Can a Chair Mute Board Members as Default?

[Dan Honemann]

I didn't expect that I would be starting a firestorm.   😀

This is what RONR says in 9:31 (with emphasis supplied by me):

"Among some organizations, there is an increasing preference, especially in the case of a relatively small board or other assembly, to transact business at electronic meetings—that is, at meetings at which, rather than all participating members being physically present in one room or area as in traditional (or “face-to-face”) meetings, some or all of them communicate with the others through electronic means such as the Internet or by telephone. A group that holds such alternative meetings does not lose its character as a deliberative assembly (see 1:1) so long as the meetings provide, at a minimum, conditions of opportunity for simultaneous aural communication among all participating members equivalent to those of meetings held in one room or area. Under such conditions, an electronic meeting that is properly authorized in the bylaws is treated as though it were a meeting at which all the members who are participating are actually present."

and in 9:34:

"It is important to understand that, regardless of the technology used, the opportunity for simultaneous aural communication is essential to the deliberative character of the meeting."

At the outset of this thread we were told that a board's chair has proposed a "new process for Zoom meetings: meeting participants will be muted by default, with hand raises noting a desire to speak, and the “X/no” or “Ta-da” emoji noting a desire to make an interrupting motion."  The question was: "So would having all board members muted by default be a violation of this section [referring to 9:31] of RONR ?

I replied by saying: "When members participating in a board meeting are muted, the group that is meeting does not constitute a deliberative assembly (see 1:1, 9:31, 9:34)."  

I thought it was a no-brainer, and I still do.

 

 

[J. J.]

On 4/19/2024 at 1:12 PM, Dan Honemann said:

I didn't expect that I would be starting a firestorm.   😀

This is what RONR says in 9:31 (with emphasis supplied by me):

"Among some organizations, there is an increasing preference, especially in the case of a relatively small board or other assembly, to transact business at electronic meetings—that is, at meetings at which, rather than all participating members being physically present in one room or area as in traditional (or “face-to-face”) meetings, some or all of them communicate with the others through electronic means such as the Internet or by telephone. A group that holds such alternative meetings does not lose its character as a deliberative assembly (see 1:1) so long as the meetings provide, at a minimum, conditions of opportunity for simultaneous aural communication among all participating members equivalent to those of meetings held in one room or area. Under such conditions, an electronic meeting that is properly authorized in the bylaws is treated as though it were a meeting at which all the members who are participating are actually present."

and in 9:34:

"It is important to understand that, regardless of the technology used, the opportunity for simultaneous aural communication is essential to the deliberative character of the meeting."

At the outset of this thread we were told that a board's chair has proposed a "new process for Zoom meetings: meeting participants will be muted by default, with hand raises noting a desire to speak, and the “X/no” or “Ta-da” emoji noting a desire to make an interrupting motion."  The question was: "So would having all board members muted by default be a violation of this section [referring to 9:31] of RONR ?

I replied by saying: "When members participating in a board meeting are muted, the group that is meeting does not constitute a deliberative assembly (see 1:1, 9:31, 9:34)."  

I thought it was a no-brainer, and I still do.

 

 

Are you suggesting that members should be permitted to speak without recognition, as that seems to be the only way to permit "simultaneous aural communication," at all times. 

[Drake Savory]

Maybe I'm missing some context here, but isn't the rule in question just a virtual form of the in-person rule that you must be recognized by the Chair to speak?  And the Chair even has a method whereby a person can interrupt the speaker.  In fact, if there was an issue with people speaking over each other and not seeking recognition despite repeated warnings, I would contend that the Chair had a duty to implement a rule like this to enforce order.

 

On 4/19/2024 at 11:12 AM, Dan Honemann said:

I replied by saying: "When members participating in a board meeting are muted, the group that is meeting does not constitute a deliberative assembly (see 1:1, 9:31, 9:34)."  

Even if they can speak when recognized AND can speak when it interrupts a speaker?  How would that be different than an in-person meeting.  9:31 requires conditions of opportunity, echoed in 9:34 that says there needs to be opportunity for simultaneous aural discussion which we have here if people raise there hands or do "ta-dah!".  It does not require everyone to talk whenever they want like it's open-mike night.

[laser158689]

Just to note that open meetings on zoom have also introduced us to "zoom bombers" (folks who take the opportunity to "prank" the assembly, often with vulgar audio & video).

Also, the ability to mute participants (and ignore emojis and actions and other alerting methods) can empower the worst instincts in many a chair, where they could not be so brazen at an in-person meeting.

[Guest Dana Caver]

I am on the board in question. I sought recognition using the emoji system and also waving my hands in the camera. and the chair refused to recognize me multiple times. I waved my hands to get the visual attention of the other board members as well. 

Andrew also turned off the video of board members who were attempting to communicate by a written message when they were refused recognition. 

So, therefore I agree with Mr. Honnemann's position. 

On 4/19/2024 at 8:25 AM, J. J. said:

They would not need to be heard to seek recognition.

A rule could be adopted, in an in person meeting, that to seek recognition, a member must hold up a certain colored  and/or shaped card.  Once the card is raised, the chair recognizes the member.  The member then states the motion.  That would not change the characteristic of this as a deliberative assembly.

In this case, their appears to a de facto rule, that if a member wishes recognition, he signals by typing an emoji.  He is then recognized and speaks.   That does not change the deliberative assembly characteristic. 

 

[Dan Honemann]

On 4/19/2024 at 1:37 PM, J. J. said:

Are you suggesting that members should be permitted to speak without recognition, as that seems to be the only way to permit "simultaneous aural communication," at all times. 

No, of course not.  The opportunity for simultaneous aural communication exists when the members present are able to hear each other.  

[Josh Martin]

On 4/19/2024 at 2:32 PM, Guest Dana Caver said:

I am on the board in question. I sought recognition using the emoji system and also waving my hands in the camera. and the chair refused to recognize me multiple times. I waved my hands to get the visual attention of the other board members as well. 

Andrew also turned off the video of board members who were attempting to communicate by a written message when they were refused recognition. 

But I would argue that it is the rules as applied which are the problem here, not the rules themselves.

On 4/19/2024 at 1:47 PM, Drake Savory said:

Maybe I'm missing some context here, but isn't the rule in question just a virtual form of the in-person rule that you must be recognized by the Chair to speak?  And the Chair even has a method whereby a person can interrupt the speaker.  In fact, if there was an issue with people speaking over each other and not seeking recognition despite repeated warnings, I would contend that the Chair had a duty to implement a rule like this to enforce order.

The apparent concern (and I think it is a valid concern) is that the chair has more ability to abuse this rule than a chair would in an in-person meeting.

On 4/19/2024 at 2:28 PM, laser158689 said:

Just to note that open meetings on zoom have also introduced us to "zoom bombers" (folks who take the opportunity to "prank" the assembly, often with vulgar audio & video).

Also, the ability to mute participants (and ignore emojis and actions and other alerting methods) can empower the worst instincts in many a chair, where they could not be so brazen at an in-person meeting.

And this illustrates why ultimately a balance must be struck between these competing concerns.

I'd also note that there are challenges on each side even without assuming malicious intent. A chair may inadvertently overlook requests for recognition, or members may inadvertently leave their audio unmuted and expose others to background noise or feedback loops.

Edited April 19, 2024 at 08:00 PM by Josh Martin

[Dan Honemann]

On 4/19/2024 at 4:00 PM, Josh Martin said:

The apparent concern (and I think it is a valid concern) is that the chair has more ability to abuse this rule than a chair would in an in-person meeting.

Whether the Chair is or is not inclined to abuse a rule is beside the point.

Mr. Martin, do you have any doubt but that a rule such as the one presented at the outset of this thread will, if applied, remove the opportunity for simultaneous aural communication such as exists when the board members are present at an in-person meeting?

[Josh Martin]

On 4/19/2024 at 3:17 PM, Dan Honemann said:

Mr. Martin, do you have any doubt but that a rule such as the one presented at the outset of this thread will, if applied, remove the opportunity for simultaneous aural communication such as exists when the board members are present at an in-person meeting?

No, I do not. But I continue to wonder whether a strict observance of this rule is practical for an assembly of any appreciable size.

So I suppose I am forced to admit that this "violates" 9:31, however, I am not entirely certain this fact means the assembly is prevented from adopting such rules.

[J. J.]

On 4/19/2024 at 3:56 PM, Dan Honemann said:

No, of course not.  The opportunity for simultaneous aural communication exists when the members present are able to hear each other.  

Then it does exist and it is a deliberate assembly in that sense. 

[Gary Novosielski]

On 4/19/2024 at 1:37 PM, J. J. said:

Are you suggesting that members should be permitted to speak without recognition, as that seems to be the only way to permit "simultaneous aural communication," at all times. 

Of course.  Otherwise how could a motion that is permitted to interrupt someone speaking be able to interrupt someone speaking.  The fact that members can speak without being recognized is essential to raising a point of order.  But they are not "permitted" to speak, except as the rules of order provide.

[J. J.]

On 4/19/2024 at 4:17 PM, Dan Honemann said:

Whether the Chair is or is not inclined to abuse a rule is beside the point.

Mr. Martin, do you have any doubt but that a rule such as the one presented at the outset of this thread will, if applied, remove the opportunity for simultaneous aural communication such as exists when the board members are present at an in-person meeting?

I would not say that it does.  Seeking recognition does not, in itself, require simultaneous aural communication.  That type communication would occur as a result of that recognition. 

[J. J.]

On 4/19/2024 at 5:48 PM, Gary Novosielski said:

Of course.  Otherwise how could a motion that is permitted to interrupt someone speaking be able to interrupt someone speaking.  The fact that members can speak without being recognized is essential to raising a point of order.  But they are not "permitted" to speak, except as the rules of order provide.

This does provide a way to interrupt a speaker, but not by yelling something out. 

[Gary Novosielski]

On 4/19/2024 at 5:52 PM, J. J. said:

This does provide a way to interrupt a speaker, but not by yelling something out. 

But that is the way that it is done in an in-person meeting.  Without that it is not a deliberative assembly.

[J. J.]

On 4/19/2024 at 5:54 PM, Gary Novosielski said:

But that is the way that it is done in an in-person meeting.  Without that it is not a deliberative assembly.

It could be.  

Would adopting a special rule saying that a member, to be recognized, must hold up a color coded card make the body no longer a deliberative assembly?  Such a rule would be in order. 

[Drake Savory]

On 4/19/2024 at 1:32 PM, Guest Dana Caver said:

So, therefore I agree with Mr. Honnemann's position. 

I don't think that is an issue of this zoom rule per se as it is a Chair that doesn't recognize a member that he should. 

[J. J.]

On 4/19/2024 at 6:31 PM, Drake Savory said:

I don't think that is an issue of this zoom rule per se as it is a Chair that doesn't recognize a member that he should. 

While I agree that this is a potential problem, no one has claimed that this has happened. 

[Atul Kapur]

On 4/19/2024 at 7:03 PM, J. J. said:

While I agree that this is a potential problem, no one has claimed that this has happened. 

Maybe not in this particular organization ... yet.

But it has definitely occurred in this type of circumstance.

[J. J.]

On 4/19/2024 at 7:43 PM, Atul Kapur said:

Maybe not in this particular organization ... yet.

But it has definitely occurred in this type of circumstance.

That could also happen at an in person meeting. 

[Drake Savory]

On 4/19/2024 at 3:59 PM, J. J. said:

Would adopting a special rule saying that a member, to be recognized, must hold up a color coded card make the body no longer a deliberative assembly? 

Apparently J.J. has been at the meetings of organizations I belong to because that is the rule there.

On 4/19/2024 at 7:32 PM, J. J. said:

That could also happen at an in person meeting. 

Apparently J.J has been at many HOA-from-Hell meetings too.

[J. J.]

On 4/20/2024 at 9:37 AM, Drake Savory said:

Apparently J.J. has been at the meetings of organizations I belong to because that is the rule there.

Apparently J.J has been at many HOA-from-Hell meetings too.

It appears that this rule is similar to a "card" rule.  A member would not need to speak to seek recognition. 

Conversely, under regular rules, there can be a problem with the chair not properly recognizing members. 

[Dan Honemann]

On 4/19/2024 at 4:24 PM, Josh Martin said:

So I suppose I am forced to admit that this "violates" 9:31, however, I am not entirely certain this fact means the assembly is prevented from adopting such rules.

No, it doesn't. An organization can adopt whatever rules it wishes for the governance of its proceedings provided that such rules do not violate the constitutional rights of any of its members or conflict with any federal, state, or local statute or ordinance applicable to it.

With respect to meeting held electronically, RONR tells us, in 9:31, that "[a] group that holds such alternative meetings does not lose its character as a deliberative assembly (see 1:1) so long as the meetings provide, at a minimum, conditions of opportunity for simultaneous aural communication among all participating members equivalent to those of meetings held in one room or area. Under such conditions, an electronic meeting that is properly authorized in the bylaws is treated as though it were a meeting at which all the members who are participating are actually present."   

This sentence (which I have bolded) is simply noting that, if these conditions exist, holding such a meeting will not disqualify it from constituting a deliberative assembly as defined in 1:1.  If these conditions do not exist, as in the instant case, the meeting does not constitute a deliberative assembly as defined in RONR.

Well, so what?  The answer, as far as I can determine, is found in the footnote to 1:1, "... many situations unprecedented in parliamentary law will arise, and many of its rules and customs will not be applicable (see also 9:30–36)."  As noted in 9:36, all sorts of additional rules will have to be adopted regarding the conduct of meetings held electronically, regardless of whether or not they constitute deliberative assemblies.

 

 

 

 

[J. J.]

On 4/20/2024 at 11:39 AM, Dan Honemann said:

No, it doesn't. An organization can adopt whatever rules it wishes for the governance of its proceedings provided that such rules do not violate the constitutional rights of any of its members or conflict with any federal, state, or local statute or ordinance applicable to it.

 

In what sense are you using the term "constitutional rights?"  A right created by constitution or bylaws of the local society?  

I'm not disagreeing, just asking for clarification.   

[Josh Martin]

On 4/20/2024 at 10:39 AM, Dan Honemann said:

No, it doesn't. An organization can adopt whatever rules it wishes for the governance of its proceedings provided that such rules do not violate the constitutional rights of any of its members or conflict with any federal, state, or local statute or ordinance applicable to it.

With respect to meeting held electronically, RONR tells us, in 9:31, that "[a] group that holds such alternative meetings does not lose its character as a deliberative assembly (see 1:1) so long as the meetings provide, at a minimum, conditions of opportunity for simultaneous aural communication among all participating members equivalent to those of meetings held in one room or area. Under such conditions, an electronic meeting that is properly authorized in the bylaws is treated as though it were a meeting at which all the members who are participating are actually present."   

This sentence (which I have bolded) is simply noting that, if these conditions exist, holding such a meeting will not disqualify it from constituting a deliberative assembly as defined in 1:1.  If these conditions do not exist, as in the instant case, the meeting does not constitute a deliberative assembly as defined in RONR.

Well, so what?  The answer, as far as I can determine, is found in the footnote to 1:1, "... many situations unprecedented in parliamentary law will arise, and many of its rules and customs will not be applicable (see also 9:30–36)."  As noted in 9:36, all sorts of additional rules will have to be adopted regarding the conduct of meetings held electronically, regardless of whether or not they constitute deliberative assemblies.

Thank you for this clarification.

[Dan Honemann]

On 4/20/2024 at 11:48 AM, J. J. said:

In what sense are you using the term "constitutional rights?"  A right created by constitution or bylaws of the local society?  

I'm not disagreeing, just asking for clarification.   

Federal and state.