Use of the term ex officio in governing documents

[Dan Honemann]

On 4/5/2023 at 4:47 PM, Atul Kapur said:

Now I'm confused (I'd say "puzzling" but I don't want to have to pay licensing fees).

Mr. Novosielski's first alternative is

That appears to be a generalization of the language in the Sample Bylaws 56:65 Section 4: "The President shall be ex officio a member of all committees except the Nominating Committee and any disciplinary committees." So in this case, the president is not counted for quorum, which seems to contradict this statement

What am I missing?

Perhaps what you are missing is that, as far as RONR is concerned (as indicated in 50:16), "The rules affecting ex-officio members of committees are the same as those applying to ex-officio members of boards (49:8–9)" except when "the bylaws provide that the president shall be ex officio a member of all committees (or of all committees with the stated exception of those from which the president is best excluded; see 56:47)", and those "from which the president is best excluded" are only nominating committees and disciplinary committees.  Prior to the 11th ed. the only exception was the nominating committee. 

[Gary Novosielski]

On 4/5/2023 at 2:01 PM, Dan Honemann said:

You're right. In each of these instances the president will be no different than any other committee member.

But in the first case, specifying all, with some exceptions the president would not count toward a quorum.  I thought we all agreed on that.

My question was why the second case would be any different.

[Gary Novosielski]

On 4/5/2023 at 7:10 PM, Dan Honemann said:

Perhaps what you are missing is that, as far as RONR is concerned (as indicated in 50:16), "The rules affecting ex-officio members of committees are the same as those applying to ex-officio members of boards (49:8–9)" except when "the bylaws provide that the president shall be ex officio a member of all committees (or of all committees with the stated exception of those from which the president is best excluded; see 56:47)", and those "from which the president is best excluded" are only nominating committees and disciplinary committees.  Prior to the 11th ed. the only exception was the nominating committee. 

Wow.

That is one finely honed distinction.  The language on what is best excluded in 56:47 sounds like a few gentle suggestions on what might be a good idea, and has no hint of being an exhaustive list.  In reading that section I would have no clue that the drafters of the bylaws would not be allowed to decide what other committees might be best excluded.  

But you seem to be saying that 50:16 restricts the rule to only those two classes of committees and no others--that adding another committee (say an Election committee) as an excluded committee would nullify the special quorum considerations of all the committees of which the president remains an ex-officio member.  That's a reading that does not leap out at me, though it could be read that way.

With all due respect, I think if my intention was to disguise that interpretation, I could scarcely have done better than the current text.

Edited April 7, 2023 at 07:24 AM by Gary Novosielski

[Dan Honemann]

On 4/7/2023 at 3:21 AM, Gary Novosielski said:

Wow.

That is one finely honed distinction.  The language on what is best excluded in 56:47 sounds like a few gentle suggestions on what might be a good idea, and has no hint of being an exhaustive list.  In reading that section I would have no clue that the drafters of the bylaws would not be allowed to decide what other committees might be best excluded.  

But you seem to be saying that 50:16 restricts the rule to only those two classes of committees and no others--that adding another committee (say an Election committee) as an excluded committee would nullify the special quorum considerations of all the committees of which the president remains an ex-officio member.  That's a reading that does not leap out at me, though it could be read that way.

With all due respect, I think if my intention was to disguise that interpretation, I could scarcely have done better than the current text.

I agree that none of this is as clear as it might be.

If the only thing that RONR said on this subject was what is contained in 47:20, I think it would be rather clear that whenever the president is made an ex-officio member of any committee, whether it be one or more, he has the same rights as any other member, but he is not obligated to attend meetings and is not counted for quorum purposes. The last sentence says precisely this.  However, 47:20, which is clearly derived from what is said in all editions of ROR on page 210 (see RONR, 7th ed. p. 380) appears to be qualified by what is said later in 50:16 (and appears to have been so qualified in Sec. 52 of all editions of ROR.

Based on all of this, it seems to me that there are only two reasonable interpretations of what is said on this subject in RONR. RONR is telling us either (1), that whenever the president is made an ex-officio member of any committee he is not obligated to attend meetings and is not counted for quorum purposes, or (2), that only when the president is made a member of all committees, with the possible exceptions specifically designated in 50:16, is he not obligated to attend meetings and is not counted for quorum purposes.  Conventional wisdom seems to have embraced the latter, as do I.  In PL, on page 494, Q&A 233, General Robert tells us that "Where the president is made ex-officio a member of all committees, it is to enable him to attend and to take part in their meetings whenever he wishes to, so that he may be familiar with their work and may influence their actions."  This makes sense if the president is made an ex-officio member of all committees (with only the designated exceptions).  It is far less likely to be the reason for designating the president as an ex-officio member of only one committee and not others.  

 

 

[Gary Novosielski]

On 4/7/2023 at 3:23 PM, Dan Honemann said:

I agree that none of this is as clear as it might be.

If the only thing that RONR said on this subject was what is contained in 47:20, I think it would be rather clear that whenever the president is made an ex-officio member of any committee, whether it be one or more, he has the same rights as any other member, but he is not obligated to attend meetings and is not counted for quorum purposes. The last sentence says precisely this.  However, 47:20, which is clearly derived from what is said in all editions of ROR on page 210 (see RONR, 7th ed. p. 380) appears to be qualified by what is said later in 50:16 (and appears to have been so qualified in Sec. 52 of all editions of ROR.

Based on all of this, it seems to me that there are only two reasonable interpretations of what is said on this subject in RONR. RONR is telling us either (1), that whenever the president is made an ex-officio member of any committee he is not obligated to attend meetings and is not counted for quorum purposes, or (2), that only when the president is made a member of all committees, with the possible exceptions specifically designated in 50:16, is he not obligated to attend meetings and is not counted for quorum purposes.  Conventional wisdom seems to have embraced the latter, as do I.  In PL, on page 494, Q&A 233, General Robert tells us that "Where the president is made ex-officio a member of all committees, it is to enable him to attend and to take part in their meetings whenever he wishes to, so that he may be familiar with their work and may influence their actions."  This makes sense if the president is made an ex-officio member of all committees (with only the designated exceptions).  It is far less likely to be the reason for designating the president as an ex-officio member of only one committee and not others.  

I think there is a third reasonable interpretation: that (3) when the president is made a member of all committees with one or more exceptions, he is not obligated to attend and is not counted for the purposes or setting or obtaining a quorum on those committees where he is still a member.  The weakest part of option (2) in my view, is the requirement that the only allowable exceptions are those mentioned (in a rather off-handed way) in 50:16.  It would be a departure from the norm for RONR to suggest that an assembly cannot consider what committees it thinks the president should not be on, and implement what it thinks is best in its bylaws.  If it wanted the president to count toward a quorum on any or all committees, it could quite simply say so, without depending on esoteric side effects.

But I continue to favor (1) because it is the best-fit with Occam's Razor, and because it's precisely what 47:20 says.  The language cited in ROR and PL (I don't have a copy of RONR 7.) explains the reasons behind the special quorum rule quite well, and in my view only strengthens the validity of (1).  It says nothing about excluded committees, but presumably if there were any, the rule would still apply to those committees not excluded, whether there were one of those or twelve. And most of all, I see  no support for any special standing afforded to Nominating or  Disciplinary committees. Perhaps it is there in the 7th ed?

But on reflection, I think I see why a third option may not be needed. If (3) is valid, it would fully include (1), which says that the president is not obligated to attend committees of which he is an ex-officio member, and certainly has no business attending committees of which he is not made a member.  Nothing in interpretation (3) says anything different.

 

[Dan Honemann]

On 4/7/2023 at 4:33 PM, Gary Novosielski said:

And most of all, I see  no support for any special standing afforded to Nominating or  Disciplinary committees. Perhaps it is there in the 7th ed?

General Robert tells us in PL that the reason why the president should never appoint or be one of the members of a nominating committee is "because in case of his renomination it would prove embarrassing" (PL p.212).  When we were making substantial revisions during preparation of the 11th edition to the Chapter on Disciplinary Procedures, we added disciplinary committees primarily because the president should not be a member of an investigating or trial committee in instances where he is the accused person.  I might note that, in RONR as in most rule books, the reasons for the existence of a rule are seldom mentioned.

[Gary Novosielski]

On 4/9/2023 at 7:11 AM, Dan Honemann said:

General Robert tells us in PL that the reason why the president should never appoint or be one of the members of a nominating committee is "because in case of his renomination it would prove embarrassing" (PL p.212).  When we were making substantial revisions during preparation of the 11th edition to the Chapter on Disciplinary Procedures, we added disciplinary committees primarily because the president should not be a member of an investigating or trial committee in instances where he is the accused person.  I might note that, in RONR as in most rule books, the reasons for the existence of a rule are seldom mentioned.

Yes, I quite agree with that reasoning.  My reference to "special standing" was not to question why those committees would best be excluded, but why other committees, in which the assembly thinks it best not to have the president's involvement, should not have the same consideration as Nominating and Discipline.  

In other words, if the assembly chooses to provide that the President should be a member of all committees except Nominating, Discipline, and Jiggery-Pokery, he is suddenly jammed into the quorum requirement of every other committee,  I think that's a stretch of an interpretation, and too obscure to be helpful to most societies.