In a legislative proceeding, should the presiding officer share his opinion about an article?

[Sally Willard]

Our Town Meeting is governed by/operates under Robert's Rules. The Moderator is elected each year to a 1 year term. Town Meeting Members are elected to 3 year terms.

The Presiding Officer (the Moderator) can and does appoint a deputy, should the need arise for Moderator to recuse herself for any reason.

There are 3 articles on the agenda/warrant that the Moderator opposes. He has stated his opinion on local access television/podcast and plans to recuse himself by calling his deputy to moderate the discussion so he can speak in opposition to the articles. The deputy has the same opinions on the articles.

One member of the body did some research that indicates the Moderator speaking to oppose (or support) is frowned upon:

The chairman sometimes calls a member to the chair and takes part in the debate. This should rarely be done, and nothing can justify it in a case where much feeling is shown and there is a liability to difficulty in preserving order. If the chairman has even the appearance of being a partisan, he loses much of his ability to control those who are on the opposite side of the question. There is nothing to justify the unfortunate habit some chairmen have of constantly speaking on questions before the assembly, even interrupting the member who has the floor. One who expects to take an active part in debate should never accept the chair, or at least should not resume the chair, after having made his speech, until after the pending question is disposed of.¹ The presiding officer of a large assembly should never be chosen for any reason except his ability to preside.

1. "Though the Speaker (Chairman) may of right speak to matters of order and be first heard, he is restrained from speaking on any other subject except where the House have occasion for facts within his knowledge; then he may, with their leave, state the matter of fact." [Jefferson's Manual, sec. XVII.]

"It is a general rule in all deliberative assemblies, that the presiding officer shall not participate in the debate or other proceedings, in any other capacity than as such officer. He is only allowed, therefore, to state matters of fact within his knowledge; to inform the assembly on points of order or the course of proceeding when called upon for that purpose, or when he finds it necessary to do so; and, on appeals from his decision on questions of order, to address the assembly in debate. [Cushing's Manual, §202.]

My questions: By a point of order, is it appropriate to object? Is it simply out of the control of the members of the body?

I am a former Moderator and recused myself from all aspects of any article put forth by my (then) most recent committee. I did not offer my opinion on any articles.

Thanks in advance for your feedback and advice.

[Shmuel Gerber]

On 9/27/2023 at 10:57 AM, Sally Willard said:

One member of the body did some research that indicates the Moderator speaking to oppose (or support) is frowned upon:

This is true. But this quote predates even the 1970 edition of Robert's Rules. It's time to get the current edition. 

[Sally Willard]

Thank you.

I have the 11th edition of In Brief but couldn't find an answer there. I bought the kindle version and will take a look.

Edited September 27, 2023 at 03:39 PM by Sally Willard

[Josh Martin]

On 9/27/2023 at 9:57 AM, Sally Willard said:

One member of the body did some research that indicates the Moderator speaking to oppose (or support) is frowned upon:

The member's research is correct. But as noted, "frowned upon" is the correct descriptor here - not "prohibited." The chair, if a member, has the same rights as other members to speak in debate. The duties of presiding prevent the chair from exercising these rights while presiding. In order to speak in debate, the presiding officer must first relinquish the chair. RONR further notes that this should be done sparingly, and someone who does this frequently is, quite frankly, not a very good chair. Notwithstanding this, the member cannot be prohibited from exercising his right to speak in debate. This may suggest, however, that the assembly should find a different moderator.

This is what the current (12th) edition says on this matter:

"If the presiding officer is a member of the society, he has—as an individual—the same rights in debate as any other member; but the impartiality required of the chair in an assembly precludes his exercising these rights while he is presiding. Normally, especially in a large body, he should have nothing to say on the merits of pending questions. On certain occasions—which should be extremely rare—the presiding officer may believe that a crucial factor relating to such a question has been overlooked and that his obligation as a member to call attention to the point outweighs his duty to preside at that time. To participate in debate, he must relinquish the chair; and in such a case he turns the chair over:

a) to the highest-ranking vice-president present who has not spoken on the question and does not decline on the grounds of wishing to speak on it; or
b) if no such vice-president is in the room, to some other member qualified as in (a), whom the chair designates (and who is assumed to receive the assembly's approval by unanimous consent unless member(s) then nominate other person(s), in which case the presiding officer's choice is also treated as a nominee and the matter is decided by vote).

The presiding officer who relinquished the chair then may not return to it until the pending main question has been disposed of, since he has shown himself to be a partisan as far as that particular matter is concerned. Indeed, unless a presiding officer is extremely sparing in leaving the chair to take part in debate, he may destroy members' confidence in the impartiality of his approach to the task of presiding." RONR (12th ed.) 43:29

"A member of an assembly, in the parliamentary sense, as mentioned above, is a person entitled to full participation in its proceedings, that is, as explained in 3 and 4, the right to attend meetings, to make motions, to speak in debate, and to vote. No member can be individually deprived of these basic rights of membership—or of any basic rights concomitant to them, such as the right to make nominations or to give previous notice of a motion—except through disciplinary proceedings. Some organized societies define additional classes of “membership” that do not entail all of these rights. Whenever the term member is used in this book, it refers to full participating membership in the assembly unless otherwise specified. Such members are also described as “voting members” when it is necessary to make a distinction." RONR (12th ed.) 1:4

On 9/27/2023 at 9:57 AM, Sally Willard said:

By a point of order, is it appropriate to object?

Object to what, exactly?

I will interpret this as asking whether, after the moderator has relinquished the chair, if the moderator seeks recognition to speak and a member raises a Point of Order that the moderator cannot speak in debate, such a Point of Order should be ruled well taken. If this is not correct, please clarify.

In my view, the chair should rule the point not well taken, in some manner similar to this.

"While the member is correct that Robert's Rules of Order provides that the presiding officer should exercise the option of relinquishing the chair to speak in debate sparingly, the fact remains that a member has the right to speak in debate. An individual member cannot be prevented from exercising his right to speak in debate except through disciplinary proceedings or by operation of a specific provision in the bylaws. The point is not well taken."

On 9/27/2023 at 9:57 AM, Sally Willard said:

Is it simply out of the control of the members of the body?

It is out of the control of the members of the body to the extent that the question is concerning preventing a member from speaking. It is within the control of the members of the body to elect better moderators. (Actually, maybe it isn't - it looks like that power might be reserve for a higher authority.)

The assembly does have the ability, if desired, to elect a person different from either the Moderator or the Deputy Moderator to preside over this meeting, by suspending the rules by a 2/3 vote. But the assembly does not have the power to impose a "gag order" on a member.

Edited September 27, 2023 at 03:56 PM by Josh Martin

[Gary Novosielski]

On 9/27/2023 at 11:38 AM, Sally Willard said:

I have the 11th edition of In Brief but couldn't find an answer there. I bought the kindle version and will take a look.

The current edition of -In Brief (RONRIB)  is 3rd ed.  It corresponds to and references RONR 12th ed.

Edited September 27, 2023 at 04:44 PM by Gary Novosielski

[Sally Willard]

Josh Martin's response suggests that the presiding officer (the Moderator) is a member of the body. The Moderator is elected by the residents of the town to be Moderator, and is only allowed to vote to break a tie. The Moderator is not, technically, a member of the legislative body. Does that change anything?

 

[Joshua Katz]

Yes. Do the relevant laws provide any role for the Moderator in speaking in debate? If not, as a non-member he has no right to speak in debate in the first place.

[Sally Willard]

Thank you. He would need to be recognized as a "resident", and generally called upon after the members have had an opportunity to speak.

[Joshua Katz]

So nothing special about the moderator? I don't think it matters for the question whether he may step away from presiding, but his position as moderator does not give him any special right to speak, other than that any resident has.

[Josh Martin]

On 9/27/2023 at 1:41 PM, Sally Willard said:

Josh Martin's response suggests that the presiding officer (the Moderator) is a member of the body. The Moderator is elected by the residents of the town to be Moderator, and is only allowed to vote to break a tie. The Moderator is not, technically, a member of the legislative body. Does that change anything?

Yes, that changes things a great deal. If the Moderator is not a member, the Moderator has no right to speak in debate, and may speak in debate only if the assembly grants permission for him to do so. So based on that...

On 9/27/2023 at 9:57 AM, Sally Willard said:

My questions: By a point of order, is it appropriate to object? Is it simply out of the control of the members of the body?

Yes, a member could raise a Point of Order that the Moderator is not a member, and therefore has no right to speak in debate. Such a Point of Order should be ruled well taken.

On 9/27/2023 at 1:48 PM, Sally Willard said:

Thank you. He would need to be recognized as a "resident", and generally called upon after the members have had an opportunity to speak.

I can't speak to that - that will be up to your own rules concerning this matter. RONR does not permit nonmembers to speak in debate.