Wednesday, December 9, 2009

Addendum to "The Constitutional Technicalities of Holding (or not Holding) a Leader Election in 2010"

I had originally posted the text below as comments to a previous blogpost; I've removed that series of comments and am now posting the full text version item here, as an addendum to the previous blog.


Thank you all for your comments thus far. I was hoping that maybe this post would generate some discussion. I’m going to quickly try to respond to a few items which have been raised. I’m going to have to publish comments here in several parts, due to size constraints.

Ken asked whether I thought any motion could be brought forward at a General Meeting, once it’s been called. I believe the answer to that question to be “Yes”. There is nothing in the by-laws which seems to limit the scope of what can be on the Agenda at a General Meeting, even if that meeting were initiated through a petition process to Federal Council. One would think that if an “Other General Meeting” were called as a result of a petition that there might be a narrow scope or set of issues up for discussion. This may be so, but by virtue of calling a General Meeting, the door is open for any and all motions, as long as those motions meet by-law requirement.

I believe this to be true based on my understanding of subsection 4.3.1 of By-law 4, which sets out the requirements for notice for submitting motions 30 days in advance of a deadline, and by virtue of the fact that subsection 4.2 is silent with regards to the scope of what can be heard at a General Meeting. One would presume that if the By-law intended to scope what could be heard at an “Other General Meeting”, it would likely be present in subsection 4.2, as that’s the section which sets out the process of how such meetings can come about in the first place. Further, I haven’t seen anything elsewhere which seeks to scope what can be brought forward at a General Meeting.

Stuart, you indicated that you believe that only a Biennial (or annual) General Meeting should be considered a true “General Meeting”, and that all other meetings of the entire membership would fall under the “Special General Meeting” category. Intuitively, I would agree with you: we have a Constitutional Requirement in Article 8, subsection 8.3, to hold a General Meeting every two years. By-law 4, subsection 4.1, compliments this requirement by setting out a process for holding a “Biennial General Meeting”.

Since By-law 4, in subsection 4.2, goes on to discuss several other circumstances which could lead to the need to hold an “Other General Meeting”, it may make sense to assume that the “Special General Meeting” referred to in subsection 8.6 of the Constitution would pertain to the “Other General Meeting” provisions, even though “Special” and “Other” are clearly different terms. But the situations which could lead to the need to hold a “Other General Meeting” as per the by-law seem to be a little smaller in scope than the requirement for holding an in-person General Meeting, so yes, intuitively there may be some merit to suggesting that a “Special General Meeting” as per the Constitution is the same as an “Other General Meeting” in the By-law.

I continue to argue, however, that a “Special General Meeting” is not the same as an “Other General Meeting”. Remember that there is no Constitutional requirement for holding a “Biennial General Meeting” every two years; the requirement is simply that a “General Meeting” be held at least every two years. The Constitution could have used the language later adopted in the By-law to clearly indicate that the two-year meeting was intended to be a “Biennial Meeting”, but it did not. Subsection 8.3 indicates only that a “General Meeting” be held at least once every two years.

Nomenclature here is important. By-laws are written to implement policy; they are regulatory. Here, we have a by-law which clearly uses different terminology than that described in the Constitution. The Constitution itself distinguishes between “General Meetings” and “Special General Meetings” by virtue of identifying each with their own subsection (8.5 and 8.6, respectively). Clearly, they are meant to be two different things. Both “General Meetings” and “Special General Meetings” are intended to take place according to the “By-laws”. Note the plural here.

Currently, we have only one by-law, it pertains to General Meetings. Presumably, it could include direction on how a Special General Meeting is to be held, but it doesn’t. It distinguishes between types of General Meetings: Biennial vs. Other, but it does not include any provisions for holding a “Special” General meeting. As they by-law is regulatory, I believe nomenclature is important here. And there are implications.

First, I would argue that the Green Party currently has no authority to convene a “Special General Meeting”, as there is no by-law currently on the books which sets out the process for holding such a meeting. We already have provisions in our Constitution which contemplate the passing of new by-laws (for proxy votes). This would be no different. If we want to have a Special General Meeting, then we need a By-law to do so.

Second, as we can’t hold a Special General Meeting, we can therefore only hold a General Meeting, but we can hold two different types: one would be the Biennial, the second would be an “Other”. Both, though, are full-blown General Meetings for the purpose of our Constitution, however there are differences in how they come about, and the processes for holding them.
Third, one might suggest that in the absence of a by-law implementing a Special General Meeting, that we could still hold such a meeting, and make up the rules. I would suggest, No, we can’t, because subsection 8.6 of the Constitution clearly sets out that a Special General Meeting can only be held as per the by-laws. Without a by-law, we’re out of luck.

Now, I realize that not everyone is going to agree with my interpretation, relying in part on nomenclature used in the Constitution versus the By-law. That may be fine. If you believe a Special General Meeting falls under the “Other” category, than it really makes little difference: you follow the process for holding an “Other” general meeting. The only time it might make any difference would be if someone wanted to hold a “Special General Meeting” which wasn’t in keeping with the by-laws, using the argument that since the by-laws are silent on what a Special General Meeting is, we can just go ahead and hold one. Again, I would point out that subsection 8.6 of the Constitution sets out that a Special General Meeting can only be held in accordance with the by-laws. So you either use subsection 4.2 of By-law 4, or you don’t hold a meeting because there is no implementing by-law.

My point is that I believe that currently whatever type of General Meeting you want to hold, you can only do so as per subsection 4.2 of By-law 4, unless it’s the Biennial General Meeting, in which case you follow subsection 4.1.

Mark, you’ve taken issue with my interpretation of what it means to be “present”. This is one item I acknowledge is a little more difficult to wrap one’s head around. I gave a lot of thought to my analysis regarding this yesterday, and while I remain troubled about the logistics of holding a virtual meeting, I continue to believe that the By-laws permit such a meeting.

Subsection 4.1 of By-law 4, which applies to Biennial General Meetings, clearly indicates that these meetings will be in person, as there is a direct reference to a “location” and “date”.

Further, subsection 4.2.2, which pertains exclusive to those “other” General Meetings which are initiated through a petition, references a “location” and “date”. So, if a petition to Federal Council leads to a General Meeting, it must be an in-person meeting, stuck in time.

What about those “Other” General Meetings NOT initiated by a petition? What about an “Other” General Meeting initiated by a 2/3 majority vote of Federal Council ( or that of a committee mandated by a General Meeting ( There are no provisions which state that those meetings must have a “location” and “date”.

Does the absence of a specific reference to a “location” and “date” imply that these types of General Meeting are not required to have either? I believe it does, given the specific provisions for those other General Meetings in 4.1 and 4.2.2. Clearly, the by-law establishes that some of these “other” types of General Meetings do not warrant specific direction regarding date and location. Therefore, they require neither.

And as these types of meetings do not require a physical location, they may be conducted virtually. If you think about it, it’s not beyond the realm of possibility for the Green Party to do so, although the technology might not be quite there yet.

I recall playing a particular board game through the mail, a favourite game of mine called “Diplomacy”. Negotiations took place in a virtual circumstance, and decisions were made regarding the movement of pieces without anyone actually being in the same location or even at the same time. Since the process for deciding how pieces would move was set out clearly, there was never any doubt that the outcome would be agreed upon by all. Trust me, the mechanics of moving pieces in the game of Diplomacy is much more difficult than co-ordinating a vote on motions at a virtual General Meeting conducted through the mail.

Your suggestion that since the Constitution contemplates the ratification of a Constitutional amendment by the membership at large through a subsequent mail-in vote (found in subsection 10.1.3) would appear to lend credence to your hypothesis that all General Meetings are intended to be held in person. Since the Constitution can only be amended at a General Meeting, and since a mail-in ballot is required for subsequent ratification, what would be the purpose of reaching out to the Membership and requiring two separate mail-in ballots? I would agree that there wouldn’t be a lot of value added for conducting our business that way (none, in fact). I note that the same ratification process is in place for Policy motions.

The answer, though, I believe is this: The Constitution and By-laws let us conduct our business in this manner. For the sake of not being foolish, let’s just not do things that way. Just because we can participate in a foolish, resource-consuming process to make decisions does not mean that the Constitution and By-laws must somehow be “wrong” by letting us do so. Again, I take you back to the absence of the need for a “location” and “date” for some of those types of “Other General Meetings” identified in subsection 4.2 of the By-law. Since there is no specific requirement for a location and date in the by-laws (unlike for some of the other General Meetings), then a location and date is not needed.

And since a virtual meeting is contemplated by our Constitution and By-laws, one need not be physically “present” somewhere to participate, because there isn’t a physical location to be present in. That, to me, means being “present” is something different than physically occupying a specific place at a specific time. It therefore must mean participating.

If you think about it, meetings are held this way in the Party all the time. Federal Council doesn’t always meet in “person” (although they do meet in “time”). They meet virtually through a teleconference, and decisions are made. But you needn’t limit your view of this being the only way to conduct a virtual meeting: go back to my Diplomacy example where all decisions were made via the mail. Neither location or time was required. We also have a process in place for electing Federal Councillors through a mail-in ballot which doesn’t require a decision-maker (a voter) to be “present” either physically or at a specific time. As long as legitimate ballots are received by a deadline, the decision will occur on its own.

I continue to maintain that the Constitution and By-laws contemplate General Meetings to occur “virtually”. I’m just not sure that I would ever recommend that they do so, given the range of items which could be potentially on the table at a General Meeting.

I’m not going to get into a discussion about the role of the Leader, because I’ve not had a chance to go through the Elections Canada legislation. I’ll leave that for others. The one point that I want to continue to make, though, is that it seems clear to me that we can elect our Leader through a mail-in ballot process, just as we elect Federal Councillors (because our Leader is, after all, just a member of Federal Council. The Leader is the same as every other Member, save and except that the Leader is filed with Elections Canada).

That’s all for now!

1 comment:

Stuart Hertzog said...

Steve, let's get this absolutely clear. There's no essential difference between the types of General Meeting, which is by definition a meeting of the general membership, except for how they are called.

A General Meeting must be held at least every two years: that's been designated as the Biennial General Meeting. It is called by a majority vote of Federal Council (Bylaw 4.1)

Other general meetings can be called according to Bylaw 4.2, which gives five ways of calling such a meeting, including giving Federal Council the power to call one by a two-thirds vote. So a general meeting to amend the constitution can be called by Council with the notice period and quorum given by Article 8 of the Constitution.

Splitting hairs over the types of general meeting is irrelevant. They're all general meetings.

Amendments to the Constitution and Bylaws are covered by Article 10 of the Constitution. The important points are 10.1.1 and 10.1.3: the proposed amendments must be included in the Notice of Meeting; adopted by a simple majority of people present at the meeting; and then ratified by a majority of mail-in ballots sent to all members. These are the three steps of the process.

The inference of this is that there is no provision in the Constitution or Bylaws for an electronic ballot to change the Constitution; only a mail-in ballot is allowed, which is understandable if one considers when the provisions were written, but could be revisited in light of the increased security now possible for electronic voting.

Right now, the process is for an expensive, time-consuming, and rather irrelevant General Meeting at which only a very few members will be present. Article 8.2 mandates a quorum of at least 50 members representing two regions. Holding it in SGI or Toronto will take care of that and guarantee adoption of any Constitutional change, as well as any Bylaw change.

There are two outstanding issues not yet addressed: first, there is no time limit on the mail-in ratification process; and second, if the amendment is only a Bylaw change, there is no need for mail-in ratification. This may well turn out to be the most contentious aspect of this matter.