City Council item out of order?

[Guest Michael Beck]

I’m looking to have my thinking validated or corrected based on a situation that occurred recently with our local government.  Since our local law establishes Robert’s Rules of Order as the authority on all matters not written into our code, I’m seeking some guidance. 

• A City Councilor made a motion to suspend the rules to consider an order not filed with the clerk by the legal deadline.  Motion seconded and passed 7-2.

City Council is governed by local law outlined in Chapter 9 of city code. 
Chapter 9 is broken into 3 Articles:

• I: Rules and Ordinances
• II: Meetings
• III: Ordinances

Under Chapter 9, Article I, it lays out the rules for conducting City Council meetings. 
Per §9-16, “In all cases where the parliamentary proceedings are not herein determined, Robert's Rules of Order shall be taken as authority to decide the course of the proceedings.”

Under Chapter 9, Article III, §9-24, the local law lays out the following deadline for orders to be considered in order:
“No proposed ordinance, order or resolve shall be in order at any meeting of the City Council unless said ordinance, order or resolve shall have been filed with the City Clerk on or before 4:00 p.m. of the fourth secular day prior to said meeting of the City Council, and, previous to the time for calling such meeting to order, each member of the City Council shall be furnished with a list of such ordinances, orders and resolves giving descriptive titles of the same and the name of the member by whom such ordinance, order or resolve is introduced.”

RONR (12th Ed.) 25:7 states that rules written in the by-laws or constitution (which I assume also applies to local law) cannot be suspended unless there is a remedy written in the by-laws for doing so. 

The only remedy for suspending rules is Chapter 9, Article I, §9-15 which states: “The foregoing rules shall not be dispensed with except by a two-thirds vote of the members of the City Council, nor shall any rule or order be amended or repealed without notice, in writing, at the preceding meeting, nor unless a majority of the Council votes for the amendment or repeal.”

The keyword there is “foregoing”, which I read to mean the rules laid out in §9-1 to §9-14. And they’re all aptly located in the Article titled “Rules and Orders”. 
On the other hand, §9-24, the rule they intended to suspend, is written later in the chapter in Article III: Ordinances.   If that was a rule that was intended to be allowed to be suspended, they would have included it in Article I, in my opinion. 

Therefore, I believe §9-24 is not included in the remedy provided by §9-15 and therefore cannot be suspended per RONR (12th Ed.) 25:7.  I believe the order they introduced with the suspension was therefore out of order and should not have been considered.  Is this correct, or is there something else I should be considering here? 
 

[Rob Elsman]

This is entirely a matter of law, so the assistance of an attorney will be needed to answer any questions.

[Josh Martin]

On 1/5/2024 at 9:23 AM, Guest Michael Beck said:

Therefore, I believe §9-24 is not included in the remedy provided by §9-15 and therefore cannot be suspended per RONR (12th Ed.) 25:7.  I believe the order they introduced with the suspension was therefore out of order and should not have been considered.  Is this correct, or is there something else I should be considering here? 

I concur that, if the rules in RONR are controlling, the rule in question cannot be suspended unless all members of the council are present. In such instance, the rule could be suspended by a 2/3 vote.

I do not agree that 25:7 prevents the rule's suspension. The rule provides "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."

Even assuming for the sake of argument that these rules are in the nature of bylaws rather than special rules of order (of which I am not certain), a rule pertaining to the introduction of motions is certainly in the nature of a rule of order. There is another relevant provision, however, which is 25:10.

"Rules protecting absentees cannot be suspended, even by unanimous consent or an actual unanimous vote, because the absentees do not consent to such suspension. For example, the rules requiring the presence of a quorum, restricting business transacted at a special meeting to that mentioned in the call of the meeting, and requiring previous notice of a proposed amendment to the bylaws protect absentees, if there are any, and cannot be suspended when any member is absent." RONR (12th ed.) 25:10

If there are no absentees, there are no absentees to protect.

It may well be that a rule of this nature is not only intended to protect council members, but also to protect the public, so there may be an argument that the rule still could not be suspended - but that is a question concerning the organization's own rules and applicable law. RONR is concerned with the protection of the members of the assembly.

As to whether it is the case that Section 9:15 is applicable solely to rules 1-14 or to all of the rules, I express no view on that matter. The city's clerks and attorneys will be better equipped to interpret the city's own rules than I am.

Edited January 5, 2024 at 06:04 PM by Josh Martin