DATELINE: August 19, 2009, Chicago
We have said it before and we will say it again: Most organizations should avoid Robert’s Rule of Order like the plague. There is nothing wrong with Robert’s Rules of Order when adopted by the right organization for the right reasons. The right organization is a parliamentary or legislative body, not your typical nonprofit charity.
Most people have heard of Robert’s Rules of Order—often in a 7th grade civics class. They unwittingly view it as...
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the gold standard for conducting meetings. They mistakenly think Robert’s is where “I second that motion" comes from. True Robert’s addresses motions, but the 10th Edition’s 643 pages address a lot more—way too much more for most organizations.
Nevertheless, many nonprofits in a knee-jerk response adopt Robert’s Rules without ever having seen a copy of it. For many organizations, there are no consequences to the ill-advised move. They merrily blunder along.
Then there is the organization we heard about last week at the State Bar of Texas’s annual two-day nonprofit law conference. Keep in mind that the attorney who relayed the story did not provide full details for obvious reason—he had represented the organization in addressing the problems that Robert’s Rules of Order created for it.
The attorney told the audience that an officer of the organization had engaged in inappropriate activity that warranted his or her removal. The attorney didn’t indicate what the offense was, but our minds inferred embezzlement or other financial misdeeds. The offending activity could have just as easily involved some sort of employment practices infraction (e.g., sexual harassment) or the failure to disclose a conflict as required by a conflicts-of-interest policy. In any event, the organization had adopted Robert’s Rules of Order. Recall that Robert’s supposedly contains the definitive rules on seconding motions.
What the organization apparently failed to recognize when they adopted Robert’s Rules of Rule is that Chapter XX (starting on page 624) outlines disciplinary proceedings. The rules are themselves ambiguous as to whether they need only be adhered to if specifically adopted by the organization, or whether a blanket adoption of Robert’s Rules of Order requires these rules to be followed. Whatever the intention, the rules provide the offender with the opportunity to argue that the specific disciplinary procedures must be followed if the organization adopted Robert’s Rules of Order. The outlined disciplinary procedures contemplate a confidential investigation, notice to the offender, a trial with specific procedures, the group’s review of the trial, a report, and the implementation of remedies.
In our mind, a provision in the bylaw that specifies that a majority of the board can remove a board member for any one of a specified number of offenses will suffice in most cases. Bylaws and conflicts-of-interest policies often provide for that simple and expedient result. When organizations adopt Robert's Rules of Order after the attorney who drafted the bylaws is out of the picture, they create a situation where the bylaws and Robert's Rules co-exist, which then can raise questions over which set of provisions controls. The apparent conflict can lie dormant for years, but like a bear trap, suddenly snap shut when the right set of circumstances arise.
All of this can provide a potential offender and his attorney with the ample opportunity do delay the process, extract concessions, or gain other advantage. Unless an organization affirmatively wants to adopt Chapter XX of Robert’s Rules of Order and all that comes with it, the organization should not adopt Robert’s Rules of Order. In the situation described by the attorney, the offender tried to gain advantage by relying on Chapter XX.
The attorney did discuss how the organization dealt with the problem facing it once everybody realized the full implications from the adoption of Robert’s Rules. It went on the offensive, threatening to file a lawsuit rather than waiting for the offender to file a lawsuit contesting his or her removal. Shortly after the organization notified the offender’s attorney of its intention, the organization received a letter of resignation. Apparently the offense warranting removal was serous enough that the offender did not want the publicity that comes with a public filing.
While threatening a lawsuit often provides effective leverage, organizations and attorneys need to make that threat with caution and counsel. Such a threat, itself, can constitute or be construed as illegal extortion. It also raises issues under attorney codes of professional conduct. That is not to say indicating an intention to sue is not a legitimate strategy, but caution and care is warranted.
The speaker at the conference has offered yet another example of why most nonprofit organizations should avoid adopting or referencing Robert’s Rules of Order as their code of procedural conduct.
Internal Revenue Service - Circular 230 Disclosure: As provided for in Treasury regulations, any advice (but none is intended) relating to federal taxes that is contained in this communication is not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any plan or arrangement addressed herein.
THE FOREGOING IS NOT AND SHOULD NOT BE TAKEN AS LEGAL ADVICE. IF LEGAL ADVICE IS REQUIRED, THE NONPROFIT OR OTHER PARTY IN QUESTION SHOULD SEEK THE ADVICE OF QUALIFIED LEGAL COUNSEL.
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