Is a Supermajority Threshold a Rule that Protects Absentees?

[Guest bpqd]

All original main motions in our society require previous notice. We have a bylaw provision which allows for the suspension of that notice (but not other notice requirements that may apply to a particular measure) by a motion to suspend the rules (by 2/3 vote, as usual) and to adopt the original main motion the same day it is first announced.

I know that it is the general holding (Interpretation 2006-18) that a motion erroneously announced as adopted by bare majority vote which actually required a supermajority voting threshold (say 2/3) is not in continuing breach (and thus for which a point of order must be timely), even if it is a bylaw amendment or such, because, among other things, it does not break a rule that protects absentees (BTW, I disagree with this and would argue that supermajority voting thresholds are rules that do protect absentees because a supermajority is more insurance against the formation of a temporary majority and thus may allow people to be protected in their absenteeism, but I digress).

My question is: is the rule requiring a 2/3 vote for the adoption of this particular instance of suspend the rules to waive the requirement for notice a rule that protects absentees and would give rise to a continuing breach if broken (e.g., by the chair erroneously announcing that it was agreed to with only a bare majority in favor)?

[Rob Elsman]

It is your rule; you tell us. 🙂

[Atul Kapur]

Generally, a rule that can be suspended cannot give rise to a continuing breach. Your bylaws apparently put the rule requiring notice in that category.

[Josh Martin]

On 1/25/2023 at 4:36 PM, Guest bpqd said:

My question is: is the rule requiring a 2/3 vote for the adoption of this particular instance of suspend the rules to waive the requirement for notice a rule that protects absentees and would give rise to a continuing breach if broken (e.g., by the chair erroneously announcing that it was agreed to with only a bare majority in favor)?

It will ultimately be up to the organization to interpret its own rules.

Personally, however, I don't think so. It seems to me the same principle applies as in OI 2006-18.

"It should be noted in this connection that a rule requiring a two-thirds vote (or any other fraction) of members present and voting (or of all members present) affords no protection at all to absentees; it affords protection only to a certain fraction of the members present at the time the vote is taken."

Indeed, in these circumstances, I think it's not clear whether the notice requirement is intended to protect absentees at all.

[Caryn Ann Harlos]

On 1/25/2023 at 3:56 PM, Josh Martin said:

It will ultimately be up to the organization to interpret its own rules.

Personally, however, I don't think so. It seems to me the same principle applies as in OI 2006-18.

"It should be noted in this connection that a rule requiring a two-thirds vote (or any other fraction) of members present and voting (or of all members present) affords no protection at all to absentees; it affords protection only to a certain fraction of the members present at the time the vote is taken."

Indeed, in these circumstances, I think it's not clear whether the notice requirement is intended to protect absentees at all.

Really?  It seems to me notice requirements by their nature protect absentees.  I do agree however that an error by the chair here does not create a continuing breach.

[Atul Kapur]

On 1/25/2023 at 6:06 PM, Caryn Ann Harlos said:

Really?  It seems to me notice requirements by their nature protect absentees.  

Notice, yes, does protect absentees. 

However, a requirement for a super-majority does not.

On 1/25/2023 at 5:56 PM, Josh Martin said:

OI 2006-18

"It should be noted in this connection that a rule requiring a two-thirds vote (or any other fraction) of members present and voting (or of all members present) affords no protection at all to absentees; it affords protection only to a certain fraction of the members present at the time the vote is taken."

and the question in the OP is whether the rule (that requires a 2/3 vote to waive the notice requirement) is a rule that protects absentees. The OP's bylaws, by specifically stating that the notice requirement can be suspended, have clearly superseded the rule in RONR that the notice requirement cannot be suspended. 

[Caryn Ann Harlos]

On 1/25/2023 at 4:21 PM, Atul Kapur said:

Notice, yes, does protect absentees. 

Yes, that was my point, but Mr. Martin said:

Quote

 

Indeed, in these circumstances, I think it's not clear whether the notice requirement is intended to protect absentees at all.

 

On 1/25/2023 at 4:21 PM, Atul Kapur said:

However, a requirement for a super-majority does not.

and the question in the OP is whether the rule (that requires a 2/3 vote to waive the notice requirement) is a rule that protects absentees. The OP's bylaws, by specifically stating that the notice requirement can be suspended, have clearly superseded the rule in RONR that the notice requirement cannot be suspended. 

I agree.  But just because it can be suspended doesn't mean that when it is not suspended, it is protecting absentees.

[Atul Kapur]

On 1/25/2023 at 6:21 PM, Atul Kapur said:

Notice, yes, does protect absentees. 

On 1/25/2023 at 6:22 PM, Caryn Ann Harlos said:

Yes, that was my point, but Mr. Martin said:

On 1/25/2023 at 5:56 PM, Josh Martin said:

Indeed, in these circumstances, I think it's not clear whether the notice requirement is intended to protect absentees at all.

I understand Mr. Martin to put a lot of weight on the words "in these circumstances," those being the ones in the OP where the requirement can be suspended, rendering it useless to absentees.

[Caryn Ann Harlos]

 

On 1/25/2023 at 7:58 PM, Atul Kapur said:

I understand Mr. Martin to put a lot of weight on the words "in these circumstances," those being the ones in the OP where the requirement can be suspended, rendering it useless to absentees.

But it's not useless. It's blunted but that does not render the protection useless.

[Gary Novosielski]

On 1/25/2023 at 10:00 PM, Caryn Ann Harlos said:

 

But it's not useless. It's blunted but that does not render the protection useless.

It sorta does:

In 25:10 we learn that rules protecting absentees cannot be suspended.  This is the essence of the protection they afford.  If they could be suspended without the consent of those absentees, then they afford only as much protection as does the vote required for suspension--in this case one-third of those present (and none for those absent).

So allowing this rule to be suspendible does more than blunt the protection of absentees, it vitiates it.

Edited January 26, 2023 at 04:16 AM by Gary Novosielski

[Josh Martin]

On 1/25/2023 at 9:00 PM, Caryn Ann Harlos said:

But it's not useless. It's blunted but that does not render the protection useless.

I think we are on the same page. Certainly it seems to me that if the society provides that a previous notice requirement may be suspended by a 2/3 vote (a vote absentees have no say in), it seems the society did not intend for the notice requirement to provide very much protection to absentees. I perhaps went too far in suggesting that it was not intended to protect absentees at all.

Edited January 26, 2023 at 03:36 PM by Josh Martin

[Caryn Ann Harlos]

Agreed

[J. J.]

I think that 1:6 c. actually does cover this.

I would note that a 2/3 vote requirement could be suspended by a 2/3 vote.