[Lnc-business] Analysis of Convention Alternatives

[Alicia Mattson]

Mr. Hall,

In providing your opinion that the existing bylaws would allow an
electronic convention, I believe you've overlooked a key passage in RONR.
Please note on p. 97 (11th ed), the section titled "Electronic Meetings"
which in relevant part states:

"EXTENSION OF PARLIAMENTARY LAW TO ELECTRONIC MEETINGS. Except as
authorized in the bylaws, the business of an organization or board can be
validly transacted only at a regular or properly called meeting—that is, as
defined on pages 81–82, a single official gathering in one room or area—of
the assembly of its members at which a quorum is present.
...
A group that holds such alternative meetings does not lose its character as
a deliberative assembly (see pp. 1–2) so long as the meetings provide, at a
minimum, conditions of opportunity for simultaneous aural communication
among all participating members equivalent to those of meetings held in one
room or area.
...
If electronic meetings are to be authorized, it is advisable to adopt
additional rules pertaining to their conduct..."

Two things to note here, first that the organization has an express rule
that electronic meetings are prohibited unless the bylaws authorize them,
and our bylaws only authorize it for committees and boards.

Second, the electronic meetings spoken of in RONR still must allow for
"simultaneous aural communication among all participating members."  I
realize you were not really getting into nuts and bolts of what such an
electronic meeting would look like, but many of the ideas being proposed
for some sort of online voting do NOT involve simultaneous aural
communication.  They are instead asynchronous events of a very different
nature, more akin to the LNC's email ballots.  The relatively small body of
the LNC has experienced many situations that expose the problems of
conducting business by email, though it is expressly authorized in our
bylaws for boards and committees.  We have seen first-hand why RONR in a
footnote on p. 1 admonishes:

"A group that attempts to conduct the deliberative process in writing -
such as by postal mail, electronic mail (e-mail), or facsimile transmission
(fax) - does not constitute a deliberative assembly.  When making decisions
by such means, many situations unprecedented in parliamentary law will
arise, and many of its rules and customs will not be applicable (see also
pp. 97-99)."

This synchronous vs. asynchronous distinction is a rather important one.

-Alicia


On Fri, May 1, 2020 at 4:17 PM Oliver Hall via Lnc-business <
lnc-business at hq.lp.org> wrote:

> Greetings,
>
> In anticipation of the LNC meeting tomorrow, I am sending a summary of
> options that may be considered with respect to holding the 2020 national
> convention. I am not recommending any particular alternative. My
> intention is only to address the legal issues that each alternative may
> raise.
>
>  1. *_Hold the convention in-person as scheduled:_*
>
> This option would violate Governor Abbott's Executive Order ("EO")
> GA-18, issued on April 27, 2020, which provides that "every person in
> Texas shall, except where necessary to provide or obtain essential
> services or reopened services, minimize social gatherings and minimize
> in-person contact with people who are not in the same househould." EO
> GA-18 expires on May 15, 2020, "unless it is modified, amended,
> rescinded or superseded by the governor."
>
> EO GA-18 (or some similar order) may be in effect on the scheduled
> convention date, making it impossible to proceed. Additionally, the
> Marriott has canceled attendees' reservations and it appears unlikely
> that the Marriott is able or willing to perform under the current terms
> of our contract (including present dates of the convention). _
> _
>
>  2. _*Reschedule the convention for a later date:*_
>
> Article 10(1) of the Bylaws provides that "the Party shall hold a
> Regular Convention every two years, at a time and place selected by the
> National Committee." Therefore, the LNC has the authority to take
> appropriate action to select a new time and place for the 2020 national
> convention.
>
> If the LNC took such action, there is no way to know now whether it will
> be possible to hold the convention at the new time and place selected.
> In Texas, EO GA-18 may be extended, or a new Executive Order may be
> entered, which could make it unlawful to hold the convention at the new
> time and place selected. The same is true in many if not all other states.
>
> Additionally, this alternative may impact the Party's ability to comply
> with ballot access deadlines and other requirements in various states.
> The Party might obtain relief from those requirements through
> litigation, but that is not guaranteed, even under the extraordinary
> circumstances presented by the COVID-19 pandemic.
>
>  3. _*Schedule an electronic convention*_*:*
>
> In my opinion, the LNC has authority under the Bylaws to hold an
> electronic convention, but it is a disfavored alternative that should be
> adopted -- if at all -- only under emergency circumstances that make an
> in-person convention impossible or impracticable.
>
> The only provision of the Bylaws that expressly addresses the manner in
> which a convention must be held is Article 10(1) quoted above. That
> provision grants the LNC authority to hold a convention "at a time and
> place selected by the National Committee." Additionally, Article 7(1)
> provides that the LNC "shall have control and management of all the
> affairs, properties and funds of the Party consistent with these
> Bylaws." Because Article 10(1) does not prohibit an electronic
> convention or otherwise limit the LNC's authority to set the time and
> place of the convention, I conclude that an electronic convention is not
> inconsistent with the Bylaws, at least under the emergency circumstances
> presented here.
>
> I recognize that Article 12 of the Bylaws expressly authorizes boards
> and committees to hold meetings by teleconference or videoconference,
> and that Article 12 is silent with respect to conventions. Additionally,
> one of the "Principles of Interpretation" set forth in Roberts Rules of
> Order, Newly Revised (11th Edition) ("RRONR") (at pp. 589-90) is that
> "If the bylaws authorize certain things specifically, other things of
> the same class are thereby prohibited." Further, Article 16 of the
> Bylaws provides that "The rules contained in Roberts Rules of Order,
> Newly Revised shall govern the Party in all cases to which they are
> applicable..."
>
> The preferred interpretation of Article 12 of the Bylaws, therefore, is
> that it authorizes electronic meetings of boards and committees, and
> thus it generally should be construed not to authorize electronic
> conventions. A "Principle of Interpretation" is not a rule, however, and
> it is not inviolate. Principles that generally apply may not apply in
> unusual or unforeseen circumstances such as the LNC is now facing. (/See
> also/ "Parliamentary Law," Question 107, p. 452, available at
> https://babel.hathitrust.org/cgi/pt?id=mdp.35112104592482&view=1up&seq=498)
>
> (explaining that where a bylaw provision is "impracticable to carry out,
> the only thing that can be done is to change that provision to a
> reasonable one, complying, in making the change, with the spirit of the
> existing by-laws as nearly as possible.") Furthermore, another
> "Principle of Interpretation" in RRONR is that, where a Bylaw contains
> an ambiguity, "Each society decides for itself the meaning of its
> bylaws." (/See /pp. 588-89.)
>
> Because the LNC Bylaws do not appear to have anticipated a global
> pandemic, strictly construing them to prohibit an electronic convention
> under these emergency circumstances, where the Bylaws do not expressly
> prohibit an electronic convention, is unwarranted in my opinion. An
> electronic convention is clearly sub-optimal from a parliamentary
> perspective, however, and it should be disfavored unless and until the
> Bylaws are amended to include an express authorization for an electronic
> convention. Furthermore, in the event that the LNC pursues this
> alternative, it may be wise to adopt a resolution recognizing that an
> electronic convention is disfavored and should not be considered unless
> emergency circumstances make an in-person convention impossible or
> impracticable.
>
>  4. _*Amend the bylaws to include an express authorization for an
>     electronic convention:*_
>
> Article 17 of the Bylaws provides that they may be amended only by a 2/3
> vote of the delegates at any Regular Convention. Therefore, this does
> not appear to be a viable alternative.
>
>  5. _*Amend the articles of incorporation to authorize an electronic
>     convention.*_
>
> Mr. Bishop-Henchman proposed this alternative. I believe it is a legally
> valid option for the reasons he stated. Although the manner of holding a
> convention is typically a matter to be addressed in the Bylaws, there is
> no reason the Articles of Incorporation cannot be amended to allow for
> an electronic convention.
>
> I hope the foregoing analysis is helpful as the LNC considers the best
> course of action to address the challenging circumstances we are facing.
> I will be on the call tomorrow in case I am needed.
>
> Thank you,
>
> Oliver Hall
> /Special Counsel
> /Libertarian National Committee
> 202-280-0898
>
>
>