An absent member's vote is a yes vote.

[Gregory Carlson]

The state law requires a vote of 75% of the entire membership of the organization to do X.

The fairly large organization, understandably, even with proxies, typically gets about 80% attendance at meetings give or take.

Bylaw amendment proposal:  "At a meeting, for a vote that requires 70% or more of the entire membership, an absent member's vote counts as a yes."

Question: Does this violate a fundamental principle of parliamentary law?  Or is it a valid bylaw amendment?

[Gregory Carlson]

I'm leaning (tentatively) towards this being a valid bylaws amendment.  Although the concept of an absent member voting yes is anathema to parliamentarians (I've heard it compared to a rule that the Soviets would adopt in the USSR) we must agree that a Bylaws Amendment overrides RONR.  It is clear that the State Law is designed to disenfranchise the organization and set an almost impossibly high bar to accomplish X.  Thus the organization could adopt a Bylaws Amendment by a 2/3 vote to try to help it accomplish the 3/4 vote it would need. 

I would be very interested to hear others' opinions.

Edited July 19, 2023 at 08:02 AM by Gregory Carlson

[Rob Elsman]

I think this is more a question for an attorney who is familiar with the state law in question.

[Joshua Katz]

On 7/19/2023 at 2:57 AM, Gregory Carlson said:

Although the concept of an absent member voting yes is anathema to parliamentarians (I've heard it compared to a rule that the Soviets would adopt in the USSR) we must agree that a Bylaws Amendment overrides RONR. 

Yes and yes.

On 7/19/2023 at 2:57 AM, Gregory Carlson said:

It is clear that the State Law is designed to disenfranchise the organization and set an almost impossibly high bar to accomplish X. 

I don't know about that, and I don't know that it matters what it is designed to do.

On 7/19/2023 at 2:57 AM, Gregory Carlson said:

Thus the organization could adopt a Bylaws Amendment by a 2/3 vote to try to help it accomplish the 3/4 vote it would need. 

I don't see how that follows. "This law is impossible to follow, therefore, we may validly short-circuit it" is not a syllogism, nor is it a legal principle. I'm not your lawyer, but I'm not convinced that the law will permit you to side-step it, if the matter were ever litigated.

[Atul Kapur]

On 7/19/2023 at 3:57 AM, Gregory Carlson said:

we must agree that a Bylaws Amendment overrides RONR

Yes, but state law that applies overrides both.

On 7/19/2023 at 3:57 AM, Gregory Carlson said:

It is clear that the State Law is designed to disenfranchise the organization

It is not at all clear that this is the intent of the law and I am not sure that the intent is at all relevant. 

And I strongly urge you to consult a lawyer experienced in the relevant law before deciding on a course to circumvent the law.

[Dan Honemann]

Mr. Elsman had it right.  This is purely a legal question.

[puzzling]

I think the 80% rule is not for nothing in the state legislation. Ask a lawyer about to which motions it is applicable (I cannot imagine that it applies to all bylaws amendments.)

Then I think you could do Mailvoting (is the bylaws or state laws  permit it , and make voting as easy as possible (pre paid return envelops and that ilk)

Tell your members that you needs lots of yes votes before adoption.

Maybe that way you can act within the law.

And that is best to prevent legal problems and frustration 

Edited July 19, 2023 at 04:51 PM by puzzling
Spelling

[J. J.]

I will disagree that this is a "purely legal" question.

The question in part is, "Can an assembly, through its bylaws, redefine how a result is calculated?"  That, in itself, is a question of parliamentary procedure. 

Whether or not that redefinition meets a legal standard is a legal question. 

[Dan Honemann]

On 7/19/2023 at 10:34 AM, J. J. said:

The question in part is, "Can an assembly, through its bylaws, redefine how a result is calculated?"  That, in itself, is a question of parliamentary procedure. 

Do you mean that you have any doubt about it?  The only real question is whether or not the bylaw provision will conflict with what the statute says, which, as you have noted, is purely a legal question.

[J. J.]

On 7/19/2023 at 1:46 PM, Dan Honemann said:

Do you mean that you have any doubt about it?  The only real question is whether or not the bylaw provision will conflict with what the statute says, which, as you have noted, is purely a legal question.

Actually, I do not have any doubt that the bylaws may redefine how a result is calculated, but people do ask questions here for which we have no doubt.

There are times when it is useful to draw the line between the procedural and the legal. 

 

[puzzling]

I think the suggested amendment is much to strong to be legal or not beaking some fundamental principles and opens a whole can of worms.

To make it a big more legal and  justifiable lots of conditions should be added. As stated it even applies to special meetings. Members not interested in.yhe subject need to turn up just to be able to abstain. 

 

[Joshua Katz]

On 7/19/2023 at 3:04 PM, puzzling said:

To make it a big more legal and  justifiable lots of conditions should be added. As stated it even applies to special meetings. Members not interested in.yhe subject need to turn up just to be able to abstain. 

 

I would strongly suggest not giving advice as to what will make something more legal in this context.

[Josh Martin]

On 7/19/2023 at 2:37 AM, Gregory Carlson said:

The state law requires a vote of 75% of the entire membership of the organization to do X.

The fairly large organization, understandably, even with proxies, typically gets about 80% attendance at meetings give or take.

Bylaw amendment proposal:  "At a meeting, for a vote that requires 70% or more of the entire membership, an absent member's vote counts as a yes."

Question: Does this violate a fundamental principle of parliamentary law?  Or is it a valid bylaw amendment?

Yes, it does violate a fundamental principle of parliamentary law. That fact alone, however, does not mean the bylaw amendment is invalid. An organization may adopt rules in its bylaws which violate fundamental principles of parliamentary law. The larger concern is whether the rule conflicts with the state law. If the proposed rule conflicts with state law, then it will not be a valid bylaw amendment.

"Within this framework under the general parliamentary law, an assembly or society is free to adopt any rules it may wish (even rules deviating from parliamentary law) provided that, in the procedure of adopting them, it conforms to parliamentary law or its own existing rules. The only limitations upon the rules that such a body can thus adopt might arise from the rules of a parent body (as those of a national society restricting its state or local branches), or from national, state, or local law affecting the particular type of organization." RONR (12th ed.) 2:2, emphasis added

On 7/19/2023 at 2:57 AM, Gregory Carlson said:

I'm leaning (tentatively) towards this being a valid bylaws amendment.  Although the concept of an absent member voting yes is anathema to parliamentarians (I've heard it compared to a rule that the Soviets would adopt in the USSR) we must agree that a Bylaws Amendment overrides RONR.  It is clear that the State Law is designed to disenfranchise the organization and set an almost impossibly high bar to accomplish X.  Thus the organization could adopt a Bylaws Amendment by a 2/3 vote to try to help it accomplish the 3/4 vote it would need. 

I think you have it right that, setting aside the potential state law issues, there is nothing that would prevent a society from adopting a rule of this nature. As you say, a rule in the bylaws overrides anything in RONR which conflicts.

But an attorney should be consulted to determine whether this amendment is consistent with state law. While I am not an attorney and cannot provide legal advice, I would suggest that a bylaw amendment which (by your own admission) is intended to creatively circumvent state law at least raises questions as to whether this is a legal course of action.

[Gary Novosielski]

On 7/19/2023 at 3:37 AM, Gregory Carlson said:

Bylaw amendment proposal:  "At a meeting, for a vote that requires 70% or more of the entire membership, an absent member's vote counts as a yes."

The wording is faulty on the face of it since "an absent member's vote" is a fiction.  Absent members do not vote, so you are fabricating votes that were not cast. I'm not sure exactly what else that violates, but it violates reason.  It seems like an attempt to mimic the common misconception that an abstention counts as a No vote, when the threshold is a certain fraction of those present. 

I say misconception because abstentions are never counted as votes, be they Yes or No votes, since they are an intentional withholding of a vote.  They may under some circumstances have the same effect on adoption as a No vote, but that does not make them votes.  The only important factor is whether the threshold is met, or is not met.  Non-votes are never counted as votes in any case.  So if state law sets the threshold at 70% of the entire membership, and fewer than that number are present, the motion itself is dilatory.  And the state law supersedes any provision in the bylaws to the contrary.

I am reminded of an anecdote regarding Abe Lincoln, who was apparently fond of posing riddles to White House reporters.   

"If the tail of a dog were called a leg," Lincoln asked, "how many legs would a dog have?"  

The correct answer was: Four.  Calling a tail a leg doesn't make it one.

[puzzling]

In the proposed scenario members can only abstain if they are at the meeting and abstain. Will lead to curious computations

Total membership  700

Present at meeting 600

Members not present 100

Yes votes     200

No votes      150

Computed yes votes 300

Votes needed for adoption 75% of 700 is 525.

The nays have it the motion is defeated 

Point of order: 400 members were still having diner so should not be counted as abstaining but should be counted as not present.

.....

[Dan Honemann]

On 7/20/2023 at 2:54 AM, puzzling said:

In the proposed scenario members can only abstain if they are at the meeting and abstain. Will lead to curious computations

Total membership  700

Present at meeting 600

Members not present 100

Yes votes     200

No votes      150

Computed yes votes 300

Votes needed for adoption 75% of 700 is 525.

The nays have it the motion is defeated 

Point of order: 400 members were still having diner so should not be counted as abstaining but should be counted as not present.

.....

The point of order, if I understand it correctly, is not well taken.

Based on what you have stated, 600 members showed up at the meeting either in person or by proxy. 350 of these members actually voted, which means that 250 abstained. 100 members voted "no" by their absence.

I don't know how, from the facts stated, it can be determined that 400 members were still having diner when the vote was taken, but it doesn't matter. A total of 450 votes were cast (either in person, by proxy, or by absence), and of these, only 300 were in favor and 150 were opposed.  The motion was clearly defeated since 300 is less than 525. There is no basis for an assertion that the 250 members who actually abstained from voting should be treated as if they were absent.

 

 

[J. J.]

A society could adopt a bylaw that reads:

"A motion to ___________ shall be adopted provided that 25% or more of the membership do not vote against the motion and that the majority of the members present and voting vote in favor of the motion."  Such a rule would effectively treat nonvoting absentees as yes votes.  Nothing in RONR would prevent this bylaw from being adopted.

Such a bylaw may or may not comply with the statutory requirement.  For that answer, you will to contact an attorney able to practice within your jurisdiction. 

[Dan Honemann]

On 7/20/2023 at 9:00 AM, J. J. said:

A society could adopt a bylaw that reads:

"A motion to ___________ shall be adopted provided that 25% or more of the membership do not vote against the motion and that the majority of the members present and voting vote in favor of the motion."  Such a rule would effectively treat nonvoting absentees as yes votes.  Nothing in RONR would prevent this bylaw from being adopted.

Certainly such a bylaw can be adopted, but I don't see how it will effectively treat nonvoting absentees as yes votes.  

Let's say there are 100 members and 60 show up for a meeting. The vote on the motion is 29 in favor and 31 opposed.  The motion is obviously not adopted.  Nothing in the rule appears to require counting the 40 absentees as yes votes.

[J. J.]

On 7/20/2023 at 9:58 AM, Dan Honemann said:

Certainly such a bylaw can be adopted, but I don't see how it will effectively treat nonvoting absentees as yes votes.  

Let's say there are 100 members and 60 show up for a meeting. The vote on the motion is 29 in favor and 31 opposed.  The motion is obviously not adopted.  Nothing in the rule appears to require counting the 40 absentees as yes votes.

If there are 200 members and the vote is 31 to 29, the absentees would have the effect of yes votes.

Likewise, without the requirement for a majority in a meeting, the absentees would have the effect of a yes vote.  A bylaw reads, "A motion to ___________ shall be adopted provided that 25% or more of the membership do not vote against the motion."  There are 200 members.  It would be necessary to have 50 or more no votes to defeat the measure.  A vote of 31 opposed, even if more than half of the votes cast, would not be enough to defeat the motion. 

[Note that this is not necessarily an endorsement of such a rule, nor do I take a position on if such a rule would comply with statute.]

[Dan Honemann]

On 7/20/2023 at 10:16 AM, J. J. said:

If there are 200 members and the vote is 31 to 29, the absentees would have the effect of yes votes.

But I was positing 100 members, not 200. If you want to change the facts, you should change all of the numbers proportionately.

Your suggested rule does not necessarily require counting absentees as yes votes, and probably never.  As originally stated it requires two things for adoption, one of which is simply a majority of the votes cast.  Absentees will have no effect on this requirement.

 

[J. J.]

On 7/20/2023 at 11:05 AM, Dan Honemann said:

But I was positing 100 members, not 200. If you want to change the facts, you should change all of the numbers proportionately.

Your suggested rule does not necessarily require counting absentees as yes votes, and probably never.  As originally stated it requires two things for adoption, one of which is simply a majority of the votes cast.  Absentees will have no effect on this requirement.

 

Then we can change the vote totals to describe a condition where less than 25% of the total membership votes against the proposal.  That will have the effect of treating absentees as yes votes. 

[Gary Novosielski]

On 7/20/2023 at 9:00 AM, J. J. said:

A society could adopt a bylaw that reads:

"A motion to ___________ shall be adopted provided that 25% or more of the membership do not vote against the motion and that the majority of the members present and voting vote in favor of the motion."  Such a rule would effectively treat nonvoting absentees as yes votes.  Nothing in RONR would prevent this bylaw from being adopted.

Such a bylaw may or may not comply with the statutory requirement.  For that answer, you will to contact an attorney able to practice within your jurisdiction. 

This would apparently conflict with the state law, which sets the threshold. This is clearly a rule setting a different threshold.

[Dan Honemann]

On 7/20/2023 at 11:11 AM, J. J. said:

Then we can change the vote totals to describe a condition where less than 25% of the total membership votes against the proposal.  That will have the effect of treating absentees as yes votes. 

Yes, in the same way that a requirement of a vote of a majority of the entire membership means that an absence has the same effect as a no vote. 

But suppose when the vote is taken there are more no votes cast than there are yes votes. The rule's second requirement for adoption will not have been met.  

[puzzling]

I think if you want to adopt a bylaw as jj suggested you should include at least:

- vote at meeting at least 75% in favour (at least as low as the law requires, maybe even add 5%)

- motion needs prior notification in full. (No amendments allowed or only lowering amendments, like as at a special meeting)

- special quorum requirements (or if you find that easier a minimum% of membership in favour at meeting)

- Only at a general meeting (with extra notification to members.

So that there are quite a lot of  barriers to overcome before this rule can be (mis)used.

Think Mail voting would be a better alternative.

 

Edited July 20, 2023 at 04:16 PM by puzzling

[Gary Novosielski]

On 7/20/2023 at 11:59 AM, Dan Honemann said:

Yes, in the same way that a requirement of a vote of a majority of the entire membership means that an absence has the same effect as a no vote. 

But that effect is due to the threshold, logic, and arithmetic.  No changing of vote totals occurs.  It is simply a failure to reach the required number.  It is the threshold that causes the effect, not some recasting of abstentions to be votes of either kind.  The distinction is significant.

But the situation is not symmetrical with respect to Yes votes. Trying to make absences or abstentions "count" as Yes votes (without resorting to fake electors) requires inverting the threshold so that instead of support it depends on opposition.  That may be (maybe) okay with RONR, but it would violate the state law which prevails with a different threshold--one based on affirmative votes.