Statutory Law and Parliamentary Law

[Brian66]

Many (most in my experience) small organizations, like HOAs, governing documents have a provision that meetings will be conducted in accordance with the latest edition of Robert's Rules.

The provision is almost universally ignored. BODs sort of go through the motions but do pretty much as they please.

One such BOD has for years constituted quorums using verbal proxies - or has recorded in the minutes that they had such - and proceeded to do business costing the membership $$$$ and depriving members of their representative rights.

The governing documents are silent on the use of any kind of proxy at a BOD meeting, but do provide for same at a Membership meeting, so they've gotten away with it. One egregious act was to restrict the granting of voting by proxy to Directors only. State law in this case does not address proxies in BOD meetings, but there's one thing sure.

The governing documents do not specifically state that they CAN be used for quorum purposes.

So the question is: If Parliamentary "law" is broken, what is the recourse?

Ask a lawyer? You'll get one answer. Ask two lawyers? You'll get two answers diametrically opposed.

What is parliamentary "law" precedent?

Surely this has come up before. I need chapter and verse, so if I do take the matter to a lawyer I can point him to it.

Thanks

[Kim Goldsworthy]

What is parliamentary "law" precedent?

It is common practices.

It isn't statute.

Thus it changes over time, automatically, without monitoring of any kind.

If Parliamentary "law" is broken, what is the recourse?

It depends.

Most violations lead to no penalty.

Some violations are "breaches of a continuing nature" (see page 244) and cause the business transacted to be null and void upon a point of order (ruled upon favorably).

[hmtcastle]

So the question is: If Parliamentary "law" is broken, what is the recourse?

Ask a lawyer? You'll get one answer. Ask two lawyers? You'll get two answers diametrically opposed.

That's what judges and juries are for.

[Trina]

Many (most in my experience) small organizations, like HOAs, governing documents have a provision that meetings will be conducted in accordance with the latest edition of Robert's Rules.

The provision is almost universally ignored. BODs sort of go through the motions but do pretty much as they please.

One such BOD has for years constituted quorums using verbal proxies - or has recorded in the minutes that they had such - and proceeded to do business costing the membership $$$$ and depriving members of their representative rights.

The governing documents are silent on the use of any kind of proxy at a BOD meeting, but do provide for same at a Membership meeting, so they've gotten away with it. One egregious act was to restrict the granting of voting by proxy to Directors only. State law in this case does not address proxies in BOD meetings, but there's one thing sure.

The governing documents do not specifically state that they CAN be used for quorum purposes.

So the question is: If Parliamentary "law" is broken, what is the recourse?

Ask a lawyer? You'll get one answer. Ask two lawyers? You'll get two answers diametrically opposed.

What is parliamentary "law" precedent?

Surely this has come up before. I need chapter and verse, so if I do take the matter to a lawyer I can point him to it.

Thanks

This kind of question is really outside the purview of this forum, if you are looking for enforcement authority beyond the range of parliamentary procedure. Mr. Goldsworthy's answer pointed out recourse under parliamentary law; however, if the majority in the organization is unwilling/unable to enforce these rules internally (which I think is what you are getting at), then you're looking outside, at the legal system. My somewhat vague impression, from some previous posts on this forum, is that parliamentary law does have some status in court, and that bylaws have some relationship to contracts. It's possible that one of the regular posters with more legal knowledge may weigh in on your question.

However, I don't think you will find the 'chapter and verse' that you need in the pages of RONR.

Does the membership in your particular organization retain most of the decision-making power? That is the default situation according to RONR, and a board only has the power granted to it by the bylaws. In that case, if the membership is fed up with the antics of the board, the membership would have the power, under parliamentary law, to clean things up. In some organizations (HOAs are often mentioned here as an example) the bylaws may grant the board fairly sweeping powers, which makes it harder, or impossible, for the general membership to take effective action. If the bylaws are confusing, you could also consider consulting with a parliamentarian before seeking out a lawyer (those are separate fields of expertise, so don't assume that an attorney knows much about parliamentary procedure, or that a parliamentarian is an expert on legal matters).

[hmtcastle]

so don't assume that an attorney knows much about parliamentary procedure, or that a parliamentarian is an expert on legal matters).

Or that a parliamentarian knows much about parliamentary procedure.

In other words, don't assume anything.

[David A Foulkes]

Or that a parliamentarian knows much about parliamentary procedure.

In other words, don't assume anything.

Indeed. You know what happens when you "assume", eh?

[Brian66]

Does the membership in your particular organization retain most of the decision-making power? That is the default situation according to RONR, and a board only has the power granted to it by the bylaws. In that case, if the membership is fed up with the antics of the board, the membership would have the power, under parliamentary law, to clean things up. In some organizations (HOAs are often mentioned here as an example) the bylaws may grant the board fairly sweeping powers, which makes it harder, or impossible, for the general membership to take effective action. If the bylaws are confusing, you could also consider consulting with a parliamentarian before seeking out a lawyer (those are separate fields of expertise, so don't assume that an attorney knows much about parliamentary procedure, or that a parliamentarian is an expert on legal matters).

Over the years, this BOD has effectively taken over the decision making power. The governing documents are loosely written and one small clique has entrenched itself. As said earlier, they decided that only directors could vote members' proxies, thus concentrating their power further (maybe like the U.S. Senate 60-vote rule they made up themselves?).

In addition, at BOD meetings where there's not a quorum physically present, they've asserted they have proxies from absent members and proceed merrily to conduct business anyway.

That's why the question about penalty if parliamentary law is broken - what then?

Apparently parliamentary "law' is a misnomer. More like parliamentary "custom," and the Ten Commandments being the Ten Suggestions. ???

[Kim Goldsworthy]

That's why the question about penalty if parliamentary law is broken - what then?

The "penalty" is discipline.

See Chapter XX Section 61 in RONR (10th ed. 2000, publ. Perseus).

Your choice:

1. remove X from office.

2. suspend X of all rights of membership (or some rights; your choice).

3. expel X from the organization.

4. censure X (i.e., an oral reprimand, a condemnation; which you can do without disciplinary procedure.)

5. do nothing.

Option #6 is to elect new people to office in the next election round (i.e., a combination of #5 and #1).

For the record, there is no option to "force the sitting officers/directors to obey the rules."

That is a psychological problem, or a management problem, and not a problem directly of parliamentary procedure.

Analogy:

Mom and Dad have full authority to create the rules of the household, and to enforce those rules.

But Junior retains the "right" to violate those rules, and undergo the resulting punishment.

[Josh Martin]

The governing documents are silent on the use of any kind of proxy at a BOD meeting, but do provide for same at a Membership meeting, so they've gotten away with it. One egregious act was to restrict the granting of voting by proxy to Directors only. State law in this case does not address proxies in BOD meetings, but there's one thing sure.

The governing documents do not specifically state that they CAN be used for quorum purposes.

So the question is: If Parliamentary "law" is broken, what is the recourse?

What is parliamentary "law" precedent?

Surely this has come up before. I need chapter and verse, so if I do take the matter to a lawyer I can point him to it.

For possible penalties under parliamentary law, there is discipline (RONR, Ch. XX and FAQ #20), and depending on the type of violation, it may be possible to rule the action taken null and void. (RONR, 10th ed., pg. 244) Proxy voting is a violation of a fundamental principle of parliamentary law, so it is one of the pg. 244 violations, unless it is specifically authorized by the Bylaws or applicable law. (RONR, 10th ed., pgs. 414-415; FAQ #10)

You can go ahead and show those pages to a lawyer if you want, but what legal penalties there might be is a question for the lawyer.