Violation of Bylaw which Provides for its own Suspension

[Josh Martin]

Assume that a society has a rule in its Bylaws which is not in the nature of a rule of order. The rule provides for its own suspension by a 2/3 vote. At a meeting, a member makes a motion which conflicts with the rule. No one notices the conflict at the time. The motion is adopted. A member researches the Bylaws further, and at the following meeting he raises a Point of Order that the motion conflicts with the Bylaws and is therefore null and void. For the purposes of this discussion, let's assume that the conflict between the motion and the rule in the Bylaws is unambiguous.

Questions:

• How should the chair rule on the Point of Order?
• Should an appeal be permitted if the chair rules the point well taken? If he rules the point not well taken?
• Does it make any difference whether the motion was adopted by a 2/3 vote or by a majority vote (if this can be determined)?

For some background, this is a topic I've been mulling over for a while. I occasionally advise a society which has many rules in the Bylaws (not in the nature of rules of order) which provide for their own suspension by a 2/3 vote. This issue hasn't come up yet but I suspect it's bound to come up eventually.

I have developed my own thoughts on the matter but I'm curious to hear other opinions first.

[Ann Rempel]

Assume that a society has a rule in its Bylaws which is not in the nature of a rule of order. The rule provides for its own suspension by a 2/3 vote. At a meeting, a member makes a motion which conflicts with the rule. No one notices the conflict at the time. The motion is adopted. A member researches the Bylaws further, and at the following meeting he raises a Point of Order that the motion conflicts with the Bylaws and is therefore null and void. For the purposes of this discussion, let's assume that the conflict between the motion and the rule in the Bylaws is unambiguous.

Questions:

• How should the chair rule on the Point of Order?
• Should an appeal be permitted if the chair rules the point well taken? If he rules the point not well taken?
• Does it make any difference whether the motion was adopted by a 2/3 vote or by a majority vote (if this can be determined)?

For some background, this is a topic I've been mulling over for a while. I occasionally advise a society which has many rules in the Bylaws (not in the nature of rules of order) which provide for their own suspension by a 2/3 vote. This issue hasn't come up yet but I suspect it's bound to come up eventually.

I have developed my own thoughts on the matter but I'm curious to hear other opinions first.

This seems very close to p. 244 (b)despite the terminology in this case being "suspend the bylaw." Off the top of my head, I'll go with continuing breach if the conflicting motion was adopted by less than a two-thirds vote. If adopted, by at least a two-thirds vote, then I'd say the action stands.

Good thing they have you for their parliamentarian!

[hmtcastle]

• Should an appeal be permitted if the chair rules the point well taken? If he rules the point not well taken?

Are there situations when the appeal of a ruling is not permitted? I understand that an appeal is not allowed "when there cannot possibly be two reasonable opinions" but, of course, when an appeal is made, each side thinks his is the only reasonable opinion. In any case, there certainly seems to be the possibility of two reasonable positions in this instance so why would an appeal not be permitted? And if it isn't, why couldn't that ruling (that an appeal is not permitted) be appealed?

[Josh Martin]

This seems very close to p. 244 (b)despite the terminology in this case being "suspend the bylaw." Off the top of my head, I'll go with continuing breach if the conflicting motion was adopted by less than a two-thirds vote. If adopted, by at least a two-thirds vote, then I'd say the action stands.

An interesting theory, and I can certainly see the logic behind it. I'm glad I asked the two-thirds vote question.

Are there situations when the appeal of a ruling is not permitted? I understand that an appeal is not allowed "when there cannot possibly be two reasonable opinions" but, of course, when an appeal is made, each side thinks his is the only reasonable opinion.

Well, you answered your own question there.

In any case, there certainly seems to be the possibility of two reasonable positions in this instance so why would an appeal not be permitted?

And now you answered my question. And yes, I agree that there are clearly two reasonable positions in this instance, as RONR does not directly answer this question.

And if it isn't, why couldn't that ruling (that an appeal is not permitted) be appealed?

I suppose it could be.

[Dan Honemann]

Assume that a society has a rule in its Bylaws which is not in the nature of a rule of order. The rule provides for its own suspension by a 2/3 vote. At a meeting, a member makes a motion which conflicts with the rule. No one notices the conflict at the time. The motion is adopted. A member researches the Bylaws further, and at the following meeting he raises a Point of Order that the motion conflicts with the Bylaws and is therefore null and void. For the purposes of this discussion, let's assume that the conflict between the motion and the rule in the Bylaws is unambiguous.

Questions:

• How should the chair rule on the Point of Order?
• Should an appeal be permitted if the chair rules the point well taken? If he rules the point not well taken?
• Does it make any difference whether the motion was adopted by a 2/3 vote or by a majority vote (if this can be determined)?

For some background, this is a topic I've been mulling over for a while. I occasionally advise a society which has many rules in the Bylaws (not in the nature of rules of order) which provide for their own suspension by a 2/3 vote. This issue hasn't come up yet but I suspect it's bound to come up eventually.

I have developed my own thoughts on the matter but I'm curious to hear other opinions first.

I think we need a specific example. Without one, I'm inclined to guess that the point of order must be well taken because, if a conflict still exists, the conflicting motion must have done something more than just suspend the rule.

[Trina]

Assume that a society has a rule in its Bylaws which is not in the nature of a rule of order. The rule provides for its own suspension by a 2/3 vote. At a meeting, a member makes a motion which conflicts with the rule. No one notices the conflict at the time. The motion is adopted. A member researches the Bylaws further, and at the following meeting he raises a Point of Order that the motion conflicts with the Bylaws and is therefore null and void. For the purposes of this discussion, let's assume that the conflict between the motion and the rule in the Bylaws is unambiguous.

Questions:

[*]How should the chair rule on the Point of Order?

It seems to me that the language of p. 244(b) provides guidance (by analogy anyway). If the vote margin was adequate to suspend the suspendable rule, then the conflicting motion stands. Of course there's always the problem of determining (after the fact) what the vote margin actually was at that earlier meeting. Since the rule that was broken was not in the nature of a rule of order, I don't think one -- meaning the chair -- can take the position that the point of order had to be timely (as in the case described in the footnote on p. 244).

[*]Should an appeal be permitted if the chair rules the point well taken? If he rules the point not well taken?

Echoing Mr. Mountcastle's confusion, I have trouble with the whole concept of not permitting an appeal -- it's hard to picture how this plays out in practice -- if members of the assembly believe their position is reasonable, and that the chair is wrong, what happens then? However, in the situation you describe, things seem confusing enough that appeals should be permitted either way.

[*]Does it make any difference whether the motion was adopted by a 2/3 vote or by a majority vote (if this can be determined)?

Again going with the p. 244(b) analogy, I think it would have to be very clear that the 2/3 vote was there (in order for the chair to rule against the point of order). Certainly a rule in the bylaws deserves at least as much protection as a main motion previously adopted by the assembly (the case described in 244(b)).

In general, since the effect of suspending a bylaw may well have long-term consequences (not just a suspension for the duration of a meeting, as would be the case for a bylaw which is in the nature of a rule of order) it would be important to establish that the votes to adopt the offending motion were actually adequate to suspend the bylaw. In many cases it might not be possible to establish that after the fact. And I guess that gets into problems with potential appeals of the chair's ruling (on the point of order) being decided by a plain old majority vote of the assembly, whereas the proper suspension of the bylaw may have required a 2/3 (or perhaps even higher, depending on the specific bylaws language) vote.

Perhaps examples would throw more light (as Mr. Honemann has already suggested).

[Dan Honemann]

I'm afraid that this focus on page 244 b may be highly misleading, and I would suggest that it is important to recognize the difference between suspending a rule and the adoption of a rule that actually conflicts with it.

For example, while it is proper to suspend for the duration of a session (by a two-thirds vote) a rule in the bylaws which imposes a five minute limit on speeches (assuming it doesn’t itself provide that it may not be suspended), and adopt a rule for the session imposing a different limit, it would be improper to attempt to adopt a special rule of order that imposes a different limit, and any such special rule of order, if adopted, would be null and void.

By the same token, if a bylaw provision prohibits the use of any recording devices during meetings, but provides that this rule may be suspended, it would be proper to suspend the rule (by majority vote) for the duration of any session and adopt a rule that the secretary may use a recording device during the session to assist him in the preparation of the minutes, but it would be improper to attempt to adopt a rule that recording devices may be used by the secretary during all meetings, and any such rule, if adopted, would be null and void.

However, I am not at all clear as to exactly what sort of facts Mr. Martin has in mind.

[Trina]

I was imagining the suspension of rules that aren't about in-meeting procedure at all. For example, a rule about qualifications for office, such as term limits, might contain provision for its own suspension. In such an event, the society could be stuck with the results of its decision for quite some time (the entire term of someone who was elected after the rule was suspended to make him eligible). Hopefully bylaws which allow for their own suspension will clearly define the conditions and duration of suspension.

I can imagine that ruling on a point of order about a conflicting motion (if suspension of the bylaw wasn't explicitly voted upon by the assembly) might be quite complicated, in terms of determining if something equivalent to a suspension did or did not actually take place.

Hopefully Mr. Martin can provide an example of the type of suspension he foresees.

[hmtcastle]

Hopefully bylaws which allow for their own suspension will clearly define the conditions and duration of suspension.

Life would be a lot simpler if nothing in the bylaws could be suspended. If you want a rule that can be suspended, stick it somewhere else.

But perhaps someone can provide an example of a suspendable rule of order which would "belong" in the bylaws. In other words, that would be better in the bylaws than somewhere else.

[Josh Martin]

Life would be a lot simpler if nothing in the bylaws could be suspended. If you want a rule that can be suspended, stick it somewhere else.

The organization in question has a separate Constitution and Bylaws, if that helps any.

Although the point is still well-taken and I may advise the organization to consider this.

However, I am not at all clear as to exactly what sort of facts Mr. Martin has in mind.

Okay, let's try this situation on for size.

Background: This is a college student organization. Elections for the Student Senate are conducted by an online voting system (authorized by the Constitution) in which any member of the general student body may vote. Four elections are held each year - one in the spring to fill the bulk of the positions, one in the fall to fill a smaller number of positions (as well as any vacancies), and two for the purpose of filling mid-term vacancies. The Student Senate may call special elections to fill vacancies if needed (and must call a special election to fill a vacancy in an officer position).

These basic facts are in the Constitution and may not be suspended. Most of the details for the time-line of an election, however, are in the Bylaws, such as the following we will use for an example:

A. Applications shall be made available at least two weeks before they are due.

Assume a motion is made that for this election, applications will be made available the following Monday and will be due one week later, in the interest of saving time. This motion is adopted. The Bylaws provide for the rule to be suspended by a 2/3 vote, but no such motion is made. In accordance with the orders of the Senate, the Vice President (who runs elections) makes applications available the following Monday and states the due date as one week later. The Student Senate meets weekly (on Wednesdays) while classes are in session. Thus, when the Senate meets again, applications are still being taken.

If a member raises a Point of Order at this meeting that the motion violates the Bylaws, how should the chair rule on the Point of Order?

What if a member raises a Point of Order at a later meeting (after the deadline for applications from the motion)? What if a member raises a Point of Order even after when the deadline should have been, according to the Bylaws? At what point would the Point of Order no longer be timely? The applications determine who shall be on the online ballot (but the software does provide for write-in votes).

In reality, motions to suspend the Bylaws relating to election time-lines usually involve quite a few clauses of the Bylaws, but we'll use this example for the sake of simplicity. Thankfully, so far they have remembered to make a motion to suspend the Bylaws. Student organizations have very high turnover, however, so it's hard to tell what may happen in the future.

Hopefully bylaws which allow for their own suspension will clearly define the conditions and duration of suspension.

The only conditions defined are a 2/3 vote. It has generally been assumed by the body that the "duration" is whatever duration is necessary to accomplish the reason it was desired to suspend a Bylaw, as the motion to suspend a portion of the Bylaws is generally followed by a motion to take some action which would violate the Bylaw. On rare occasions the duration will be specified in the motion to suspend the Bylaw.

[hmtcastle]

The organization in question has a separate Constitution and Bylaws, if that helps any.

Yes, I think it does. Thanks.

[Dan Honemann]

If I understand the facts correctly, at a Wednesday meeting a motion was adopted providing that, for the upcoming election, applications will be made available the following Monday and will be due one week later. Such a motion would be in order pursuant to a suspension (by a two-thirds vote) of a bylaw rule that applications shall be made available at least two weeks before they are due. No motion was made and adopted to suspend this rule, but the chair declared the motion adopted and no point of order was raised at the time. We are not given the exact language of the bylaws which provides that the rule that applications shall be made available at least two weeks before they are due may be suspended, but one assumes that it means that the rule may be suspended in order to permit the adoption of a motion such as the one which was adopted.

It appears to me, therefore, that since the rule is a suspendible rule, a point of order concerning its breach must be raised at the time of the breach. None was, and it will be too late to raise the point at the following Wednesday meeting.

But I haven't read your bylaws.

[Josh Martin]

If I understand the facts correctly, at a Wednesday meeting a motion was adopted providing that, for the upcoming election, applications will be made available the following Monday and will be due one week later. Such a motion would be in order pursuant to a suspension (by a two-thirds vote) of a bylaw rule that applications shall be made available at least two weeks before they are due. No motion was made and adopted to suspend this rule, but the chair declared the motion adopted and no point of order was raised at the time. We are not given the exact language of the bylaws which provides that the rule that applications shall be made available at least two weeks before they are due may be suspended, but one assumes that it means that the rule may be suspended in order to permit the adoption of a motion such as the one which was adopted.

You understand the facts correctly.

It appears to me, therefore, that since the rule is a suspendible rule, a point of order concerning its breach must be raised at the time of the breach. None was, and it will be too late to raise the point at the following Wednesday meeting.

That was my first instinct as well.

But I haven't read your bylaws.

Yes, of course, this is ultimately a question of Bylaws interpretation.