Parts of a Resolution in conflict with constitution

[Guest Joe L]

Greetings

My organization (a church) has a constitution that is decades old.  The constitution includes requirements of a particular Committee, such as how members are selected, the make-up of the Committee, length of terms, and maximum number of consecutive terms.  The section also states that duties and method of operation of the Committee would be determined by a separate resolution.

About 10 years ago, the Resolution that described the duties and method of operation of the subject Committee was adopted, but the resolution also included other items that were spelled out in the constitution, described above.  Several of these are in conflict with items given in the constitution. The balance of the Resolution is not in conflict. 

RONR 39.5 states that a motion that is in conflict with a constitution is null and void.  My question is: Is the entire multi-part resolution such as this null and void, or just the portions that are in conflict.   

 

Thanks

[Josh Martin]

On 3/18/2024 at 6:38 PM, Guest Joe L said:

RONR 39.5 states that a motion that is in conflict with a constitution is null and void.  My question is: Is the entire multi-part resolution such as this null and void, or just the portions that are in conflict.   

The entire resolution. There is no mechanism to declare just part of a resolution null and void.

The organization is, of course, free to adopt a new resolution which is not in conflict with the constitution. I think the best solution to this problem would be to draft a new resolution which does not include the parts that are in conflict with the constitution. At the next meeting, the chair can rule the resolution null and void and, immediately thereafter, the assembly can adopt the new resolution.

In the interim, the constitution is controlling with respect to all conflicts between the constitution and the resolution.

[Dan Honemann]

On 3/18/2024 at 7:50 PM, Josh Martin said:

The entire resolution. There is no mechanism to declare just part of a resolution null and void.

But a resolution, once adopted, is no longer a resolution, it is something else.  

But aside from that, I would think that if a series of resolutions or motions is adopted by the adoption of a single main motion, such as described in 10:25 and 27:10, and one of them conflicts with the constitution, a point of order concerning its validity could be raised without affecting the others.

Guest Joe L seems to be referring to a similar situation.  Additional details would be helpful.

 

[Richard Brown]

I agree with Mr. Honemann.  It seems to me that a point of order could be raised as to the provisions of adopted resolutions that conflict with the bylaws.  That would enable the chair, if he agrees, to rule that the point of order is well taken and that the relevant provisions are null and void (or to rule that the point of order is not well taken if he disagrees).  The ruling of the chair can, of course, be appealed to the assembly.  It would require a majority vote to overturn the decision of the chair.  The decision of the assembly is final.  Any rulings, whether by the chair or the assembly, should be entered in the minutes.

[Josh Martin]

On 3/19/2024 at 5:26 AM, Dan Honemann said:

But a resolution, once adopted, is no longer a resolution, it is something else.  

But aside from that, I would think that if a series of resolutions or motions is adopted by the adoption of a single main motion, such as described in 10:25 and 27:10, and one of them conflicts with the constitution, a point of order concerning its validity could be raised without affecting the others.

Guest Joe L seems to be referring to a similar situation.  Additional details would be helpful.

I have no disagreement that if a series of resolutions or motions is adopted by a main motion, and one of those resolutions conflicts with the constitution, a point of order concerning its validity could be raised without affecting the others.

My interpretation of the original post, however, was that this was a single resolution, parts of which are in conflict with the constitution.

As you say, additional facts would be helpful.

On 3/19/2024 at 11:50 AM, Richard Brown said:

I agree with Mr. Honemann.  It seems to me that a point of order could be raised as to the provisions of adopted resolutions that conflict with the bylaws.  That would enable the chair, if he agrees, to rule that the point of order is well taken and that the relevant provisions are null and void (or to rule that the point of order is not well taken if he disagrees).  The ruling of the chair can, of course, be appealed to the assembly.  It would require a majority vote to overturn the decision of the chair.  The decision of the assembly is final.  Any rulings, whether by the chair or the assembly, should be entered in the minutes.

I have no issue with this with respect to a series of resolutions.

In the case of a single resolution, however, how exactly does this work? Does the chair state that certain words, sentences, or paragraphs in the resolution are null and void?

Edited March 20, 2024 at 12:09 PM by Josh Martin

[Dan Honemann]

On 3/20/2024 at 8:09 AM, Josh Martin said:

In the case of a single resolution, however, how exactly does this work? Does the chair state that certain words, sentences, or paragraphs in the resolution are null and void?

 

Suppose a resolution such as that found in 27:7 (“Resolved, That the Society congratulate its member Ernest Dunn on his novel Crestwood, and that three copies be purchased for the Society's library”) is adopted without amendment, and the organization's constitution prohibits purchase of any books other than scholarly treatises directly related to the purposes for which the Society was formed. If Mr. Dunn's novel clearly does not meet this standard, which it does not, I think a point of order could be raised and sustained voiding the decision to purchase copies of it without nullifying the Society's congratulations.

I"m sure we are all agreed that additional facts from Guest Joe L would be helpful.

 

[Guest Joe L]

Thanks for the replies.  Regarding Dan Honeman's request for more details:

The Resolution was in a typical resolution form, with a "Whereas" and a few "it is [further] resolveds" followed but the plan of operation for the Committee.  Everything was in the Resolution, and a single vote was taken.  The plan includes sections about the Committee make-up, how members were selected, term lengths, consecutive term limits, reporting frequency, account management, fund distribution guidance, emergency distribution guidance, how to amend the resolution, and disposition of funds if the organization ceases to exist.  It is my understanding that the Resolution followed a template provided by the organization that church belongs to.  I don't know if that template of the plan had blanks to be filled in, or if it was just a "typical" plan used elsewhere.

Joe 

[Rob Elsman]

I suspect that Mr. Honemann's concern is that this resolution could actually wrap around a series of independent, free-standing proposals.  From the additional information provided, I think this might, indeed, be the case.

[Dan Honemann]

On 3/20/2024 at 8:08 PM, Guest Joe L said:

Thanks for the replies.  Regarding Dan Honeman's request for more details:

The Resolution was in a typical resolution form, with a "Whereas" and a few "it is [further] resolveds" followed but the plan of operation for the Committee.  Everything was in the Resolution, and a single vote was taken.  The plan includes sections about the Committee make-up, how members were selected, term lengths, consecutive term limits, reporting frequency, account management, fund distribution guidance, emergency distribution guidance, how to amend the resolution, and disposition of funds if the organization ceases to exist.  It is my understanding that the Resolution followed a template provided by the organization that church belongs to.  I don't know if that template of the plan had blanks to be filled in, or if it was just a "typical" plan used elsewhere.

Joe 

You say that this resolution which was adopted contains a few "it is [further] resolveds".  If it is several of these "it is [further] resolveds" that are in conflict with provisions in the constitution, and if they could have been deleted from the resolution at the time when it was being considered for adoption without affecting the remainder in any way, then I think a point of order can be raised and sustained voiding these "it is [further] resolveds" without nullifying any of the others.

[Guest Joe L]

Thank you, again.

A little more detail:

The last "It is Further Resolved" finishes with "...that the purpose, governance, administration and management of the Fund and the Committee are established and defined by the plan of operation as hereinafter set forth".

What follows next in the resolution is the plan with the sections described in my preceding reply.  And it is a few of those sections that are in conflict.

[Dan Honemann]

On 3/21/2024 at 6:18 PM, Guest Joe L said:

Thank you, again.

A little more detail:

The last "It is Further Resolved" finishes with "...that the purpose, governance, administration and management of the Fund and the Committee are established and defined by the plan of operation as hereinafter set forth".

What follows next in the resolution is the plan with the sections described in my preceding reply.  And it is a few of those sections that are in conflict.

Could these sections that are in conflict with your constitution have been deleted from the resolution at the time when it was being considered for adoption without affecting the remainder in any way?  If so, I think a point of order can be raised and sustained voiding these sections without nullifying any of the others.

 

[Guest Joe L]

Yes. The conflicting parts are on their own and can be struck without affecting the continuity or meaning of the rest of the resolution.  
 

Continuing, are the conflicting parts null and void now, or does the point order need to be made first?

[Rob Elsman]

A Point of Order would need to be raised in a meeting of the body that previously adopted the resolution in question.

[Guest Joe L]

Thank you everyone for your replies. 

[Dan Honemann]

On 3/22/2024 at 5:38 PM, Guest Joe L said:

Continuing, are the conflicting parts null and void now, or does the point order need to be made first?

I agree with Mr. Elsman's response to this question, but would note that a point of order can be raised only if and when one of the resolution's conflicting sections (which is therefor null and void) is affecting business that is pending during a meeting of the assembly.  If it is desired to correct the problem before such opportunities arise, an incidental main motion can be made while no business is pending, and adopted by majority vote, declaring that the conflicting sections are null and void.  

 

[Rob Elsman]

Yes, I should have been clearer about this. Thank you for the assist.

[J. J.]

On 3/25/2024 at 8:40 AM, Dan Honemann said:

I agree with Mr. Elsman's response to this question, but would note that a point of order can be raised only if and when one of the resolution's conflicting sections (which is therefor null and void) is affecting business that is pending during a meeting of the assembly.  If it is desired to correct the problem before such opportunities arise, an incidental main motion can be made while no business is pending, and adopted by majority vote, declaring that the conflicting sections are null and void.  

 

And how would that not fall under the rules for rescind/amend something previously adopted?  6:23 does not cover it specifically. 

Edited March 25, 2024 at 08:28 PM by J. J.

[Rob Elsman]

I think I am going to take back my previous agreement with Mr. Honemann about the making of an incidental main motion when no other business is pending.  The proper motion is Point of Order, made "...at any time that the action has continuing force and effect..."  See RONR (12th ed.) 23:6.  This is even true when it is not the case that "...one of the resolution's conflicting sections (which is therefor null and void) is affecting business that is pending during a meeting of the assembly."  "At any time" means at any time.

[Rob Elsman]

The more times I read the original post, the more apparent it becomes to me that some of the verbs are written in the agentless passive voice.  Consequently, it seems more and more likely that I have no real idea what the post actually says.  I just do not think I now know who is doing what.

[Dan Honemann]

On 3/25/2024 at 4:27 PM, J. J. said:

And how would that not fall under the rules for rescind/amend something previously adopted?  6:23 does not cover it specifically. 

Motions to Rescind and to Amend Something Previously Adopted are applicable to bylaws, rules, policies, decisions, or choices which have continuing force and effect due to having been validly adopted.  It is for this reason that it takes more than just a majority vote for the adoption of these motions.

On 3/25/2024 at 4:49 PM, Rob Elsman said:

I think I am going to take back my previous agreement with Mr. Honemann about the making of an incidental main motion when no other business is pending.  The proper motion is Point of Order, made "...at any time that the action has continuing force and effect..."  See RONR (12th ed.) 23:6.  This is even true when it is not the case that "...one of the resolution's conflicting sections (which is therefor null and void) is affecting business that is pending during a meeting of the assembly."  "At any time" means at any time.

Points of order relating to breaches of a continuing nature, as described in 23:6, do not need to be raised promptly at the time of the breach, and may be raised at any time during the continuance of the breach, but this does not mean that such a point of order can be raised at a time when the action invalidly taken in no way relates to the business which is pending before the assembly.  Points of order must always relate in some way to the business at hand.  I think that a fair reading of what is said in Section 23 makes this abundantly clear.

[Rob Elsman]

On 3/25/2024 at 6:22 PM, Dan Honemann said:

I think that a fair reading of what is said in Section 23 makes this abundantly clear.

I have never understood it that way, and I would wager a lot of other people haven't, either.  I have always understood a continuing breach to be a violation all the time, so a Point of Order would be in order at any time.

[J. J.]

On 3/25/2024 at 7:22 PM, Dan Honemann said:

Motions to Rescind and to Amend Something Previously Adopted are applicable to bylaws, rules, policies, decisions, or choices which have continuing force and effect due to having been validly adopted.  It is for this reason that it takes more than just a majority vote for the adoption of these motions.

 

I agree, but I am asking why (or how) you would distinguish been a R/ASPA and a Point of Order. 

[Dan Honemann]

On 3/25/2024 at 7:31 PM, J. J. said:

I agree, but I am asking why (or how) you would distinguish been a R/ASPA and a Point of Order. 

That's easy.  They bear no resemblance to each other, and differ in virtually every respect.

[Joshua Katz]

On 3/25/2024 at 4:28 PM, Rob Elsman said:

I have never understood it that way, and I would wager a lot of other people haven't, either.  I have always understood a continuing breach to be a violation all the time, so a Point of Order would be in order at any time.

I certainly have never understood it that way, although I guess that doesn't tell us whether a lot of people haven't.

[J. J.]

On 3/25/2024 at 7:48 PM, Dan Honemann said:

That's easy.  They bear no resemblance to each other, and differ in virtually every respect.

So, how would you phrase the incidental main motion?