Intentional Violations

[Tomm]

Rumored to happen at this Thursday's meeting of the Board.

The Board will vote to Rescind a failed motion to pass the 2023 budget because they have coerced a member who voted NO to change their vote a YES.

The white hats on the Board know that you can't rescind a failed motion so they will raise a point of order and appeal the decision of the chair. It's also anticipated that the chair and majority of other black hats will sustain the ruling and allow the vote to approve the budget take place anyway.

Question: Will this be allowed to happen because it was voted on and passed or will this be considered a breach of a continuing nature?

I know you guys don't give legal advise, but some are wondering if the budget is passed in this parliamentary illegal manner and if it's a breach of a continuing nature, does it open the door for actual legal suit? 

[Atul Kapur]

Nothing prevents the renewal of a motion that was not adopted at a previous session (session = meeting, based on what you have shared previously), and that is what it sounds like you are describing. Other than the fact that they are using incorrect terminology, it doesn't sound like anything procedurally  nefarious is being planned: A motion that was previously considered and lost is being brought back at a different meeting and will be considered anew. If any point of order is made, it should be that the motion to rescind is unnecessary and the main motion should just be made.

See 38:1 (emphasis added)

Quote

If a motion is made and disposed of without being adopted, and is later allowed to come before the assembly after being made again by any member in essentially the same connection, the motion is said to be renewed. Renewal of motions is limited by the basic principle that an assembly cannot be asked to decide the same, or substantially the same, question twice during one session

and 38:3(2)

Quote

Any motion that is still applicable can be renewed at any later session, except where a specific rule prevents its renewal

 

Edited December 12, 2022 at 06:05 PM by Atul Kapur
Added quotations

[Tomm]

On 12/12/2022 at 10:54 AM, Atul Kapur said:

(session = meeting based on what you have shared previously),

Not really sure where you got that impression but the opposite is quite true. The chair believes that the sessions last the entire year (this is something I've argued against for months with many letters to the board). 

The motion on this Thursdays agenda is to Rescind, but 6:27 (4) quite clearly states that you can only Rescind or Amend Something Previously Adopted on a motion that passed. Not sure what the difference between being a meeting or a session has to do with the Rescind or ASPA motion? I don't believe there's a time limit on either of those motions?

[Atul Kapur]

On 12/12/2022 at 1:08 PM, Tomm said:

Not sure what the difference between being a meeting or a session has to do with the Rescind or ASPA motion?

It has nothing to do with rescind. As I said, rescind is unnecessary. The concept of session is important when dealing with renewal, which, as I said above, is what this appears to be.

[Tomm]

On 12/12/2022 at 11:36 AM, Atul Kapur said:

It has nothing to do with rescind. As I said, rescind is unnecessary.

This is very confusing because the motion to be presented is going to be a motion to Rescind! I get it, there is no such motion as renewal but 38:3 (2) also says, "Any motion  that is still applicable can be renewed at a later session, except where a specific rule prevents its renewal;...

So regardless of whether we're dealing with a meeting or a session, Rule 6:27 (4) says you can't rescind a motion that failed...period. Seems to me that a contradiction exists because if you can always renew a failed motion that's attempting to be renewed with the motion to Rescind then the rule stated in 6:27 for Rescinding is perhaps flawed.

What am I missing?

[Richard Brown]

@Tommas I think various people have told you several times already, the motion to rescind the previously failed motion is not in order because there is nothing to rescind. The motion was not adopted. You can only rescind a motion that has been adopted. The motion to rescind is out of order, but a motion to renew the previously failed motion by simply making it again is in order and is the proper way to proceed.

[Tomm]

On 12/12/2022 at 12:57 PM, Richard Brown said:

The motion to rescind is out of order, but a motion to renew the previously failed motion by simply making it again is in order and is the proper way to proceed.

I understand that, but my original question was if they proceed in the manner that I described in my OP is that considered to be a breach of a continuing nature or does it simply pass and is too late to do anything about it? 

[George Mervosh]

On 12/12/2022 at 3:54 PM, Tomm said:

I understand that, but my original question was if they proceed in the manner that I described in my OP is that considered to be a breach of a continuing nature or does it simply pass and is too late to do anything about it? 

It is not a breach of a continuing nature so the point of order must be timely.  Ideally, the presiding officer should rule it out of order when it is made.

[Richard Brown]

On 12/12/2022 at 3:03 PM, George Mervosh said:

It is not a breach of a continuing nature so the point of order must be timely.  Ideally, the presiding officer should rule it out of order when it is made.

@TommI agree with the response above by Mr. Mervosh. If I failed to answer it as one of your questions, I apologize.  It would not constitute a continuing breach and it would require a timely point of order.

Edited December 12, 2022 at 09:29 PM by Richard Brown
Typographical corrections

[Gary Novosielski]

On 12/12/2022 at 11:41 AM, Tomm said:

The white hats on the Board know that you can't rescind a failed motion so they will raise a point of order and appeal the decision of the chair. It's also anticipated that the chair and majority of other black hats will sustain the ruling and allow the vote to approve the budget take place anyway.

You can't rescind a failed motion because it failed, and so there is nothing to rescind.  If whoever wants this motion passed moves to rescind the failure, the chair would be absolutely correct in ruling it out of order, and in not entertaining an appeal, as it would violate logic itself to believe that a non-existent act can be repealed, and so there cannot be two differing rational points of view.

However what would be perfectly in order is for proponents of the motion to simply make it again.  The fact that a motion fails once does not prevent it from being made again, since each meeting is its own distinct session.

 

 

[Josh Martin]

On 12/12/2022 at 10:41 AM, Tomm said:

Rumored to happen at this Thursday's meeting of the Board.

The Board will vote to Rescind a failed motion to pass the 2023 budget because they have coerced a member who voted NO to change their vote a YES.

The white hats on the Board know that you can't rescind a failed motion so they will raise a point of order and appeal the decision of the chair. It's also anticipated that the chair and majority of other black hats will sustain the ruling and allow the vote to approve the budget take place anyway.

Question: Will this be allowed to happen because it was voted on and passed or will this be considered a breach of a continuing nature?

I don't think these facts, in and of themselves, create a continuing breach.

But I assume there is a reason why the board is doing all of this nonsense instead of just renewing the motion. The additional facts may, or may not, mean that there is a continuing breach.

On 12/12/2022 at 10:41 AM, Tomm said:

I know you guys don't give legal advise, but some are wondering if the budget is passed in this parliamentary illegal manner and if it's a breach of a continuing nature, does it open the door for actual legal suit? 

Such questions should be directed to an attorney.

On 12/12/2022 at 12:08 PM, Tomm said:

Not really sure where you got that impression but the opposite is quite true. The chair believes that the sessions last the entire year (this is something I've argued against for months with many letters to the board). 

The chair's belief is most likely mistaken.

Even in the extremely unlikely event that the chair is correct on this matter, the rule which prevents renewal of a motion during the same session may be suspended. So even in such highly unusual circumstances, there would still be no continuing breach.

On 12/12/2022 at 12:08 PM, Tomm said:

The motion on this Thursdays agenda is to Rescind, but 6:27 (4) quite clearly states that you can only Rescind or Amend Something Previously Adopted on a motion that passed.

Yes, that's correct.

On 12/12/2022 at 12:08 PM, Tomm said:

Not sure what the difference between being a meeting or a session has to do with the Rescind or ASPA motion? I don't believe there's a time limit on either of those motions?

It has nothing to do with it, and you are correct that there is no time limit for either motion. Not that it matters, because you can't rescind or amend a defeated motion. The difference between a meeting and session has to do with renewal.

On 12/12/2022 at 1:47 PM, Tomm said:

So regardless of whether we're dealing with a meeting or a session, Rule 6:27 (4) says you can't rescind a motion that failed...period. Seems to me that a contradiction exists because if you can always renew a failed motion that's attempting to be renewed with the motion to Rescind then the rule stated in 6:27 for Rescinding is perhaps flawed.

It is correct that a motion that failed cannot be rescinded, period. As a result, there is no contradiction.

On 12/12/2022 at 2:54 PM, Tomm said:

I understand that, but my original question was if they proceed in the manner that I described in my OP is that considered to be a breach of a continuing nature or does it simply pass and is too late to do anything about it? 

Based upon the facts presented at this time, I see no reason why there would be a continuing breach. It does not fall under any of the categories in RONR (12th ed.) 23:6.

Edited December 13, 2022 at 01:09 AM by Josh Martin

[Tomm]

On 12/12/2022 at 6:08 PM, Josh Martin said:

the rule which prevents renewal of a motion during the same session may be suspended

So you're saying that even though this chair believes the meetings are year-long sessions, the rule that prevents the motion from being raised again within the same session can be suspended, and must be suspended prior to the intended motion to be renewed? Motion to suspend will require a second, not debatable or amendable and a 2/3rds vote.

[Atul Kapur]

On 12/12/2022 at 8:55 PM, Tomm said:

even though this chair believes the meetings are year-long sessions,

The chair's belief can be corrected by the assembly, by means of a point of order and, if necessary, appeal.

[Josh Martin]

On 12/12/2022 at 7:55 PM, Tomm said:

So you're saying that even though this chair believes the meetings are year-long sessions, the rule that prevents the motion from being raised again within the same session can be suspended, and must be suspended prior to the intended motion to be renewed?

The chair's belief about whether the meetings are year-long sessions is irrelevant. The chair's belief is most likely wrong, and each regular meeting of the assembly is a new session, in which event there is no rule which prevents the motion from being renewed.

But yes, I am saying that, even in the extremely unlikely event that this organization meets in a manner similar to Congress or a state legislature and holds year-long sessions, the rule which prevents the renewal of a defeated motion during the same session is a rule which may be suspended. The proper course of action to suspend such a rule is to first move to suspend the rules in order to renew the motion in question, and to then renew the motion in question. Violation of this rule, however, is not a continuing breach.

Edited December 13, 2022 at 12:00 PM by Josh Martin

[Tomm]

On 12/12/2022 at 6:08 PM, Josh Martin said:

Based upon the facts presented at this time, I see no reason why there would be a continuing breach. It does not fall under any of the categories in RONR (12th ed.) 23:6.

If the board continues to function under the rules of a year-long session rather than individual meetings/sessions per 8:4, would that be considered a continuing breach warranting a point of order at any time?

[Josh Martin]

On 12/13/2022 at 4:05 PM, Tomm said:

If the board continues to function under the rules of a year-long session rather than individual meetings/sessions per 8:4, would that be considered a continuing breach warranting a point of order at any time?

Whether it would be in order to raise such a Point of Order at any time may depend upon the means by which this has occurred. If some motion was adopted in this regard (and not through the procedures for adopting a special rule of order), that could be a 23:6(b) violation. But if this is simply a practice that the board has informally followed, I don't think there is a "continuing breach," because there is no actual action of the board to invalidate.

But in any event, it is certainly the case that a Point of Order (or Appeal, depending on the circumstances) can be raised if and when the board's delusions in this matter come into conflict with the board's actual rules. For example, if a member were to attempt to renew a motion, and the chair ruled this out of order on the grounds that all of its meetings are part of one session, a member could appeal from that ruling. This doesn't have to be a "continuing breach." The breach is happening right then.

I would note further that this answer is limited solely in regard to ending this practice going forward. I do not think these facts, in and of themselves, would be grounds to invalidate prior actions of the board conducted during the period when the board mistakenly believed it was holding year-long sessions.

Edited December 13, 2022 at 10:23 PM by Josh Martin

[Gary Novosielski]

On 12/12/2022 at 8:55 PM, Tomm said:

So you're saying that even though this chair believes the meetings are year-long sessions, the rule that prevents the motion from being raised again within the same session can be suspended, and must be suspended prior to the intended motion to be renewed? Motion to suspend will require a second, not debatable or amendable and a 2/3rds vote.

Yes, but it could be just one motion:   "I move to suspend the rules and consider the following motion:  To donate five dollars to the widows and orphans of the Bowling Green Massacre."

It is proper to simply state what you want to do, which the rules would otherwise prevent, rather than to try to craft a motion specifying exactly which rule is being suspend.  Although the motion to suspend the rules is not debatable, if it passes, the motion to consider the donation would be debatable. If you want to make that clear, you could say "consider under normal procedure".

It's also possible to move to "suspend the rules and pass...." a motion, which if adopted would pass the motion immediately without debate, but that's only useful if the motion already enjoys wide support.

[Reuel Sample]

Could an answer to the question of a "session" be answered by each meeting's agenda and minutes?

If the chair "adjourns" the meeting, that is considered a separate "session" and treated as such with any decisions made during that time frame.  If the minutes clearly record  a proper adjournment, there is no continuing session.

If - on the other hand - the chair calls the organization into recess - he is then continuing the session.  

I see no reason why any organization outside of government entities would want to consider a "session" in terms of years.

[Richard Brown]

On 12/15/2022 at 5:01 PM, Reuel Sample said:

If the chair "adjourns" the meeting, that is considered a separate "session" and treated as such with any decisions made during that time frame.  If the minutes clearly record  a proper adjournment, there is no continuing session.

No, that is not necessarily true.  If the session consists of numerous meetings or lasts for a period of months or years, the act of adjourning a meeting does not automatically end the session.  The session will resume with the next scheduled meeting if one is scheduled. If the next meeting is not scheduled, then the adjournment is to meet again at the call of the chair.  An "adjournment sine die" might end the session, but a regular adjournment would not.  RONR (12th ed.) 8:2(6).  See also 8:2(5), 21:8, and 21:16.

[Gary Novosielski]

On 12/15/2022 at 6:01 PM, Reuel Sample said:

If the chair "adjourns" the meeting, that is considered a separate "session" and treated as such with any decisions made during that time frame.  If the minutes clearly record  a proper adjournment, there is no continuing session.

Well, no, that's not how it works, but there is a situation that comes close to that.

If a meeting adjourns to a future time, it is called an adjourned meeting, and although it is considered a separate meeting, it is part of the same session as the original meeting, even in organizations where session and meeting are usually synonymous. But this is a result of an intentional act of the assembly, not the whim of the presiding officer.\

On 12/15/2022 at 6:01 PM, Reuel Sample said:

If - on the other hand - the chair calls the organization into recess - he is then continuing the session.  

No, a recess is a short interruption of business.  It's true that upon reconvening, the same meeting (and session) are still in effect, but a recess cannot be extended to a future day.

[Josh Martin]

On 12/15/2022 at 5:01 PM, Reuel Sample said:

Could an answer to the question of a "session" be answered by each meeting's agenda and minutes?

Theoretically, yes, although not quite in the manner you describe. This would also require such information to be accurate, complete, and consistent with the rules, which may not be the case.

On 12/15/2022 at 5:01 PM, Reuel Sample said:

If the chair "adjourns" the meeting, that is considered a separate "session" and treated as such with any decisions made during that time frame.  If the minutes clearly record  a proper adjournment, there is no continuing session.

If - on the other hand - the chair calls the organization into recess - he is then continuing the session. 

It is actually recorded as an adjournment in any event. The difference would be that if an adjourned meeting is set, the minutes would say that the meeting is "adjourned to January 5 at 6 PM" or "adjourned to meet at the call of the chair," rather than simply stating that the meeting is "adjourned."

A recess is a short break in the proceedings of the meeting.

On 12/15/2022 at 5:01 PM, Reuel Sample said:

I see no reason why any organization outside of government entities would want to consider a "session" in terms of years.

Agreed.

[Tomm]

If the meeting exceeds the defining factors as explained in 8:4 as to which describes the difference between a meeting or a session, then isn't it also a requirement that a session exceeding those definitions would require a bylaw stating the length of the session? 

[Josh Martin]

On 12/16/2022 at 2:09 PM, Tomm said:

If the meeting exceeds the defining factors as explained in 8:4 as to which describes the difference between a meeting or a session, then isn't it also a requirement that a session exceeding those definitions would require a bylaw stating the length of the session? 

I think a special rule of order could also suffice, but certainly if an assembly is to have longer sessions, some sort of rule on this matter will need to be adopted to define the length of the session. In the absence of such rules, it would seem to me the rules in 8:4-5 are controlling.

It should be noted, however, that an assembly always has the option of established an adjourned meeting on a case-by-case basis.