Looking for Pro Input on Proxy / Quorum Issue

[Jdsrose07]

I am seeking seasoned PRP opinions on what I have described below. 

I am an assembly member of an influential 501(c)3 that has been around since the middle 1940's. It is incorporated in New York, headquartered in Alabama. Their bylaws are easily described as outdated, disorganized, loosely and oddly composed. 

Below are some pieces of bylaw information that might help in considering an opinion. If you would like more information, please let me know.

Article V, Meetings Section 2 states: "The presence of not less than 100 members of the National organization either in person or by proxy shall constitute a quorum at the annual National Convention............ Article IX, Officers, Section 1. The officers of this organization shall be as follows: 1) National President, 2) National Vice President, 3) National Secretary, 4) National Treasurer, 5) National Chaplain, 6) National Parliamentarian, 7) National Historian....... Section 5 states: "The National parliamentarian shall have final authority in deciding the answer to all questions concerning Parliamentary authority" Article XV, Parliamentary Authority states: "RONR shall govern the organization in all cases to which they are applicable and in which they are not inconsistent with the bylaws."

Per the organization's bylaws, the National President is responsible for conducting the National Convention. The National Parliamentarian is responsible for collecting Proxies for the national convention. 

The organization is in division with itself. The board recently suspended the elected national president without following RONR procedure (no other procedure is listed in the bylaws) and replaced her with the National Vice-President. The parliamentarian was removed from a board meeting when she told the board that proper procedure for dismissing an elected officer should be observed. 

Because the Board of Directors did not utilize proper procedure in attempting to dismiss the National President, the sitting National President considered herself to still be the National President and conducted the #1 National Convention in accordance with the national bylaws. The new National President (formerly National VP) seated by the Board of Directors also conducted a #2 National Convention.  There was great division amongst the general membership. Some attended each convention. The parliamentarian announced she would be attending the convention #1 conducted by the original National President and that's where the proxies would go. As a result, convention #1 conducted by the original National President met the quorum qualifications as specified in the bylaws; convention #2 did not meet the quorum requirement.  

During convention #2, the Board of Directors subsequently declared convention #1 "illegal", dismissed the National Parliamentarian for not attending convention #2, declared the proxies "hijacked" and appointed a new parliamentarian.  In the published minutes of convention #2 it states that, during discussion of the need for a quorum in order to conduct business, a named member stated: "In unusual circumstances, there are exceptions for nonprofits that allow a quorum to be recognized if a majority of those registered for the convention are present in the room. To our knowledge, the proxies are present in the city, but not at this National Convention."

The new national president then asked the new parliamentarian to determine if there was a quorum. The new parliamentarian stated: "We have a bylaw that says we need 100 people for a quorum. Normally that would govern but, we have a person who is not the legal parliamentarian. She was appointed by a president who was suspended by the Board of Directors. That leads me to believe that she has hijacked approximately 100 proxies that were sent to her and entrusted to her to constitute a quorum. It is my understanding that we cannot adhere to the bylaws due to the illegal activity of one of our members who was entrusted with the proxies. As far as I am concerned that would not allow us to adhere to that particular bylaw and we would defer to Roberts Rules (Section 40:3) to determine a quorum. There are 44 registered members and 34 in attendance. Thus 77% of those registered are present. We have a lawful body to have a meeting and we have a quorum." 

Thank you in advance for your time and consideration.   JDF, RP

 

 

 

Edited October 13, 2023 at 07:44 PM by Jdsrose07
Misplaced sentence.

[Josh Martin]

I will note for starters that this appears to be a very complex and contentious situation, and while I will do my best, I think this is beyond the capacity of this forum to assist. I would strongly advise your organization to hire a professional parliamentarian and an attorney for assistance with this matter. The National Association of Parliamentarians and the American Institute of Parliamentarians provide referral services for finding a parliamentarian. I don't know where to start finding an attorney for this matter, but I would strongly advise it, as it seems highly likely this situation will end up in litigation.

On 10/13/2023 at 2:34 PM, Jdsrose07 said:

Section 5 states: "The National parliamentarian shall have final authority in deciding the answer to all questions concerning Parliamentary authority"

This is a very unusual provision. Generally, the parliamentarian is simply an advisor. The authority to rule on questions of order rests with the chair, and the final authority rests with the assembly.

On 10/13/2023 at 2:34 PM, Jdsrose07 said:

The board recently suspended the elected national president without following RONR procedure (no other procedure is listed in the bylaws) and replaced her with the National Vice-President.

If the bylaws are silent concerning removal, what is the exact wording the bylaws use to define the term of office? Additionally, how is the President elected?

It may well be this action was invalid. (Indeed, it seems likely that it was.)

On 10/13/2023 at 2:34 PM, Jdsrose07 said:

Because the Board of Directors did not utilize proper procedure in attempting to dismiss the National President, the sitting National President considered herself to still be the National President and conducted the #1 National Convention in accordance with the national bylaws. The new National President (formerly National VP) seated by the Board of Directors also conducted a #2 National Convention.  There was great division amongst the general membership. Some attended each convention. The parliamentarian announced she would be attending the convention #1 conducted by the original National President and that's where the proxies would go. As a result, convention #1 conducted by the original National President met the quorum qualifications as specified in the bylaws; convention #2 did not meet the quorum requirement.  

What do the bylaws say concerning the manner in which the National Convention is called, and in what manner was each convention called?

The fact that the bylaws say "the National President is responsible for conducting the National Convention" doesn't really matter. There are rules for having others preside in the President's absence. More important is which of these conventions (if either) was properly called. (Although even to the extent Convention #2 was properly called, the business conducted at the convention was invalid, due to the lack of a quorum.)

On 10/13/2023 at 2:34 PM, Jdsrose07 said:

During convention #2, the Board of Directors subsequently declared convention #1 "illegal", dismissed the National Parliamentarian for not attending convention #2, declared the proxies "hijacked" and appointed a new parliamentarian.

What do the bylaws say concerning the appointment of the parliamentarian?

On 10/13/2023 at 2:34 PM, Jdsrose07 said:

In the published minutes of convention #2 it states that, during discussion of the need for a quorum in order to conduct business, a named member stated: "In unusual circumstances, there are exceptions for nonprofits that allow a quorum to be recognized if a majority of those registered for the convention are present in the room. 

I don't know what the basis of this statement is, but it's not from Robert's Rules of Order. It may be there is some such provision in law. That would be a question for an attorney.

On 10/13/2023 at 2:34 PM, Jdsrose07 said:

The new national president then asked the new parliamentarian to determine if there was a quorum. The new parliamentarian stated: "We have a bylaw that says we need 100 people for a quorum. Normally that would govern but, we have a person who is not the legal parliamentarian. She was appointed by a president who was suspended by the Board of Directors. That leads me to believe that she has hijacked approximately 100 proxies that were sent to her and entrusted to her to constitute a quorum. It is my understanding that we cannot adhere to the bylaws due to the illegal activity of one of our members who was entrusted with the proxies. As far as I am concerned that would not allow us to adhere to that particular bylaw and we would defer to Roberts Rules (Section 40:3) to determine a quorum. There are 44 registered members and 34 in attendance. Thus 77% of those registered are present. We have a lawful body to have a meeting and we have a quorum." 

The new parliamentarian's advice was bad advice for several reasons.

For starters, there is some dispute as to whether this person's characterization of the facts concerning the removal of the President and Parliamentarian is correct.

But even if that was correct, that does not permit the society to simply ignore its bylaws. If the society's bylaws provide that 100 members are required for quorum, that's that. The bylaws take precedence over RONR and must be followed. The society cannot simply defer to RONR instead of following its bylaws.

"Rules contained in the bylaws (or constitution) cannot be suspended—no matter how large the vote in favor of doing so or how inconvenient the rule in question may be—unless the particular rule specifically provides for its own suspension, or unless the rule properly is in the nature of a rule of order as described in 2:14." RONR (12th ed.) 25:7, emphasis added

"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. In organizations that have both a constitution and bylaws as separate documents, however, the constitution is the higher of the two bodies of rules and supersedes the bylaws." RONR (12th ed.) 2:12, emphasis added

"As discussed below, most voluntary societies should provide for a quorum in their bylaws, but where there is no such provision, the quorum, in accordance with the common parliamentary law, is as follows:" RONR (12th ed.) 40:2

But even assuming the assembly could somehow choose to ignore its bylaws and instead follow the quorum provisions in RONR, the parliamentarian may well be looking at the wrong provision. The full text of RONR (12th ed.) 40:2 is as follows:

"Depending on the organization and the provision it adopts in this regard, the number of members constituting a quorum may vary. As discussed below, most voluntary societies should provide for a quorum in their bylaws, but where there is no such provision, the quorum, in accordance with the common parliamentary law, is as follows:

1) In a mass meeting, the quorum is simply the number of persons present at the time, since they constitute the entire membership at that time.
2) In organizations such as many churches or some societies in which there are no required or effective annual dues and the register of members is not generally reliable as a list of the bona-fide members, the quorum at any regular or properly called meeting consists of those who attend.
3) In a body of delegates, such as a convention, the quorum is a majority of the number who have been registered as attending, irrespective of whether some may have departed. This may differ greatly from the number elected or appointed.
4) In any other deliberative assembly with enrolled membership whose bylaws do not specify a quorum, the quorum is a majority of all the members." RONR (12th ed.) 40:2

The provision that the parliamentarian is referring to refers to the quorum in a body of delegates. That is, a body where delegates are elected by constituent units, and sent to represent their organization at a state or national convention.

"As commonly understood in parliamentary law and as used in this book, the word convention refers to an assembly of delegates (other than a permanently constituted public lawmaking body), who are usually chosen specially for each session as representatives of the constituent units or subdivisions within a larger group of people, to sit as a single deliberative body acting in the name of the entire group. The most common type of convention is that of an established state or national society—in which the delegates are selected by, and from among, the members of each local unit. Other terms by which such a convention may be described in some organizations include congress, conference, convocation, general assembly, house of delegates, and house of representatives." RONR (12th ed.) 58:1

While I cannot say for certain, the facts presented do not suggest to me that this meeting was a "convention" in the sense that term is used in RONR, but instead seems to be a meeting of the general membership, at which all members are free to attend. Simply using the word "convention" in a more colloquial sense does not make this meeting a convention in the parliamentary sense.

For the meeting of a general membership of a society with an enrolled membership, the quorum if the bylaws are silent is a majority of the entire membership.

Now with all that said, the society's provision which provides "The National parliamentarian shall have final authority in deciding the answer to all questions concerning Parliamentary authority" may well throw a wrench into things. If that provision is controlling, it would seem that all that really matters here is determining which person is the valid National Parliamentarian, and then that person will decide everything. (I would strongly advise the organization to remove that provision at its earliest opportunity, assuming the organization survives this mess.)

I suppose I should also address the fact that the parliamentarian technically cited 40:3. I assume this was an error. This citation makes even less sense, because all that paragraph is about is providing advice for what level an organization should set its quorum at in its bylaws.

"To accomplish their work, voluntary societies that have an enrolled membership generally need a provision in their bylaws establishing a relatively small quorum—considerably less than a majority of all the members. In most such organizations, it is rarely possible to obtain the attendance of a majority of the membership at a meeting. Sometimes the specification of a quorum is based on a percentage of the membership; but such a method has the disadvantage of requiring recomputation and may lead to confusion—for example, when the secretary, or other officer who is in a position to certify as to the current number of members for purposes of the percentage calculation, is absent. There is no single number or percentage of members that will be equally suitable as a quorum in all societies. The quorum should be as large a number of members as can reasonably be depended on to be present at any meeting, except in very bad weather or other exceptionally unfavorable condition." RONR (12th ed.) 40:3

Edited October 13, 2023 at 10:14 PM by Josh Martin

[Jdsrose07]

On 10/13/2023 at 5:10 PM, Josh Martin said:

On 10/13/2023 at 5:10 PM, Josh Martin said:

I will note for starters that this appears to be a very complex and contentious situation, and while I will do my best, I think this is beyond the capacity of this forum to assist. I would strongly advise your organization to hire a professional parliamentarian and an attorney for assistance with this matter. The National Association of Parliamentarians and the American Institute of Parliamentarians provide referral services for finding a parliamentarian. I don't know where to start finding an attorney for this matter, but I would strongly advise it, as it seems highly likely this situation will end up in litigation. 

You hit that nail on the head!

On 10/13/2023 at 5:10 PM, Josh Martin said:

If the bylaws are silent concerning removal, what is the exact wording the bylaws use to define the term of office? Additionally, how is the President elected? Bylaws Article IX, Section 2., Officers state: "All National Officers shall be elected yearly for a term of one year." Though it is not stated in the bylaws when and where elections take place or by what vote elections are decided, the assembly votes at the National Convention on the election of National Officers. 

It may well be this action was invalid. (Indeed, it seems likely that it was.) I was wondering that which is why I posted this.

What do the bylaws say concerning the manner in which the National Convention is called, and in what manner was each convention called? The bylaws are silent concerning how the National Convention is called.  Both National Presidents sent out a general notice to the membership. Convention #1's notice was sent considerably earlier I would say about 1 month prior to convention. Convention #2's notice arrived perhaps a week to 10 days prior. 

What do the bylaws say concerning the appointment of the parliamentarian? The National Parliamentarian is actually elected as a National Officer.  Bylaws Article IX, Officers, Section 1. The officers of this organization shall be as follows: 1) National President, 2) National Vice President, 3) National Secretary, 4) National Treasurer, 5) National Chaplain, 6) National Parliamentarian, 7) National Historian.......

I don't know what the basis of this statement is, but it's not from Robert's Rules of Order. It may be there is some such provision in law. That would be a question for an attorney. I tried searching but couldn't find anything. 

The new parliamentarian's advice was bad advice for several reasons.

For starters, there is some dispute as to whether this person's characterization of the facts concerning the removal of the President and Parliamentarian is correct.

But even if that was correct, that does not permit the society to simply ignore its bylaws. If the society's bylaws provide that 100 members are required for quorum, that's that. The bylaws take precedence over RONR and must be followed. The society cannot simply defer to RONR instead of following its bylaws. Thank you for this statement.

"Rules contained in the bylaws (or constitution) cannot be suspended—no matter how large the vote in favor of doing so or how inconvenient the rule in question may be—unless the particular rule specifically provides for its own suspension, or unless the rule properly is in the nature of a rule of order as described in 2:14." RONR (12th ed.) 25:7, emphasis added

"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. In organizations that have both a constitution and bylaws as separate documents, however, the constitution is the higher of the two bodies of rules and supersedes the bylaws." RONR (12th ed.) 2:12, emphasis added

"As discussed below, most voluntary societies should provide for a quorum in their bylaws, but where there is no such provision, the quorum, in accordance with the common parliamentary law, is as follows:" RONR (12th ed.) 40:2

But even assuming the assembly could somehow choose to ignore its bylaws and instead follow the quorum provisions in RONR, the parliamentarian may well be looking at the wrong provision. The full text of RONR (12th ed.) 40:2 is as follows:

"Depending on the organization and the provision it adopts in this regard, the number of members constituting a quorum may vary. As discussed below, most voluntary societies should provide for a quorum in their bylaws, but where there is no such provision, the quorum, in accordance with the common parliamentary law, is as follows:

1) In a mass meeting, the quorum is simply the number of persons present at the time, since they constitute the entire membership at that time.
2) In organizations such as many churches or some societies in which there are no required or effective annual dues and the register of members is not generally reliable as a list of the bona-fide members, the quorum at any regular or properly called meeting consists of those who attend.
3) In a body of delegates, such as a convention, the quorum is a majority of the number who have been registered as attending, irrespective of whether some may have departed. This may differ greatly from the number elected or appointed.
4) In any other deliberative assembly with enrolled membership whose bylaws do not specify a quorum, the quorum is a majority of all the members." RONR (12th ed.) 40:2

The provision that the parliamentarian is referring to refers to the quorum in a body of delegates. That is, a body where delegates are elected by constituent units, and sent to represent their organization at a state or national convention.

"As commonly understood in parliamentary law and as used in this book, the word convention refers to an assembly of delegates (other than a permanently constituted public lawmaking body), who are usually chosen specially for each session as representatives of the constituent units or subdivisions within a larger group of people, to sit as a single deliberative body acting in the name of the entire group. The most common type of convention is that of an established state or national society—in which the delegates are selected by, and from among, the members of each local unit. Other terms by which such a convention may be described in some organizations include congress, conference, convocation, general assembly, house of delegates, and house of representatives." RONR (12th ed.) 58:1

While I cannot say for certain, the facts presented do not suggest to me that this meeting was a "convention" in the sense that term is used in RONR, but instead seems to be a meeting of the general membership, at which all members are free to attend. Simply using the word "convention" in a more colloquial sense does not make this meeting a convention in the parliamentary sense.

For the meeting of a general membership of a society with an enrolled membership, the quorum if the bylaws are silent is a majority of the entire membership.

Now with all that said, the society's provision which provides "The National parliamentarian shall have final authority in deciding the answer to all questions concerning Parliamentary authority" may well throw a wrench into things. If that provision is controlling, it would seem that all that really matters here is determining which person is the valid National Parliamentarian, and then that person will decide everything. (I would strongly advise the organization to remove that provision at its earliest opportunity, assuming the organization survives this mess.)

I suppose I should also address the fact that the parliamentarian technically cited 40:3. I assume this was an error. This citation makes even less sense, because all that paragraph is about is providing advice for what level an organization should set its quorum at in its bylaws. Yep, RONR 40:3 is what she cited..... got the quote right out of the published meeting minutes. I conjecture she used it to support the statement "In unusual circumstances, there are exceptions for nonprofits that allow a quorum to be recognized if a majority of those registered for the convention are present in the room."

"To accomplish their work, voluntary societies that have an enrolled membership generally need a provision in their bylaws establishing a relatively small quorum—considerably less than a majority of all the members. In most such organizations, it is rarely possible to obtain the attendance of a majority of the membership at a meeting. Sometimes the specification of a quorum is based on a percentage of the membership; but such a method has the disadvantage of requiring recomputation and may lead to confusion—for example, when the secretary, or other officer who is in a position to certify as to the current number of members for purposes of the percentage calculation, is absent. There is no single number or percentage of members that will be equally suitable as a quorum in all societies. The quorum should be as large a number of members as can reasonably be depended on to be present at any meeting, except in very bad weather or other exceptionally unfavorable condition." RONR (12th ed.) 40:3

Thank you for taking the time to read over my post and replying. I greatly appreciate that. It has helped me regain my sanity and proved to me that my thinking has been on track. I hope this organization survives this quagmire as they actually do good work in spite of themselves.      JDF, RP

 

This is a very unusual provision. Generally, the parliamentarian is simply an advisor. The authority to rule on questions of order rests with the chair, and the final authority rests with the assembly.

If the bylaws are silent concerning removal, what is the exact wording the bylaws use to define the term of office? Additionally, how is the President elected?

It may well be this action was invalid. (Indeed, it seems likely that it was.)

What do the bylaws say concerning the manner in which the National Convention is called, and in what manner was each convention called?

The fact that the bylaws say "the National President is responsible for conducting the National Convention" doesn't really matter. There are rules for having others preside in the President's absence. More important is which of these conventions (if either) was properly called. (Although even to the extent Convention #2 was properly called, the business conducted at the convention was invalid, due to the lack of a quorum.)

What do the bylaws say concerning the appointment of the parliamentarian?

I don't know what the basis of this statement is, but it's not from Robert's Rules of Order. It may be there is some such provision in law. That would be a question for an attorney.

The new parliamentarian's advice was bad advice for several reasons.

For starters, there is some dispute as to whether this person's characterization of the facts concerning the removal of the President and Parliamentarian is correct.

But even if that was correct, that does not permit the society to simply ignore its bylaws. If the society's bylaws provide that 100 members are required for quorum, that's that. The bylaws take precedence over RONR and must be followed. The society cannot simply defer to RONR instead of following its bylaws.

"Rules contained in the bylaws (or constitution) cannot be suspended—no matter how large the vote in favor of doing so or how inconvenient the rule in question may be—unless the particular rule specifically provides for its own suspension, or unless the rule properly is in the nature of a rule of order as described in 2:14." RONR (12th ed.) 25:7, emphasis added

"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. In organizations that have both a constitution and bylaws as separate documents, however, the constitution is the higher of the two bodies of rules and supersedes the bylaws." RONR (12th ed.) 2:12, emphasis added

"As discussed below, most voluntary societies should provide for a quorum in their bylaws, but where there is no such provision, the quorum, in accordance with the common parliamentary law, is as follows:" RONR (12th ed.) 40:2

But even assuming the assembly could somehow choose to ignore its bylaws and instead follow the quorum provisions in RONR, the parliamentarian may well be looking at the wrong provision. The full text of RONR (12th ed.) 40:2 is as follows:

"Depending on the organization and the provision it adopts in this regard, the number of members constituting a quorum may vary. As discussed below, most voluntary societies should provide for a quorum in their bylaws, but where there is no such provision, the quorum, in accordance with the common parliamentary law, is as follows:

1) In a mass meeting, the quorum is simply the number of persons present at the time, since they constitute the entire membership at that time.
2) In organizations such as many churches or some societies in which there are no required or effective annual dues and the register of members is not generally reliable as a list of the bona-fide members, the quorum at any regular or properly called meeting consists of those who attend.
3) In a body of delegates, such as a convention, the quorum is a majority of the number who have been registered as attending, irrespective of whether some may have departed. This may differ greatly from the number elected or appointed.
4) In any other deliberative assembly with enrolled membership whose bylaws do not specify a quorum, the quorum is a majority of all the members." RONR (12th ed.) 40:2

The provision that the parliamentarian is referring to refers to the quorum in a body of delegates. That is, a body where delegates are elected by constituent units, and sent to represent their organization at a state or national convention.

"As commonly understood in parliamentary law and as used in this book, the word convention refers to an assembly of delegates (other than a permanently constituted public lawmaking body), who are usually chosen specially for each session as representatives of the constituent units or subdivisions within a larger group of people, to sit as a single deliberative body acting in the name of the entire group. The most common type of convention is that of an established state or national society—in which the delegates are selected by, and from among, the members of each local unit. Other terms by which such a convention may be described in some organizations include congress, conference, convocation, general assembly, house of delegates, and house of representatives." RONR (12th ed.) 58:1

While I cannot say for certain, the facts presented do not suggest to me that this meeting was a "convention" in the sense that term is used in RONR, but instead seems to be a meeting of the general membership, at which all members are free to attend. Simply using the word "convention" in a more colloquial sense does not make this meeting a convention in the parliamentary sense.

For the meeting of a general membership of a society with an enrolled membership, the quorum if the bylaws are silent is a majority of the entire membership.

Now with all that said, the society's provision which provides "The National parliamentarian shall have final authority in deciding the answer to all questions concerning Parliamentary authority" may well throw a wrench into things. If that provision is controlling, it would seem that all that really matters here is determining which person is the valid National Parliamentarian, and then that person will decide everything. (I would strongly advise the organization to remove that provision at its earliest opportunity, assuming the organization survives this mess.)

I suppose I should also address the fact that the parliamentarian technically cited 40:3. I assume this was an error. This citation makes even less sense, because all that paragraph is about is providing advice for what level an organization should set its quorum at in its bylaws.

"To accomplish their work, voluntary societies that have an enrolled membership generally need a provision in their bylaws establishing a relatively small quorum—considerably less than a majority of all the members. In most such organizations, it is rarely possible to obtain the attendance of a majority of the membership at a meeting. Sometimes the specification of a quorum is based on a percentage of the membership; but such a method has the disadvantage of requiring recomputation and may lead to confusion—for example, when the secretary, or other officer who is in a position to certify as to the current number of members for purposes of the percentage calculation, is absent. There is no single number or percentage of members that will be equally suitable as a quorum in all societies. The quorum should be as large a number of members as can reasonably be depended on to be present at any meeting, except in very bad weather or other exceptionally unfavorable condition." RONR (12th ed.) 40:3

I will note for starters that this appears to be a very complex and contentious situation, and while I will do my best, I think this is beyond the capacity of this forum to assist. I would strongly advise your organization to hire a professional parliamentarian and an attorney for assistance with this matter. The National Association of Parliamentarians and the American Institute of Parliamentarians provide referral services for finding a parliamentarian. I don't know where to start finding an attorney for this matter, but I would strongly advise it, as it seems highly likely this situation will end up in litigation.

This is a very unusual provision. Generally, the parliamentarian is simply an advisor. The authority to rule on questions of order rests with the chair, and the final authority rests with the assembly.

It may well be this action was invalid. (Indeed, it seems likely that it was.)

What do the bylaws say concerning the manner in which the National Convention is called, and in what manner was each convention called?

The fact that the bylaws say "the National President is responsible for conducting the National Convention" doesn't really matter. There are rules for having others preside in the President's absence. More important is which of these conventions (if either) was properly called. (Although even to the extent Convention #2 was properly called, the business conducted at the convention was invalid, due to the lack of a quorum.)

What do the bylaws say concerning the appointment of the parliamentarian?

I don't know what the basis of this statement is, but it's not from Robert's Rules of Order. It may be there is some such provision in law. That would be a question for an attorney.

The new parliamentarian's advice was bad advice for several reasons.

For starters, there is some dispute as to whether this person's characterization of the facts concerning the removal of the President and Parliamentarian is correct.

But even if that was correct, that does not permit the society to simply ignore its bylaws. If the society's bylaws provide that 100 members are required for quorum, that's that. The bylaws take precedence over RONR and must be followed. The society cannot simply defer to RONR instead of following its bylaws.

"Rules contained in the bylaws (or constitution) cannot be suspended—no matter how large the vote in favor of doing so or how inconvenient the rule in question may be—unless the particular rule specifically provides for its own suspension, or unless the rule properly is in the nature of a rule of order as described in 2:14." RONR (12th ed.) 25:7, emphasis added

"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. In organizations that have both a constitution and bylaws as separate documents, however, the constitution is the higher of the two bodies of rules and supersedes the bylaws." RONR (12th ed.) 2:12, emphasis added

"As discussed below, most voluntary societies should provide for a quorum in their bylaws, but where there is no such provision, the quorum, in accordance with the common parliamentary law, is as follows:" RONR (12th ed.) 40:2

But even assuming the assembly could somehow choose to ignore its bylaws and instead follow the quorum provisions in RONR, the parliamentarian may well be looking at the wrong provision. The full text of RONR (12th ed.) 40:2 is as follows:

"Depending on the organization and the provision it adopts in this regard, the number of members constituting a quorum may vary. As discussed below, most voluntary societies should provide for a quorum in their bylaws, but where there is no such provision, the quorum, in accordance with the common parliamentary law, is as follows:

1) In a mass meeting, the quorum is simply the number of persons present at the time, since they constitute the entire membership at that time.
2) In organizations such as many churches or some societies in which there are no required or effective annual dues and the register of members is not generally reliable as a list of the bona-fide members, the quorum at any regular or properly called meeting consists of those who attend.
3) In a body of delegates, such as a convention, the quorum is a majority of the number who have been registered as attending, irrespective of whether some may have departed. This may differ greatly from the number elected or appointed.
4) In any other deliberative assembly with enrolled membership whose bylaws do not specify a quorum, the quorum is a majority of all the members." RONR (12th ed.) 40:2

The provision that the parliamentarian is referring to refers to the quorum in a body of delegates. That is, a body where delegates are elected by constituent units, and sent to represent their organization at a state or national convention.

"As commonly understood in parliamentary law and as used in this book, the word convention refers to an assembly of delegates (other than a permanently constituted public lawmaking body), who are usually chosen specially for each session as representatives of the constituent units or subdivisions within a larger group of people, to sit as a single deliberative body acting in the name of the entire group. The most common type of convention is that of an established state or national society—in which the delegates are selected by, and from among, the members of each local unit. Other terms by which such a convention may be described in some organizations include congress, conference, convocation, general assembly, house of delegates, and house of representatives." RONR (12th ed.) 58:1

While I cannot say for certain, the facts presented do not suggest to me that this meeting was a "convention" in the sense that term is used in RONR, but instead seems to be a meeting of the general membership, at which all members are free to attend. Simply using the word "convention" in a more colloquial sense does not make this meeting a convention in the parliamentary sense.

For the meeting of a general membership of a society with an enrolled membership, the quorum if the bylaws are silent is a majority of the entire membership.

Now with all that said, the society's provision which provides "The National parliamentarian shall have final authority in deciding the answer to all questions concerning Parliamentary authority" may well throw a wrench into things. If that provision is controlling, it would seem that all that really matters here is determining which person is the valid National Parliamentarian, and then that person will decide everything. (I would strongly advise the organization to remove that provision at its earliest opportunity, assuming the organization survives this mess.)

I suppose I should also address the fact that the parliamentarian technically cited 40:3. I assume this was an error. This citation makes even less sense, because all that paragraph is about is providing advice for what level an organization should set its quorum at in its bylaws.

"To accomplish their work, voluntary societies that have an enrolled membership generally need a provision in their bylaws establishing a relatively small quorum—considerably less than a majority of all the members. In most such organizations, it is rarely possible to obtain the attendance of a majority of the membership at a meeting. Sometimes the specification of a quorum is based on a percentage of the membership; but such a method has the disadvantage of requiring recomputation and may lead to confusion—for example, when the secretary, or other officer who is in a position to certify as to the current number of members for purposes of the percentage calculation, is absent. There is no single number or percentage of members that will be equally suitable as a quorum in all societies. The quorum should be as large a number of members as can reasonably be depended on to be present at any meeting, except in very bad weather or other exceptionally unfavorable condition." RONR (12th ed.) 40:3

 

Edited October 18, 2023 at 06:00 PM by Jdsrose07

[Gary Novosielski]

Yikes!

[Josh Martin]

On 10/18/2023 at 12:48 PM, Jdsrose07 said:

Bylaws Article IX, Section 2., Officers state: "All National Officers shall be elected yearly for a term of one year." Though it is not stated in the bylaws when and where elections take place or by what vote elections are decided, the assembly votes at the National Convention on the election of National Officers. 

Thank you. Based on these facts, if the bylaws are silent concerning the removal of officers, officers may be removed only by the National Convention, and only through the formal disciplinary procedures in Section 63 of RONR. So it does appear that the removal of the President was invalid, and the person purporting to act as the President is, in fact, the Vice President.

Because my understanding is the convention only meets annually, and calling special meetings of a national convention is likely impractical, it actually may well be advisable for the organization to amend its bylaws to provide a different mechanism for removing officers, but notwithstanding this, the organization is obliged to follow its rules as they currently exist, unless and until they are amended.

On 10/18/2023 at 12:48 PM, Jdsrose07 said:

What do the bylaws say concerning the manner in which the National Convention is called, and in what manner was each convention called? The bylaws are silent concerning how the National Convention is called.  Both National Presidents sent out a general notice to the membership. Convention #1's notice was sent considerably earlier I would say about 1 month prior to convention. Convention #2's notice arrived perhaps a week to 10 days prior. 

Well, that's unfortunate. The bylaws are supposed to specify such matters. If/when this situation gets sorted out, I advise amending the bylaws to clarify this matter.

If the bylaws are indeed silent as to when/how/by whom the call is sent, then in the interim, the organization will have to interpret its rules as best it can to determine whether one, both, or neither of these meetings were properly called.

"In any organization, notice must be sent a reasonable time in advance of each regular meeting that is separated by more than a quarterly time interval (see 9:7 below) from the previous regular meeting. Notice must also be sent a reasonable time in advance of a convention of delegates. In many organizations, a call is sent to all members in advance of each meeting.

In all such cases, to avoid uncertainty about what period in advance is reasonable, the specific number of days' notice required—which will depend on the conditions of the particular assembly and which each organization must determine for itself—should be prescribed in the bylaws (56:34). Unless otherwise provided in the bylaws, the number of days is computed by counting all calendar days (including holidays and weekends), excluding the day of the meeting but including the day the notice is sent.

When notice is required to be sent, unless a different standard is specified that requirement is met if written notice is sent to each member either:

a) by postal mail to the member's last known address; or
b) by a form of electronic communication, such as e-mail or fax, by which the member has agreed to receive notice." RONR (12th ed.) 9:3-5

On 10/18/2023 at 12:48 PM, Jdsrose07 said:

What do the bylaws say concerning the appointment of the parliamentarian? The National Parliamentarian is actually elected as a National Officer.  Bylaws Article IX, Officers, Section 1. The officers of this organization shall be as follows: 1) National President, 2) National Vice President, 3) National Secretary, 4) National Treasurer, 5) National Chaplain, 6) National Parliamentarian, 7) National Historian.......

Thank you. Then once again, the Parliamentarian may be removed only by the National Convention, and only through the formal disciplinary procedures in Section 63 of RONR.

I don't actually think that's a good idea. RONR advises that the President should be authorized to appoint the Parliamentarian, since the duty of the parliamentarian is (supposed to be) to advise the President, and therefore the President should be free to appoint someone he has confidence in. Notwithstanding this, the organization is obliged to follow its rules as they currently exist, unless and until they are amended.

"If a parliamentarian is needed by an organization, the president should be free to appoint one in whom he has confidence." RONR (12th ed.) 47:48

On 10/18/2023 at 12:48 PM, Jdsrose07 said:

Yep, RONR 40:3 is what she cited..... got the quote right out of the published meeting minutes. I conjecture she used it to support the statement "In unusual circumstances, there are exceptions for nonprofits that allow a quorum to be recognized if a majority of those registered for the convention are present in the room."

Nothing in RONR (12th ed.) 40:3 supports this statement.

• What is said in 40:3 is advice for an organization to consider when determining the quorum requirement in its bylaws. It is not, in itself, a rule concerning the quorum requirement for an organization.
• While it is certainly correct that an organization may, if it wishes, adopt rules in its bylaws "that allow a quorum to be recognized if a majority of those registered for the convention are present in the room," this is immaterial if the organization has provided for a different quorum requirement in its bylaws.
• What is said in 40:3 (or anywhere in RONR) has nothing to do with an organization's tax status.

Edited October 18, 2023 at 08:06 PM by Josh Martin

[Jdsrose07]

On 10/18/2023 at 2:23 PM, Gary Novosielski said:

Yikes!

You're so right!! It' a hot mess!

[Jdsrose07]

On 10/18/2023 at 3:05 PM, Josh Martin said:

Thank you. Based on these facts, if the bylaws are silent concerning the removal of officers, officers may be removed only by the National Convention, and only through the formal disciplinary procedures in Section 63 of RONR. So it does appear that the removal of the President was invalid, and the person purporting to act as the President is, in fact, the Vice President.

Because my understanding is the convention only meets annually, and calling special meetings of a national convention is likely impractical, it actually may well be advisable for the organization to amend its bylaws to provide a different mechanism for removing officers, but notwithstanding this, the organization is obliged to follow its rules as they currently exist, unless and until they are amended.

Well, that's unfortunate. The bylaws are supposed to specify such matters. If/when this situation gets sorted out, I advise amending the bylaws to clarify this matter.

If the bylaws are indeed silent as to when/how/by whom the call is sent, then in the interim, the organization will have to interpret its rules as best it can to determine whether one, both, or neither of these meetings were properly called.

"In any organization, notice must be sent a reasonable time in advance of each regular meeting that is separated by more than a quarterly time interval (see 9:7 below) from the previous regular meeting. Notice must also be sent a reasonable time in advance of a convention of delegates. In many organizations, a call is sent to all members in advance of each meeting.

In all such cases, to avoid uncertainty about what period in advance is reasonable, the specific number of days' notice required—which will depend on the conditions of the particular assembly and which each organization must determine for itself—should be prescribed in the bylaws (56:34). Unless otherwise provided in the bylaws, the number of days is computed by counting all calendar days (including holidays and weekends), excluding the day of the meeting but including the day the notice is sent.

When notice is required to be sent, unless a different standard is specified that requirement is met if written notice is sent to each member either:

a) by postal mail to the member's last known address; or
b) by a form of electronic communication, such as e-mail or fax, by which the member has agreed to receive notice." RONR (12th ed.) 9:3-5

Thank you. Then once again, the Parliamentarian may be removed only by the National Convention, and only through the formal disciplinary procedures in Section 63 of RONR.

I don't actually think that's a good idea. RONR advises that the President should be authorized to appoint the Parliamentarian, since the duty of the parliamentarian is (supposed to be) to advise the President, and therefore the President should be free to appoint someone he has confidence in. Notwithstanding this, the organization is obliged to follow its rules as they currently exist, unless and until they are amended.

"If a parliamentarian is needed by an organization, the president should be free to appoint one in whom he has confidence." RONR (12th ed.) 47:48

Nothing in RONR (12th ed.) 40:3 supports this statement.

• What is said in 40:3 is advice for an organization to consider when determining the quorum requirement in its bylaws. It is not, in itself, a rule concerning the quorum requirement for an organization.
• While it is certainly correct that an organization may, if it wishes, adopt rules in its bylaws "that allow a quorum to be recognized if a majority of those registered for the convention are present in the room," this is immaterial if the organization has provided for a different quorum requirement in its bylaws.
• What is said in 40:3 (or anywhere in RONR) has nothing to do with an organization's tax status.

I have to thank you again for taking the time and trouble to evaluate what I have written. It is greatly appreciated and has underscored my personal opinion. It's good sometimes to know when one is thinking along the correct lines. It builds confidence.