Geoff's Guide to Parliamentary Procedure

This website is not affiliated with SAGE or the USENIX Association. The use of the term "SAGE" below is historical, and refers either to the SAGE subgroup of USENIX, or to a precursor of the organization now called LOPSA.

In debate over the crafting of the Rules of the Association, a number of important parliamentary ideas that have arisen.

In response, I shall try to add some value where I can. This all comes under the general title of "parliamentary procedure", and the best reference that we've found on this is:

The Standard Code of Parliamentary Procedure by Alice Sturgis

I'll quote from it liberally.

1. Majority Versus Two-Thirds Vote

Sturgis has some interesting things to say about this. Basically, anything other than simple majority (50%+1) is undemocratic in most circumstances. The reason is that, for example, if a motion requires 2/3 to pass, then 1/3 of the membership can block the will of the majority.

Sturgis: [pp.131]

"Some people mistakenly assume that the higher the vote required to take an action, the greater the protection of the members. Instead, the opposite is true. Whenever a vote of more than the majority is required, control is taken from the majority and given to a minority."

The cases where 2/3 vote is required are where the motion would affect (limit in some way) the rights of others. For example, a motion to limit debate or to suspend the rules. Such motions might trample on the rights of a minority.

Sturgis: [pp.131]

"One exception to the principle requiring only a majority vote is when the vote restricts the right of full and free discussion, as with a motion to limit debate or close debate. These motions require a two-thirds vote. Another exception is where the rights of absentees are involved. For example, most organisations stipulate in their bylaws that the bylaws can be amended only by a two-thirds vote (and in most cases advance notice is also required). Bylaws in some nonprofit corporations (and some state corporation codes) require a two-thirds vote to buy or sell real estate or to mortgage property owned by the organisation."

When deciding on these clauses, the organisation must also take relevant laws into account. For example, the Associations Incorporation Act of Victoria (the Act under which SAGE-AU is incorporated), defines a Special Resolution [29] as:

(2) A special resolution is passed at a meeting if--

(a) of the entitled members of the incorporated association who vote in person or (if proxies are allowed) by proxy at the meeting, not less than three quarters vote in favour of the resolution; and

(b) any additional requirements of the rules of the incorporated association relating to the passing of a special resolution have been met.

(3) A resolution is not to be considered to have been passed as a special resolution under sub-section (2) unless not less than 21 days notice has been given in accordance with the rules to all of the entitled members of the incorporated association specifying the intention to propose the resolution as a special resolution.

Such a Special Resolution is required to change the name [13(1)], statement of purposes [22(1)] or Rules [22(1)] of the Association.

Changes to Bylaws

Sturgis: [pp.208]

"The vote required to amend the bylaws should be stated in the bylaws. Because the adoption of the original bylaws requires only a majority of the legal votes cast, some organisations consider it logical to permit amendment with the same majroty vote, provided that there was advance notice of the proposed amendment. It is more common, however, to require either a two-thirds vote, with prior notice, or a majority vote of the entire membership."

One reason for such a rule is that, upon joining the Association, the member (explicitly or implicitly) agreed to be bound by the Rules of the Association. Changing those rights and obligations might be viewed as potentially quashing rights of members, and thus should be held to a higher account.

A counter argument is that, according to Sturgis, this higher requirement (both proportion of votes and notice) is in order to protect the rights of absent members. This, it could be argued, is achieved by conducting such a change via a ballot of the whole membership, and thus (according to Sturgis) should be subject to a normal majority vote, and appropriate notice and quorum considerations. Of course, a majority vote of the entire membership, even by electronic ballot, is a very high bar to reach in terms of participation, and probably quite unrealistic. (Of course, in this circumstance, it could be also argued that no quorum requirement exists because the entire membership has been given due notice.)

[dparter] the counter argument is that since every member had an opportunity to vote, assuming a reasonable vote turnout, all the the non-voters are in a sense abstentions, one could claim that the quorum was 100%, and thus simple majority is reasonable. I'm ok with either simple majority or 2/3, with an appropriately high quorum for the ballot. Note that of course the board can make amendments much more easily.

Ah... if I understood what Geoff was saying, the Board would be held to a 2/3 vote as well. If the idea is that the membership would need a 2/3 vote, but the Board would just need procedures followed and a majority, I could be fine with that.

Another possibility... you could just declare that bylaws amendments that may result in substantive changes to the rights or responsibilities of members shall require 2/3 vote. Then the chair (and thus the Board) can make a ruling on that fact. Trey 14:43, 17 May 2005 (EDT)

Removal of a Director

Other instances of where a greater majority might be required are:

• Expulsion of a Director by the Board, or
• Censure of a member.

Sturgis: [[pp173]

"An organisation has an inherent right to remove an officer or director from office for valid cause. It also has the right to suspend an officer or director from office. The bylaws should provide for procedures for removal or suspension. These procedures are quite different from those for the disciplining or expulsion of a member.

Officers, directors, or committee members can be removed by the same authority that elected or appointed them. The power to select carries with it the power to remove."

So, according to parliamentary theory, a director cannot be removed by other directors.

In practice, however, it is often necessary to provide a mechanism for a Board to remove a Director for cause. The practical element of this is that such a matter cannot generally wait for a general meeting or ballot of the membership to take place.

In general, and using various government institutions as examples, where a body censures a member of itself, an increased majority is required to protect the rights of that member.

Censure of a Member

With regard to censure or explusion of members, Sturgis has this to say: [pp.223]

"Procedures for the discipline and expulsion of members should be included in the bylaws. However, every organisation has the inherent right to discipline, suspend, or expel a member for valid cause, even if provisions for doing so are not included in the bylaws."

...

"A membership can be terminated and a member expelled because of a violation of an important duty to the organisation, a breach of a fundamental rule or principle of the organisation, or for any violation stated in the bylaws as ground for expulsion."

Sturgis goes on to suggest the essential steps in a disciplinary process are:

1. Charges.
2. Investigation.
3. Notification.
4. Hearing.
5. Decision.
6. Penalty.

Generally, where an appeal process includes appeal to the membership, it may be appropriate that such a vote require a higher proportion to vote in favour of the censure motion.

2. But Which Majority?

Sturgis: [pp.133]

"A majority vote, or any other vote, may be qualified or defined in many ways. For example, in an organisation consisting of 200 members (limited to 200 members) which presently has 180 members in good standing, with a quorum requirement of one-eigth of all the members, which is 23, if there are 150 present at a meeting and only 20 vote, a majority vote would be variously computed as follows;

       A majority of all the memberships                    101
       A majority of all the members in good standing        91
       A majority of the members present                     76
       A majority of a quorum                                12
       A majority of the legal votes cast                    11"

Almost always, the intent is the last one; the majority of the legal votes cast. When we act as a board, this is the case. Abstentions do not count as negative votes; they are disregarded (but noted in the minutes for significantly different reasons -- to record loyal behaviour in conflict of interest circumstances, for example). (We'll return to abstentions below.)

Sturgis:[pp.134]

"The legal theory under which the decision of an organisation may be made by a majority of those voting is that all the members have the right to vote if they wish to exercise that right. The members who fail to vote are presumed to have waived the exercise of their right and to have consented to allow the will of the organisation to be expressed by those voting."

3. Quorum

Different to majority vote, but obviously closely related is how to define quorum.

A quorum is the number or proportion of the members of an organisation that must be present at a meeting in order to transact business legally. [Sturgis pp. 111]

Sturgis: [pp.111]

"The bylaws of an organisation should state the number or proportion of members that constitutes the quorum. In the absence of such a provision, parliamentary law fixes the quorum at a majority of the members. This quorum requirement is often too high, and most groups have a more realistic provision. The number required for a quorum should be small enough to ensure that a quorum will usually be present but large enough to protect the organisation against decisions being made by a small minority of the members."

Also (regarding electronic meetings): [pp.110]

"In any meeting in which the participants do not all meet in a physical location, but communicate through various technologies, the rights of absentees must be carefully protected. These include quorum requirements and the right to reasonable notice."

Quorum for the board, and for committees should follow parliamentary law, and always be set at the majority of (seated) members.

Quorum for matters put before the general membership is all about representation of the membership, and so it should be set not once, but depending upon the situation. For example, quorum for a general meeting (which requires physical presence, and perhaps proxies) is a clearly different circumstance to quorum that might be reasonably achievable in an electronic ballot of the membership. Thus, these should not be treated the same.

4. Abstentions

Another hot topic is how abstentions should be handled.

Basically, abstentions are neither votes in favour, nor against the motion; they are an explicit waiver of a right to vote.

This is important, and subtle. A good way to think about this is to think about in-person meetings as the baseline.

At a meeting, my presence is all that is required to count towards quorum. Thus, an abstention "vote" in an electronic ballot should also count towards quorum, as it announces the member's "presence" at the vote count.

By contrast, an abstention, whether in-person or in an electronic ballot, is not a vote to be counted in calculating proportions for or against a motion.

This distinction is supported by Sturgis: [pp.134]

"The legal theory under which the decision of an organisation may be made by a majority of those voting is that all the members have the right to vote if they wish to exercise that right. The members who fail to vote are presumed to have waived the exercise of their right and to have consented to allow the will of the organisation to be expressed by those voting."

Thus, the interpretation of abstentions should be that abstentions should be used to determine quorum (participation), but majority is calculated without reference to abstentions. This is the moral equivalent of a member being at the meeting (thus being counted in quorum counts), but choosing not to vote on a particular issue.

This reference has more to say on this that is quite interesting:

"How are abstentions counted? Very simply, abstentions do not count as either yes or no votes, but can generally be counted with the majority at the conclusion of voting."

The rule on counting abstentions was established in New Jersey by the Supreme Court over 100 years ago in the case of Mount vs. Parker, 32 NJ 341 (Sup. Ct. 1867). This is the case most often cited by the handful of decisions addressing this question since that time. In that case, the Court stated:

It being the well established law, that where no specified number of votes is required, but a majority of a board regularly convened are entitled to act, a person declining to vote is to be considered as assenting to the votes of those who do. (Id. at 342)

The article goes on to discuss where boards (and courts) incorrectly count abstentions as yes votes. But then is an interesting and relevant passage:

An abstention may not be counted as a yes vote if:

• The person abstaining does so because of a conflict of interest;
• The person abstaining states that it should not be counted with the affirmative votes; or
• Counting the abstention is necessary to bring the affirmative votes to the minimum level required by a statute, or to constitute a majority of a quorum.

This actually says nothing surprising. It basically re-iterates that abstentions should not be counted. (The reason they are sometimes counted with the majority is to create a unanimous vote.)

Note that there are important legal reasons for abstaining from matters that a director or member has personal pecuniary interest in. Not only must a board member abstain in such circumstances, but said abstention must be noted in the minutes to ensure that this is on the record (for the director or member's protection).