At the 25 June 2015 open session of the Board of Governors, voting occurred or was arranged to occur in ways that blatantly contravened the Board’s bylaws and Robert’s Rules of Order. Motions had been made in absentia by the chair of the governance committee to implement four changes to the Board’s bylaws. I will review substantive arguments regarding specifics of the proposed bylaw changes in subsequent posts. Here I want to exclusively focus on the process by which voting on the proposed bylaw changes was arranged in a way that contravened the Board’s bylaws and contravened Robert’s Rules of Order.
Near the start of the so-called open session on 25 June 2015, the chair of the Board announced that the full Board would hold a discussion of the four proposed bylaw changes on 25 June 2015, but would not hold a vote that day. Instead, he announced that an electronic vote would subsequently be held before terms of board members expired, that is on or before 30 June 2015. At least to my eyes, the reason for this unilateral decision was clear: many external Board members (appropriately called “at-large” board members) were absent from the 25 June 2015 board meeting. Yet, based on attendance at the 25 June 2015 meeting, the only way that it seemed possible to me to garner a two-thirds supermajority for the proposed bylaw changes would be to somehow count votes of these absent external Board members. Given that Board bylaws prohibit proxy voting and only allow votes by members physically present or present via the phone, a subsequent electronic vote seemed to be the only way for the Board’s executive to guarantee that the proposed bylaw changes would pass.
Given that I have strong substantive problems with three of the four proposed bylaw changes, I therefore called for all such motions to be voted on in-person during the open session of 25 June 2015. An external Board member called for the opposite, namely a vote approving an electronic vote on bylaw changes after the meeting but before the end of the calendar month. My motion failed. The motion to approve electronic voting on bylaw changes garnered 13 of 21 votes, i.e. it garnered a majority but less than a two-thirds supermajority of the votes.
Board bylaws specify that altering bylaws requires a two-thirds supermajority. Board bylaws specify that only members who are present in the boardroom or on teleconference or video-conference can vote for bylaw changes or other so-called ‘special resolutions’. Board bylaws require that bylaw changes and other special resolutions require a five-day notice prior to a vote. The motion authorizing electronic voting for bylaw changes therefore modified existing bylaws. Therefore the motion authorizing electronic voting on bylaw changes required at least a two-thirds supermajority per the Board’s existing bylaws. Waiving the five-day notice requirement also required a two-thirds supermajority per the Board’s existing bylaws.
At the board meeting on 25 June 2015, an internal Board member raised the objection that electronic voting was itself a bylaw change. On 26 June 2016, I raised a point of order that the motion allowing electronic voting did not garner a two-thirds supermajority and did not meet the five-day notice requirement. My formal point of order was:
Point of Order: Due to severe procedural defects, the Carleton University Board of Governors needs to either nullify or rescind [the] motion to hold an electronic vote to change Board bylaws, where [the] motion stipulated that an electronic vote occur on or before 30 June 2015.
Rationale: The motion for an electronic vote contravenes the Board’s bylaws in two fundamental ways. First, the motion for an electronic vote abrogated article 1.1 of the bylaws by not garnering a two-thirds vote for changing the bylaws, which currently requires that only members who are present in the boardroom or on teleconference or videoconference can vote on special resolutions. A simple majority vote should never count for altering the bylaws, which is what [the] motion did. Yet [the] motion for an electronic vote was approved with 13 votes in favour, 8 opposed, and no abstentions out of the 21 voting members present, i.e. fell one vote short of the required supermajority. Second, [the] motion [for an electronic vote] modified the bylaws by eliminating the five-day notice requirement for special resolutions per article 11.4(a) of the bylaws. Modifications of bylaws are special resolutions per article 10.2. The motion for an electronic vote was first raised from the floor on 25 June 2015, i.e. without the five-day notice. Willful contravention of Board bylaws seems like an actionable breach of contract.
Action requested: Do NOT hold an electronic vote on bylaw changes until at least the next full meeting of the Board of Governors
Later on 26 June 2015, the chair of the Board dismissed my point of order, claiming that my point of order was raised too late and therefore violated Robert’s Rules of Order. In particular, the chair wrote via the university secretary that:
According to Robert’s Rules of Order (Chapter VIII, 23), a Point of Order “…must be raised promptly at the time the breach occurs.” The Rules also note that “…the time to raise these points of order is when the chair states the motion. After debate on such a motion has begun – no matter how clearly out of order the motion may be – a point of order is too late.”
I immediately claimed that this was a specious argument for multiple reasons. First, the point of order was raised in a timely manner by the aforementioned internal Board member on 25 June 2015, but never resolved at the open session. Second, the objection by the chair of the Board to my raising a point of order after debate had begun was totally irrelevant because motions regarding voting do not have debates. Third, during the past year, the chair of the Board has unilaterally decided to hold re-votes long after votes on motions had been finalized (see for example here, under the section titled “Due Process 1: Basic Board Procedures”). Finally, I invoked Roberts Rule of Order Chapter VIII, Article 47, titled “Votes that are null and void even if unanimous”, whose first sentence states:
No motion is in order that conflicts with the laws of the nation, or state, or with the assembly’s constitution or by-laws, and if such a motion is adopted, even by a unanimous vote, it is null and void.
The motion to allow electronic votes on bylaw changes was clearly a violation of existing bylaws hence was a perfect invocation for Robert’s Rule of Order Article 47. Nonetheless, within an hour of my invoking Article 47 to the chair of the Board and the university president, Carleton’s Board of Governors officially called the electronic vote to alter its bylaws.
While I am not a lawyer, Carleton University’s Board of Governors’ abrogation of their own bylaws seems like a willful breach of contract.
Note added 14 August 2015: I would like to retract the statements that appeared in my blog post on 25 June 2015 regarding Carleton University’s general counsel, Steven Levitt. The statements were not made with any malicious intent to lie or defame Steven Levitt or any other member of the Board of Governors. I completely retract the false information and apologize for the mistake.