Motion or not a motion?

[Guest Kim Laird]

In 2000 the board at that time created a policy that no votes would take place in executive session. The caveat is that it was not made as a motion and it was not voted upon. It was just decided with no formal vote. Also, this did not create an amendment to our bylaws and no such amendment was ever added to the bylaws. We recently have had a membership issue with an individual who was expelled from our group according to the bylaws. He has cited this "board agreement" and said we are violating our bylaws because of this policy. Do we follow our bylaws and RONR or this vague policy which was never a motion, never voted on, and never amended the bylaws?

[Josh Martin]

In 2000 the board at that time created a policy that no votes would take place in executive session. The caveat is that it was not made as a motion and it was not voted upon. It was just decided with no formal vote. Also, this did not create an amendment to our bylaws and no such amendment was ever added to the bylaws. We recently have had a membership issue with an individual who was expelled from our group according to the bylaws. He has cited this "board agreement" and said we are violating our bylaws because of this policy. Do we follow our bylaws and RONR or this vague policy which was never a motion, never voted on, and never amended the bylaws?

A policy can be legitimately adopted by unanimous consent, and the policy could have been adopted by a special rule of order, which would mean it would not need to be added to the Bylaws. The question then hinges on whether your board has the authority to adopt such a policy. Determining this will require a careful review of your Bylaws.

[J. J.]

In 2000 the board at that time created a policy that no votes would take place in executive session. The caveat is that it was not made as a motion and it was not voted upon. It was just decided with no formal vote. Also, this did not create an amendment to our bylaws and no such amendment was ever added to the bylaws. We recently have had a membership issue with an individual who was expelled from our group according to the bylaws. He has cited this "board agreement" and said we are violating our bylaws because of this policy. Do we follow our bylaws and RONR or this vague policy which was never a motion, never voted on, and never amended the bylaws?

Even if this was an adopted, it would be a rule of order and could be suspended (p. 252 ff.), in all probability.

The violation of this rule would not create a breach of a continuing nature and not be subject to a point of order after the fact (p. 244).

Further, it is doubtful that the rule itself or the violation of the rule would, in any way, violate the bylaws.

[hmtcastle]

A policy can be legitimately adopted by unanimous consent, and the policy could have been adopted by a special rule of order, which would mean it would not need to be added to the Bylaws. The question then hinges on whether your board has the authority to adopt such a policy. Determining this will require a careful review of your Bylaws.

Absent a provision in the bylaws, I doubt that a rule (or an "agreement") which prohibits a member from exercising his right to vote would ever be in order, let alone enforceable. At best, it's in effect only when it's voluntarily observed. In other words, there's no voting in an executive session as long as no one votes.

This situation seems akin to the questions we sometimes get about a notice for a special meeting that stipulates (or purports to) that no decisions will be made at the meeting.

[Josh Martin]

Even if this was an adopted, it would be a rule of order and could be suspended (p. 252 ff.), in all probability.

The violation of this rule would not create a breach of a continuing nature and not be subject to a point of order after the fact (p. 244).

I'm not as certain. It would depend on the purpose of the rule.

Absent a provision in the bylaws, I doubt that a rule (or an "agreement") which prohibits a member from exercising his right to vote would ever be in order, let alone enforceable. At best, it's in effect only when it's voluntarily observed. In other words, there's no voting in an executive session as long as no one votes.

A rule which prohibits particular members from voting (such as a "conflict of interest" rule) would certainly need to be in the Bylaws. A rule which prohibits any voting, presumably so that only discussion will be in executive session, would be permissible as a special rule of order, as it does not infringe upon the rights of any individual member. The wisdom of such a rule is another question entirely.

[hmtcastle]

The wisdom of such a rule is another question entirely.

But it's a question with an obvious answer.