MindBenders - Parliamentary Procedure

Mind Benders and Brain Teasers:

This is where we will post questions and situations that will test your knowledge of parliamentary procedure. If you have a parliamentary Mind Bender or Brain Teaser that you would like to share, send it to mindbenders@parlipro.org and we will print the best ones here. Unless otherwise noted, the parliamentary authority is Robert's Rules of Order Newly Revised (RONR), 10th edition. The informal parliamentary opinions expressed here follow general principles of parliamentary law and Robert's Rules of Order Newly Revised (RONR), 10th edition, and are based solely on the brief summary of facts presented, without the benefit of having reviewed the bylaws and other governing documents. An association's own bylaws, covenants, Articles of Incorporation, Special Rules of Order, and local or state laws will supersede what RONR says. A significant difference in facts could result in different conclusions being reached. If there is much at stake, readers are encouraged to seek a formal written parliamentary opinion from a Professional Registered Parliamentarian, which includes a thorough review of the organization's bylaws and governing documents. Nothing here should be construed as an interpretation of statutory law.

Answer to Mind Bender for February 2005:

All references are to RONR 10th ed

Question: Can a specific section of the bylaws be waived if the membership votes in favor of suspending that section? Specifically, the bylaws in this situation prescribe a vote "at the next meeting by secret ballot and a favorable vote of two-thirds of the members present and voting." A ballot was sent to membership: "I agree to waive the above section of the bylaws, to be replaced with a secret ballot vote by mail and a favorable vote of two-thirds of the members voting." Is this allowed?

Answer: The bylaw in question is not a rule that is in the nature of a rule of order and it cannot be suspended.

Robert's Rules of Order Newly Revised (RONR) p. 408-409 has this to say:

"It is a fundamental principle of parliamentary law that the right to vote is limited to the members of an organization who are actually present at the time the vote is taken in a legal meeting...Exceptions to this rule must be expressly stated in the bylaws. Such possible exceptions include: (a) voting by postal or electronic mail, or facsimile transmission (fax), and (b) proxy voting."

RONR p. 556 goes on to say:

"If it is desired to elect by mail, by plurality vote, by preferential voting, or by cumulative voting, this must be expressly stated [in the bylaws], and necessary details of the procedure should be prescribed..."

On p. 255, RONR says:

"Rules which embody fundamental principles of parliamentary law...cannot be suspended. As a further example, since it is a fundamental principle of parliamentary law that the right to vote is limited to the members of an organization who are actually present at the time the vote is taken in a legal meeting (p. 408), the rules cannot be suspended so as to give the right to vote to a nonmember, or to authorize absentee (pp. 408-409) or cumulative (p. 429) voting, even by a unanimous vote."

And RONR p. 244 says:

"The only exceptions to the rule that a point of order must be made at the time of the breach arise in connection with breaches that are of a continuing nature, in which case a point of order can be made at any time during the continuance of the breach. Instances of this kind occur when...(d) any action has been taken in violation of a fundamental principle of parliamentary law (p. 255)...In all such cases, it is never too late to raise a point of order since any action so taken is null and void."

All of the above leads to the conclusion that unless the bylaws provide for voting by mail in this situation then doing so would be null and void, even if the members unanimously agreed to it.