Bylaws Purportedly Enacted by State Committee Invalid
State Committee Not Authorized to Cancel Convention
The conversation below was extracted from another thread in IPR. It is compiled here in this order to improve readability. Redundant language was removed.
The controversy surrounds an attempted coup by the former officers of the Libertarian Party of Oregon, lead by former Chair Wes Wagner, where the State Committee purportedly adopted new bylaws, canceled the convention, extended their terms of office, and declared many members in good standing as no longer being valid members.
The identified parties in the online conversation are:
Wes Wagner – Former Chair of the LP of Oregon; claims to still hold the position.
Aaron Starr – Former Treasurer of the Libertarian National Committee and current member of the National Association of Parliamentarians.
Chuck Moulton – Former Vice Chair of the Libertarian National Committee, current attorney and Professional Registered Parliamentarian.
Wes Wagner: The bylaws were voted on by the State Committee who passed them unanimously. Further had the new bylaws not been passed (which they were), and the terms of the existing officers actually expired (which they actually don’t since their successors were not elected), that same committee that passed these bylaws unanimously would have been appointing new officers. Care to take a guess of who would get elected again?
On the upside the next time that question is asked it will go out to the registered Libertarian voters in Oregon to answer that question.
Aaron Starr: The problem you have is that your State Committee cannot enact new bylaws any more than the LNC can elect new bylaws for the national party. You seem to want to gloss over that problem.
The way LPO’s bylaws are written — not the fake set you submitted to the Secretary of State, but rather the one that Marc Montoni provides a link to in Comment #109 — the terms for the officers begin and end at the close of the convention.
[editor’s note: LPO Bylaws available here: LP Oregon Bylaws]
Your bylaws – the real ones – do not have a provision that states you get to remain in office until you are replaced.
Here is what your bylaws – the real ones – actually state:
Article V – Officers and Directors
SEC. 2. Officers and Manner of Elections. The officers of the Libertarian Party of Oregon shall consist of the Chairperson, the Vice Chairperson, the Secretary, and the Treasurer. Terms of office of all elected officers and directors shall begin immediately upon the close of the annual convention. Nominations of all officers and directors elected at the annual convention shall be from the floor, no nominating committees being permitted.
A. Limitations. All officers and directors shall be members in good standing of the LPO. Although state offices or directorships may be combined, no member of the State Committee may cast more than one vote.
B. Vacancy and Succession. In the event of a vacancy in the office of state chairperson, the state vice chairperson shall serve as State Chairperson until the close of the next annual convention. In the event of a vacancy in any other office or in the position of any committee person at large, the State committee may select any LPO member to fill any such vacancy until the next annual convention.
What you thought you could get away with was a scheme where you made a motion to adjourn the March 12 convention until May 21, knowing that before the second meeting of the convention takes place you would attempt to completely rewrite the bylaws and declare the convention canceled. That takes chutzpah!
You almost pulled off a bloodless coup. Almost!
Fortunately, you made a horrible miscalculation.
What you did not count on was that the Convention delegates would meet anyway – exactly as they voted to do, at the time and place scheduled (in accordance with the motion you made on March 12).
And when that convention had its final adjournment on May 21, your term as Chair came to a conclusion in accordance with Article V, Section 2. The remaining members of the board – the county selected representatives – met at the close of the convention, just as they are required to do according to Article VI, Section 3. And they filled the vacancies in the officer positions in accordance with Article V, Section 2B.
Bottom line: The rest of us clearly see that you are no longer Chair of the LPO.
Wes Wagner: [T]he officer positions do not expire as you are trying to interpret it under the old rules. The plain text does not state when their term ends which makes it ambiguous. Ambiguities are settled by a process under Robert’s.
Aaron Starr: If terms only begin and never end, then every person who has ever been elected an officer for the LPO is still an officer to this day. That would be absurd. If officer terms begin at the close of the convention, it’s logical that the previous officers’ terms end at that same point in time.
Wes Wagner: Roberts states that terms should be explicitly stated as either ending at a set time or be qualified as until their successors are elected.
In the absence of such language you are right, it could be interpreted three ways.
1) they expire at the end of the convention
2) they expire when successors are elected
3) we have a crapload of officers
Chuck Moulton: The bylaws and Robert’s are both ambiguous. See RONR (10th ed.), p. 556, l. 31-35; p. 557, l. 1-7. Robert’s suggests specifying a term of years or a term that ends when successors are elected in the bylaws, but does not specify what happens when the bylaws are silent.
However, the bylaws in effect on March 12 are unambiguous about Wes’s own term of office. Wes Wagner was initially the vice-chair, becoming chair when Jeff Weston resigned. His term of office ended when the convention adjourned on May 21. [emphasis added]
LP Oregon Bylaws, Article V, Section 2, Clause B (Vacancy and Succession):
In the event of a vacancy in the office of state chairperson, the state vice chairperson shall serve as State Chairperson until the close of the next annual convention [emphasis added]. In the event of a vacancy in any other office or in the position of any committee person at large, the State committee may select any LPO member to fill any such vacancy until the next annual convention.
LPO bylaw V.2.B specifies that the term of office for any filled vacancies other than the chair end at the next annual convention (it is ambiguous whether this is at the start or end of that convention) and filled vacancy of chair ends at the end of the next annual convention. In the absence of election of successors, it would be somewhat strange for the terms of all vacancy filled positions to expire while the terms of other state central committee members persisted.
Therefore in my opinion it is more reasonable to follow the interpretation that all terms expire at the end of the annual convention.
Interpretation 3 is absurd.
Aaron Starr: Is Wes Wagner the Chair of LPO?
Chuck Moulton: In my opinion his term ended at the close of the annual convention on May 21, as did the terms of all officers and at-large.
I don’t have enough information to know whether the State Committee meeting at which Tim Reeves was selected as chair (to fill the vacancy) was valid or whether some other valid State Committee meeting was held selecting someone else chair (e.g., Wes Wagner). So my opinion can only cover whether Wes Wagner was chair right after the annual convention, not whether he is chair now.
Aaron Starr: [T]he State Committee had no power under the party’s bylaws to amend the bylaws.
That authority is a matter decided by the Convention, as specified in Article XVI of the LPO’s bylaws.
Have you seen anything that leads you to conclude that the Oregon State Committee’s purported adoption of a new set of bylaws is valid?
Chuck Moulton: No.
Aaron Starr: The members attending the March 12 convention adjourned the convention until May 21. Did the State Committee have the authority to cancel the May 21 meeting?
Chuck Moulton: No.
Aaron Starr: Does the convention in the absence of a quorum have the power adjourn sine die?
Chuck Moulton: Yes.
Aaron Starr: Concerning the State Committee, LPO’s bylaws state in Article VI, Section 3F: “A quorum shall be 20% of the members of the State Committee.”
If there are 11 members and 25 vacancies, is the quorum 20% of 11 or is the quorum 20% of 36?
Chuck Moulton: 20% of 11.
Aaron Starr: What do you need to see to determine whether the decision to fill vacancies at the post-convention State Convention meeting, as mandated by Article VI, Section 3 of LPO’s bylaws, was valid?
Chuck Moulton: LP Oregon bylaw VI.3.1 says a meeting shall be held at the close of the annual convention, so the fact that there was no chair to call the meeting is immaterial. That the annual convention was adjourned until May 21 and that the state committee presumably received adequate notice of the March 12 convention should be sufficient to satisfy the notice requirement of State Committee meetings in bylaw VI.3.2.
But bylaw VI.3.6 imposes a 20% quorum requirement and Wes Wagner has alleged this quorum was not met.
I am not in a position to evaluate the proper composition of the State Committee at the county level and I will never be in as good a position as native Oregonians to figure that out, so I won’t venture a try. However, if I am given a list of valid board members and a list of board members who attended, I do feel qualified (in part by virtue of my bachelor’s degree in mathematics) to take 20% of the former number and judge if it is greater or less than the latter number.
Aaron Starr: According to the adopted minutes of the post-convention meeting of the State Committee, the following five individuals were credentialed as members present to vote. David Long (Washington County), Don McDaniel (Clatsop County), Helen McDaniel (Clatsop County), Richard Whitehead (Washington County), Steve Dodds (Yamhill County).
The following six individuals were also recognized as members but were not present: Ron Bream (Multnomah County), David Terry (Yamhill County), Angela Grover (Marion County), Orrin Grover (Marion County), Lars Hedbor (Clackamas County), and Jim Karlock (Multnomah County).
By unanimous votes, the individuals present elected officers to fill the vacancies caused by the adjournment of the Convention.
If there are no other members of the State Committee, do the five out of eleven members constitute a 20% quorum under the bylaws?
Chuck Moulton: Yes.
Aaron Starr: If per chance there are additional unknown members of the State Committee, would there need to be an additional 15 such members of the board, bringing the total to 26 members, for the five present to not be considered a quorum?
Chuck Moulton: Yes.
Aaron Starr: If there is to be a challenge of the credentials of those attending that meeting, which met the notice requirement because its time and place was mandated by the bylaws, when must such a point of order be raised and who has standing to make it? Would the arbiters of such a challenge be the State Committee members assembled on May 21?
Chuck Moulton: This is a complicated question. The answer under parliamentary procedure may be different from the answer under corporate law. I am not going to attempt to research court cases and respond as a lawyer (although I am an attorney, I am not admitted to practice in the state of Oregon). So this is not legal advice.
Robert’s discusses credentials reports and credentials challenges in the context of conventions rather than of boards. For a board credentials are handled by the secretary rather than a credentials committee and the check of credentials is generally pro forma.
The state committee members assembled would be the only ones with standing under parliamentary procedure to challenge credentials and that challenge should be made contemporaneously. The state committee members (i.e., the county representatives because their terms had not expired) would be the arbiters of the challenge.
However, Robert’s makes clear that even though quorum challenges generally can’t affect prior action, with clear and convincing evidence it can.
RONR (10th ed.), p. 338, l. 22-28:
Because of the difficulty likely to be encountered in determining exactly how long the meeting has been without a quorum in such cases, a point of order relating to the absence of a quorum is generally not permitted to affect prior action; but upon clear and convincing proof, such a point of order can be given effect retrospectively by a ruling of the presiding officer, subject to appeal.
Although I have not researched court cases on this point, I suspect courts are likely to extend standing to a broader class than just state committee members. I also suspect that courts are likely to consider overturning action taken by people without proper credentials or action taken without a quorum, using a public policy justification and citing the Robert’s passage above as parliamentary cover.
Let me provide a hypothetical to demonstrate why this would be a good thing. Suppose all factions discussed intended to attend the May 21 Oregon LP convention; however, there was a freak blizzard that left 6 feet of snow on the ground. Practically no one was physically able to attend. 5 rabble rousers had arrived at the hotel a week early. They held the convention themselves, adjourning it immediately for lack of a quorum. Then they held the post-convention state committee meeting mentioned in the bylaws. None of these people were on the state committee (none were county representatives, none were officers, none were at-large), but they read a credentials report declaring they were valid representatives and declared they had met the quorum requirement. They then proceeded to do many far reaching things at the limit of the state committee’s authority while not exceeding it. Could their action not be challenged simply because they were the arbiters of their own action? I find such a position difficult to support.
Aaron Starr: Does former Chair Wes Wagner, who was no longer a member of the State Committee, have standing to challenge the credentials of the attendees? If so, when must such a point of order be raised? Would the arbiters of such a challenge be the State Committee members assembled on May 21?
Chuck Moulton: My answer is the same as above. Under Robert’s because Wes Wagner’s term as chair had ended, he would not have standing to challenge then by virtue of his old position. If he also represented a county, then he would have standing by virtue of that position. Only state committee members would have standing to challenge the credentials report.
Under Robert’s the challenge to credentials should be made contemporaneously to the reading of the credentials report. The arbiters of the challenge would be the state committee members assembled May 21, with any challenged member ineligible to vote on challenges to his own credentials.
But again, I believe a court of law would allow a broader class of people to challenge standing and would allow that review after the fact, though with a presumption that the adopted credentials report was valid. I have not researched corporate law court cases in Oregon or elsewhere on this point — this is just my intuition as a legal scholar. This is not legal advice.
Aaron Starr: In the absence of any other information presented so far, are the current officers of the LPO the individuals elected at the May 21 post-convention State Committee meeting?
Chuck Moulton: In my opinion as a Professional Registered Parliamentarian the slate of LPO officers selected at the May 21 post-convention State Committee meeting to fill vacancies have a stronger case for recognition than Wes Wagner’s slate of officers.
I believe there are genuine issues of law and material fact to be litigated though. Wes’s allegations about improper credentials and lack of a quorum could potentially overturn action taken at that meeting if a court of law grants him standing, rules that a challenge to credentials and a point of order about lack of a quorum can have retrospective effect, and finds that Wes Wagner proves that 1 or less of the people listed were properly credentialed. I find it very unlikely any court would accept Wagner’s quorum definition though… if even 2 of those present were valid state committee members, Wes Wagner would probably lose a challenge to quorum.
Of course the new bylaws purported to be passed by the state committee in April are another monkey wrench entirely. I don’t know how a court will deal with those. In an ideal world state corporate law ought to treat such a passage as invalid, but unfortunately state law can deviate substantially from parliamentary procedure.