Submission Date:
Question:
A member library has the following questions concerning libraries that are subject to Open Meetings Law (OML) and have adopted Robert’s Rules of Order for their meetings:
1. Are consent agendas allowed for agencies subject to OML?
2. Should public or association libraries refrain from having their Boards of Trustees accept the financials (motion, second, vote) presented by the library’s treasurer so as not to give the appearance of agreement and assurance that they are accurate and without error?
3. If there is a board committee that, per the bylaws, is not given the power to act independently o[f] the board, is it permissible for a member of such a committee to make a motion to be followed by discussion and vote without a second?
4. From the perspective of OML or others that you know are relevant for the library is it legally acceptable for a board chair to make a motion?
Answer:
For some readers, this might require a bit of background. So, before we dive in, there are two things to know:
First thing: All public libraries (even association libraries) are subject to the “Open Meetings Law” (or the “OML”), so this question applies to all public libraries.
Second thing: “Robert’s Rules” is a common framework for running meetings, but it is not required by law[1] (although it is sometimes in a public library’s bylaws). If a public library board wants to invent a procedure using Discord and Lego to share their board packet and signify how they have voted,[2] and it results in shareable information and documented results, they can do so.
1. Are consent agendas allowed for agencies subject to OML?
A “consent agenda” (or, as defined in Robert’s Rules,[3] a “consent calendar”) is a list of “routine or noncontroversial matters” to be considered for approval all at once without discussion. It is often used by not-for-profit companies, such as libraries, to take action on things like committee reports, etc. with one resolution (“be it so moved to accept and file the reports listed on the consent agenda”).
The potential problem with this is that the OML now[4] requires a public agency to “make available” all documentation to be considered at a public meeting[5] at least twenty-four hours before the meeting, including all the items that might be lumped together in a consent agenda.
Further, there is still some “legacy guidance” out there[6] that suggests the materials related to a consent agenda don’t have to be disclosed (that is wrong). If the items are being voted on as part of the meeting, they need to be available as now required by law, but they can still be acted upon via a “consent agenda.”
2. Should public or association libraries refrain from having their Boards of Trustees accept the financials (motion, second, vote) presented by the library’s treasurer so as not to give the appearance of agreement and assurance that they are accurate and without error?
Hmm... what an interesting question.
It is the duty of a public library board to not only routinely monitor the financial status of the library but to monitor the fiscal activity of the library to ensure it complies with the law and relevant financial policies.
So, while the board should be reviewing and then (if satisfied) accepting the financial report, it is not doing so simply to check it for accuracy, but to:
- Ensure account balances are as expected (based on the budget)
- Assess what to do if balances are not as expected (perhaps due to a budgeting error)
- Make sure deposits and payables are as expected
- Ensure that investments are being managed as required
- Monitor petty cash use as required by law[7]
- Ensure any use of credit is within accepted ranges of authority.
How does a board do this? By phrasing the resolution to match their obligation. So, a resolution should never be simply to “accept the Treasurer’s Report”, but rather, something like:
WHEREAS the board has had an opportunity to review and ask any questions about the Treasurer’s Report;
BE IT RESOLVED that the board notes the Treasurer’s Report was submitted with no further action noted.[8]
On a month where something is out of whack, the resolution could be:
WHEREAS the board as had an opportunity to review and ask any questions about the Treasurer’s Report; and
WHEREAS it was noted that the board had anticipated additional revenue in the form of a grant awarded last March;
BE IT RESOLVED that the board notes that the report was submitted and requests the Finance Committee and Director to develop an alternate plan in the event that the anticipated funds are not received by month-end.
A resolution to acknowledge receiving a report is not the same as acknowledging the board has double-checked the math on every item. However, a board should not review any financial report in isolation, and if things don’t add up, address any concerns via a resolution (as shown above).
3. If there is a board committee that, per the bylaws, is not given the power to act independently o[f] the board, is it permissible for a member of such a committee to make a motion to be followed by discussion and vote without a second?
Ugh. It depends.
If a board is using the current Robert’s Rules (12th Edition) without modification for a body of fewer than 12 members, the answer is no.[9]
If the board has adopted any other standing procedure that bars such action: also no.
On the other hand, if the board is using Robert’s Rules 12th Edition, but with the modification for a body of under 12 people (which requires no seconding): sure!
Whatever rule is selected, it should be applied consistently.
4. From the perspective of OML or others that you know are relevant for the library is it legally acceptable for a board chair to make a motion?
Yes, the board chair can make a motion.
But, for boards that are super into Robert’s Rules—Section 3 sets out how a “member” can “claim the floor,” which is the first part of the intensely detailed method of making a resolution per Robert’s Rules.[10]
The floor is “claimed” when the member is acknowledged as having it by the chair. The chair then guides the process by ensuring there is a second (when required), stating the question, overseeing debate, putting the question, and announcing the result.
So, you probably see the issue: for the chair to “give the floor” to themself and then do all the refereeing for their own motion is… frowned upon.
But again, it is allowed unless the body has adopted rules that disallow it.
I see this question as coming down to common sense and courtesy.
If a motion is of sufficient interest to the board chair that they would like to bring it, it may be better for them to ask the vice chair or another officer to temporarily take over chairing the meeting.
However, if the board chair is putting the motion simply because they are the most comfortable at putting motions,[11] and the process is still being conducted with documented clarity,[12] then it is fine.
The goal—above all other things—is to have a procedure that enables the board to efficiently, clearly, and fairly get business done.
For some people, Robert’s Rules are wonderful; for others, it is just a procedural quagmire. A board should periodically evaluate what process it is using, to make sure it is helping the board be as strong as it can for the library and that the process is being used to unite leadership, not alienate those who don’t know parliamentary procedure.
More important than Robert’s Rules (or any other agreed-upon process), a library board in New York should be trained on both the Open Meetings Law and their duty to monitor fiscal matters, so the materials and mode of conducting meetings complies with the law and protects the library.
Thanks for a great series of questions! See the following page for a “Friendly Cheat Sheet” for Robert’s Rules of Order.
Robert’s Rules FRIENDLY CHEAT SHEET
When the board needs to take action, it does so by a resolution. Resolutions can be used to request committees to investigate certain matters, to authorize the revision of policy, to exercise any of the board powers listed in the Charter or the Education Law or the Not-for-Profit Corporation Law, and to express the general positions of the board.
Creating and Moving a Resolution
Any trustee with a conflict of interest or potential conflict on a particular item should declare it and recuse themselves from the vote the moment the topic is raised. Any declared conflicts of interest should be noted in the minutes by the Secretary or note-taker.
It is important that the precise wording of the resolution be confirmed prior to the resolution being “moved” forward, seconded (if you’re requiring seconding) and voted upon. To do this, the Secretary or note taker should confirm what the text of the resolution is, and it should be read aloud.
The person chairing the meeting can then say, “does someone so move?” If a member says, “so moved,” the Secretary or note taker should note who moves the resolution.
[Optional] The person chairing the meeting can then say, “does someone second the motion?” If a trustee says “yes,” the secretary or note-taker should note who seconds the resolution.
The person chairing the meeting can say, “any discussion?” Discussion can get a little unstructured, but it is wise for the meeting chair to consider monitoring the time and taking care to ensure each person who wishes to speak gets a chance—in recognized order. Discussion can result in the motion being amended (in which case there needs to be a resolution to amend the pending motion), withdrawn, or it can result in a robust discussion that leads to the final vote.
When discussion is ended (if discussion is particularly contentious and long-ranging, this is where you delve into the big book of Robert’s Rules on making amendments, withdrawing questions, and “calling” questions. However, whenever possible, it is nice to work for harmony as to when discussion is over, rather than use a procedure.) When over, the chair can confirm, “discussion is ended, and the board will now vote.”
Any trustee recusing due to a conflict of interest should make sure their abstention from voting is noted in the minutes.
The votes are noted by the note-taker, are tallied, and if the appropriate number required for it to pass is logged, it should be noted that the motion carried.
[1] Helpful commentary on this can be found in Advisory Opinion OML-3205 of NY’s Committee on Open Government, found at https://docsopengovernment.dos.ny.gov/coog/otext/o3205.htm.
[2] How would a board vote with Lego? “Be it resolved: the board will go into executive session for purposes of discussing a sale or purchase of real estate. To make the motion, put a blue Lego brick on the Lego Meeting Tower. Okay. All in favor, put a green brick on the Lego Meeting Tower. All opposed, put a red brick on the Lego Meeting Tower. All abstaining, use a yellow brick. Everyone having contributed to the Tower, the secretary will now photograph the Tower and tabulate the votes.” NOTE: For votes requiring a roll call, trustee names must be added to the Lego bricks. SECOND NOTE: Extra points for you if you noticed that Lego Voting doesn’t require a second to make the motion.
[3] 12th Edition, Section 41:32, at page 343.
[4] As of November 18, 2021.
[5] There are some exceptions to this requirement, which is found in OML § 103(e).
[6] Out there...where? I’m not saying, since hopefully the material will be removed soon and there will only be a dead link there in the future.
[7] Education Law § 259.
[8] There is no requirement to “accept” the report, either in New York State law or in Robert’s Rules (see Robert’s Rules page 456).
[9] See Section 4.
[10] See Robert’s Rules Section 4:4 – 4:8.
[11] Maybe everyone else on the board dislikes public speaking.
[12] For instance, using Lego bricks.
