Suspending Notice of a Special Session

[Tomm]

The bylaws, regarding the Board of Directors meetings state in-part: "Special Sessions of the Board may be called by the President or upon the written request of three (3) or more Board of Directors. The purpose of the meeting shall be stated in the call and posted on the website. Except in cases of emergency, at least seventy-two (72) hours’ notice shall be given."

Question: Is the 72 hour notice requirement considered to be in the nature of rules of order that can be suspended providing every member of the board has been notified and there are no absentees to protect?

[Gary Novosielski]

No.  Notice requirements are not rules of order, since they do not apply to the conduct of business within a meeting.

But apparently that requirement could be suspended in a case of emergency.

Edited September 9, 2023 at 02:39 AM by Gary Novosielski

[Josh Martin]

On 9/8/2023 at 8:16 PM, Tomm said:

Question: Is the 72 hour notice requirement considered to be in the nature of rules of order that can be suspended providing every member of the board has been notified and there are no absentees to protect?

No, because it's not just an absentee rights issue. If insufficient notice is given, this also violates the fundamental principle of parliamentary law that business can be transacted only at a regular or properly called meeting. A meeting for which insufficient notice has been given is not properly called. Such a rule may not be suspended, even if all members are present.

An organization may provide a mechanism in its own bylaws to suspend notice requirements if it wishes to do so, but there is no such mechanism in RONR.

Edited September 9, 2023 at 11:52 AM by Josh Martin

[Tomm]

On 9/8/2023 at 7:37 PM, Gary Novosielski said:

Notice requirements are not rules of order, since they do not apply to the conduct of business within a meeting.

Rules in the nature of rules of order has to be one of the vaguest issues explained or defined in RONR, especially when you consider that even a bylaw that states the president shall preside at all meetings can be suspended? (62:12 n5)

The difference just doesn't click with me which rules are in the nature of rules of order and can be suspended and which one's are not. It seems to me there has to be something that triggers the difference? 

Any suggestions?

Thanks

[Josh Martin]

On 9/9/2023 at 4:32 PM, Tomm said:

Rules in the nature of rules of order has to be one of the vaguest issues explained or defined in RONR, especially when you consider that even a bylaw that states the president shall preside at all meetings can be suspended? (62:12 n5)

While I concur that, as a general matter, it can be difficult to determine whether a particular rule is "in the nature of a rule of order," it seems to me that a rule pertaining to who presides over meetings is clearly in the nature of a rule of order.

"The term rules of order refers to written rules of parliamentary procedure formally adopted by an assembly or an organization. Such rules relate to the orderly transaction of business in meetings and to the duties of officers in that connection." RONR (12th ed.) 2:14

A rule relating to who shall preside relates "to the orderly transaction of business in meetings and to the duties of officers in that connection."

On 9/9/2023 at 4:32 PM, Tomm said:

The difference just doesn't click with me which rules are in the nature of rules of order and can be suspended and which one's are not. It seems to me there has to be something that triggers the difference? 

I do not think there is a "bright line" rule or a clear "something" which triggers this difference. But I would say two key factors to consider are the following:

• Does the rule apply to conduct occurring during a meeting? Rules which have their application outside of a meeting are not in the nature of a rule of order.
• Does the rule relate to parliamentary topics, such as debate, voting, motions, and so forth? If it does not, and instead relates to administrative matters of a nonparliamentary nature (finances, for example), the rule is not in the nature of a rule of order.

Finally, the important thing to remember is that even if a rule is in the nature of a rule of order, the other limitations on suspension of the rules are still applicable. That is, if a rule found in the bylaws is in the nature of a rule of order, the rule still may not be suspended if any of the following conditions apply (unless the bylaws provide for the rule's suspension):

• The rule embodies a fundamental principle of parliamentary law
• The rule protects the rights of absentees (provided, however, that such rules may be suspended if there are no absentees)
• The rule protects the basic rights of an individual member
• The rule requires a ballot vote, and the effect of the motion to suspend the rules would deprive members of the secrecy of the members' votes
• The rule has its application outside of the session which is in progress

I would actually turn to these principles first, because they are somewhat easier to adjudicate than whether a rule is in the nature of a rule of order. If the motion to Suspend the Rules would violate one of these limitations, then the motion is not in order unless the bylaws so provide, and it is then not necessary to reach the question of whether a given rule is in the nature of a rule of order, which can be somewhat more difficult.

In the present scenario, for example, two of the limitations listed above are potentially applicable - the rights of absentees and the fundamental principles of parliamentary law. With respect to the rights of absentees, the text provides that such rules may be suspended if all members are present, because in such circumstances, there are no absentees to protect.

There is also the second issue, however, that fundamental principles of parliamentary law may not be suspended, unless the bylaws so provide. The text explicitly provides that it is a fundamental principle of parliamentary law that a vote may only be taken by members at a regular or properly called meeting, and also explicitly provides that except as otherwise provided in the bylaws, business may not be considered except at a regularly or properly called meeting. The text also explains what constitutes a "properly called" meeting. A meeting which is called in a manner which is not in compliance with the rules in the bylaws is not "properly called."

"Rules which embody fundamental principles of parliamentary law, such as the rule that allows only one question to be considered at a time (5:4), cannot be suspended, even by a unanimous vote. Thus, since it is a fundamental principle of parliamentary law that the right to vote is limited to the members of an organization who are actually present at the time the vote is taken in a regular or properly called meeting (45:56), the rules cannot be suspended so as to give the right to vote to a nonmember, 7 or to authorize absentee voting (45:56ff.). Likewise, since it is a fundamental principle that each member of a deliberative assembly is entitled to one—and only one—vote on a question, the rules may not be suspended so as to authorize cumulative voting (46:43)." RONR (12th ed.) 25:9

"Except as authorized in the bylaws, the business of an organization or board can be validly transacted only at a regular or properly called meeting—that is, as defined in 8:2(1), a single official gathering in one room or area—of the assembly of its members at which a quorum is present." RONR (12th ed.) 9:30

"Special meetings can properly be called only (a) as authorized in the bylaws (see 56:36); or (b) when authorized by the assembly itself, as part of formal disciplinary procedures, for purposes of conducting a trial and determining a punishment (see 63:21n9)." RONR (12th ed.) 9:14

So it is irrelevant whether this rule is "in the nature of a rule of order," because it already cannot be suspended for other reasons, unless the bylaws so provide.

I would further also note that it is a bit of a logical conundrum for the board to "suspend the rules" to transform a non-meeting outside of a meeting, since (as previously noted), the board can't act outside of a meeting. So to the extent an organization wishes to provide in its bylaws that the rules may be suspended in this manner, it is generally best not to provide that the board may suspend this rule, but instead to provide something to the effect of permitting the notice requirements to be waived if all individual members of the board consent to this waiver.

Finally, I would note that your organization's bylaws actually do provide an exception. The rules state "Except in cases of emergency, at least seventy-two (72) hours’ notice shall be given." Seventy-two hours is not a very long time period. I guess I'm not quite clear on what is so important, as a practical matter, that it can't wait 72 hours and yet is not quite important enough to be an emergency.

[Tomm]

On 9/9/2023 at 2:57 PM, Josh Martin said:

I guess I'm not quite clear on what is so important, as a practical matter, that it can't wait 72 hours and yet is not quite important enough to be an emergency.

First of all, thanks very much for your in-depth response, it helps!

The situation arose where, in a committee meeting, an outside architect was hired to report and perform certain duties, but now additional duties are deemed to be required. It has become necessary that in order for the architect to perform those additional duties by a certain specified date, (the boards next scheduled regular meeting) her contract with the organization needs to be amended within 2 days, which would allow her firm the necessary time to compile the information on time. Assuming that only the board of directors, who issued the contract can amend it, a special meeting would be required to do so. I hardly consider that the type of emergency that would warrant waiving the 72 hour requirement. 

And now you know the rest of the story!  

[Gary Novosielski]

On 9/9/2023 at 7:47 PM, Tomm said:

First of all, thanks very much for your in-depth response, it helps!

The situation arose where, in a committee meeting, an outside architect was hired to report and perform certain duties, but now additional duties are deemed to be required. It has become necessary that in order for the architect to perform those additional duties by a certain specified date, (the boards next scheduled regular meeting) her contract with the organization needs to be amended within 2 days, which would allow her firm the necessary time to compile the information on time. Assuming that only the board of directors, who issued the contract can amend it, a special meeting would be required to do so. I hardly consider that the type of emergency that would warrant waiving the 72 hour requirement. 

And now you know the rest of the story!  

So you're saying that these "additional duties" are not really essential to have done.  

If not being able to call the meeting would cause no particular hardship, then i agree that there's no reason to suspend the rule.

[Tomm]

On 9/9/2023 at 5:14 PM, Gary Novosielski said:

So you're saying that these "additional duties" are not really essential to have done.  

The additional duties are essential and will eventually be required, but the expediency of that info is only because the board would like to have those numbers by the next board meeting. It's simply more of a matter a convenience to meet the time-line, by no means an emergency. 

[Josh Martin]

On 9/9/2023 at 7:47 PM, Tomm said:

The situation arose where, in a committee meeting, an outside architect was hired to report and perform certain duties, but now additional duties are deemed to be required. It has become necessary that in order for the architect to perform those additional duties by a certain specified date, (the boards next scheduled regular meeting) her contract with the organization needs to be amended within 2 days, which would allow her firm the necessary time to compile the information on time. Assuming that only the board of directors, who issued the contract can amend it, a special meeting would be required to do so. I hardly consider that the type of emergency that would warrant waiving the 72 hour requirement. 

Thank you for these additional facts.

I take no position on whether the situation constitutes an emergency under the organization's rules, and I certainly take no position on the merits of the proposal. Assuming for the sake of argument, however, that it is correct that the situation does not constitute an emergency, and the board still wishes to take action on this matter sooner than is possible with a properly called special meeting, a potential solution to this matter might be as follows:

• The members of the board would informally meet and agree on this matter, and agree to ratify actions taken by officers on this matter at a future, properly called meeting of the board. (Strictly speaking, this could also be done at a regular meeting, but if I were the officer "on the hook" for these actions, I would certainly prefer that ratification occur as soon as possible.)
• Pursuant to this discussion and these assurances, the President would sign the contract amendment.
• A special meeting, with sufficient notice, would be called for the purpose of ratifying the President's actions.
• The board, at the special meeting, would ratify the President's actions.

It is certainly correct as a parliamentary matter "that only the board of directors, who issued the contract can amend it." If the members of the board are in agreement on this matter, the steps outline above should accomplish the same end result. There is, of course, risk involved in this if the actions are not ultimately ratified.

I would add, of course, that since contracts are involved, it would also be prudent to seek legal counsel on this matter.

"The motion to ratify (also called approve or confirm) is an incidental main motion that is used to confirm or make valid an action already taken that cannot become valid until approved by the assembly. Cases where the procedure of ratification is applicable include: ...

• action taken by officers, committees, delegates, subordinate bodies, or staff in excess of their instructions or authority—including action to carry out decisions made without a valid meeting, such as by approval obtained separately from all board members (49:16) or at an electronic meeting (9:30–36) of a body for which such meetings are not authorized;" RONR (12th ed.) 10:54

In the long run, if the board desires to provide a mechanism to waive the 72 hour requirement, the bylaws can be amended to do so. It may also be prudent to consult applicable law, as it may be that such a requirement exists there.

Edited September 10, 2023 at 05:14 PM by Josh Martin

[Gary Novosielski]

@Josh Martin, I don't disagree with any of that, but if I was about to sign a contract putting myself personally at substantial financial risk, I think I'd arguing that if it's enough of an emergency to ask me to do that, it's enough of an emergency to waive the notice rule.

[Josh Martin]

On 9/10/2023 at 12:55 PM, Gary Novosielski said:

@Josh Martin, I don't disagree with any of that, but if I was about to sign a contract putting myself personally at substantial financial risk, I think I'd arguing that if it's enough of an emergency to ask me to do that, it's enough of an emergency to waive the notice rule.

Yeah, I’d probably argue that too.