Violating bylaws

[rbk]

If our organization elects an officer in a way that violates our bylaws, and no one raises an objection, can the violation be raised at a later date to invalidate the election? I think not, because any objection would be "old business" that cannot be raised at a subsequent meeting.

[Weldon Merritt]

You need to give us more information before we can give you an answer. In what way does the election violate the bylaws? Was there a procedural error in the conduct of the election, or was the person elected not eligible to hold the office? Y

[Gary Novosielski]

Well, there's no such thing as "old business" so that doesn't enter into it.

What's important here is why and how the alleged violation occurred.  In cases where a continuing breach is created, a Point of Order can be raised at a later time.  Otherwise, it can only be raised promptly at the time of the breach.

See RONR (12th ed.) 23:6 for a list of situations that give rise to a breach of a continuing nature.

If you give us more details about this violation, we can be more helpful

 

[rbk]

On 7/25/2022 at 9:57 AM, Gary Novosielski said:

What's important here is why and how the alleged violation occurred.  In cases where a continuing breach is created, a Point of Order can be raised at a later time.  Otherwise, it can only be raised promptly at the time of the breach.

See RONR (12th ed.) 23:6 for a list of situations that give rise to a breach of a continuing nature.

If you give us more details about this violation, we can be more helpful

I wasn't aware of 23:6 — thanks for the citation. Our bylaws have a qualification-waiver provision that allows certain unqualified members to be elected. For example, a trustee is required to have 3 years of service in the department to qualify as a trustee candidate. In the past, thinking that our bylaws allow us to do so, members have voted to waive our years-of-service requirement in order to elect unqualified trustees. After reviewing our bylaws, it is clear to me that the qualification-waiver provision does not apply to trustees. This isn't a matter of bylaw interpretation — it's unambiguous text that everyone has overlooked for many years. What is the status of trustees who were elected with an improperly-waived qualification?

[Atul Kapur]

If a person is in office but does not meet the qualifications that the bylaws require for that office, then there is a continuing breach of the bylaws for as long as that unqualified person is in the office. The election of that person is effectively a violation of 23:6(a).

More specifically, 46:49(a) says, "If an individual does not meet the qualifications for the post established in the bylaws, his or her election is tantamount to adoption of a main motion that conflicts with the bylaws" and, therefore, "a point of order can be made at any time during the continuance in office of the individual declared elected."

So you can make a point of order at the first opportunity. If the chair rules that the point is well taken, then the person's election is null and void and the office is declared vacant.

[Gary Novosielski]

On 7/25/2022 at 11:29 AM, rbk said:

I wasn't aware of 23:6 — thanks for the citation. Our bylaws have a qualification-waiver provision that allows certain unqualified members to be elected. For example, a trustee is required to have 3 years of service in the department to qualify as a trustee candidate. In the past, thinking that our bylaws allow us to do so, members have voted to waive our years-of-service requirement in order to elect unqualified trustees. After reviewing our bylaws, it is clear to me that the qualification-waiver provision does not apply to trustees. This isn't a matter of bylaw interpretation — it's unambiguous text that everyone has overlooked for many years. What is the status of trustees who were elected with an improperly-waived qualification?

Here again, "it depends".  I could not answer based on a paraphrase of the bylaws.  Are these qualifications to run, qualifications to be elected, or qualifications to hold office?

[rbk]

On 7/25/2022 at 11:57 AM, Gary Novosielski said:

Here again, "it depends".  I could not answer based on a paraphrase of the bylaws.  Are these qualifications to run, qualifications to be elected, or qualifications to hold office?

This discussion has led me to explore parts of RONR that till now I knew nothing about (it's a pretty thick book). I'm going to do some research — I'll be back if I get stuck. Thanks for helping.

[Tomm]

On 7/25/2022 at 8:29 AM, rbk said:

After reviewing our bylaws, it is clear to me that the qualification-waiver provision does not apply to trustees. This isn't a matter of bylaw interpretation — it's unambiguous text that everyone has overlooked for many years.

If it's clear that the bylaw doesn't allow a waiver for a trustee's qualifications and the bylaw doesn't provide for its own suspension, would that be considered a rule that cannot, or should have been allowed to suspended in the first place? 

Can qualifications for office be suspended?

[Gary Novosielski]

On 7/25/2022 at 12:38 PM, Tomm said:

If it's clear that the bylaw doesn't allow a waiver for a trustee's qualifications and the bylaw doesn't provide for its own suspension, would that be considered a rule that cannot, or should have been allowed to suspended in the first place? 

Can qualifications for office be suspended?

No. 

Qualifications for office may not be suspended.  The bylaws would need to be amended.

The only bylaws that can be suspended are those that contain a provision for their own suspension, which is apparently true for some but not all of yours, or those that are clearly in the nature of rules of order, i.e., rules pertaining to the orderly conduct of business in the context of a meeting.

Edited July 25, 2022 at 04:54 PM by Gary Novosielski

[Rob Elsman]

If the chair(s) had been competent to preside, the bylaw would have been applied correctly each year, every year.  It is the chair's duty to prepare for each election ahead of time by thoroughly studying the bylaws and the parliamentary procedures that apply.  He must know more than the average member would be expected to know.

[Josh Martin]

On 7/25/2022 at 8:41 AM, rbk said:

If our organization elects an officer in a way that violates our bylaws, and no one raises an objection, can the violation be raised at a later date to invalidate the election?

Only if the violation is such that it constitutes a continuing breach.

On 7/25/2022 at 10:29 AM, rbk said:

I wasn't aware of 23:6 — thanks for the citation. Our bylaws have a qualification-waiver provision that allows certain unqualified members to be elected. For example, a trustee is required to have 3 years of service in the department to qualify as a trustee candidate. In the past, thinking that our bylaws allow us to do so, members have voted to waive our years-of-service requirement in order to elect unqualified trustees. After reviewing our bylaws, it is clear to me that the qualification-waiver provision does not apply to trustees. This isn't a matter of bylaw interpretation — it's unambiguous text that everyone has overlooked for many years. What is the status of trustees who were elected with an improperly-waived qualification?

Their election is invalid. The election of an ineligible candidate is a continuing breach.

On 7/25/2022 at 11:38 AM, Tomm said:

If it's clear that the bylaw doesn't allow a waiver for a trustee's qualifications and the bylaw doesn't provide for its own suspension, would that be considered a rule that cannot, or should have been allowed to suspended in the first place? 

Can qualifications for office be suspended?

Qualifications for office cannot be suspended unless the bylaws so provide. The rule should not have been allowed to be suspended in the first place.