Bylaws Provision to Suspend the Bylaws!!?

[Guest Pearlie]

Good evening,

I am advising a group that had the following bylaw provision:

Section II. SUSPENSION OF BY-LAWS
The By-Laws may be suspended at any regular meeting of the body by two thirds (2/3) vote, a quorum being present. By-Laws relating to business procedures, transaction of business, rules of order or other standing rules not requiring a ballot vote may be suspended.

I was alarmed. Apparently, they have used this provision multiple times in the past to circumvent their bylaws (to temporarily change qualifications for office 🙄). In this instance, they had the president resign. The bylaws specifically state the 1st VP shall assume the role. However, the 1st VP does not want to assume the role. Instead, they have taken the title of "Interim President". They want to hold a special meeting (which is provided for in the Bylaws) to hold a special election (not in the bylaws). Bylaws are specific that elections occur biennially in May.

I referenced 2:8(4) noting that it is specific to clauses (not the entire document) and only if that clauses that provide for their own suspension. The correct action is to amend the bylaws so the action is permitted.

Am I missing something here? 

[Joshua Katz]

On 7/20/2023 at 8:33 PM, Guest Pearlie said:

Am I missing something here? 

RONR applies when the bylaws are silent. Here the bylaws are not silent. If the bylaws permit their own suspension, then they can be suspended. But:

On 7/20/2023 at 8:33 PM, Guest Pearlie said:

By-Laws relating to business procedures, transaction of business, rules of order or other standing rules not requiring a ballot vote may be suspended.

 

On 7/20/2023 at 8:33 PM, Guest Pearlie said:

(to temporarily change qualifications for office 🙄).

Qualifications for office do not strike me as any of the categories they permit to be suspended. In fact, other than "other standing rules" (a misnomer because none of the other categories are standing rules), it looks to me like everything is, in fact, suspendable.

[Guest Pearlie]

On 7/20/2023 at 9:39 PM, Joshua Katz said:

RONR applies when the bylaws are silent. Here the bylaws are not silent. If the bylaws permit their own suspension, then they can be suspended. But:

 

Qualifications for office do not strike me as any of the categories they permit to be suspended. In fact, other than "other standing rules" (a misnomer because none of the other categories are standing rules), it looks to me like everything is, in fact, suspendable.

Thank you for this perspective and it makes sense that RONR is the gap filler when the Bylaws are silent (I had not considered that). There is a contingent trampling the minority by routinely suspending the bylaws. Seems they would need to garner sufficient support for an amendment to that provision.

[J. J.]

On 7/20/2023 at 9:33 PM, Guest Pearlie said:

Good evening,

I am advising a group that had the following bylaw provision:

Section II. SUSPENSION OF BY-LAWS
The By-Laws may be suspended at any regular meeting of the body by two thirds (2/3) vote, a quorum being present. By-Laws relating to business procedures, transaction of business, rules of order or other standing rules not requiring a ballot vote may be suspended.

I was alarmed. Apparently, they have used this provision multiple times in the past to circumvent their bylaws (to temporarily change qualifications for office 🙄). In this instance, they had the president resign. The bylaws specifically state the 1st VP shall assume the role. However, the 1st VP does not want to assume the role. Instead, they have taken the title of "Interim President". They want to hold a special meeting (which is provided for in the Bylaws) to hold a special election (not in the bylaws). Bylaws are specific that elections occur biennially in May.

I referenced 2:8(4) noting that it is specific to clauses (not the entire document) and only if that clauses that provide for their own suspension. The correct action is to amend the bylaws so the action is permitted.

Am I missing something here? 

 

I have to agree with Mr. Katz.  This bylaw is (overly) broad and the bylaw supersedes RONR.  While I would not define the vice president becoming president a rule of order, it should be, broadly, a business procedure. 

[Josh Martin]

On 7/20/2023 at 8:33 PM, Guest Pearlie said:

Good evening,

I am advising a group that had the following bylaw provision:

Section II. SUSPENSION OF BY-LAWS
The By-Laws may be suspended at any regular meeting of the body by two thirds (2/3) vote, a quorum being present. By-Laws relating to business procedures, transaction of business, rules of order or other standing rules not requiring a ballot vote may be suspended.

I was alarmed. Apparently, they have used this provision multiple times in the past to circumvent their bylaws (to temporarily change qualifications for office 🙄). In this instance, they had the president resign. The bylaws specifically state the 1st VP shall assume the role. However, the 1st VP does not want to assume the role. Instead, they have taken the title of "Interim President". They want to hold a special meeting (which is provided for in the Bylaws) to hold a special election (not in the bylaws). Bylaws are specific that elections occur biennially in May.

I referenced 2:8(4) noting that it is specific to clauses (not the entire document) and only if that clauses that provide for their own suspension. The correct action is to amend the bylaws so the action is permitted.

Am I missing something here? 

First, the bylaw suspension issue.

The bylaws take precedence over RONR in any instance where they conflict. Nothing in RONR can prevent the society from adopting a broad suspension clause in its bylaws if it wishes to do so. I am also not certain that there is actually a conflict here. It seems to me that RONR envisions an organization only adopting rules permitting specific rules in the bylaws to be suspended, but I don't think the rule in question is intended to suggest the society cannot adopt a broader suspension rule. There are other rules more clearly indicating that the bylaws take precedence over anything in RONR.

"Except for the corporate charter in an incorporated society, the bylaws (as the single, combination-type instrument is called in this book) comprise the highest body of rules in societies as normally established today. Such an instrument supersedes all other rules of the society, except the corporate charter, if there is one." RONR (12th ed.) 2:12

"When a society or an assembly has adopted a particular parliamentary manual—such as this book—as its authority, the rules contained in that manual are binding upon it in all cases where they are not inconsistent with the bylaws (or constitution) of the body, any of its special rules of order, or any provisions of local, state, or national law applying to the particular type of organization." RONR (12th ed.) 2:18

"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

With that said, however, it would seem to me the bylaws do not, in fact, authorize the society to suspend any rules in the bylaws it wishes. Rather, they provide that "By-Laws relating to business procedures, transaction of business, rules of order or other standing rules not requiring a ballot vote may be suspended." I am inclined to concur with Mr. Katz that suspending rules pertaining to eligibility for office does not fall under these categories, but it is ultimately up to the society to interpret its own rules.

I think the "interim President" plan may actually be permissible, because ultimately the organization could largely pull this off even without suspending the bylaws.

On 7/20/2023 at 8:39 PM, Joshua Katz said:

Qualifications for office do not strike me as any of the categories they permit to be suspended. In fact, other than "other standing rules" (a misnomer because none of the other categories are standing rules), it looks to me like everything is, in fact, suspendable.

I think "business procedures" is somewhat ambiguous, so I'm not entirely certain what's included under that phrase. To the extent it means "business" in the parliamentary sense, it seems to be redundant with transaction of business and special rules of order. But it may mean something else.

I would agree that, generally, rules relating to "transaction of business" and "special rules of order" (which seems redundant) and standing rules may be suspended even under the rules in RONR. It may be that the way this provision is written allows suspending certain categories of rules RONR ordinarily does not - such as rules having effect outside of a meeting, for example. I think it would be advisable for the society to amend the bylaws to provide greater clarity in this regard.

On 7/20/2023 at 8:33 PM, Guest Pearlie said:

In this instance, they had the president resign. The bylaws specifically state the 1st VP shall assume the role. However, the 1st VP does not want to assume the role. Instead, they have taken the title of "Interim President". They want to hold a special meeting (which is provided for in the Bylaws) to hold a special election (not in the bylaws). Bylaws are specific that elections occur biennially in May.

Ultimately a society could (with some effort) do all this even without suspending the bylaws, with perhaps the slight caveat that the title of "Interim President" is technically inaccurate. The procedure would essentially look like this.

• The First Vice President becomes President. (This also seems to imply there is, at least, a Second Vice President, and possibly more VPs, so those people would move up too.)
• The society holds a special meeting.
• The new President resigns, and then the new President resigns, and rinse and repeat until you run out of Vice Presidents.
• The society proceeds to elect a new President.
• The society appoints all the former Vice Presidents back to their previous offices.

You say that the bylaws do not provide specifically for special elections. But if the bylaws are silent on filling vacancies, that is, in fact, how vacancies are filled (except for vacancies in the office of President).

"The power to appoint or elect persons to any office or board carries with it the power to accept their resignations, and also the power to fill any vacancy occurring in it, unless the bylaws expressly provide otherwise." RONR (12th ed.) 47:57

In the event the bylaws do provide how to fill vacancies, there's one added wrinkle there, but the body or person with authority to fill vacancies could voluntarily choose to appoint the person "recommended" by the society.

So I'm inclined to think suspension of the bylaws here may be appropriate, given the society's broad rule on this subject, and that the society theoretically could get to the same place in the end anyway, just with more steps.

On 7/20/2023 at 9:02 PM, Guest Pearlie said:

Thank you for this perspective and it makes sense that RONR is the gap filler when the Bylaws are silent (I had not considered that). There is a contingent trampling the minority by routinely suspending the bylaws. Seems they would need to garner sufficient support for an amendment to that provision.

Well, if the side that wants to routinely suspend the bylaws has more support, then it seems more likely the bylaws would be amended to make the provision even more clearly broad.

Edited July 21, 2023 at 10:55 AM by Josh Martin

[J. J.]

On 7/21/2023 at 6:52 AM, Josh Martin said:

I would agree that, generally, rules relating to "transaction of business" and "special rules of order" (which seems redundant) and standing rules may be suspended even under the rules in RONR. It may be that the way this provision is written allows suspending certain categories of rules RONR ordinarily does not - such as rules having effect outside of a meeting, for example. I think it would be advisable for the society to amend the bylaws to provide greater clarity in this regard.

 

I would not find the "transaction of business" and "special rules of order" to be redundant.  A rule, e.g. a rule permitting proxy voting in the bylaws, could not be a "special rule of order" but would certainly deal the "transaction of business."

[Dan Honemann]

On 7/21/2023 at 8:40 AM, J. J. said:

I would not find the "transaction of business" and "special rules of order" to be redundant.  A rule, e.g. a rule permitting proxy voting in the bylaws, could not be a "special rule of order" but would certainly deal the "transaction of business."

Well, the bylaw provision in question makes no reference to "special rules of order".

[J. J.]

On 7/21/2023 at 10:06 AM, Dan Honemann said:

Well, the bylaw provision in question makes no reference to "special rules of order".

 

 

On 7/21/2023 at 6:52 AM, Josh Martin said:

 

I would agree that, generally, rules relating to "transaction of business" and "special rules of order" (which seems redundant) and standing rules may be suspended even under the rules in RONR. It may be that the way this provision is written allows suspending certain categories of rules RONR ordinarily does not - such as rules having effect outside of a meeting, for example. I think it would be advisable for the society to amend the bylaws to provide greater clarity in this regard.

It was in Josh Martin's quote, which I quoted in my post.

I would not find the terms "rules of order" or "special rules of order" to be redundant with the term "transaction of business."  "Transaction of business," especially without the qualification "in meetings," would be broader that a rule of order. 

[Dan Honemann]

On 7/21/2023 at 10:17 AM, J. J. said:

 

 

It was in Josh Martin's quote, which I quoted in my post.

I would not find the terms "rules of order" or "special rules of order" to be redundant with the term "transaction of business."  "Transaction of business," especially without the qualification "in meetings," would be broader that a rule of order. 

For what it's worth, which isn't much, I would guess that the drafters of this unfortunate bylaw provision, assuming that they had a vague familiarity with the rules in RONR, were simply attempting to reflect in this provision essentially what is said in 25:7 concerning rules in the bylaws that can be suspended, including RONR's exception relating to rules requiring a ballot vote. 

What they created was an extraordinarily ambiguous provision which Guest Pearlie should advise them to strike out, in its entirety.

[J. J.]

On 7/21/2023 at 10:56 AM, Dan Honemann said:

For what it's worth, which isn't much, I would guess that the drafters of this unfortunate bylaw provision, assuming that they had a vague familiarity with the rules in RONR, were simply attempting to reflect in this provision essentially what is said in 25:7 concerning rules in the bylaws that can be suspended, including RONR's exception relating to rules requiring a ballot vote. 

What they created was an extraordinarily ambiguous provision which Guest Pearlie should advise them to strike out, in its entirety.

I will agree that it is ambiguous, but I would not attempt to reach that conclusion regarding intent. 

[Drake Savory]

On 7/21/2023 at 8:56 AM, Dan Honemann said:

For what it's worth, which isn't much, I would guess that the drafters of this unfortunate bylaw provision, assuming that they had a vague familiarity with the rules in RONR, were simply attempting to reflect in this provision essentially what is said in 25:7 concerning rules in the bylaws that can be suspended, including RONR's exception relating to rules requiring a ballot vote. 

That was my impression too.  Most members would not know what exactly a rule of order is so it looks like they tried to be more specific but they mucked it up even more.  Does business transactions relate to administration outside a meeting like if the bylaws ay the Treasure is to pay all bill the last week of the month?  And are there standing rules in the bylaws?  That would seem to conflict with 2:23(2). 

[Caryn Ann Harlos]

On 7/21/2023 at 8:56 AM, Dan Honemann said:

..... unfortunate bylaw provision.....

A phrase I have to use way too often.

[J. J.]

On 7/26/2023 at 8:19 PM, Caryn Ann Harlos said:

A phrase I have to use way too often.

I tend to regard the phrase as being similar as calling a poker hand of an ace, king, queen, jack, three, an "unfortunate deal."  It will still be defeated by a pair of twos.

In other words, we have to play the cards were are dealt. 

[Gary Novosielski]

On 7/27/2023 at 9:58 AM, J. J. said:

I tend to regard the phrase as being similar as calling a poker hand of an ace, king, queen, jack, three, an "unfortunate deal."  It will still be defeated by a pair of twos.

In other words, we have to play the cards were are dealt. 

But it makes a pretty goog ham callsign (almost)

=Gary AK2QJ