Mail ballots

[Katy]

Our bylaws state: 

"Amendments to the Bylaws require a two-thirds vote of the entire Membership for adoption. Amendments may be adopted at the Annual Meeting, at any special meeting if notice of the complete substance of the proposed amendment was included in the call for the meeting, or by a mail vote provided that the Members have thirty (30) days to return their ballots from the date [the corporation] mailed the ballots to the Members."

We have 72 members. At our Annual Meeting, we put on the agenda some amendments to the bylaws along with a draft of all of the amendments. At the meeting, the bylaws committee went through all the changes at length and answered questions and comments. Because the committee thought the membership had not had enough time to read and consider the changes given the time constraints of the meeting and the urgency of other business that had to be attended to, it decided to give the members the possibility to vote via mail according to the bylaws. At the meeting, the committee offered to continue discussing the changes via e-mail, Slack, and Zoom sessions over the following month before sending out the ballots.

During that month the committee attended to all the various exchanges and even accepted a few relatively minor modifications suggested by the members during that period. The committee is ready to send out the final draft (redlined with the minor modifications) with a ballot and a return envelope, with the tally of the votes after the prescribed 30 days.

A member is objecting to the process, saying that Massachusetts law only allows votes outside a meeting if the votes are unanimous. In the committee’s opinion, this is spurious, since (1) a meeting was held and only the voting process is being delayed, and (3) RONR allows balloting by mail.

What say you?

[Atul Kapur]

The law is superior to your bylaws and to RONR.

I have no idea what the relevant law says. You should consult a lawyer who is experienced and knowledgeable in this specific area.

[Katy]

Unfortunately, our board of trustees has consulted one Massachusetts attorney who says it’s okay, and another who says it’s not. We have now to get them to agree on something. But my question to you is:

According to RONR, what was the intent especially when only the voting process has been delayed but the meeting has been held? Or does the RONR section regarding this (§45 A Vote by Mail) actually intend to allow the whole process to happen via mail, meaning the introduction of the amendment up to the vote?

[Joshua Katz]

I don't think RONR can tell us the intent behind your rule or what was intended at the meeting. I don't see how RONR's analysis is relevant, though, when the only argument being raised concerns a statute. Ultimately, if attorneys disagree, you need to decide which one you believe. 

[Gary Novosielski]

On 12/1/2023 at 5:34 PM, Katy said:

Unfortunately, our board of trustees has consulted one Massachusetts attorney who says it’s okay, and another who says it’s not. We have now to get them to agree on something. But my question to you is:

According to RONR, what was the intent especially when only the voting process has been delayed but the meeting has been held? Or does the RONR section regarding this (§45 A Vote by Mail) actually intend to allow the whole process to happen via mail, meaning the introduction of the amendment up to the vote?

Yes, the procedures in RONR 45:57-61 are intended to apply to a situation such as you describe, providing that mail votes are authorized in your bylaws for such situations, which we are told yours do.  Mail votes are applicable only to the voting process, since debate cannot properly be conducted by mail.  

But your question appears to be about your state statute, and whether it allows voting by mail.  And that's something we can't advise you on. 

I can only say that while I have heard of state statutes that allow absentee voting in corporate boards if the decision is unanimous, I have never heard of a state law that outlawed mail voting by the membership of all societies, particularly on weighty matters such as elections and bylaws amendments, for any but unanimous votes.  Note well that it would be wrong to rely on this, since this is only my casual observation and I have never lived in Massachusetts.  I say it only to encourage you to continue to seek clear answers from qualified legal advisors.

[Katy]

Thank you Gary, you have answered my question, and I agree with you about RONR intent.

The state law I mention only concerns voting outside a meeting. It says that any action taken outside of a meeting (I assume this means without any meeting at all) must have unanimous consent. It doesn’t address meetings where a meeting and debate occur and only the vote remains. And I don’t think Mass law addresses mail voting at all, as far as I know so far.

The idea of the vote being required to be unanimous makes no sense in our case, because we actually had a meeting, and therefore the mail vote does not destroy the members’ right to debate, but it does displace the voting to a vote by mail pursuant to the bylaws instructions. I believe that because there was a meeting, the two-thirds vote of the entire membership should be the rule for this instance. Otherwise the option of mail ballots makes no sense at all.

But we will consult again with attorneys just to be sure.

[Joshua Katz]

On 12/1/2023 at 6:10 PM, Katy said:

It says that any action taken outside of a meeting (I assume this means without any meeting at all) must have unanimous consent.

I wouldn't assume that. An attorney will consult case law to determine what the law means in this instance. Of course, the organization is free to make the assumption you do (the rationale is certainly reasonable) and act accordingly. We make legal determinations without consulting attorneys all the time. In this matter, like all procedural matters, the chair rules, subject to appeal, not the attorney. But the organization will face a serious risk if that assumption is wrong.

[Katy]

Thank you Joshua. I agree with everything you say. The attorney we consulted earlier in a different context in our process told us that Mass law allows Boards to take actions without meetings at all as long as the vote is unanimous and is registered in a certain way in the records. The thing is, we’re talking about a membership action, not a Board action, so it’s probably not even pertinent to our case at hand.

Edited December 1, 2023 at 11:37 PM by Katy

[Gary Novosielski]

On 12/1/2023 at 6:36 PM, Katy said:

Thank you Joshua. I agree with everything you say. The attorney we consulted earlier in a different context in our process told us that Mass law allows Boards to take actions without meetings at all as long as the vote is unanimous and is registered in a certain way in the records. The thing is, we’re talking about a membership action, not a Board action, so it’s probably not even pertinent to our case at hand.

Yes, that was the distinction that I referred to above, and that matches my experience.

[Josh Martin]

On 12/1/2023 at 3:14 PM, Katy said:

A member is objecting to the process, saying that Massachusetts law only allows votes outside a meeting if the votes are unanimous.

Questions concerning Massachusetts law are beyond the scope of RONR and this forum and should be directed to an attorney.

On 12/1/2023 at 3:14 PM, Katy said:

In the committee’s opinion, this is spurious, since (1) a meeting was held and only the voting process is being delayed, and (3) RONR allows balloting by mail.

Well, the committee may or may not be correct that the member's opinion is spurious, but the committee's reasoning is flawed.

1.) The member is claiming that the law "only allows votes outside a meeting if the votes are unanimous," so the fact that "only the voting process is being delayed" doesn't really seem to refute the member's claim. The fact that the vote is happening outside the meeting remains correct.

2.) The claim regarding RONR is flawed for two reasons.

First, this is incorrect. RONR does not allow balloting by mail. Rather, it is your bylaws that do so, and your bylaws take precedence over RONR.

"It is a fundamental principle of parliamentary law that the right to vote is limited to the members of an organization who are actually present at the time the vote is taken in a regular or properly called meeting, although it should be noted that a member need not be present when the question is put. Exceptions to this rule must be expressly stated in the bylaws. Such possible exceptions include: (a) voting by postal mail, e-mail, or fax, and (b) proxy voting." RONR (12th ed.) 45:56

Second, even if this was correct, it would be irrelevant. State law takes precedence over RONR and your bylaws. Answering questions regarding Massachusetts law will require reviewing Massachusetts law.

On 12/1/2023 at 4:34 PM, Katy said:

Unfortunately, our board of trustees has consulted one Massachusetts attorney who says it’s okay, and another who says it’s not. We have now to get them to agree on something.

Well, good luck with that.

On 12/1/2023 at 4:34 PM, Katy said:

According to RONR, what was the intent especially when only the voting process has been delayed but the meeting has been held? Or does the RONR section regarding this (§45 A Vote by Mail) actually intend to allow the whole process to happen via mail, meaning the introduction of the amendment up to the vote?

What is said in RONR specifically says that voting by mail is not allowed, unless authorized in the bylaws. To the extent it is authorized in the bylaws, the bylaws should specify how that process works.

The intent in RONR (12th ed.) 45:57-61 is that only the vote itself happens by mail. Exactly how the item is introduced may vary. It may be that the amendment is introduced at a meeting, or by mail, or whatever. The important thing is that RONR strongly advises against conducting the deliberative process itself by mail, email, or similar means - making motions, debate, voting, the whole nine yards.

"A group that attempts to conduct the deliberative process in writing—such as by postal mail, electronic mail (e-mail), or facsimile transmission (fax)—does not constitute a deliberative assembly. When making decisions by such means, many situations unprecedented in parliamentary law will arise, and many of its rules and customs will not be applicable (see also 9:30–36)." RONR (12th ed.) 1:1n1

But - and I cannot stress this strongly enough - what RONR says on this matter has absolutely no bearing on whether voting in this manner is permitted under state law.

On 12/1/2023 at 5:10 PM, Katy said:

The state law I mention only concerns voting outside a meeting. It says that any action taken outside of a meeting (I assume this means without any meeting at all) must have unanimous consent. It doesn’t address meetings where a meeting and debate occur and only the vote remains. And I don’t think Mass law addresses mail voting at all, as far as I know so far.

Okay. Well, interpretation of Massachusetts state law remains a question for an attorney.

Edited December 2, 2023 at 08:33 PM by Josh Martin

[Katy]

On 12/2/2023 at 12:31 PM, Josh Martin said:

1.) The member is claiming that the law "only allows votes outside a meeting if the votes are unanimous," so the fact that "only the voting process is being delayed" doesn't really seem to refute the member's claim. The fact that the vote is happening outside the meeting remains correct.

My apologies for the confusion. Mass law states that a Board may take action outside a meeting if all the Board members agree in writing. What the complaining member is saying is that voting may not occur outside a meeting. But in this case the issue was actually announced and dealt with at a proper meeting, but the members were unable to get to the vote. Therefore, because Mass law does not outlaw mail ballots, and RONR does allow them, mail balloting after the meeting should be allowed. Does that make my point more clear?

 

On 12/2/2023 at 12:31 PM, Josh Martin said:

The intent in RONR (12th ed.) 45:57-61 is that only the vote itself happens by mail. Exactly how the item is introduced may vary. It may be that the amendment is introduced at a meeting, or by mail, or whatever. The important thing is that RONR strongly advises against conducting the deliberative process itself by mail, email, or similar means - making motions, debate, voting, the whole nine yards.

But that is exactly our case.

[Josh Martin]

On 12/3/2023 at 12:07 AM, Katy said:

My apologies for the confusion. Mass law states that a Board may take action outside a meeting if all the Board members agree in writing. What the complaining member is saying is that voting may not occur outside a meeting. But in this case the issue was actually announced and dealt with at a proper meeting, but the members were unable to get to the vote. Therefore, because Mass law does not outlaw mail ballots, and RONR does allow them, mail balloting after the meeting should be allowed. Does that make my point more clear?

It makes it more clear.

I would still say that as a parliamentary matter, voting is an essential part of the assembly taking "action". But I can't speak to the proper interpretation of Massachussetts law.

On 12/3/2023 at 12:07 AM, Katy said:

But that is exactly our case.

I understand that, but it remains incorrect to say that Robert's Rules of Order permits mail-in voting. It does not. It is your bylaws which permit mail-in voting, and they take precedence over RONR. Further, Massachussetts law takes precedence over your bylaws and RONR.

Edited December 3, 2023 at 01:48 PM by Josh Martin

[Katy]

 

On 12/3/2023 at 5:48 AM, Josh Martin said:

it remains incorrect to say that Robert's Rules of Order permits mail-in voting. It does not.

Then how do you interpret RONR §45 A Vote By Mail?

[Josh Martin]

On 12/3/2023 at 10:11 AM, Katy said:

Then how do you interpret RONR §45 A Vote By Mail?

What is said in RONR (12th ed.) 45:56-69, first and foremost, is that all forms of absentee voting are prohibited, unless the bylaws provide otherwise. The text then goes on to provide a recommended mechanism for a vote by mail, to the extent an organization has authorized such a method of voting in its bylaws. But since the bylaws take precedence over RONR anyway, an organization certainly could deviate from this recommended method in its bylaws if it so chooses.

"It is a fundamental principle of parliamentary law that the right to vote is limited to the members of an organization who are actually present at the time the vote is taken in a regular or properly called meeting, although it should be noted that a member need not be present when the question is put. Exceptions to this rule must be expressly stated in the bylaws. Such possible exceptions include: (a) voting by postal mail, e-mail, or fax, and (b) proxy voting." RONR (12th ed.) 45:56, emphasis added

"A vote by mail, when authorized in the bylaws, is generally reserved for important issues, such as an amendment to the bylaws or an election of officers—on which a full vote of the membership is desirable even though only a small fraction of the members normally attend meetings." RONR (12th ed.) 45:57

So (as I think RONR makes clear), it is your bylaws, not RONR, which authorizes voting by mail.

Edited December 3, 2023 at 04:39 PM by Josh Martin

[Katy]

On 12/3/2023 at 8:38 AM, Josh Martin said:

although it should be noted that a member need not be present when the question is put.

Agreed. The above quoted situation is exactly ours. 

[Shmuel Gerber]

On 12/1/2023 at 4:14 PM, Katy said:

A member is objecting to the process, saying that Massachusetts law only allows votes outside a meeting if the votes are unanimous. In the committee’s opinion, this is spurious, since (1) a meeting was held and only the voting process is being delayed, and (3) RONR allows balloting by mail.

It seems clear from your description that the debate that happened at the meeting is independent of the question being presented by ballot. I would not describe this at all as "only the voting process is being delayed."

However, I don't think any of that is relevant. Your bylaws say that they can be amended by a mail vote by the membership. If one or more members think that this is not in accord with the law, let them show you the exact law that they think prevents it, or at least some reasonable evidence of the existence of such a law as it pertains to a vote of the membership in your particular type of organization, and then the organization can make some judgment as to whether it is applicable and means what they claim it means. 

[Richard Brown]

On 12/3/2023 at 12:07 AM, Katy said:

Mass law states that a Board may take action outside a meeting if all the Board members agree in writing.

The way I read your description of what is happening, this proposed mail ballot is to be a vote of the MEMBERSHIP, not a vote of a Board.  Is that correct?   If so, what relevance is that statute to a vote by the MEMBERSHIP?   It seems to me that is the question you should be asking your attorneys.  I think some people, particularly the member who is objecting, may be ignoring the distinction.

Edited to add:  If you want to consult with someone who is both an attorney and parliamentarian, you might look into a referral from the American College of Parliamentary Lawyers  https://parliamentarylawyers.org/

If you want to consult with a credentialed professional parliamentarian who can give you individualized personal advice, you might check with the National Association of Parliamentarians (NAP).  They have a referral service.  https://www.parliamentarians.org/

Here is a link to their referral service: https://www.parliamentarians.org/find-a-professional-registered-parliamentarian/

 

Edited December 3, 2023 at 06:11 PM by Richard Brown
Added last three paragraphs

[Josh Martin]

On 12/3/2023 at 10:48 AM, Katy said:

Agreed. The above quoted situation is exactly ours. 

No, "although it should be noted that a member need not be present when the question is put" is not your situation. The rule in RONR is that a member must be present at the time the member casts their vote.

The phrase "although it should be noted that a member need not be present when the question is put" refers to a situation in which a member is absent at the time the chair puts the question to a vote, but the member arrives during the vote being taken, and the member then casts their vote. That is not your situation. In your situation, members are not present when they are casting their vote. If anything, your situation is the reverse of what is described in that phrase.

Once again, it is your bylaws, not RONR, which authorize voting by mail.

Or perhaps you just quoted the wrong portion of my response, and you meant to refer to the portions about bylaws authorization.

As Mr. Gerber notes, however...

On 12/3/2023 at 11:13 AM, Shmuel Gerber said:

However, I don't think any of that is relevant. Your bylaws say that they can be amended by a mail vote by the membership. If one or more members think that this is not in accord with the law, let them show you the exact law that they think prevents it, or at least some reasonable evidence of the existence of such a law as it pertains to a vote of the membership in your particular type of organization, and then the organization can make some judgment as to whether it is applicable and means what they claim it means. 

 

Edited December 3, 2023 at 06:21 PM by Josh Martin

[Katy]

Thank you all for your input.