25:10 Musings

[Shmuel Gerber]

On 4/26/2022 at 11:47 AM, Rob Elsman said:

Mr. Gerber already finds other purposes for the rule at 9:15 than I do.  So, here we go.  Where does this all end?

I don't know -- say, with the assembly's simply following the rules that exist, including any provisions which permit suspension of the rules when desired?

On 4/26/2022 at 7:26 PM, Dan Honemann said:

Well, I agree with Mr. Gerber that the rule in 9:15 is designed to protect the members present at a special meeting even when there are no absentees to protect, but I also agree with you that, if there are no absentees to protect, the rule is a rule which can be suspended.

If Mr Elsman had simply stated that the rule could be suspended, I don't think I would have disagreed. If I had been in an agreeable mood, I might even have agreed. But I don't think that is what he said.

[Rob Elsman]

From my perspective, the requirement that all business to be transacted at a special meeting be included in the call of the meeting is solely intended to inform the members in advance in order that they might determine whether to make the necessary adjustments to their schedules and make arrangements to travel and lodge in order to attend the meeting.  It would not be fair to members to have them make these decisions without a complete understanding of what business would be transacted.

All this falls to the wayside if all the members actually attend the meeting.  If all the members are present, no member can claim to have been absent on the basis of having been misled about what business would be transacted.  It is in this sense that I say that the rule at 9:15 is moot when all members are actually present.  Disagreeing with Mr. Gerber, I do not see any other purposes for the rule at 9:15.  I have to wonder if Mr. Gerber has confused the requirement at 9:15 with the requirement for previous notice of a motion.

Now, if the rule at 9:15 is not in operation (because all the members are actually present), it does not interfere with the transaction of business.  It is for that reason that I claim that it is not necessary--in fact, it is absurd--to suspend the rule to allow the transaction of business not mentioned in the call of the meeting.

[Atul Kapur]

On 4/27/2022 at 11:08 AM, Rob Elsman said:

Disagreeing with Mr. Gerber, I do not see any other purposes for the rule at 9:15.

...

if the rule at 9:15 is not in operation (because all the members are actually present)

Testing my newfound "textualist" skills, your belief in what the purpose of 9:15 is, is immaterial. It is still there. The fact that all members are present doesn't take away from the fact that 9:15 is still there. The only thing changed by the lack of absentees is that the rule in 9:15 becomes suspendible because 25:10 no longer applies - 9:15 does not disappear or "fall to the wayside." So it would still need to be suspended in order to add items of business.

Edited April 27, 2022 at 03:32 PM by Atul Kapur

[Rob Elsman]

On 4/27/2022 at 10:29 AM, Atul Kapur said:

your belief in what the purpose of 9:15 is, is immaterial.

This is, indeed, the kind of textualism that I wish to avoid.  This kind of textualism holds that the meaning of a text lives inside the text.  In my view, reading a text involves communication that necessarily involves both the writer and the reader.  The meaning that is conveyed in this kind of communication involves both the writer and the reader--neither one is sufficient by itself.  The meaning, if there is any, exists within this interaction between writer and reader.

Those who have read me on this forum over the years know that I have long applied what I have called the average reader test.  I have held that it is not sufficient for the authors to intend to mean something when they write RONR; and, unless the average reader is able to reach the meaning with a good faith reading of the text, the writing does not mean what the authors intended.

So, when it is said that what I, a reader, believe is immaterial, I am concerned.  It is not sufficient that words are on my page, however much they are "still there".  The words do not have some kind of little beads of existential  meaning encapsulated in them.  What I and other readers believe is of upmost importance, because, without me and all the other readers of the book, the words of the book do not have any meaning at all.

[Atul Kapur]

On 4/27/2022 at 12:43 PM, Rob Elsman said:

The words do not have some kind of little beads of existential  meaning encapsulated in them. 

Siri, define "definition."

On 4/27/2022 at 12:43 PM, Rob Elsman said:

I have long applied what I have called the average reader test.

In Canada, the "reasonable person" test is the more common phrase, but I believe that I understand the concept.

Either way, your interpretation appears to be held only by you, going by the responses on this thread. So I don't know if it can be fairly referred to as the view of average readers.

On 4/27/2022 at 12:43 PM, Rob Elsman said:

when it is said that what I, a reader, believe is immaterial, I am concerned.

I stated that, "your belief in what the purpose of 9:15 is, is immaterial." I believe that that  limitation is important.

[Gary Novosielski]

On 4/25/2022 at 5:15 PM, Rob Elsman said:

Thus, any business that is otherwise able to come before the assembly under the rules can be transacted without suspending the rules, since there is no interfering rule in operation.

A rule (which is otherwise applicable) is "in operation" unless and until suspended.  The fact that a rule is suspendible does not mean that it is moot.  A vote to suspend it may fail, while simply treating it as moot fails to protect a minority of more than one third, which could otherwise insist on its enforcement.

[J. J.]

On 4/26/2022 at 12:06 AM, Shmuel Gerber said:

The fact that the rule protects absentees (if there are any) doesn't mean that's the only thing it does. Giving notice of the purpose(s) of the meeting to all members a reasonable number of days in advance allows them to prepare in other ways than simply showing up at the meeting, and it also provides an expectation that time will not be consumed at the meeting with other business.

In 4:58, RONR speaks of "the principle that rules are designed for the protection of the minority and generally need not be strictly enforced when there is no minority to protect". It does not say that rules of order become moot when there is no minority to protect.

Notice absolutely protects the rights of absentees. 

Notice might create a basic right of an individual member.  I am inclined to error on the side of the basic right side.  If this is a violation of a basic right, the violation will create a breach of a continuing nature (23.6).  I would feel that it would take a unanimous vote of the entire membership to entertain items at a special meeting not properly noticed. 

[Atul Kapur]

On 4/29/2022 at 6:44 PM, J. J. said:

Notice might create a basic right of an individual member.

What basic right is that?

[J. J.]

On 4/30/2022 at 6:43 AM, Atul Kapur said:

What basic right is that?

The one the Mr. Gerber is alluding to, the right to be informed in advance, in order to make preparations.  The authorship team conceded a number of years ago that a definitive list of the basic rights of individual members (and of FPPL's) could not be created.  See "Significant Changes in the Tenth Edition of RONR: Part II," 2nd Quarter National Parliamentarian, 2001.  This predates Mr. Gerber's tenure of the authorship team, but it consistent with what he alluded to in his post. 

I believe another member of the authorship team, Mr. Balch, individually wrote something similar. 

 

[Dan Honemann]

On 4/30/2022 at 9:19 AM, J. J. said:

The one the Mr. Gerber is alluding to, the right to be informed in advance, in order to make preparations.  The authorship team conceded a number of years ago that a definitive list of the basic rights of individual members (and of FPPL's) could not be created.  See "Significant Changes in the Tenth Edition of RONR: Part II," 2nd Quarter National Parliamentarian, 2001.  This predates Mr. Gerber's tenure of the authorship team, but it consistent with what he alluded to in his post. 

I believe another member of the authorship team, Mr. Balch, individually wrote something similar. 

 

Well, I've carefully reviewed all of the posts by my friend and colleague, Mr. Gerber, and it is very clear that in none of them did he even so much as suggest that the rule found in 9:15 ("The only business that can be transacted at a special meeting is that which has been specified in the call of the meeting.") is a rule protecting a basic right of the individual member.  It isn't.  I am also quite confidant that no other member of the authorship team has ever suggested such a thing. 

 

[Gary Novosielski]

On 4/30/2022 at 10:27 AM, Dan Honemann said:

Well, I've carefully reviewed all of the posts by my friend and colleague, Mr. Gerber, and it is very clear that in none of them did he even so much as suggest that the rule found in 9:15 ("The only business that can be transacted at a special meeting is that which has been specified in the call of the meeting.") is a rule protecting a basic right of the individual member.  It isn't.  I am also quite confidant that no other member of the authorship team has ever suggested such a thing. 

 

I think that point is strengthened by the fact that the language of the rule is different from a normal requirement for previous notice, which can be given in several ways.  This specification must be given in the call, and is more in the nature of a description of business rather than a notice of a particular motion.

[J. J.]

On 4/30/2022 at 10:27 AM, Dan Honemann said:

Well, I've carefully reviewed all of the posts by my friend and colleague, Mr. Gerber, and it is very clear that in none of them did he even so much as suggest that the rule found in 9:15 ("The only business that can be transacted at a special meeting is that which has been specified in the call of the meeting.") is a rule protecting a basic right of the individual member.  It isn't.  I am also quite confidant that no other member of the authorship team has ever suggested such a thing. 

 

I said it may.  The authorship team at the time, which included you, said, collectively, that it was impossible to create a list of what was or wasn't a basic right of an individual member.  It may be a basic right of an individual member to be inform in advance so that he can prepare for considering the action, not merely so he can attend.  It may not be a basic right of an individual member. 

[Dan Honemann]

On 4/30/2022 at 3:45 PM, J. J. said:

I said it may.  The authorship team at the time, which included you, said, collectively, that it was impossible to create a list of what was or wasn't a basic right of an individual member.  It may be a basic right of an individual member to be inform in advance so that he can prepare for considering the action, not merely so he can attend.  It may not be a basic right of an individual member. 

Even if it is not possible to create a definitive list of all rights that should be considered basic rights of individual members, it is still possible to say with certainty that the rule in 9:15 is not a rule protecting a basic right of the individual member. 

[J. J.]

On 4/30/2022 at 4:05 PM, Dan Honemann said:

Even if it is not possible to create a definitive list of all rights that should be considered basic rights of individual members, it is still possible to say with certainty that the rule in 9:15 is not a rule protecting a basic right of the individual member. 

Mr. Gerber said:

"The fact that the rule protects absentees (if there are any) doesn't mean that's the only thing it does. Giving notice of the purpose(s) of the meeting to all members a reasonable number of days in advance allows them to prepare in other ways than simply showing up at the meeting, and it also provides an expectation that time will not be consumed at the meeting with other business.

In 4:58, RONR speaks of 'the principle that rules are designed for the protection of the minority and generally need not be strictly enforced when there is no minority to protect'. It does not say that rules of order become moot when there is no minority to protect."

9:15 may create other rights that are not associated with a right protecting absentees.  Those other rights might be a basic right of the individual member.  That would be consistent with other things the authorship team has collectively published.  I am not convinced either way, at this point, except to say that this could create a basic right of an individual member and would like to see the topic of what else notice of a special meeting does explored. 

Edited April 30, 2022 at 08:29 PM by J. J.

[Dan Honemann]

On 4/30/2022 at 4:27 PM, J. J. said:

Mr. Gerber said:

"The fact that the rule protects absentees (if there are any) doesn't mean that's the only thing it does. Giving notice of the purpose(s) of the meeting to all members a reasonable number of days in advance allows them to prepare in other ways than simply showing up at the meeting, and it also provides an expectation that time will not be consumed at the meeting with other business.

In 4:58, RONR speaks of 'the principle that rules are designed for the protection of the minority and generally need not be strictly enforced when there is no minority to protect'. It does not say that rules of order become moot when there is no minority to protect."

9:15 may create other rights that are not associated with a right protecting absentees.  Those other rights might be a basic right of the individual member.  That would be consistent with other things the authorship team has collectively published.  I am not convinced either way, at this point, except to say that this could create a basic right of an individual member and would like to see the topic of what else notice of a special meeting does explored. 

J.J., I believe that what you have in mind is a substantially different set of facts than those which have been posited here, involving some sort of violation of the rules contained in 9:13 relating to notice, and not a violation of the rule in 9:15 which presupposes the existence of a properly called special meeting.

[Tim Wynn]

On 4/26/2022 at 7:36 AM, Dan Honemann said:

As to #2, I think an example of what he has in mind would be helpful. My guess is that the answer will not be the same as the answer to #1.

 

RONR mentions scenarios under which the quorum cannot be suspended; I'm interested in what RONR has in mind in regard to the allowable instances of suspending the quorum. I didn't have anything specific in mind, but I'll offer two scenarios below to test those waters:

 

#1. The authority by which a board is constituted provides that the board shall create its own rules, including determining its own quorum. The board has adopted a quorum of eight, but its membership has fallen to six. With all six members present, may the board adopt a motion that suspends the quorum requirement? 

 

#2. Using the Sample Bylaws in RONR, let's say membership has fallen to thirteen, all of which are present in a meeting. Would it be in order to suspend the rules to elect to membership the two candidates that were reported at the last meeting?

[Tim Wynn]

On 4/27/2022 at 11:08 AM, Rob Elsman said:

From my perspective, the requirement that all business to be transacted at a special meeting be included in the call of the meeting is solely intended to inform the members in advance in order that they might determine whether to make the necessary adjustments to their schedules and make arrangements to travel and lodge in order to attend the meeting. 

By this, can we conclude that you are of the opinion that full attendance at a special meeting removes the rule limiting business to those matters mentioned in the call, even if some members later leave the meeting? It seems that if the rule is taken as being solely to inform the members so they might determine their schedules and make travel arrangements, then the mere making of those travel arrangements by all of the members would be sufficient to nullify the rule and turn the special meeting into an irregular regular meeting.  

From a different perspective, the rule is that no time shall be spent on any matters not mentioned in the call of the meeting, except as allowed by a two-thirds vote. This perspective gives protection to a minority greater than one third.

Regardless of perspectives, the rules in Section 9 exist, and they are never qualified by saying "unless all members are present," or "if there are any absentees." 

However, as a footnote, I do believe Section 9 operates under the assumption that there are absentees, such as in this line, "If, at a special meeting, action is taken relating to business not mentioned in the call, that action, to become valid, must be ratified (see 10:54–57) by the organization at a regular meeting (or at another special meeting properly called for that purpose)." I don't believe this rule was intended to apply in a case where all members were present at the time of adoption and a timely point of order was not raised, though the wording of the rule might not past your average reader test, whether administered in the U.S. or Canada. 

 

 

[Dan Honemann]

On 5/4/2022 at 6:00 PM, Tim Wynn said:

RONR mentions scenarios under which the quorum cannot be suspended; I'm interested in what RONR has in mind in regard to the allowable instances of suspending the quorum. I didn't have anything specific in mind, but I'll offer two scenarios below to test those waters:

 

#1. The authority by which a board is constituted provides that the board shall create its own rules, including determining its own quorum. The board has adopted a quorum of eight, but its membership has fallen to six. With all six members present, may the board adopt a motion that suspends the quorum requirement? 

 

#2. Using the Sample Bylaws in RONR, let's say membership has fallen to thirteen, all of which are present in a meeting. Would it be in order to suspend the rules to elect to membership the two candidates that were reported at the last meeting?

In my opinion, the answer to both of these questions is yes.  The only question in my mind is whether any suspension of the rules is required.

Going all the way back to the beginning of this discussion, Mr. Elsman posted the following:

I am of two minds, but I think I'm inclined to believe that no suspension of the rules is necessary as long as all the members are actually present.  RONR (12th ed.) 25:10 is solely intended to protect the rights of absentees, but in the case where there are no absentees to protect, what is said there is moot.  Thus, any business that is otherwise able to come before the assembly under the rules can be transacted without suspending the rules, since there is no interfering rule in operation.

To this I responded with "Well said", and what I was specifically referring to was the portion of his response which I have bolded. If the only purpose of a rule is to protect absentees, and there are no absentees to protect, then there is no rule the enforcement of which needs to be suspended.

I hasten to add that I have not, to my recollection, discussed this with any of my colleagues on the authorship team, and thus it must be understood to be solely my own opinion. They may convince me otherwise. Besides that, I'm better in the mornings. 😀

[Tim Wynn]

On 5/4/2022 at 7:25 PM, Dan Honemann said:

In my opinion, the answer to both of these questions is yes. 

. . . it must be understood to be solely my own opinion.

Oh, I don't know. I might make it my opinion also. 😉

[Atul Kapur]

On 5/4/2022 at 7:08 PM, Tim Wynn said:

By this, can we conclude that you are of the opinion that full attendance at a special meeting removes the rule limiting business to those matters mentioned in the call, even if some members later leave the meeting?

....

I don't believe this rule was intended to apply in a case where all members were present at the time of adoption and a timely point of order was not raised,

But if you are saying that the rule is removed because there are no attendees, then what basis is there for a point of order to be raised?

It would appear that the only recourse for a small group of members against having new matters introduced at a special meeting  would be to have one member quickly depart the meeting. My initial reaction is that I am not comfortable with an interpretation that encourages or requires a member's withdrawal from participation.

[Dan Honemann]

On 5/5/2022 at 9:16 AM, Atul Kapur said:

But if you are saying that the rule is removed because there are no attendees, then what basis is there for a point of order to be raised?

It would appear that the only recourse for a small group of members against having new matters introduced at a special meeting  would be to have one member quickly depart the meeting. My initial reaction is that I am not comfortable with an interpretation that encourages or requires a member's withdrawal from participation.

As best I can determine, virtually all agree that, when there are no absentees, adoption by a two-thirds vote of a motion to suspend the rules will be necessary in order to enable the transaction of business that has not been specified in the call of a special meeting (a 9:15 violation), and if there are absentees, it can't be done.

Or if they don't, they should.  😀

Edited May 5, 2022 at 02:55 PM by Dan Honemann
Added the parenthetical reference to 9:15.

[Atul Kapur]

On 5/5/2022 at 10:06 AM, Dan Honemann said:

As best I can determine, virtually all agree that, when there are no absentees, adoption by a two-thirds vote of a motion to suspend the rules will be necessary in order to enable the transaction of business that has not been specified in the call of a special meeting (a 9:15 violation), and if there are absentees, it can't be done.

Or if they don't, they should.  😀

I do agree (and that's where I started). 

However, I read Mr. Elsman's comments, your response of "well said", and Mr. Wynn's comment as saying something very different. So I am glad this is clarified.

On 4/27/2022 at 11:08 AM, Rob Elsman said:

.... the rule at 9:15 is moot when all members are actually present. ....

Now, if the rule at 9:15 is not in operation (because all the members are actually present), it does not interfere with the transaction of business.  It is for that reason that I claim that it is not necessary--in fact, it is absurd--to suspend the rule to allow the transaction of business not mentioned in the call of the meeting. [Emphasis added]

On 5/4/2022 at 7:25 PM, Dan Honemann said:

[Quoting @Rob Elsman]:

any business that is otherwise able to come before the assembly under the rules can be transacted without suspending the rules, since there is no interfering rule in operation.

To this I responded with "Well said"

 

[Dan Honemann]

On 5/5/2022 at 3:13 PM, Atul Kapur said:

I do agree (and that's where I started). 

However, I read Mr. Elsman's comments, your response of "well said", and Mr. Wynn's comment as saying something very different. So I am glad this is clarified.

 

Dr. Kapur, are you sure you haven't been overlooking the fact that this most recent discussion has moved on to Mr. Wynn's question dealing with violation of a rule establishing a quorum requirement and not a 9:15 violation? 

 

[Atul Kapur]

Which is why I sought clarification, because Mr. Elsman's comment quoted above specifically referred to 9:15. It was unclear, at least to me, whether you were saying that "since there is no interfering rule in operation" applied to 9:15 or just to the new topic of quorum.

As before, I'm happy that it has been clarified.

 

[Dan Honemann]

On 5/6/2022 at 10:07 AM, Atul Kapur said:

Which is why I sought clarification, because Mr. Elsman's comment quoted above specifically referred to 9:15. It was unclear, at least to me, whether you were saying that "since there is no interfering rule in operation" applied to 9:15 or just to the new topic of quorum.

As before, I'm happy that it has been clarified.

 

OK, but just for the record you should note that Mr. Elsman's initial post on April 25, to which I had responded with "well said", made no reference to 9:15.  You have quoted from his post on April 27.  I did not respond to this post at all, finding your and Mr. Novosielski"s responses more than adequate.