Pastor, Church & Law

§ 6.12.03

---

Editor's note: This section of Pastor, Church & Law refers to the 11th edition of Robert's Rules of Order Newly Revised. The 12th edition of Robert's Rules of Order Newly Revised came out in September 2020. Richard Hammar, a Professional Registered Parliamentarian, details changes especially pertinent to churches in “17 Changes Relevant to Churches in Newest Robert’s Rules of Order.” Church leaders should exercise caution and reference the 12th edition before making any changes in procedure.

Key point 6-12.03. Every church should adopt a system of parliamentary procedure to govern membership meetings. While Robert's Rules of Order Newly Revised, is a commonly used system, it is not the only available system and will not apply unless a church has adopted it in its governing documents.

Since the earliest days of recorded history, human beings have met to make decisions by debate and consensus. Rules for the proper conduct of group meetings first emerged in the pre-Christian Greek agora and Roman forum. They were further refined in early English history, and eventually described the procedures utilized in Parliament. These "parliamentary procedures" were carried over to the American colonies, with some modifications.

In 1801, Thomas Jefferson published a Manual of Parliamentary Practice, which was quickly adopted by the House of Representatives and several state legislatures. In 1845, Luther Cushing published the first manual on parliamentary procedure for non-governmental associations and organizations. It was called Manual of Parliamentary Practice: Rules of Proceeding and Debate in Deliberative Assemblies, or "Cushing's Manual" for short. But Cushing's work proved inadequate for several reasons. Its greatest deficiency was Cushing's assumption that the burgeoning number of charitable and civic associations would individually create their own rules of order, much like Congress, supplemented by some basic principles common to all. Few did so. By the mid-19th century it was clear that a comprehensive body of parliamentary procedure, generally applicable to all charitable, civic, and business organizations, was needed. The answer came from an unlikely source.

In 1863, a young engineering officer in the Union Army named Henry Martyn Robert (1837-1923) was asked to preside over a church meeting in New Bedford, Massachusetts while recuperating from a bout of tropical fever. He agreed to do so, though he knew nothing about parliamentary procedure. It was a disaster. He later described the experience as follows: "I plunged in, trusting Providence that the assembly would behave itself. But with the plunge went the determination that I would never attend another meeting until I knew something of parliamentary law." This experience would motivate Robert to write Robert's Rules of Order. Since no publisher shared Robert's enthusiasm for his work he published the book himself, limiting the first printing to 4,000 copies. This printing sold out immediately, and Robert's book soon became the most comprehensive and widely used treatise on parliamentary procedure in the world.

Robert's Rules of Order has been revised several times over the years. The current edition is the 11th edition (2011).

Like Henry Robert, many church leaders are unfamiliar with parliamentary procedure, and "trust Providence" that church members will behave themselves during church business meetings and that all will go well. Fortunately, this often is the case. But sometimes meetings can become contentious, and ignorance of parliamentary procedure can have disastrous consequences. Church leaders need to do more than "trust Providence" in conducting business meetings. They need to be familiar with the basic rules that apply to the conduct of deliberative assemblies.

This section will address several common scenarios that illustrate the need for church leaders to be familiar with parliamentary procedure.

1. WHICH SYSTEM OF PARLIAMENTARY PROCEDURE APPLIES TO CHURCH MEMBERSHIP AND BOARD MEETINGS?

An organization may adopt any procedure that it desires for the conduct of membership meetings. Robert's Rules of Order Newly Revised, or any other body of parliamentary procedure, is not applicable unless specifically adopted.

Churches can and should select a specific body of parliamentary procedure by an appropriate clause in the church's governing document. If a particular system of parliamentary procedure has been used by common consent long enough to constitute a church practice or custom, then it probably would be considered as binding as if specifically adopted by a provision in the church's governing document.

If no body of parliamentary procedure has been adopted, either by reference in a church's governing document or by custom, then the ordinary or "common law" rules of parliamentary law should be observed in the conduct of a meeting.

Churches should not assume that Robert's Rules of Order Newly Revised, is the only parliamentary authority. It is not. On the contrary, there are alternative systems of parliamentary procedure, some of which are excellent (some would say superior) alternatives.

Many churches adopted the original Robert's Rules of Order, or one of the early revisions. The original text was published in 1876, and it has been revised ten times. The current (eleventh) edition was released in 2011. Obviously, churches that select "Robert's Rules" should be sure to identify this system of parliamentary procedure as "the most recent revision of Robert's Rules of Order." Otherwise, they may have to resort to obsolete rules to resolve parliamentary questions.

The preface to the 11th edition of Robert's Rules of Order Newly Revised, states:

This 11th edition supersedes all previous editions and is intended automatically to become the parliamentary authority in organizations whose bylaws prescribe "Robert's Rules of Order," "Robert's Rules of Order Revised," "Robert's Rules of Order Newly Revised," or "the current edition of" any of these titles, or the like, without specifying a particular edition.

As a result, any church that has identified Robert's Rules of Order or Robert's Rules of Order Newly Revised in its governing document will be bound by the rules contained in the 11th edition. It is for this reason that church leaders should be familiar with the new text.

No system of parliamentary procedure should serve as a substitute for specific provisions in a church's bylaws. To illustrate, the fact that a church wanting to prohibit absentee voting has adopted Robert's Rules of Order Newly Revised should not serve as substitute for a bylaw provision prohibiting absentee voting. There is no assurance that a civil court would regard the adoption of "Robert's Rules" as an exception to the general rule that state nonprofit corporation law will control when a church's bylaws are silent.

Once it is determined that a church has adopted a particular body of parliamentary procedure, the civil courts generally will apply and enforce that procedure so long as no doctrinal question is involved. One federal appeals court ruled that the United States Constitution bars the civil courts from resolving disputes over parliamentary rulings.[397] Crowder v. Southern Baptist Convention, 828 F.2d 718 (11th Cir. 1987). Noting that the contested parliamentary action (made at the 1985 Southern Baptist Convention) had been reviewed and upheld by the highest Southern Baptist tribunal, the court concluded that "where religious organizations establish rules for their internal discipline and governance, and tribunals for adjudicating disputes over these matters, the Constitution requires that civil courts accept their decisions as binding upon them."

2. SUSPENDING THE BYLAWS

Can church members vote to "suspend" the church bylaws during a membership meeting? Consider the following scenario. A church's bylaws state that board members serve a maximum of six years in office. The church is in the midst of a construction project, and a board member is a contractor who has provided invaluable assistance to the church during this project. Several church members want this person to remain on the board following the expiration of his term of office. A member made a motion at an annual church business meeting to "suspend the bylaws" to allow this to happen. Can church members, at a duly called business meeting, take action to suspend the bylaws?

In most cases, the answer is no. Consider the following ten points.

1) State nonprofit corporation laws under which many churches are incorporated generally make no provision for the suspension of bylaws.

2) Suspension of bylaws is an extraordinary action that is not found in most church bylaws, but it is important to confirm that this is the case.

3) If your church bylaws allow for their own suspension, then be sure to comply with any procedural requirements. For example, the bylaws of some public charities and for-profit corporations provide for their own suspension, but they typically require a super-majority vote, such as two-thirds or three-fourths of the members present.

4) Many churches have adopted the current version of Robert's Rules of Order as their official body of parliamentary procedure governing church business meetings. Section 25 of Robert's Rules of Order states: "Rules contained in the bylaws (or constitution) cannot be suspended no matter how large the vote in favor of doing so or how inconvenient the rule in question may be unless the particular rule specifically provides for its own suspension, or unless the rule properly is in the nature of a [procedural] rule of order." For churches that have not formally adopted any body of parliamentary procedure, Robert's Rules of Order is persuasive authority. Section 2 of Robert's Rules of Order states: "Although it is unwise for an assembly or a society to attempt to function without formally adopted rules of order, a recognized parliamentary manual may be cited under such conditions as persuasive."

5) Some corporations have amended their bylaws to remove a provision authorizing their suspension. One common reason for doing so is that a provision authorizing bylaw suspension is anti-democratic. That is, the bylaws are adopted by the corporate membership following an intensive period of drafting and consideration. Permitting this fundamental legal document, or a provision therein, to be suspended by a specified percentage of members present at an annual or specially called meeting of the members typically will result in a relatively small minority of the total membership dictating a suspension of the bylaws.

6) Churches that choose to provide for the suspension of their bylaws can limit potential problems by requiring a super-majority vote and by limiting the suspension option to specific bylaw articles or sections.

7) In a famous case, Supreme Court Justice Oliver Wendell Holmes noted that "hard cases make bad law." The point being that bad precedents often result from difficult circumstances. Churches that feel compelled to suspend their bylaws, even when legally authorized, may end up regretting doing so. At a minimum, they will be establishing a precedent that may be referenced on many future occasions whenever an emergency arises. The very concept of corporate bylaws being subject to suspension is at odds with the fundamental nature of bylaws as a set of rules governing corporate practice and administration. In one sense, the bylaws are the one document that protects a church against anarchy. Any compromise to the stability of a church's bylaws raises the potential for future problems.

8) Bylaws typically provide for their own amendment. In many cases, bylaw amendments take effect immediately. Bylaw amendments should be viewed as an alternative to bylaw suspension.

9) Proper drafting of bylaws often can avoid the clamor for their suspension that may arise out of temporary emergencies. Church leaders should periodically have their bylaws reviewed by legal counsel.

10) Suspending the bylaws, when not authorized, will result in a "cloud" over the integrity and legitimacy of whatever action is taken while the bylaws are suspended.

3. "EXECUTIVE SESSION"

The term "executive session" originated in the United States Senate early in our history, and referred to the consideration of items referred by the president (the chief "executive"). Most of these matters dealt with presidential appointments. The distinguishing feature of these sessions was that they were private. Only members of the Senate could be present, together with other persons who had been invited and whose presence would facilitate the matters under consideration.

Over the years, the concept of executive session has been applied generally to any portion of a meeting of any board or group of members that is held in private. In churches, a board, committee, or meeting of members can be conducted, in whole or in part, in executive session. This means that only the members can be present, along with anyone they invite.

Robert's Rules of Order, Newly Revised, describes executive session as follows: "An executive session in general parliamentary usage has come to mean any meeting of a deliberative assembly, or a portion of a meeting, at which the proceedings are secret."

What if a church board goes into executive session, and a board member divulges to church members or nonmembers the information shared during the meeting? Robert's Rules specifies that "a member can be punished under disciplinary procedure if he violates the secrecy of an executive session, unless that which would be reported in the minutes—that is, the action taken, as distinct from that which was said in debate—was not secret, or secrecy has been lifted by the assembly."

Most state nonprofit corporation laws permit members to inspect board minutes. Does such a right extend to the minutes of a board while acting in executive session? No court has addressed this issue, at least in the context of a church. An argument can be made that the minutes of the executive session are not accessible by church members since the meeting itself is secret and cannot be attended by members. If members are not allowed to attend a board meeting being conducted in executive session, it logically follows that they should not be allowed to inspect minutes that record what was said and done by the board at the meeting. One possible exception is referenced in the above-quoted section in Robert's Rules pertaining to minutes that merely record an action taken.

4. ABSENTEE VOTING

Absentee voting ordinarily is not permitted unless authorized by a church's governing document. Robert's Rules of Order Newly Revised, states:

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. … An organization should never adopt a bylaw permitting a question to be decided by a voting procedure in which the votes of persons who attend a meeting are counted together with ballots mailed in by absentees, since in practice such a procedure is likely to be unfair.

Example. A Utah court ruled that an action taken by members of a nonprofit association by mailin ballot was invalid since it was not authorized by nonprofit corporation law or the association's own bylaws.[398] Levanger v. Vincent, 3 P.3d 187 (Utah App. 2000).

5. PROXY VOTING

Proxy voting refers to voting by means of a substitute. For example, a church member designates another member to vote on his behalf at a membership meeting. Churches rarely intend to permit proxy voting. Robert's Rules of Order Newly Revised specifically discourages proxy voting:

Ordinarily, it should neither be allowed nor required, because proxy voting is incompatible with the essential characteristics of a deliberative assembly in which membership is individual, personal, and non-transferable. … Voting by proxy should not be permitted unless the state's corporation law … absolutely requires it.

Few if any state nonprofit corporation laws require proxy voting. Rather, they recognize proxy voting only in the event that a corporation has not eliminated this type of voting by a provision in its charter or bylaws. This can lead to unexpected consequences when an incorporated church's charter and bylaws do not prohibit proxy voting. To illustrate, section 15 of the Model Nonprofit Corporation Act, which has been enacted in several states, recognizes proxy voting:

A member entitled to vote may vote in person or, unless the articles of incorporation or the bylaws otherwise provide, may vote by proxy executed in writing by the member or by his duly authorized attorney-in-fact. No proxy shall be valid after eleven months from the date of its execution, unless otherwise provided in the proxy.

Both absentee and proxy voting are inconsistent with the most basic purpose of a deliberative assembly—the reaching of informed decisions through debate and consensus.

As one court observed in a case involving the recognition of proxy and absentee voting in a meeting addressing the retention of a rabbi:

The rabbi had been the center's rabbi for over 20 years and was seeking life tenure in accordance with his claim that such was required under the tenets of Jewish law. It is obvious from the tenor of the membership meeting that the congregation was split almost evenly amongst those members who 'loved' him or 'disliked' him vociferously. Such a meeting, by its nature, would call for extensive deliberation. Who can tell how many congregants were swayed to vote one way or the other based upon the arguments presented at the meeting?[399] Frankel v. Kissena Jewish Center, 544 N.Y.S.2d 955 (N.Y. App. 1989).

Incorporated churches not wanting to recognize proxy voting should review their charter and bylaws to determine if either contains a provision prohibiting it. If not, an amendment would be in order. It should not be assumed that a church's formal adoption of Robert's Rules of Order Newly Revised will result in the prohibition of proxy voting.

6. IMPROPER AND DILATORY MOTIONS

A number of parliamentary rules are designed to facilitate the efficient consideration of business. Two of these rules are the prohibitions against improper and dilatory motions. These rules limit the ability of church members to hijack church business meetings with bizarre and irrelevant motions.

improper motions

Robert's Rules of Order Newly Revised lists the following examples of improper motions:

• Motions that conflict with the corporate charter, constitution or bylaws.
• Motions that conflict with procedural rules prescribed by national, state, or local laws.
• In some cases, motions that conflict with a previously adopted motion that has not been rescinded, or considered and rejected.
• Motions presenting practically the same question as one that is still under consideration.
• Motions that are outside the object of the organization as specified in its governing documents.

dilatory motions

Robert's Rules of Order Newly Revised defines a dilatory motion as one that "seeks to obstruct or thwart the will of the assembly." It is the duty of the chair to rule that such motions are out of order as dilatory.

Example. At a church business meeting, a member makes a motion to divide the assembly after every vote, even if there is no doubt as to the outcome. After several of these motions was made and lost, the chair should rule further motions to divide by this same member to be out of order as dilatory, since further consideration of these frivolous motions would detract from the business of the church.

7. LIMITATIONS ON DEBATE

For how long may a member speak for or against a pending motion at a church business meeting? Can members speak indefinitely, or are there limits? Robert's Rules of Order Newly Revised specifies:

[A] member, having obtained the floor while a debatable motion is immediately pending, can speak no longer than ten minutes unless he obtains the consent of the assembly. Such permission can be given by unanimous consent, or by means of a motion to extend the limits of debate, which requires a two-thirds vote without debate.

What happens when a member's time is exhausted while speaking for or against a pending motion? Robert's Rules of Order Newly Revised specifies that "when a member's time is exhausted, the chair rises and—if the member does not immediately conclude his remarks—calls his attention to the fact by an appropriate signal, or by interrupting him, if necessary."

Note that an organization can adopt a rule allowing members to speak a second time on the same question, and the members can adopt a motion limiting or expanding debate during a session.

8. IS THERE A DIFFERENCE BETWEEN RECEIVING, ACCEPTING, OR ADOPTING, A REPORT?

It is common for motions to be offered at church board and membership meetings to "accept" or "receive" a report. For example, after the church treasurer makes a report to the church board at a monthly meeting, a board member moves that the report be "received." Is this an appropriate motion, or would some other motion be more appropriate?

"receiving" a report

A report of an officer or committee is "received" by a board or assembly when it is presented or read. In other words, the person making the report presents it, while the listeners receive it. As a result, it is incorrect parliamentary practice for a motion to be made at a board or membership meeting to "receive" a report after it is presented, since the act of presenting it constitutes reception by the hearers.

Example. A church treasurer makes a report of the church's finances at a monthly meeting of the church board. Following the presentation of the report, and the treasurer's response to questions and requests for clarification, a board member moves "to receive the treasurer's report with appreciation." This motion is nonsensical, since the treasurer's report was received when it was read.

no action

Many reports made by officers and committees to a board or assembly are for informational purposes, and contain no recommendations or motions. A typical example is the monthly report of a treasurer to a church board. There is no need for a motion to accept or adopt such a report, since it is for informational purposes only and contains no recommended action. The appropriate response by the chairperson to the reading of such reports is to refer them to the secretary for filing with the minutes, without any formal motion.

In this regard, Robert's Rules of Order Newly Revised states: "Apart from filing such a report … no action on it is necessary and usually none should be taken."

Example. At a regularly scheduled meeting of a church board, a committee member reads a report that contains no proposed actions. It would be appropriate for the chairperson to thank the committee and request that the report be placed on file, and then move to the next item of business. A motion to accept or adopt the report is not necessary, since it is informational.

adopting or accepting a report

Robert's Rules of Order Newly Revised states that motions to adopt or accept the report of an officer or committee are synonymous, and signify that the entire report becomes "the act or statement of the assembly." Such motions are common in church board and membership meetings. To illustrate, it is common for motions to be made and passed to accept a treasurer's report or the minutes of the previous meeting. It is important to understand, however, that such motions have the effect of "the assembly's endorsing every word of the report, including the indicated facts and reasoning, as its own statement." This may not be a problem in some, or even most, cases. For example, a board may want to formally adopt the minutes of each meeting, since they reflect the actions of the board itself. But, there can be situations in which it would be more appropriate for a board or assembly to merely receive a report (by having it presented).

In some organizations, the treasurer's periodic reports to the board of directors are not accepted or adopted (so long as they contain no specific recommendations for action). Instead, the chairperson requests the secretary to file these reports without action. At the end of the fiscal year the board adopts a motion to accept the report of the CPA firm that audits the organization's books. This has the effect of relieving the treasurer of any personal culpability for his or her reports (excepting fraudulent or illegal activity). It also may minimize the board's culpability that might otherwise exist if it adopted or accepted each report of its treasurer. The organization itself, at its annual business meeting, also adopts or accepts by motion the CPA's audit report.

Some reports of officers or committees contain one or more recommendations for action. In such cases it is appropriate and necessary for a motion to adopt the recommendation. Usually, such a motion is made by the person presenting the report.

9. SPECIAL RULES FOR SMALL MEETINGS

The previous edition of Robert's Rules of Order Newly Revised contained a few important changes in the conduct of "small boards" which it defined as those "where there are not more than about a dozen members present." Since most church boards have fewer than "about a dozen" members, these relaxed rules apply. In practice, few persons who preside over church board meetings have any idea that relaxed rules apply, much less what these rules are.

The previous (10th) edition of Robert's Rules of Order Newly Revised contained the following relaxed rules for small meetings:

• Motions to close or limit debate are not allowed.
• Members can engage in "informal discussion" of a matter while no motion is pending. This contravenes the basic parliamentary principle that the only way to bring business before a deliberative body in through motions.
• On routine and unimportant matters for which there is no apparent opposition, the chair can take action by "unanimous consent" by stating, "If there is no objection" the matter is decided upon. Unanimous consent is not limited, however, to small boards. It is often used in larger deliberative bodies. So, it is unclear why this is listed as one of the different rules that applies to small boards.
• The chair need not rise when putting questions to a vote.
• The chair is allowed to discuss a motion without rising or leaving the chair.
• The chair ordinarily is allowed to make motions and vote on all questions.

The 11th edition of Robert's Rules Newly Revised makes a few changes to these rules, as noted in Table 6-3: