The relationship between 41:63 (changing an agenda) and 41:27 (making a motion under new business)

[crebelein]

I'm a member of a local board that operating under the directive of RONR. There are no policies and/or bylaws that address my upcoming question thereby making RONR authoritative. If we fall back to tradition, this circumstance has not been a concern in recent history due to the "single mindedness" of operation that the board has enjoyed for several decades.

Our 7-member board utilizes a typical agenda that closely resembles what is outlined in 41:5. This agenda is maintained by the Chair and an Ex Officio member (an 8th member that lacks voting privilege). I don't believe that this affects what is proper but our agenda has always concluded with "New Business" immediately prior to "Adjournment" even when lacking topics under "New Business".

Traditionally, adding an item to the agenda has been as simple as making a timely request to the Chair and/or aforementioned Ex Officio member. Due to recent turn over on the board however, these requests are no longer being honored. Furthermore, established membership holds a 5-2 majority so amendments to the agenda at any point is essentially impossible.

This brings up the topic of 41:27 which states;

Quote

6. New Business. After unfinished business and general orders have been disposed of, the chair asks, "Is there any new business?" Members can then introduce new items of business, or can move to take from the table any matter that is on the table (17, 34), in the order in which they are able to obtain the floor when no question is pending, as explained in 3 and 4. So long as members are reasonably prompt in claiming the floor, the chair cannot prevent the making of legitimate motions or deprive members of the right to introduce legitimate business by hurrying through the proceedings. 

My understanding of 41:27 (and RONR in whole) is that all members have a protected right to make motions when appropriate. A perfect example of an appropriate time to make a motion concerning new business is immediately proceeding a motion for adjournment. This would be an acceptable time regardless of if an agenda has been adopted even if the accepted agenda does not include "New Business". The only exception of this would be if a board bylaw specifically addresses when it is proper to make motions thereby overriding the directives in RONR (our policy/bylaws do not address this).

Due to the fact that we work off an agenda that is accepted early in our meetings, the text of 41:63 has been cited as an override of 41:27. 41:63 states;

Quote

Changing an Agenda. When the adoption of a proposed agenda is pending, it is subject to amendment by majority vote. After an agenda has been adopted by the assembly, no change can be made in it except by a two-thirds vote, a vote of a majority of the entire membership, or unanimous consent. (See also Taking Up Business out of Its Proper Order, 41:37-39; cf. 59:59.) An affirmative vote to adopt an agenda may not be reconsidered.

I understand 41:63 to specifically address amending the agenda which does not specifically supersede the rights of a member under 41:27 and that a motion made during New Business or immediately prior to moving to adjournment is still proper and in order even if it is not specifically addressed in the adopted agenda.

I've never seen the right of a member to make a motion under "New Business" challenged as out of order. However, in a previous meeting a member proceeded under 41:27 (after having a request to add something to the agenda prior to the meeting denied). The chair hesitated but did allow the motion and stated, after the motion received a second, that it should have been ruled out of order. As a result, the chair has given notice that any future motions not on the agenda (41:27) will be immediately ruled out of order (citing 41:63). An appeal of the ruling from the chair would likely fail.

I believe that the board Chair is an honorable and honest person who will make every effort to proceed under RONR as appropriate. I believe that this is a simple misunderstanding of how 41:63 and 41:27 affect one another and it's very possible that the misunderstanding is mine.

Does the earlier adoption of an Agenda essentially nullify a member's right to make a motion under 41:27 due to 41:63?

If proper notice (10:44-51) is given would that obligate the maintainer of the Agenda to include a given topic (I don't believe it does)?

What other options does a "minority" member, who is unlikely to succeed on a motion to amend the Agenda, have to bring new business before the board?

Any additional information on this topic is greatly appreciated. Especially any examples that cite documentation as to the correct manner to proceed. Thank you!

[J. J.]

The right to make motions is far from absolute.  An item of new business could not be brought up under unfinished business, which I thing you noted.

By adopting an agenda, it is possible to curtail an individual member's right to make motions not on the agenda. 

[crebelein]

On 1/29/2023 at 4:49 PM, J. J. said:

An item of new business could not be brought up under unfinished business, which I thing you noted.

I agree with that statement. If I did mention "unfinished business" in my initial post, I misspoke and intended to address "new business". On this board, we very very seldom have "unfinished business" so that is unlikely to ever be an issue.

On 1/29/2023 at 4:49 PM, J. J. said:

By adopting an agenda, it is possible to curtail an individual member's right to make motions not on the agenda.

Are there specific sections of RONR that I should review that address this? My understanding under RONR was that the adoption of an agenda did not curtail a member's right to make a proper motion and that was a specific case that would need to be addressed in policy/bylaws if that was the desired affect.

[Caryn Ann Harlos]

Why was it denied to be put on the agenda ahead of time?  I have often heard of societies in which an agenda is adopted and "new business" is then denied, but that was because they did not ask for it to be put on the agenda ahead of time.  It is quite the pickle if you try to ask ahead of time, get denied, and then get denied under New Business.

[Josh Martin]

On 1/29/2023 at 4:30 PM, crebelein said:

My understanding of 41:27 (and RONR in whole) is that all members have a protected right to make motions when appropriate.

This is correct, except to the extent that the organization's rules provide otherwise.

On 1/29/2023 at 4:30 PM, crebelein said:

Traditionally, adding an item to the agenda has been as simple as making a timely request to the Chair and/or aforementioned Ex Officio member. Due to recent turn over on the board however, these requests are no longer being honored. Furthermore, established membership holds a 5-2 majority so amendments to the agenda at any point is essentially impossible.

If this is the case, I don't know that it would make much practical difference if the requests were honored, since the majority could simply remove the items from the agenda.

On 1/29/2023 at 4:30 PM, crebelein said:

I understand 41:63 to specifically address amending the agenda which does not specifically supersede the rights of a member under 41:27 and that a motion made during New Business or immediately prior to moving to adjournment is still proper and in order even if it is not specifically addressed in the adopted agenda.

Yes, it is entirely correct that it it is in order for members to raise items of business under New Business after all business on the agenda has been completed. This may be done even if the assembly has adopted an agenda which lacks a specific provision for New Business. An organization can, of course, adopt its own rules on this matter.

I would note, however, that in a situation where a "5-2 majority" wishes to prevent items of business from being considered, they ultimately will have the tools to do so, since five out of seven is both a 2/3 vote and a majority of the entire membership, which is enough to do just about anything. This would include, for instance:

• Immediately adjourning the meeting
• Adopting an agenda which provides for adjournment at a specific time
• Disposing of a motion swiftly with the Previous Question and Postpone Indefinitely, or even combining these with Suspend the Rules
• Adopting new special rules of order prohibiting the introduction of motions not listed on the agenda

On 1/29/2023 at 4:30 PM, crebelein said:

Does the earlier adoption of an Agenda essentially nullify a member's right to make a motion under 41:27 due to 41:63?

No.

On 1/29/2023 at 4:30 PM, crebelein said:

If proper notice (10:44-51) is given would that obligate the maintainer of the Agenda to include a given topic (I don't believe it does)?

No.

On 1/29/2023 at 4:30 PM, crebelein said:

What other options does a "minority" member, who is unlikely to succeed on a motion to amend the Agenda, have to bring new business before the board?

Ultimately, I think the only resolution to this issue is to try to negotiate with the persons in the majority and come to some resolution to permit members to bring matters they wish to be considered.

I think you are technically in the right on this specific question, but with a 5-2 majority, there are numerous ways to quash business raised by the two members in the minority. So you'd only buy some time until they come up with a new tactic.

On 1/29/2023 at 4:59 PM, crebelein said:

Are there specific sections of RONR that I should review that address this? My understanding under RONR was that the adoption of an agenda did not curtail a member's right to make a proper motion and that was a specific case that would need to be addressed in policy/bylaws if that was the desired affect.

I don't think J.J. is saying that the adoption of an agenda, in and of itself, curtails a member's rights to make motions. I am in agreement that the adoption of an agenda does not have the effect of prohibiting members from making motions not listed on the agenda, unless the rules so provide.

But a similar effect could be achieved by carefully crafting the agenda and/or in conjunction with other tools. For example, suppose the agenda provides for adjournment at a specified time, or provides for adjournment immediately after all listed items of business are completed. Or perhaps the agenda doesn't provide for adjournment, but a member moves to adjourn immediately after all items on the agenda have been completed.

Edited January 29, 2023 at 11:40 PM by Josh Martin

[Caryn Ann Harlos]

On 1/29/2023 at 6:40 PM, Josh Martin said:

I don't think J.J. is saying that the adoption of an agenda, in and of itself, curtails a member's rights to make motions. I am in agreement that the adoption of an agenda does not have the effect of prohibiting members from making motions not listed on the agenda, unless the rules so provide.

I would like JJ to clarify because I read him as exactly saying that.

[J. J.]

I am suggesting that the assembly may adopt an agenda with a specific list of motions, and no others, on it and not provide for any additional motion.  . 

[Josh Martin]

On 1/29/2023 at 6:50 PM, J. J. said:

I am suggesting that the assembly may adopt an agenda with a specific list of motions, and no others, on it and not provide for any additional motion.  . 

Are you also suggesting something else, like the assembly proceeding to immediately adjourn after the agenda is completed? If not, what rule in RONR prevents members from moving additional motions after that list of motions is completed?

[J. J.]

On 1/29/2023 at 8:47 PM, Josh Martin said:

Are you also suggesting something else, like the assembly proceeding to immediately adjourn after the agenda is completed? If not, what rule in RONR prevents members from moving additional motions after that list of motions is completed?

The agenda could provide  for adjournment. The agenda would be, for example:

"Motion 1.

Motion 2.

Motion 3.

Adjournment"

Once adopted, no member could make an additional main motion.  The member could try to amend the agenda. 

 

[Josh Martin]

On 1/29/2023 at 8:49 PM, J. J. said:

The agenda could provide  for adjournment. The agenda would be, for example:

"Motion 1.

Motion 2.

Motion 3.

Adjournment"

Once adopted, no member could make an additional main motion.  The member could try to amend the agenda. 

Thank you for the additional facts. I agree that if the agenda calls for the meeting to immediately adjourn after the motions are considered, that changes things.

[Richard Brown]

On 1/29/2023 at 9:10 PM, Josh Martin said:

Thank you for the additional facts. I agree that if the agenda calls for the meeting to immediately adjourn after the motions are considered, that changes things.

I do, too, and I believe there are other threads to that effect in this forum. In addition, as I believe someone has already mentioned, a special rule of order can be adopted which prohibits introducing new business from the floor that is not on the agenda or that has not been noticed.

Edited January 30, 2023 at 03:31 AM by Richard Brown
Added last sentence

[J. J.]

It is similar to the example I used elsewhere today.

I would also not that that rules could be suspended to prohibit motions on a particular subject from being made during the session.  The motion to suspended is an incidental main motion in that case, and amendable. 

In this example, the member would not have the right to make a particular motion, if the rules were suspended prohibiting a motion on the topic.  In other words, it is not an absolute right. 

[crebelein]

I hadn't considered that. I'll add some additional color the statement from above (quoted below).

Quote

I've never seen the right of a member to make a motion under "New Business" challenged as out of order. However, in a previous meeting a member proceeded under 41:27 (after having a request to add something to the agenda prior to the meeting denied). The chair hesitated but did allow the motion and stated, after the motion received a second, that it should have been ruled out of order. As a result, the chair has given notice that any future motions not on the agenda (41:27) will be immediately ruled out of order (citing 41:63). An appeal of the ruling from the chair would likely fail.

In this exact situation, the Agenda appeared as follows;

Quote

-VARIOUS TOPICS-

11) Routine Action Items

11.1) Action item 1

.

11.8) Action item 8

12) New Business

12.1) Policy A First Reading

.

12.5) Policy E First Reading

13) Review Upcoming Calendar

14) Adjourn

During the meeting the Chair rapidly moved from 12.5 to 13 w/out asking, "Is there any new business?" as outlined in 41:27. A Point of Order was raised and the member was allowed to proceed with making a motion (as indicated above).

My take on "New Business" is that 41:27 is applicable even when an agenda has been accepted and that the Chair should ask, "Is there any new business?" before moving on to the next item. However, it sounds as if my interpretation may be incorrect.

If the adoption of an agenda curtails members from making motions (unless extraordinary circumstances exist), doesn't that effectively silence the minority? My understanding is that RONR respects the fact that majority rules while still protecting the voice of the minority. If a minority can be silenced simply through the application of an agenda, doesn't that defeat the purpose and give the Chair a near monopoly of power? Sure, an amendment to the agenda can be offered but under that scenario, debate on the merits of a given point won't occur unless the amendment passes. Furthermore, in a scenario where an agenda is regularly adopted, other than changing a vote threshold for something that may never be added to the agenda, what is the point of giving notice of a planned action (10:44-51).

[Josh Martin]

On 1/29/2023 at 9:48 PM, crebelein said:

During the meeting the Chair rapidly moved from 12.5 to 13 w/out asking, "Is there any new business?" as outlined in 41:27. A Point of Order was raised and the member was allowed to proceed with making a motion (as indicated above).

My take on "New Business" is that 41:27 is applicable even when an agenda has been accepted and that the Chair should ask, "Is there any new business?" before moving on to the next item. However, it sounds as if my interpretation may be incorrect.

The adoption of an agenda, in and of itself, does not change the fact that it is in order for members to make motions under New Business (or in the event that the agenda does not include New Business, after all items on the agenda are completed). But if the agenda provides for "adjournment" as an order of the day, then the meeting would adjourn when that item is reached.

The complication here is that the agenda does specifically provide for "New Business" and then also lists items under that heading, which is not the correct way of doing things. (Such matters should instead be listed under General Orders.) There is then "Adjournment" listed after New Business. This creates an unclear situation as to whether other items of business may be introduced under New Business prior to Adjournment, or if the intent is that the assembly immediately adjourn after considering all items listed on the agenda. It would be preferable for the assembly to adopt clearer agendas, and in the interim, I suppose the assembly will have to interpret what is meant by this.

On 1/29/2023 at 9:48 PM, crebelein said:

If the adoption of an agenda curtails members from making motions (unless extraordinary circumstances exist), doesn't that effectively silence the minority? My understanding is that RONR respects the fact that majority rules while still protecting the voice of the minority. If a minority can be silenced simply through the application of an agenda, doesn't that defeat the purpose and give the Chair a near monopoly of power?

The adoption of an agenda, in and of itself, does not curtail members from making motions not listed on the agenda, but the assembly can achieve this objective by carefully crafting the agenda and/or by simply moving to adjourn after the assembly has completed the items listed on the agenda. The assembly also can adopt its own rules on this matter.

One protection in this matter for the minority is that if the assembly is one for which the standard order of business is controlling, an agenda conflicting with the standard order of business requires a 2/3 vote - although that doesn't help you because the persons in the majority have a 2/3 vote. An agenda which includes no provision for "New Business" would conflict with the standard order of business.

"The customary or “standard” order of business comprises the following subdivisions:
1) Reading and Approval of Minutes
2) Reports of Officers, Boards, and Standing Committees
3) Reports of Special (Select or Ad Hoc) Committees
4) Special Orders
5) Unfinished Business and General Orders
6) New Business" RONR (12th ed.) 41:5

"At a session that already has an order of business, an agenda can be adopted by a majority vote only if it does not create any special orders and does not conflict with the existing order of business; otherwise, a two-thirds vote is required (see also 25:12)." RONR (12th ed.) 41:61

In this connection, I would note that in regard to your general comment that "RONR respects the fact that majority rules while still protecting the voice of the minority," RONR implements that protection by requiring a higher threshold for adoption for certain items - specifically, a 2/3 vote. There are much fewer protections for a minority of one-third or less.

On 1/29/2023 at 9:48 PM, crebelein said:

Furthermore, in a scenario where an agenda is regularly adopted, other than changing a vote threshold for something that may never be added to the agenda, what is the point of giving notice of a planned action (10:44-51).

The purpose of giving notice of a planned action is to notify members of the intent to bring up that motion at the meeting in question, and such notice is often required for certain items, and for other items lowers the threshold for adoption. Giving such notice does not have the effect of making the item an order of the day for the meeting in question or guaranteeing that the item will be considered. That is the case whether or not the assembly has a habit of adopting a particularly rigid agenda.

I am also getting the impression at this point that this assembly may be some sort of public body. If that is correct, there may well be something on this matter in the assembly's rules and/or applicable law. Such rules would take precedence over RONR.

Edited January 30, 2023 at 01:44 PM by Josh Martin

[Caryn Ann Harlos]

So who sets what's on the agenda if it's not made a general order by the assembly prior 

[Dan Honemann]

On 1/30/2023 at 9:34 AM, Caryn Ann Harlos said:

So who sets what's on the agenda if it's not made a general order by the assembly prior 

A bit more clarity would be helpful.

[J. J.]

On 1/30/2023 at 8:43 AM, Josh Martin said:

The adoption of an agenda, in and of itself, does not curtail members from making motions not listed on the agenda, but the assembly can achieve this objective by carefully crafting the agenda and/or by simply moving to adjourn after the assembly has completed the items listed on the agenda. The assembly also can adopt its own rules on this matter.

 

I agree with this point and I think you made it better than I did. 

[Caryn Ann Harlos]

On 1/30/2023 at 8:09 AM, Dan Honemann said:

A bit more clarity would be helpful.

Let's say they have this strict agenda as described.  At this meeting there are no general orders from last meeting.  A member gives notice to the other members he would like something added, does he just have to hope that a, the chair adds it, or b, the mercy of the other members when the agenda is adopted.

[Dan Honemann]

On 1/30/2023 at 11:15 AM, Caryn Ann Harlos said:

Let's say they have this strict agenda as described.  At this meeting there are no general orders from last meeting.  A member gives notice to the other members he would like something added, does he just have to hope that a, the chair adds it, or b, the mercy of the other members when the agenda is adopted.

Much depends upon what you mean when you refer to "this strict agenda as described."

I think if you go back and read very carefully the responses posted by Mr. Martin you will find that all of your questions have been answered.

[Caryn Ann Harlos]

I did, and I don't think it did but okay.

Edited January 30, 2023 at 04:25 PM by Caryn Ann Harlos

[Caryn Ann Harlos]

Here is my issue with Mr. Martin's statement.... suppose the society allows members to give notice of things they would like on the agenda to the Secretary.  They are not general orders IMHO.  They would get listed under new business.

[crebelein]

On 1/30/2023 at 7:43 AM, Josh Martin said:

I am also getting the impression at this point that this assembly may be some sort of public body. If that is correct, there may well be something on this matter in the assembly's rules and/or applicable law. Such rules would take precedence over RONR.

Correct. This is an elected school board in MN. There is no statute in place that directs the rules of operation and our district does not have any bylaws that override in RONR. In fact the bylaws/policy are too lean in this respect if you ask me.

On 1/30/2023 at 8:34 AM, Caryn Ann Harlos said:

So who sets what's on the agenda if it's not made a general order by the assembly prior 

At this moment, the Chair sets the agenda and has final say to what is, or is not, included.

On 1/30/2023 at 10:15 AM, Caryn Ann Harlos said:

Let's say they have this strict agenda as described.  At this meeting there are no general orders from last meeting.  A member gives notice to the other members he would like something added, does he just have to hope that a, the chair adds it, or b, the mercy of the other members when the agenda is adopted.

This is exactly what I was getting at with my question concerning notification. I understand how notice works but... if you give notice but are never able to get the topic on the agenda or raise the point during a subsequent meeting, what is the point of (trying) to give notice?

At the moment, the approval of the agenda is part of the consent agenda. To offer amendments that is the first thing that will need to be rectified.

[Richard Brown]

On 1/30/2023 at 10:27 AM, Caryn Ann Harlos said:

Here is my issue with Mr. Martin's statement.... suppose the society allows members to give notice of things they would like on the agenda to the Secretary.  They are not general orders IMHO.  They would get listed under new business.

Caryn Ann, that depends on how the agenda is prepared and adopted.  Although somewhat unusual, it is not unheard of for societies to provide (either by rule or in practice) that the agenda is prepared in advance by the president or the secretary and that it is not subject to being formally "adopted" or even amended by the assembly.  I have seen rules that clearly provide that if an item is not on the agenda, it cannot be considered.  I've also seen rules which require a super-majority vote threshold in order to take up such a motion. 

In the situation you describe, , a member may still give previous notice of his intent to introduce a motion at the meeting, but there is no guarantee that he will ultimately be permitted to do so.   I think that if the society has a special rule of order which specifically provides that a member may give notice of something he wants on the agenda AND that the item shall automatically be added to the agenda, the item should be on the agenda and the member would be permitted to make his motion at the meeting.  However, if the rule provides only that member may give notice to the secretary of items they want on the agenda but do not require that such items actually be added to the agenda, then there is no guarantee that giving the notice to the secretary will result in the item being on the agenda or that the member will be permitted to make the motion. That would be a matter of bylaw interpretation or interpretation of the particular rule.  It would depend very much on the precise language of the rule about giving notice to the secretary.  In addition, such a rule might have to be interpreted with regard to the bylaws as a whole.

[Rob Elsman]

In various forms, this question has arisen repeatedly on this forum. It is usually accompanied by information about one or another kind of abuse of the authority of the chair having to do with the suppression of the transaction of an item of business that the chair does not want to be considered.

It should not be the custom for the executive board of an ordinary society that meets at least quarterly to adopt an agenda; rather, the board should follow the rules in RONR (12th ed.) §41 and proceed through the order of business, as described there, during each meeting or set of meetings that comprises a session.

If this board has gotten off on the wrong foot, the agenda should be dropped completely. Nevertheless, it is appropriate for the chairman or secretary to prepare a memorandum of the order of each session's business, for information only, to assist the chair in calling up the items of business in the proper sequence. If it seems opportune, this memorandum can be made available to all the members, for information only; however, it should be clearly understood that the relevant rules are controlling as to when and how business may be introduced.

If it should so happen that an original main motion is made that is objectionable to even consider, any member of the board can make the incidental motion, Objection to the Consideration of the Question. This is the proper way to get rid of the objectionable motion and suppress it for the remainder of the session. The chair does not have authority to suppress a motion that is otherwise in order, just because he does not favor it.

[Richard Brown]

I concur with the remarks by Mr. Elsman immediately above.