Breach of continuing nature

[Tomm]

We have touched on this before with different concerns but now the bylaws are being reviewed and revised and this still exists in the draft.

The bylaws say, "...Motions made in Board meetings, excluding Executive Sessions, and Member/Board Exchanges, shall be read and passed a minimum of two times by a majority of the then serving Directors before finalized and acted upon unless readings are waived or bylaws are changed which require a vote of two-thirds (2/3) of the then serving Directors..."

Obviously the board doesn't vote twice to approve the Minutes or accept the Treasures or Management reports or other incidental, subsidiary or privileged motions.

By not voting twice on EVERY motion, does that constitute a breach of a continuing nature?

Would it also mean that any action taken in violation of the bylaws could be null and void? 

Or since no point of order is made when motions are only voted on once they simply pass with no real violation?

[Gary Novosielski]

Well, my recommendation would be to remove that entire paragraph from the draft, since it appears, as is, to be unworkable as you noted.

As to what constitutes a continuing breach, RONR [23:6] says that this occurs when:

a) a main motion has been adopted that conflicts with the bylaws (or constitution) of the organization or assembly,

b) a main motion has been adopted that conflicts with a main motion previously adopted and still in force, unless the subsequently adopted motion was adopted by the vote required to rescind or amend the previously adopted motion,

c) any action has been taken in violation of applicable procedural rules prescribed by federal, state, or local law,

d) any action has been taken in violation of a fundamental principle of parliamentary law (25:9), or

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).

(For particular rules applicable to boards, see 23:9.

As worded, the multiple readings provision in question could create situations that could be argued to violate the protection of absentees, and therefore run afoul of section e) above.  It could also be argued that such an interpretation would be absurd, but in any case it's not conducive to the smooth handling of business.

Edited October 24, 2022 at 04:34 PM by Gary Novosielski

[Tomm]

On 10/24/2022 at 9:32 AM, Gary Novosielski said:

a) a main motion has been adopted that conflicts with the bylaws (or constitution) of the organization or assembly,

Seems to me that this one fits the bill for being a breach of a continuing nature!

So would that make, for example, the approval of the Minutes or Reports null and void?

[George Mervosh]

On 10/24/2022 at 12:43 PM, Tomm said:

So would that make, for example, the approval of the Minutes or Reports null and void?

The should be no motion to approve the minutes or to accept the reports of any officer or committee. 

[Tomm]

On 10/24/2022 at 9:45 AM, George Mervosh said:

The should be no motion to approve the minutes or to accept the reports of any officer or committee. 

Agreed, bad example. What about motions to postpone, commit, suspend the rules or any other subsidiary or incidental motions?

Would a committee, for example, only approved by a single vote actually be a validly approved committee?

[Dan Honemann]

On 10/24/2022 at 12:09 PM, Tomm said:

The bylaws say, "...Motions made in Board meetings, excluding Executive Sessions, and Member/Board Exchanges, shall be read and passed a minimum of two times by a majority of the then serving Directors before finalized and acted upon unless readings are waived or bylaws are changed which require a vote of two-thirds (2/3) of the then serving Directors..."

This forum is not the place to ask questions concerning this bylaw provision.