the postmark date escapes me.

Edited March 26, 2022 at 03:04 AM by Atul Kapur

[Rob Elsman]

Mr. Kapur is obviously not a "textualist".  A textualist would claim that anything that Informed Delivery says is not equivalent to what the bylaw demands--that the written petition be postmarked by March 15th.

I think the competent body has the power to decide questions like this.  However, unless there is something more to this, the executive board is not that "competent body" for an election held in the general membership assembly.

[randigb]

On 3/25/2022 at 8:57 PM, Rob Elsman said:

So, exactly what does the board cite as its authority to pass judgment on the acceptability of submitted petitions?  It doesn't come from RONR (12th ed.).  Unless there is something more that I do not know, I am of the opinion that the board is out-of-bounds, here.  This is not the board's election, so a good explanation is needed for the board's interjecting itself.

It's the board's interpretation of the bylaws quoted above - that because the envelope does not have a postmark, the nomination application can be rejected.

[Rob Elsman]

On 3/25/2022 at 10:21 PM, randigb said:

Unless there is something more that I do not know, I am of the opinion that the board is out-of-bounds, here.  This is not the board's election, so a good explanation is needed for the board's interjecting itself.

I guess this is going to be my best answer.

[randigb]

On 3/25/2022 at 9:27 PM, Rob Elsman said:

I guess this is going to be my best answer.

Thank you. I think the board is overstepping. 

[Richard Brown]

I agree with the opinion expressed earlier by Dr. Kapur. I think undue emphasis is being placed on the postmark and I concur with Dr. Kapur that the purpose of the rule is to ensure that applications or ballots nominations are mailed by a certain date. If there is evidence, through the informed delivery notification which includes a photograph of the item,  that the item was in the Postal Service system by the deadline, that should be sufficient. In this case, the nomination was actually received one day before the deadline. That is proof positive that the nomination was mailed prior to the deadline.

Edited March 26, 2022 at 07:43 AM by Richard Brown
Edited as indicated

[Atul Kapur]

On 3/25/2022 at 11:14 PM, Rob Elsman said:

Mr. Kapur is obviously not a "textualist".

Thanks for the compliment.

Mr. Elsman, you seem be assuming that there will be a general membership meeting where the election will occur and where the general membership will be able to decide such questions. However, @randigb has told us that "This is not during a general membership assembly. Voting is done electronically because the membership is spread across the United States."

On 3/25/2022 at 11:29 PM, randigb said:

Thank you. I think the board is overstepping. 

@randigb, you should look in your bylaws to see who is designated to decide such issues. It may be that the board is delegated powers broadly enough to include this authority. 

In case it was not clear, I disagree with the board's decision as described. Please feel free to use my argument against it wherever you can find an audience.

 

Edited March 26, 2022 at 03:54 AM by Atul Kapur
Added last two sentences

[Gary Novosielski]

On 3/25/2022 at 10:32 PM, randigb said:

This is not during a general membership assembly. Voting is done electronically because the membership is spread across the United States.

That still does not give the Board any authority to control an election by the membership.

[Gary Novosielski]

On 3/26/2022 at 1:34 AM, Gary Novosielski said:

That still does not give the Board any authority to control an election by the membership, unless the bylaws have some provision that grants them that power.

 

[Gary Novosielski]

On 3/25/2022 at 11:21 PM, randigb said:

It's the board's interpretation of the bylaws quoted above - that because the envelope does not have a postmark, the nomination application can be rejected.

The board has no power to interpret the bylaws.  Only the membership can do so. 

Besides, if the envelope arrived before the deadline, then there is no need to question the date of the postmark in the first place.  It obviously was mailed before it arrived.

[Richard Brown]

Like Dr. Kapur, I disagree with the boards decision to throw out the nomination which was received timely but did not have a postmark. I think undue emphasis is being placed on the lack of a postmark. 

However, I disagree with those who say the board had absolutely no authority to throw out or disallow the nomination. Without knowing more about this organization and what its bylaws say about the board’s  authority over Elections and other matters, I do not think we can say that the board had no authority to do this. The original poster has told us that voting is taking place electronically (or by mail) and will not be having a general membership meeting and that its members are spread all over the country.   We don’t know if or when it will have a general membership meeting. The organization may be of such a nature that the membership never meets except, perhaps, at an annual or biennial convention. The board may well have complete authority over the affairs of the organization between meetings of the membership. We just do not know enough to say that the board exceeded its authority.
 

[Josh Martin]

On 3/25/2022 at 9:00 PM, randigb said:

Is USPS informed delivery the same as a postmark? Situation - a nominee for a board position mailed a nomination application and it was received by the club secretary on March 14. The secretary has USPS informed delivery because she travels. The issue is the envelope was not postmarked for some reason. The board is planning to reject the nomination application because of the lack of a bar code.

This is the section from the club's bylaws:

"Additional nominations of voting members in good standing may be made by written petition addressed to the secretary and postmarked on or before March 15th. "

Thoughts?

It is ultimately up to the organization to interpret its own rules.

Personally, however, my own view is that the application should be viewed as legitimate, and I am baffled as to how this is even a debate. Since the application was received prior to March 15th, then there appears to be no doubt that it was sent prior to March 15th, and it therefore clearly seems to meet the intent of the rule. If the application had not been received until after March 15th, then this may have been a more difficult question. Generally, rules concerning postmarks do not come into play except for applications which are received after the deadline.

I also concur with Mr. Elsman that, absent explicit authority on this matter from the organization's rules or a motion adopted by the general membership, the board lacks the authority to reject applications for nominations.

On 3/26/2022 at 2:55 AM, Richard Brown said:

Like Dr. Kapur, I disagree with the boards decision to throw out the nomination which was received timely but did not have a postmark. I think undue emphasis is being placed on the lack of a postmark. 

However, I disagree with those who say the board had absolutely no authority to throw out or disallow the nomination. Without knowing more about this organization and what its bylaws say about the board’s  authority over Elections and other matters, I do not think we can say that the board had no authority to do this. The original poster has told us that voting is taking place electronically (or by mail) and will not be having a general membership meeting and that its members are spread all over the country.   We don’t know if or when it will have a general membership meeting. The organization may be of such a nature that the membership never meets except, perhaps, at an annual or biennial convention. The board may well have complete authority over the affairs of the organization between meetings of the membership. We just do not know enough to say that the board exceeded its authority.

Even "complete authority over the affairs of the organization between meetings of the membership" is insufficient for the board to rule on questions of order concerning elections by the membership. Explicit authority is necessary for that.

"Because the voting body itself is the ultimate judge of election disputes, only that body has the authority to resolve them in the absence of a bylaw or special rule of order that specifically grants another body that authority. Thus, for example, when an election has been conducted at a membership meeting or in a convention of delegates, an executive board, even one that is given full power and authority over the society’s affairs between meetings of the body that conducted the election, may not entertain a point of order challenging, or direct a recount concerning, the announced election result. While an election dispute is immediately pending before the voting body, however, it may vote to refer the dispute to a committee or board to which it delegates power to resolve the dispute." RONR (12th ed.) 

In a case such as this, where "Voting is done electronically because the membership is spread across the United States," I agree that it may well be prudent for the organization to grant the board that authority, and indeed, it may well have already done so.

Edited March 26, 2022 at 12:32 PM by Josh Martin

[Rob Elsman]

Mr. Kapur, I am making no such assumption.  Without some delegation of authority, the board has no business interjecting itself into an election in the general membership assembly.  So far, I do not see in the facts that the board has such a delegation of authority, and I'm betting my afternoon tea that there isn't any.

[Shmuel Gerber]

On 3/25/2022 at 10:00 PM, randigb said:

Is USPS informed delivery the same as a postmark? …

"Additional nominations of voting members in good standing may be made by written petition addressed to the secretary and postmarked on or before March 15th. "

On 3/25/2022 at 11:14 PM, Rob Elsman said:

Mr. Kapur is obviously not a "textualist".  A textualist would claim that anything that Informed Delivery says is not equivalent to what the bylaw demands--that the written petition be postmarked by March 15th.

On 3/25/2022 at 11:49 PM, Atul Kapur said:

Thanks for the compliment.

Textualism has been defined as "The doctrine that the words of the governing text are of paramount concern and that what they fairly convey in their context is what the text means" (Black's Law Dictionary, 11th ed.). Since textualism is the only available known valid system of rules-interpretation that has even the possibility of being applied in a fair, logical, and objective manner, I don't think that being called "not a 'textualist'" should be taken as a compliment. 🙂

But being a textualist doesn't mean relying exclusively on the literal meaning of individual words. To take an example given by the late Justice Scalia, no one contends that the U.S. Congress can legally regulate the content of handwritten letters because the First Amendment's guarantee of free expression prohibits only "… abridging the freedom of speech, or of the press …" and a handwritten letter does not involve speaking or printed media.

Being a textualist also doesn't mean that one should not avail oneself of reason. In this case, I don't agree that a textualist would necessarily claim that the bylaws demand that a mailed but non-postmarked submission received before the deadline be thrown out. If all one paid attention to were the actual words, one would conclude (absurdly) that the bylaws don't say anything at all about nominations that are postmarked after March 15th, and therefore there is no prohibition against accepting them. Logical reasoning is necessary to deduce that the granting of permission to accept nominations postmarked on or before the 15th implies the prohibition of accepting them afterward. The principle of interpretation involved is: "A prohibition or limitation prohibits everything greater than what is prohibited, or that goes beyond the limitation; but it permits what is less than the limitation, and also permits things of the same class that are not mentioned in the prohibition or limitation and that are not evidently improper" (RONR (12th ed.) 56:68(6)).

By that same principle, Mr. Kapur and Messrs. Brown, Novosielski (père), and Martin have quite reasonably concluded, a fortiori and contra Mr. Elsman, that a mailed nomination received from the postal service before March 15th is of even greater acceptability than one postmarked by that date, and therefore the rule in the bylaws does not imply their exclusion.

Put simply, the standard in the bylaws may not have been met, but it seems as though it has been exceeded.

Furthermore, even supposing, for the sake of argument, that the bylaws specifically stated something like "Additional nominations of voting members in good standing may be made only by written petition addressed to the secretary and postmarked on or before March 15th", it seems quite reasonable to construe "postmarked on or before March 15th" as a general requirement, as Mr. Kapur says, of being entered into the custody of the postal system for delivery, with an independently applied verifiable indication of same, on or before that date — regardless of whether every envelope bears an actual "postmark" as defined by the USPS: "A postal imprint made on letters, flats, and parcels that shows the name of the Post Office that accepts custody of the mail, along with the two-letter state abbreviation and ZIP Code of the Post Office, and for some types of mail the date of mailing, and the time abbreviation a.m. or p.m. The postmark is generally applied, either by machine or hand, with cancellation or killer bars to indicate that the postage cannot be reused." (https://about.usps.com/publications/pub32/pub32_terms.htm)

RONR (45:33) states, "Technical errors, like the misspelling of a word or name, do not make a vote illegal if the meaning of the ballot is clear." Just as voting is a basic right of membership, the making of nominations is a basic right concomitant to the basic rights of membership (see 1:4). So I think it would behoove the organization to apply a similar standard to a rule relating to the submission of nominations. That is, it should not be overly technical when there is no question as to whether the member actually submitted the nominations in the proper time and manner as required by the bylaws and there is no undue difficulty for the society in validating and processing them.

[Rob Elsman]

On 3/25/2022 at 10:14 PM, Rob Elsman said:

I think the competent body has the power to decide questions like this.

I did not intend to take a position contrary to Mr. Kapur's.  I simply intended to say that there is a competent body that can decide the controversy that has been raised by the original poster, and that, absent contrary facts not available, the board is out-of-bounds when it interjects itself, since the board is not the body holding the election.

As to the interpretation of the bylaw, I took no position, and I will not.

[Shmuel Gerber]

On 3/27/2022 at 3:45 PM, Rob Elsman said:

As to the interpretation of the bylaw, I took no position, and I will not.

But you took the position that the only way a textualist would decide the question is to deem the petition inadequate under the bylaws, and I disagree.

On 3/27/2022 at 3:45 PM, Rob Elsman said:

I simply intended to say that there is a competent body that can decide the controversy that has been raised by the original poster, and that, absent contrary facts not available, the board is out-of-bounds when it interjects itself, since the board is not the body holding the election.

I also agree with what the other posters have said about this.

We simply do not know whether or not the body conducting or supervising the election is the board. Clearly the election is happening outside a meeting, and so it is being conducted by some person or persons without the immediate direction of an assembly of the membership. It could be the secretary, an elections commissioner, the executive board, an elections committee, a management company, etc. Even if there is some superior body that will be the ultimate judge of the results, the people sending out the ballots will have to make the initial determination as to which names should appear on the ballot if no meeting of a superior body takes place before the ballots are sent.

[Atul Kapur]

On 3/27/2022 at 2:05 PM, Shmuel Gerber said:

I don't think that being called "not a 'textualist'" should be taken as a compliment. 🙂

I only did so in the way Mr. Elsman apparently meant to use the word, as indicated by his comments following. 

On 3/25/2022 at 11:14 PM, Rob Elsman said:

Mr. Kapur is obviously not a "textualist".  A textualist would claim that anything that Informed Delivery says is not equivalent to what the bylaw demands--that the written petition be postmarked by March 15th.

Although, I suppose that actually is an example of my not acting as a textualist. 😉

[Rob Elsman]

On 3/25/2022 at 9:00 PM, randigb said:

...a nominee for a board position...

We know this much.  Since, in most ordinary societies, the board does not elect its own members, we are safer to believe that the general membership is in the process of electing members of the board.

[Shmuel Gerber]

On 3/27/2022 at 3:57 PM, Atul Kapur said:

Although, I suppose that actually is an example of my not acting as a textualist. 😉

Well, to the extent that your reply indicates a willingness to rely on purposivism as opposed to textualism, let's see what we can do to persuade you from doing that.

The purpose of a rule can help inform what it means and how it should be applied, but that doesn't mean the provisions of the rule should be ignored, in favor of carrying out its general purpose, whenever the person(s) interpreting the rule thinks that the result would otherwise be ridiculous or contrary to the general purpose.

If the drafters of bylaws actually want all nominations that are not postmarked to be discarded, regardless of when received, then as far as RONR is concerned they are entitled to adopt a provision to require that, despite how ridiculous it might seem. The question here is whether the language is specific enough to accomplish such a (perhaps ridiculous) outcome.

[Dan Honemann]

I think USPS informed delivery means that the post office notifies the addressee when it gets something addressed to him by sending him a picture of the face of the envelop it has received. This, of course, happens before the addressee actually receives it. 

I can't imagine why the envelope isn't eventually postmarked, but who cares?  🙂

[Shmuel Gerber]

On 3/27/2022 at 5:15 PM, Dan Honemann said:

I think USPS informed delivery means that the post office notifies the addressee when it gets something addressed to him by sending him a picture of the face of the envelop it has received. This, of course, happens before the addressee actually receives it. 

I can't imagine why the envelope isn't eventually postmarked, but who cares?  🙂

Sorry, but this conversation was admitted under the topic title "Question on USPS informed deliverty." 🙂

But seriously: Actually, I think the email for Informed Delivery® by USPS® (Reg. Penna. Dept. Agr.) is sent well after the post office gets the mail, when it is being processed for delivery to the home. (Not that that detail makes any difference either.) I take your question "who cares?" to mean that no one should care that an envelope that has clearly gone through the post office within the prescribed time, the fact of which has been acknowledged by the post office, has no actual postmark on it. But randigb has said, "The board is planning to reject the nomination application because of the lack of a bar code," so evidently the board members care about this, or are at least purporting to.

That is a bit puzzling because the bar code actually has nothing to do with the postmark; a sender can pre-code an envelope with the bar code before it gets to the post office. But an Informed Delivery email is clearly not a postmark in the traditional or official sense, because it is not tangibly applied to the mail piece itself. Should that matter? Everyone here who is willing to express an opinion seems to think it shouldn't.