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Bylaw Violation


Guest Doug W
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Our Board of Directors have been voting in New Members into our Private Club by a Voice Vote for at least 7 years, at our last board meeting we had a Member join our Board, we proceed to have a voice vote for a new member and he was Unanimously Approved, after the Voice Vote our New Board Member advised that it was in violation of the Bylaws, after checking the Bylaws he was correct. We then proceed to a paper vote and the proposed new member was declined membership as there were now 3 board members who now voted No.

Need some advise as to how to proceed

Thanks

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On 8/3/2022 at 12:06 PM, Guest Doug W said:

Our Board of Directors have been voting in New Members into our Private Club by a Voice Vote for at least 7 years, at our last board meeting we had a Member join our Board, we proceed to have a voice vote for a new member and he was Unanimously Approved, after the Voice Vote our New Board Member advised that it was in violation of the Bylaws, after checking the Bylaws he was correct. We then proceed to a paper vote and the proposed new member was declined membership as there were now 3 board members who now voted No.

Need some advise as to how to proceed

It sounds like you proceed by informing the prospective member that he was denied membership. And remember to do this the right way the first time in the future.

Edited by Josh Martin
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My issue with this is, I believe that the new board member should have said Point of Order before the Voice Vote was taken and not after it was completed, once the Voice Vote was completed it was the way new members have been voted on for years, that Vote should have stood as that is the way it had been done for years, once the point of order was brought up it should have been discussed and then applied to all potential new members in the future.

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Accepting a member whose membership is prohibited by the bylaws creates a continuing breach that may be subject to a point of order at any time. The proper response to such a point of order, of course, is not to proceed to a paper vote on a motion that has already been adopted, but given that the paper vote resulted in a vote of no, it seems like the correct result - not admitting a person to membership in violation of your bylaws - has been reached, albeit through improper means.

I disagree with your point here:

On 8/3/2022 at 2:03 PM, Guest Doug W said:

that Vote should have stood as that is the way it had been done for years, once the point of order was brought up it should have been discussed and then applied to all potential new members in the future.

If the bylaws provide for qualifications for membership, I see no reason a person should, nonetheless, be permitted to be a member who does not meet those qualifications, while they are applied to those who apply later. Either you have bylaws with bite, or you don't. And bylaws of this nature may not be suspended (unless the rule in question provides for its own suspension).

The point of a point of order is to object that the current action, the one being taken (or in effect) right now, violates the rules. It isn't just forward-looking. Indeed, if there are any admitted members who are also not qualified, points of order should be raised about their membership, too.

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On 8/3/2022 at 1:03 PM, Guest Doug W said:

My issue with this is, I believe that the new board member should have said Point of Order before the Voice Vote was taken and not after it was completed, once the Voice Vote was completed it was the way new members have been voted on for years, that Vote should have stood as that is the way it had been done for years, once the point of order was brought up it should have been discussed and then applied to all potential new members in the future.

The voice vote does not stand. Firstly, even as a general matter, a point of order regarding the conduct of a vote may be raised immediately following the announcement of the result. A Point of Order regarding the conduct of a vote does not need to be raised prior to the vote. Second, because in this particular case the bylaws require a ballot vote, violation of this rule is a continuing breach, and a Point of Order may be raised at any time during the breach.

"The general rule is that if a question of order is to be raised, it must be raised promptly at the time the breach occurs... Points of order regarding the conduct of a vote must be raised immediately following the announcement of the voting result (see 45:9)." RONR (12th ed.) 23:5

"The only exceptions to the requirement that a point of order must be made promptly at the time of the breach arise in connection with breaches that are of a continuing nature, whereby the action taken in violation of the rules is null and void. In such cases, a point of order can be made at any time during the continuance of the breach—that is, at any time that the action has continuing force and effect—regardless of how much time has elapsed. Instances of this kind occur when:

e) any action has been taken in violation of a rule protecting absentees, a rule in the bylaws protecting the secrecy of the members’ votes (as on a ballot vote), or a rule protecting a basic right of an individual member (25:7, 25:10–11)." RONR (12th ed.) 23:6

So the board acted correctly by invalidating the voice vote and proceeding to take a ballot vote as the bylaws require. The prospective member is not admitted to membership.

On 8/3/2022 at 1:22 PM, Joshua Katz said:

Accepting a member whose membership is prohibited by the bylaws creates a continuing breach that may be subject to a point of order at any time. The proper response to such a point of order, of course, is not to proceed to a paper vote on a motion that has already been adopted, but given that the paper vote resulted in a vote of no, it seems like the correct result - not admitting a person to membership in violation of your bylaws - has been reached, albeit through improper means.

Mr. Katz, as I understand the facts, the individual in question is eligible for membership. The problem is that the bylaws require that an election for membership be conducted by ballot vote. So it seems to me that (after ruling the point well taken), the next step is indeed to proceed to a ballot vote.

On 8/3/2022 at 1:22 PM, Joshua Katz said:

If the bylaws provide for qualifications for membership, I see no reason a person should, nonetheless, be permitted to be a member who does not meet those qualifications, while they are applied to those who apply later. Either you have bylaws with bite, or you don't. And bylaws of this nature may not be suspended (unless the rule in question provides for its own suspension).

Again, I do not think this is a qualification for membership. Rather, it is a rule regarding the process for admitting new members. Nonetheless, I concur that a rule in the bylaws requiring a ballot vote cannot be suspended, and that violation of such a rule is a continuing breach.

Edited by Josh Martin
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On 8/3/2022 at 2:37 PM, Josh Martin said:

Mr. Katz, as I understand the facts, the individual in question is eligible for membership. The problem is that the bylaws require that an election for membership be conducted by ballot vote. So it seems to me that (after ruling the point well taken), the next step is indeed to proceed to a ballot vote.

On 8/3/2022 at 2:22 PM, Joshua Katz said:

Assuming, as is usually the case, that Mr. Martin is correct, and the only issue here was an improper voting method, I concur with his answer.

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On 8/3/2022 at 2:03 PM, Guest Doug W said:

My issue with this is, I believe that the new board member should have said Point of Order before the Voice Vote was taken and not after it was completed, once the Voice Vote was completed it was the way new members have been voted on for years, that Vote should have stood as that is the way it had been done for years, once the point of order was brought up it should have been discussed and then applied to all potential new members in the future.

If I understand the situation, the "new board member" was not yet a board member, especially before the vote was taken, and so would not have the right to raise a Point of Order.  And I wonder whether it would be less likely or more, that someone would raise a point of order seeking to invalidate their own membership.

In any case I concur with my colleagues who have pointed out that a continuing breach existed, and the timeliness of the point of order was therefore not an issue.  Taking the vote by ballot was therefore the proper procedure.  Points of order do not get discussed or debated unless an Appeal is taken from the ruling of the chair.  Because of the continuing nature of such breaches, the ruling should apply to any memberships that were affected, past or future. 

If the organization wishes not to revote on each past admission, I think it would be in order to take a single vote, effectively to Ratify those admissions, but the vote would need to be by ballot, and to achieve whatever threshold would have been required to admit them in the first place.  If that vote failed, then each admission would need to be revisited.  I invite comments from others on whether this would be in order.

If this were my club I would like to see a discussion on the apparent misfeasance of the presiding officer(s) in allowing improper votes to be taken for a long period of time.  The chair is expected to be familiar with the requirements of the bylaws. This would seem to grounds for discipline of some sort.  

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Bolded and blue text is from me.  RONR (12th ed. 2:25):

2:25    In some organizations, a particular practice may sometimes come to be followed as a matter of established custom so that it is treated practically as if it were prescribed by a rule. If there is no contrary provision in the parliamentary authority or written rules of the organization, such an established custom is adhered to unless the assembly, by a majority vote, agrees in a particular instance to do otherwise. However, if a customary practice is or becomes in conflict with the parliamentary authority or any written rule, and a Point of Order citing the conflict is raised at any time, the custom falls to the ground, and the conflicting provision in the parliamentary authority or written rule must thereafter be complied with. If it is then desired to follow the former practice, a special rule of order (or, in appropriate circumstances, a standing rule or a bylaw provision) can be added or amended to incorporate it.

This explains how "customs" are dealt with, especially when the custom itself is in conflict with any written rule.

I question though, the words in blue, specifically "thereafter".  How does this play out then?  

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On 8/4/2022 at 11:45 AM, Gary Novosielski said:

If I understand the situation, the "new board member" was not yet a board member, especially before the vote was taken, and so would not have the right to raise a Point of Order.  And I wonder whether it would be less likely or more, that someone would raise a point of order seeking to invalidate their own membership.

My understanding was that the new board member became a board member prior to the vote in question, and the vote in question was to admit a person as a member of the club (not the board).

On 8/4/2022 at 11:45 AM, Gary Novosielski said:

Because of the continuing nature of such breaches, the ruling should apply to any memberships that were affected, past or future. 

I do not agree that the ruling automatically applies to any memberships affected by this issue in the past. While I do not know exactly what the ruling was, I find it extremely likely the ruling was regarding only the vote before the assembly at that time. This ruling could be used as a precedent if and when other Points of Order regarding similar matters are raised in the future.

On 8/4/2022 at 11:45 AM, Gary Novosielski said:

If the organization wishes not to revote on each past admission, I think it would be in order to take a single vote, effectively to Ratify those admissions, but the vote would need to be by ballot, and to achieve whatever threshold would have been required to admit them in the first place.  If that vote failed, then each admission would need to be revisited.  I invite comments from others on whether this would be in order.

RONR explicitly prohibits the use of ratification in these specific circumstances.

"An assembly can ratify only such actions of its officers, committees, delegates, subordinate bodies, or staff as it would have had the right to authorize in advance. It cannot make valid a voice-vote election when the bylaws require elections to be by ballot; nor can it ratify anything done in violation of procedural rules prescribed by national, state, or local law, or in violation of its own bylaws, except that provision for a quorum in the bylaws does not prevent it from ratifying action taken at a meeting when no quorum was present." RONR (12th ed.) 10:55, emphasis added

A single motion to admit multiple members would be in order, albeit not as a motion to Ratify. Such a motion would indeed require the same threshold as to admit an individual member. Additionally, such a motion would be divisible upon the demand of a single member.

On 8/4/2022 at 11:45 AM, Gary Novosielski said:

If this were my club I would like to see a discussion on the apparent misfeasance of the presiding officer(s) in allowing improper votes to be taken for a long period of time.  The chair is expected to be familiar with the requirements of the bylaws. This would seem to grounds for discipline of some sort.  

Well, since we are told this went on for at least seven years, I'm inclined to think this is a collective failure of the entire board, not any particular presiding officer(s). So I would be more inclined to resolve this with some sort of education for the board as a whole regarding the contents of the society's bylaws, rather than through punitive measures. Ultimately, however, that will be a decision for the society to make.

On 8/4/2022 at 12:03 PM, Tapestry said:

Bolded and blue text is from me.  RONR (12th ed. 2:25):

2:25    In some organizations, a particular practice may sometimes come to be followed as a matter of established custom so that it is treated practically as if it were prescribed by a rule. If there is no contrary provision in the parliamentary authority or written rules of the organization, such an established custom is adhered to unless the assembly, by a majority vote, agrees in a particular instance to do otherwise. However, if a customary practice is or becomes in conflict with the parliamentary authority or any written rule, and a Point of Order citing the conflict is raised at any time, the custom falls to the ground, and the conflicting provision in the parliamentary authority or written rule must thereafter be complied with. If it is then desired to follow the former practice, a special rule of order (or, in appropriate circumstances, a standing rule or a bylaw provision) can be added or amended to incorporate it.

This explains how "customs" are dealt with, especially when the custom itself is in conflict with any written rule.

I question though, the words in blue, specifically "thereafter".  How does this play out then?  

What is said in 2:25 pertaining to this matter should not be read in isolation. See also RONR (12th ed.) 23:5-6, as I have cited above.

When those rules are read and taken together, it would seem to me the conclusion is that the particular vote for which the Point of Order was raised is null and void and must be retaken (which was done) and, in addition, the rule must now be followed thereafter.

Edited by Josh Martin
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On 8/4/2022 at 4:25 PM, Josh Martin said:

I do not agree that the ruling automatically applies to any memberships affected by this issue in the past. While I do not know exactly what the ruling was, I find it extremely likely the ruling was regarding only the vote before the assembly at that time. This ruling could be used as a precedent if and when other Points of Order regarding similar matters are raised in the future.

No, don't think it would automatically apply, especially since we don't know what the ruling specifically said.  When I said it should apply, I meant that applying the principle of continuing breach should apply to the former admissions.  I agree that since this was presumably not part of the original ruling, additional rulings on additional points of order would be necessary.

On 8/4/2022 at 4:25 PM, Josh Martin said:

RONR explicitly prohibits the use of ratification in these specific circumstances.

"An assembly can ratify only such actions of its officers, committees, delegates, subordinate bodies, or staff as it would have had the right to authorize in advance. It cannot make valid a voice-vote election when the bylaws require elections to be by ballot; nor can it ratify anything done in violation of procedural rules prescribed by national, state, or local law, or in violation of its own bylaws, except that provision for a quorum in the bylaws does not prevent it from ratifying action taken at a meeting when no quorum was present." RONR (12th ed.) 10:55, emphasis added

A single motion to admit multiple members would be in order, albeit not as a motion to Ratify. Such a motion would indeed require the same threshold as to admit an individual member. Additionally, such a motion would be divisible upon the demand of a single member.

Yes, again I was not clear.  When I said "effectively" ratify, I was really thinking about a motion to formally admit those persons who were not properly admitted, which would follow the rules for a motion to admit (ballot vote, high threshold?), rather than a motion to ratify. I should have left the word out entirely.

 I had not considered division, but I have no doubt it would be divisible on the demand of a single member.  There may well be "members" who, with hindsight, didn't work out as well as expected.  😏

 

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On 8/4/2022 at 6:41 PM, Guest CMBperc said:

I have a simple question that no one has asked.  What do the bylaws say about the vote threshold for adding new members.  Can 3 votes really be all it takes for your organization to turn down someone who wants to be a member?

As I understand the facts, it is the board (not the full membership) which votes on admitting new members. We don't know how large the board is, so the fact that three negative votes is sufficient to reject a member may not be as odd as it first appears.

On 8/4/2022 at 8:49 PM, Tapestry said:

Thanks, @Josh MartinI understand and I don't, to this point: Wouldn't all the members voted in, or out for that matter, over the past several years, need to be addressed/re-addressed, as they too, were not voted in, or out, by ballot?

Additional Points of Order concerning those matters would need to be raised, whether by the chair on their own initiative (which the chair should do) or by members, but yes, this is a continuing breach for any members who were improperly admitted by a voice vote.

I'm not sure there is actually a need to address members who were rejected. If a vote to reject a member is deemed null and void, the result is the same in either event - the person is not a member. I am inclined to think that such persons would need to reapply and that votes would not automatically be retaken.

Edited by Josh Martin
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Thank you, @Josh Martin!  I much appreciate your insight!

I'm getting there, understanding how this all plays out, with these exceptions, which hopefully you (and/or anyone) can also help with. 

So, am I to understand, in each instance, where the identical breach has taken place, needs to be addressed (a point of order, ruling, ballot vote) individually?  I would like to think there was a way to address these breaches in one fell swoop, so-to-speak - but how, is the question?  In this instance, it will be quite the challenge, to say the least.  Who would vote by ballot, as it seems everyone in the past several years was admitted in the same way and if their admittance is now null and void, well, who gets the ballot to vote?  As with the reading of minutes, which are three months back, you start with the oldest and work your way to the newest (in August you read May, then June, then July.)  Do we then do the same with the oldest member - letting members who it hasn't been determined yet, if they are, indeed members, vote by ballot?  And, the same can be said if the voting went by the newest member first, as it hasn't been determined yet, if the oldest members are indeed, members.

Also, if the bylaws state there must be a ballot vote, the result should not matter.  Imagine if there was a group of people who banned together to blackball a specific person and were watching to see that all who were lined up (voice voted) to do so, did.  Regardless of the imagery, it doesn't seem right, to not redo (vote by ballot) all persons who were or were not admitted.

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On 8/5/2022 at 9:26 AM, Tapestry said:

...address these breaches in one fell swoop...

RONR (12th ed.) does not address Points of Order by the "one fell swoop".  There is an implicit assumption, I think, that societies taking their rules seriously do not commit violations of their rules by the "swoopfull".  I cannot help but think that a society that does this has much more serious challenges than proper parliamentary procedure.

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Sorry, but rereading the original post I see nothing that tells the threshold.  It says that the original voice vote was unanimous and then the resultant paper ballot had three negative votes.  Are all of the responding RONR members assuming that the threshold for rejection is 3.  What if it's really a majority of existing members?  And, we don't know what that number is since the original poster didn't tell us how many members there were at the time of the paper vote.

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Thank you, @Rob Elsman!  I can appreciate your point on the Point of Order and one fell swoop! 

How would/can something like this be rectified?  We have the rule/rules which describe what can/can't be allowed, but specifically, in this instance, can happen where those who will do the ballot voting, are null and void of said membership?  Or, are they not null and void until a Point of Order is made against them, so they are able to vote by ballot or otherwise, until their turn comes up to be null and void and then voted on by ballot?

A conundrum for me at the moment.

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So far, there has been one ruling about one person's application for membership, which was ultimately rejected by secret ballot.  There is no other implication.  Of course, any member is able, at any meeting, at any time, to raise a Point of Order about the approval of anyone's membership by voice vote in violation of the bylaw.  As with any other instance, the chair is obligated to make a ruling if he is able to form one based on the facts that are available; otherwise, he submits the question to the assembly for its judgment.

Unless members have a specific recollection of the vote, the form of the minutes of the meeting may be the only remaining hint that an application for membership was approved by method of secret ballot or viva voce vote.  If the minutes were taken correctly, the tellers' report of the tabulation of a secret ballot vote will have been entered in full on the minutes.  There will be no such committee report on the minutes if there was a viva voce vote.

It seems to me that each person whose membership might be in doubt is on his honor not to exercise the rights of membership from the point in time when 1) he becomes aware that the bylaw required a ballot vote, and 2) he has a specific recollection that the approval of his membership was accomplished by voice vote in violation of the bylaw.

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On 8/5/2022 at 11:57 AM, Guest CMBperc said:

Sorry, but rereading the original post I see nothing that tells the threshold.  It says that the original voice vote was unanimous and then the resultant paper ballot had three negative votes.  Are all of the responding RONR members assuming that the threshold for rejection is 3.  What if it's really a majority of existing members?  And, we don't know what that number is since the original poster didn't tell us how many members there were at the time of the paper vote.

There's enough wacky stuff going on without looking for more trouble.  If I'm told that 3 No votes can defeat it, I'm okay with that.  I've seen bylaws where one negative vote was enough to defeat admission to membership.

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On 8/5/2022 at 9:26 AM, Tapestry said:

So, am I to understand, in each instance, where the identical breach has taken place, needs to be addressed (a point of order, ruling, ballot vote) individually?

No, not necessarily.

On 8/5/2022 at 9:26 AM, Tapestry said:

I would like to think there was a way to address these breaches in one fell swoop, so-to-speak - but how, is the question?

A Point of Order covering multiple cases could be raised. I concur with Mr. Elsman, however, that the situation in addressing members admitted years ago is a bit more complicated than addressing a violation occurring moments ago. It may be difficult to demonstrate that a particular member was, in fact, not admitted by a ballot vote.

On 8/5/2022 at 9:26 AM, Tapestry said:

Who would vote by ballot, as it seems everyone in the past several years was admitted in the same way and if their admittance is now null and void, well, who gets the ballot to vote?

As I understand the facts, the votes at issue are to admit new members to the society, and it is members of the board who vote on the admissions. It may (or may not be) that the membership of some of the board members in the society is in question. But even if it is, that doesn't necessarily pose a problem, as RONR doesn't actually require a board member to be a member of the society.

On 8/5/2022 at 9:26 AM, Tapestry said:

Do we then do the same with the oldest member - letting members who it hasn't been determined yet, if they are, indeed members, vote by ballot?

No, I don't think so. I am inclined to think that this matter would be handled very differently than the scenario in the original post, which involved a situation in which a member had been (incorrectly) admitted to membership moments before. It seems to me there would be no "automatic" votes on admission of the members affected by the ruling. Motions would need to be made to readmit members.

On 8/5/2022 at 10:57 AM, Guest CMBperc said:

Sorry, but rereading the original post I see nothing that tells the threshold.  It says that the original voice vote was unanimous and then the resultant paper ballot had three negative votes.  Are all of the responding RONR members assuming that the threshold for rejection is 3.  What if it's really a majority of existing members?  And, we don't know what that number is since the original poster didn't tell us how many members there were at the time of the paper vote.

It may be that it is a small board. It may be that the society has a rule that three negative votes sinks the vote of a prospective member. I don't know. I am assuming the original poster was, in fact, correct when he said "the proposed new member was declined membership."

If this is not correct, and in fact the vote on the ballot vote was sufficient to admit the new member, then yes, the member is admitted.

Edited by Josh Martin
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