ROBERT’S RULES OF ORDER
OVERVIEW AND COMMENTS
A PRESENTATION TO THE
FRESNOCOUNTYEMPLOYEES’ RETIREMENT ASSOCIATION
BOARD OF DIRECTORS
FCERA RETREAT
October 15 / 16, 2008
bySusan F. Coberly
Senior Deputy County Counsel
OVERVIEW AND COMMENTS ON ROBERT’S RULES OF ORDER
(Adapted from Robert’s Rules of Order Newly Revised, 10th Edition)
I.INTRODUCTION
Your Board must operate its meetings according to the Brown Act.
Robert’s Rules are not “legal” but “procedural” in nature.
FCERA’s Board Operations Policy provides that Robert’s Rules “shall guide” the FCERA Board in its proceedings, except as otherwise provided for in that Policy, the Brown Act, and FCERA’s Bylaws.
FCERA’s Bylaws and Regulations[1]:
“Except as otherwise provided in these Bylaws and Regulations, Robert’s Rules of Order shall guide the Board in its proceedings. The order of business shall be at the discretion if the Administrator, unless otherwise directed by the Board. (Bylaws, II.D, emphasis added.)
FCERA’sBoard Operations Policy. [2]
”Except as provided in this policy, the By-Laws and Regulations of the Board of Retirement, or The Brown Act, Robert’s Rules of Order (most recent edition) shall guide the Board in its proceedings.” (Operations Policy, Paragraph 40, emphasis added.)
One purpose of FCERA’sOperations Policy is to provide guidelines describing “the manner in which meetings of the Board and its committee will be conducted so as to ensure that such meetings are efficient and productive.” (Operations Policy, Paragraph 1, and subparagraph 1.c.)
Your Operations Policy also provides, regarding motions to reconsider a Board action, that such a motion may only be brought by a board member who voted on the prevailing side when the action was taken; a board member who cannot move for reconsideration may briefly state reasons for hoping reconsideration will be moved, providing no debate ensues; the request for reconsideration of previous board action must include in detail any information not previously reconsidered; the motion may be seconded by any board member. (Operations Policy, Paragraph 48) Agenda items related to reconsideration may be placed on the agenda by any board member pursuant to the preceding rules. However, reconsideration is proper only at the same board meeting when the action was taken or at the next succeeding regular meeting of the board. (Operations Policy, Paragraph 49.).
Accordingly, when a procedural question arises, you must consult the Brown Act, your Bylaws, and the Operations Policy, together with any other applicable policies and laws.
II. THE BROWN ACT and ROBERT’S RULES
The Brown Act applies to your conduct as Board Members, and to the Board generally, as well as to the conduct of your meetings, their agendas, the allowance for public comments, etc. Your Board also is guided by your Bylaws and the Operations Policy. You are to use Robert’s Rules ”to guide you” when they do not conflict with the Brown Act, your Bylaws and other operative law and regulations.
Robert’s Rules are routinely used – or attempted to be used - by corporations, non-profits, clubs and other assemblies. They are rarely used by public entities, although many public entities have a clause providing that the body is guided by Robert’s Rules. Accordingly, our office is not expert with Robert’s Rules.
These disclaimers aside, I can say that Robert’s Rules sometimes may contradict the requirements of the Brown Act.
Some examples:
Robert’s Rules provides that a member of a deliberative body stand, make a motion, and sit down. Under parliamentary procedure, strictly speaking, there is no discussion of a subject until a motion is made and seconded. The person seconding the motion need not be in favor of it; he or she may merely be seconding in order that the motion may be deliberated.
As a public entity subject to the Brown Act, however, the FCERABoard receives an agenda, prepared and posted in advance. Each agenda item contains a description of a recommended action, e.g., “Consider and approve the selection of Joe’s Pizza Hall to cater lunch at the December 3rdFCERA meeting, with each Trustee to pay $10.00.”
Only the FCERA Board may vote on a motion. The members and the public have no vote.
Under the Brown Act, the Board generally must allow for public comment on an item “before or during the … consideration of the item.” (Sec. 54954.3(a).)
The making of a motion indicates that the maker has decided on his or her preferred course of action on a matter. Will the intent of the Brown Act, to provide public input on an issue before the decision makers’ minds are made up, be followed, if the public is only given a chance to comment after a motion is made and seconded? Will the public, including the members, feel heard, if it is only given a chance to comment after a motion is made and seconded?
Robert’s Rules provide specific rules for the debate of a motion. Generally, the maker of the motion has a one-time right to preferencein speaking about it, immediately after the chair has restated the motion. Although everyone may speak twice on the same motion on the same day, everyone who has not yet spoken even once has preference over anyone who has already spoken. The chair should alternate between speakers who are in favor and those opposed. Also, in order to speak (gain the floor) one must rise only after the floor has been yielded by the person speaking having sat down. There is no name-stacking nor is interrupting allowed. The Robert’s Rules time limit for speaking is 10 minutes at a time.
Robert’s Rules contemplate that only those with the right to vote on a question may stand and be recognized to debate, while the Brown Act, which is paramount to your Board, requires that the public re allowed to comment before or during “consideration” of a matter.
There are specific ways in Robert’s Rules in which main motions and subsidiary motions may be made. As I recall, one thing that recently came up before your Board was theattempted amendment of a motion already made and seconded.
Under Robert’s Rules only one main motion may be pending before the Board at a time. However, Robert’s Rules provides that certain motions that affect or interrupt consideration of the main motion can be moved. One of these is the amendment motion. If someone offers an amendment, a secondary motion, the main motion yields to the amendment. The amendment then takes precedence over the main motion, becoming the immediately pending motion. Only one motion can be immediately pending at a time, but more than one motion can be pending. Many secondary motions can be moved while a main motion is immediately pending, and a main motion normally yields to all secondary motions.
It is the Chair who must provide rulings on Robert’s Rules. Juggling a main motion and secondary motions may prove to be quite a feat, although certainly not beyond the powers of your Chair. The Chair is tasked under Robert’s Rules with clearly announcing the motion(s). Moreover, Robert’s Rules requires that the secretary accurately write down each motion, which is why the Chair is in charge of clarifying and restating each motion so that it is clear. For your Board, the task of writing down the motions and votes made falls to FCERA staff. Your motions need to be precise. If any particular motion is unclear, I hope you will allow the Chair, Mr. Peña, Ms. Van Wyk, Ms. Avalos, or me to request clarification, so that the record of your actions is accurate.
The making of most motions does not interfere with the intent of the Brown Act. There are several I want to alert you to that might, however.
A motion to place a pending motion on the table could cause a problem under the Brown Act. Say at 10 am you start to consider an agenda item, public comment is given, discussion amongst you commences, and for whatever reason someone decides to make a motion to “lay it on the table”. I will always strongly suggest you continue this matter to a specific date/ time certain, because under Robert’s Rules, the Board 10 hours later could remove it from the table. That could pose a problem under the Brown Act, because the public will not have had notice of the taking it back off the table. It should not be necessary for the public to hang out for 10 hours just in case someone might want to take it off the table. So too, a motion for reconsideration, which, under Robert’s Rules can be made later in the same meeting, the public interested in the matter having gone home
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Prepared October 9, 2008
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[1]Hereafter, “Bylaws” shall refer to FCERA’s Bylaws and Regulations as amended by the (FECERA) Board on September 20, 2006, and approved by the Fresno County Board of Supervisors on October 3, 2006.
[2]Hereafter, references to “Operations Policy” shall refer to FCERA’s Board Operations Policy, adopted April 4, 2007, reviewed and modified on September 19, 2007.