Use of "point of order"

[AlwaysLearning]

Several members within our organization cautioned the BoD not to proceed with a particular motion they desired (this was in a BoD meeting), but they did so anyways.  Members who were present at the next meeting (an annual meeting) collectively took action and began the process to make the BoD's motion null and void.  As a result, the entire organization is in the midst of getting ready to vote on whether to rescind (or not) that motion previously approved by the BoD.  In the meantime, I have come to realize that the actions the BoD took actually violated state law.  As per RONR, my understanding is that a violation of state law makes the action automatically null and void.  If that is correct, may I inform the BoD immediately, or do I wait for the next BoD meeting, then wait until the end for "new business" and use the "point of order" option?  This is, of course, assuming they allow me to attend.

[Rob Elsman]

I am not quite sure I understand what the original poster's position is within the organization.  At the beginning of the post, I got the impression that the poster was a member of the board of directors; however, the last sentence suggests to me that the poster is a member of the general membership assembly, but he is not a member of the board of directors (...assuming [the members of the board of directors] allow me to attend).

The focus of the post for purposes of parliamentary law is whether a Point of Order can be properly raised in a meeting of the general membership assembly regarding the validity or nullity of an action taken in a meeting of the board of directors and possibly causing a continuing breach of the rules.  This is an interesting question that I do not believe is directly addressed in RONR (12th ed.).

Secondary to, and dependent on the primary focus, is whether any such Point of Order must be limited in scope to possible continuing breaches of the rules arising from actions taken that are in conflict with federal, state, or local laws and regulations.

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As to the general membership assembly rescinding the adoption of a main motion by the board of directors, the rules seem clear.  Subject to the limitations of RONR (12 ed.) 35:6, what is said in RONR (12th ed.) 35:2(7) indicates that the general membership assembly can rescind a motion adopted in a board of directors of the ordinary kind.

As to whether a Point of Order can be raised in a superior body concerning a continuing breach (or some particular class of a continuing breach), the problem encountered is that what is said in RONR (12th ed.) 23:6 ("...can be made...") is written in the agentless passive voice, which leaves unanswered the question, "by whom".  The book leaves the ordinary reader the impression that a Point of Order can only be raised in the body wherein the breach occurred by a member of that body.  One could be forgiven for thinking that this understanding is exclusive of any other circumstance.

###

Taking a more outlying and theoretical approach that is only my opinion, I think there is a case to be made that a Point of Order is in order in the superior body to take dispositive action to bring the society into compliance with statutory law and/or implementing regulation.  To be clear, the obligation to be in full compliance with statutory law and/or implementing regulation arises out of the fundamental notion of what it means to be a "citizen" (whether a physical person or otherwise).  It would be strange, indeed, if the superior body of such a citizen judged itself to be out of compliance, yet unable to take parliamentary action to come into full compliance.  Any correct answer to the questions about parliamentary law raised by the original poster must take this obligation into proper account, and no solution is acceptable if it does not.

Edited September 19, 2023 at 04:42 PM by Rob Elsman

[Josh Martin]

On 9/19/2023 at 10:09 AM, AlwaysLearning said:

As per RONR, my understanding is that a violation of state law makes the action automatically null and void.

It depends on in what manner the motion violates state law.

If the motion conflicts with a rule in state law relating to parliamentary procedure, then that is a continuing breach and the motion should indeed be ruled null and void. Nothing is ever “automatically” null and void, however. Rather, the chair would make a ruling on this matter at a board meeting, subject to appeal.

If the motion conflicts with a rule in state law that does not relate to parliamentary procedure, then there is no parliamentary basis on which to rule the motion null and void. Nothing in RONR prevents a society from breaking the law.

That is not to say RONR recommends breaking the law or that there will not be consequences for doing so. But that is a legal matter, not a parliamentary one.

I also express no view on whether it is in fact correct that the motion conflicts with state law. That is a legal question which should be directed to an attorney.

(Another possibility which may permit addressing this matter through a Point of Order would be if the organization’s own governing documents provide that motions which conflict with state law, or certain portions thereof, are prohibited, since a main motion which conflicts with the organization’s articles of incorporation or bylaws would be a continuing breach.)

To the extent a Point of Order is not the appropriate tool to address this, a motion to Rescind could be made instead.

On 9/19/2023 at 10:09 AM, AlwaysLearning said:

If that is correct, may I inform the BoD immediately, or do I wait for the next BoD meeting, then wait until the end for "new business" and use the "point of order" option?

If you believe this motion is in conflict with state law, it seems to me you should advise the board of that fact immediately.

Nonetheless, a ruling on this matter cannot be made until a board meeting.

As noted above, a Point of Order may or may not be the appropriate tool to address a violation of state law.

It is also somewhat unclear whether you are a member of the board. If you are not, you cannot make motions at a board meeting, including a Point of Order.

On 9/19/2023 at 11:12 AM, Rob Elsman said:

Taking a more outlying and theoretical approach that is only my opinion, I think there is a case to be made that a Point of Order is in order in the superior body to take dispositive action to being the society into compliance with statutory law and/or implementing regulation. 

To the extent that the conflict with state law in this matter would cause a continuing breach, I concur that a Point of Order could be raised at a meeting of the membership.

[Dan Honemann]

On 9/19/2023 at 12:37 PM, Josh Martin said:

To the extent that the conflict with state law in this matter would cause a continuing breach, I concur that a Point of Order could be raised at a meeting of the membership.

This would depend upon whether or not the action of the board is affecting business at a meeting of the membership (RONR, 12th ed., 23:9).  Certainly if a motion is pending at a membership meeting to rescind the action taken by the board, a point of order could be raised that the action of the board was null and void.

[Rob Elsman]

What Mr. Honemann is suggesting is that the member of the general membership assembly who is not a member of the board is dependent on another member to second the motion, Rescind, to enable the maker to raise a Point of Order.  I am not sure I can agree with him.  The suggestion gives rise to what I found "strange, indeed" in my previous reply.

[Dan Honemann]

On 9/19/2023 at 12:59 PM, Rob Elsman said:

What Mr. Honemann is suggesting is that the member of the general membership assembly who is not a member of the board is dependent on another member to second the motion, Rescind, to enable the maker to raise a Point of Order.  I am not sure I can agree with him.  The suggestion gives rise to what I found "strange, indeed" in my previous reply.

I'm not sure what you are saying, but it doesn't look like anything I said.

[Rob Elsman]

Well, as I understand it (and  don't let me put words in your mouth!), if there is no relevant business before the general membership assembly, a Point of Order would not be in order there.  The way to place the relevant business before the general membership assembly to enable a Point of Order to be raised is to move that the main motion in question that was adopted by the board be rescinded.  However, in order for the motion, Rescind, to be placed before the assembly, it must be seconded.  The upshot is that the general membership assembly's ability to bring the society into compliance with the relevant state law depends upon a second for the motion, Rescind.  That seems "strange, indeed", as my previous reply explains.

[Guest AlwaysLearning]

I should have made this clear - I am a member.  Members are permitted to attend meetings if the chair allows it (as per our rules).  Our rules also allow a motion to be recommended by someone in the advisor's group (these are also members of the organization, but not elected board members).  Since this is a violation of parliamentary procedure (it is with respect to the voting rules), the state law would supersede the other laws (I believe).  If, as a member, I am bound to (or highly encouraged to) inform the board, I will.  But given the board's behavior on this topic, I would also pursue the path our rules allow and contact the people in the advisor's group.  If one of them is willing, he/she could put forth something like a motion to accept a point of order (since this is a continuing breach), which would hopefully get things moving in the right direction.  At the very least, if nobody responds, and if I can make the next meeting (and am permitted to do so), I could ask to speak at the end and try to start the conversation.  In terms of proper parliamentary options, that's what I have identified to date.  If that's permissible, then I will make the attempts I can make as a member to protect the organization - it will be up to them to decide what to do next.

 

[Dan Honemann]

On 9/19/2023 at 2:13 PM, Rob Elsman said:

Well, as I understand it (and  don't let me put words in your mouth!), if there is no relevant business before the general membership assembly, a Point of Order would not be in order there. 

This is correct, and in such a case a motion can be made to declare the board's action null and void (23:9).  

On 9/19/2023 at 2:13 PM, Rob Elsman said:

The way to place the relevant business before the general membership assembly to enable a Point of Order to be raised is to move that the main motion in question that was adopted by the board be rescinded. 

This appears to be what happened in the instant case, but there may well be other circumstances that arise in which the board's action has an affect upon business at a membership meeting.

On 9/19/2023 at 2:13 PM, Rob Elsman said:

However, in order for the motion, Rescind, to be placed before the assembly, it must be seconded.  The upshot is that the general membership assembly's ability to bring the society into compliance with the relevant state law depends upon a second for the motion, Rescind.  That seems "strange, indeed", as my previous reply explains.

That such a motion (or a motion to declare the board's action null and void) requires a second doesn't upset me nearly as much as would allowing points of order to be raised during a meeting when no breach of the rules is occurring at the time.

[Gary Novosielski]

23:9 Remedy When Action Taken by an Executive Board Is Null and Void
If the executive board of a society takes action that exceeds the board’s instructions or authority, that conflicts with a decision made by the assembly of the society, or that falls under any of the categories listed in 23:6, a point of order can be raised at a board meeting at any time during the continuance of the breach. If the point of order is sustained, the action must be declared null and void. Alternatively, the society’s assembly can adopt an incidental main motion by majority vote declaring that the board’s action is null and void; or, if it is affecting business at a meeting of the assembly, the board’s action can be declared null and void by a ruling of the chair relating to the affected business or on a relevant point of order raised by a member. It is also possible for the assembly to bring disciplinary measures against the board members who voted for the improper action. If the assembly finds itself in sympathy with the board’s action and the action is one that that assembly could have authorized in advance, the assembly can instead ratify the action as explained in 10:54–57.

If, in fact, the board took an action that violated 23:6, (in particular c., procedural rules in law), then all that's necessary in a membership meeting is an incidental main motion adopted by a majority vote, to declare it null and void.  That's the same threshold that would be required on an appeal to a rejected Point of Order, and less than the two-thirds that might be required to Rescind the action if it did not violate 23:6.

[AlwaysLearning]

I also should have added information about the timing.  The annual meeting is over - that is the meeting where our rules permit members to bring forth motions.  The motion to rescind was offered and seconded, then voted upon by those at the meeting.  Our rules require that if a motion is brought forth in this manner, the vote at the member's meeting, should it pass, is really a vote as to whether the motion goes on to the next stage, which is to be voted upon by the entire membership.  The vote at the member's meeting did pass, so the BoD is in the midst of preparing to get the entire membership ready to vote.  Due to the length of the process, there is a gap - it is in this gap that I have looked into the state laws.

[Gary Novosielski]

I am completely confused.

The rules in RONR assume that the Annual Meeting is a meeting of the entire membership, and therefore, any motion passed at that meeting would go into immediate effect. 

What is the difference, if any, between a vote at the members meeting, and a vote of the entire membership? And where are these rules written?

If your society is organized in such a way that the basic assumptions do not hold, then I'm not sure that information on the rules contained in RONR will prove to be of much practical use.

Edited September 19, 2023 at 07:21 PM by Gary Novosielski

[AlwaysLearning]

Gary - we have an "annual meeting" which is a combination of a conference and a business meeting.  I would agree that it would be normal for those present at the business meeting to constitute the assembly of our membership, and for those in attendance, they get to vote and it concludes the vote.  But that's not what was written in our own rules.  Those non-board-members who gather at the annual meeting can essentially state what they want done (there is a process for this), and then if the vote on what they want done passes, that kicks it over to a "full" voting process (a formal poll established by the BoD, where every eligible voting member must be contacted).  For the most part, RONR holds.  It so happens that the timeline to complete our "modified" process is long - I picture it like we are still in the debate phase of a motion (a breach is ongoing and a motion to rescind is in the works).  Since it's ongoing, and I looked into state law that appears to apply, I suspect it is possible for a point of order to be raised - this would be the proper step to recognize the breach.  Not being a board member, I need to look at various options to address this (as you can imagine, the board believes it did the right thing and isn't very receptive to "undoing" it).  If I pursue any/all proper options, then I feel I have done my due diligence for the organization, whatever those legitimate options may be.

[Joshua Katz]

On 9/19/2023 at 4:28 PM, AlwaysLearning said:

Since it's ongoing, and I looked into state law that appears to apply, I suspect it is possible for a point of order to be raised - this would be the proper step to recognize the breach. 

If we're talking about a state law governing procedure, not substance, then it strikes me as reasonable. But how? How does one get a point of order before an assembly, unlike RONR's deliberative assembly, that does not exist in one place at one time, let alone handle an appeal? I have no idea, but I strongly suspect that, if your rules do not prescribe a procedural mechanism for doing so, then, whether there should be one or not, there's simply no way to cognize such a point of order outside the meeting that sent the issue to vote.

[Gary Novosielski]

I now have less of a clue than I had a while ago.

[AlwaysLearning]

Joshua - that's the quandary I am in - how?  Which is why I have sought out various options to see what can be done.  If, within our rules and within RONR, I can identify valid options to seek a solution that can be enacted by the organization, I am willing to do that.  So you all have been a useful sounding board for this unusual situation, because I would like to make sure the options are defensible.  Unfortunately, the most obvious path would be to simply tell the BoD that they forgot about state law and point them to it, hoping they read it and do the right thing in a manner they see fit.  But with respect to this topic, most of them haven't been very receptive or communicative.  So what are some alternatives?  I have identified that non-board members identified as their "advisors" can propose a motion at a board meeting, so I will contact them as well.  I am willing to attend another board meeting if that is what it takes, and in the new business section ask to speak (if they don't reply to me regarding the first 2 options).  From what I can find, these appear to be valid options, and the only things I can do to help the organization without being a current board member.

[Joshua Katz]

On 9/20/2023 at 8:00 AM, AlwaysLearning said:

From what I can find, these appear to be valid options, and the only things I can do to help the organization without being a current board member.

If I were a member, I might propose a bylaw amendment allowing the annual meeting to conduct business.

[Josh Martin]

On 9/19/2023 at 1:38 PM, Guest AlwaysLearning said:

I should have made this clear - I am a member. 

You are a member of what? Of the organization? Of the board? Of the advisory group? More than one of these?

It sounds like you are a member of the organization, but not the board or the advisory group.

On 9/19/2023 at 1:38 PM, Guest AlwaysLearning said:

Members are permitted to attend meetings if the chair allows it (as per our rules).  Our rules also allow a motion to be recommended by someone in the advisor's group (these are also members of the organization, but not elected board members).

This is very confusing and strange, but what I understand you to be saying is:

• The organization's rules permit a members of the organization to attend board meetings, with permission of the chair.
• The organization's rules permit a motion to be "recommended" be "someone in the advisor's group" at board meetings.

To the extent my understanding of this matter is correct, and to the extent "recommended" means actually making a motion, this would appear to suggest that a Point of Order may be raised by a member of the board or by a member of the Advisor's Group. Only members of the board, however, could speak in debate or vote on the appeal if it comes to that, unless there are more rules we haven't been told about yet.

On 9/19/2023 at 1:38 PM, Guest AlwaysLearning said:

Since this is a violation of parliamentary procedure (it is with respect to the voting rules), the state law would supersede the other laws (I believe). 

Thank you for this clarification. Yes, in these circumstances, a violation of the state law is a continuing breach and is subject to a Point of Order. Except to the extent your rules provide otherwise, however, a Point of Order may be only be raised by a member of the body that is meeting.

"The only exceptions to the requirement that a point of order must be made promptly at the time of the breach arise in connection with breaches that are of a continuing nature, whereby the action taken in violation of the rules is null and void. In such cases, a point of order can be made at any time during the continuance of the breach—that is, at any time that the action has continuing force and effect—regardless of how much time has elapsed. Instances of this kind occur when: ...

c) any action has been taken in violation of applicable procedural rules prescribed by federal, state, or local law," RONR (12th ed.) 23:6

On 9/19/2023 at 1:38 PM, Guest AlwaysLearning said:

If, as a member, I am bound to (or highly encouraged to) inform the board, I will.

I would not say you are "bound" to do anything in this regard. But I would say that it is highly encouraged for any member of the organization who believes the board has adopted a motion which is in violation of state law to inform the board of that issue.

On 9/19/2023 at 1:38 PM, Guest AlwaysLearning said:

If one of them is willing, he/she could put forth something like a motion to accept a point of order (since this is a continuing breach), which would hopefully get things moving in the right direction.

I have not seen your organization's rules on this matter, but I will accept for the sake of argument that your rules permit members of the "Advisor's Group" to make motions during board meetings.

For clarity, a member would not move to "accept a point of order." The procedure for this, which is described in greater detail in Sections 23 and 24 of RONR, is as follows:

• A member rises and states "Point of Order!"
• The chair asks the member to state his point.
• The member explains his point of order. In this circumstance, the member would state that he believes the action in question conflicts with applicable procedural rules in state law (likely explaining in more detail what the state law requires and in what manner the action is in conflict) and that, as a result, the motion is null and void
• The chair would rule the point "well taken," meaning he agrees, or "not well taken," meaning he disagrees. In either case, the chair provides the reasoning for his ruling.
• If a member disagrees with the chair's ruling, a member moves to appeal from the decision of the chair.
• The appeal is then debated. The chair has the opportunity to speak first and last, and other members may speak once.
• It must be noted that the subject of the appeal is the correctness of the ruling. Since RONR is crystal-clear that actions in violation of procedural rules in state law are null and void, it seems the only question to debate is whether it is in fact correct that the action violates state law.
• After debate, the chair puts the question as "Shall the decision of the chair be sustained?" Members who agree with the chair's ruling vote "yes" and members who disagree with the chair's ruling vote "no." If a majority of members vote "no," the chair's ruling is overturned. Otherwise, the chair's ruling is upheld.
• When all is said and done, the board will have made a determination on whether the action in question is determined to be null and void. Depending on what that action was, some follow-up may be needed.

If the board upholds the action, then based on the additional facts, it seems the next step will be the vote by the entire membership on the motion to rescind.

I would also note that since this question involves questions of state law, it would be highly advisable for the organization to consult an attorney on this matter.

On 9/19/2023 at 2:03 PM, AlwaysLearning said:

I also should have added information about the timing.  The annual meeting is over - that is the meeting where our rules permit members to bring forth motions.  The motion to rescind was offered and seconded, then voted upon by those at the meeting.  Our rules require that if a motion is brought forth in this manner, the vote at the member's meeting, should it pass, is really a vote as to whether the motion goes on to the next stage, which is to be voted upon by the entire membership.  The vote at the member's meeting did pass, so the BoD is in the midst of preparing to get the entire membership ready to vote.  Due to the length of the process, there is a gap - it is in this gap that I have looked into the state laws.

Thank you for this clarification.

So your organization's rules provide for an annual meeting of the membership, however, those rules further provide that actions adopted at such meetings are only advisory, and that they must then be voted on by the "entire membership," presumably either by mail or by some electronic means. You are now attempting to have the board correct its own error prior to this vote occurring.

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

Joshua - that's the quandary I am in - how?  Which is why I have sought out various options to see what can be done.  If, within our rules and within RONR, I can identify valid options to seek a solution that can be enacted by the organization, I am willing to do that.  So you all have been a useful sounding board for this unusual situation, because I would like to make sure the options are defensible.  Unfortunately, the most obvious path would be to simply tell the BoD that they forgot about state law and point them to it, hoping they read it and do the right thing in a manner they see fit.  But with respect to this topic, most of them haven't been very receptive or communicative.  So what are some alternatives?  I have identified that non-board members identified as their "advisors" can propose a motion at a board meeting, so I will contact them as well.  I am willing to attend another board meeting if that is what it takes, and in the new business section ask to speak (if they don't reply to me regarding the first 2 options).  From what I can find, these appear to be valid options, and the only things I can do to help the organization without being a current board member.

I think this is all correct. As you say, you can make your best attempts to persuade the board that the motion is in conflict with state law, and that as a result, the board should correct its error.

If this fails, then I suppose it goes to the vote before the entire membership on the motion to rescind, as provided under your rules.

Edited September 20, 2023 at 03:29 PM by Josh Martin

[AlwaysLearning]

Thank you Josh - that is very helpful in the step-by-step process you gave.  And yes - I am a member of the organization, but I am not a member of the board, nor am I one of the advisors.  

If my efforts are unsuccessful, then I just hope the motion to rescind (that will be voted upon by the entire membership) passes.  As I understand it, that would correct this particular situation.  It would not, however, prevent a similar situation in the future if the organization does not recognize the state laws.  Also, I suspect that if the motion to rescind fails, then 23:6(c) could still be true (because it is quite possible they choose not to even look at the state law to analyze it themselves).  

I have been keeping a list of suggestions to give to the BoD once things seem to have "settled", including looking into a lawyer for issues like these, reviewing all our documents to ensure they jive with what would apply as per federal, state, and RONR laws/recommendations (I have found various issues with our documents that should be fixed), and enhancing the training for elected and appointed members.  In terms of a lawyer, is there a particular type of lawyer I should recommend to them, or is there a website you are familiar with that has information along these lines?

[Josh Martin]

On 9/20/2023 at 11:44 AM, AlwaysLearning said:

Also, I suspect that if the motion to rescind fails, then 23:6(c) could still be true (because it is quite possible they choose not to even look at the state law to analyze it themselves). 

I think what you are getting at is that if the motion to rescind fails, this does not prevent a Point of Order or incidental main motion regarding the conflict with state law from being raised at a future meeting of the board or the membership, as appropriate. I agree.

On 9/20/2023 at 11:44 AM, AlwaysLearning said:

I have been keeping a list of suggestions to give to the BoD once things seem to have "settled", including looking into a lawyer for issues like these, reviewing all our documents to ensure they jive with what would apply as per federal, state, and RONR laws/recommendations (I have found various issues with our documents that should be fixed), and enhancing the training for elected and appointed members.  In terms of a lawyer, is there a particular type of lawyer I should recommend to them, or is there a website you are familiar with that has information along these lines?

I have no further insight in regard to hiring an attorney. I wish you the best of luck researching this matter.

I would add that for a review of your organization's governing documents, it may also be prudent to hire a professional parliamentarian, and in that regard I can point out that the National Association of Parliamentarians and American Institute of Parliamentarians provide referral services.

Edited September 20, 2023 at 08:45 PM by Josh Martin

[AlwaysLearning]

Thank you Josh!