Letter of Complaint to the Ombuds and Appeals Committee of the Green Party of Canada Regarding a Violation of my Rights as a Member of the Party by the August 2016 General Meeting

The following is a letter of complaint that I have submitted to the Green Party of Canada's Ombuds and Appeals Committee (with copy to the Executive Director of the Party and my Ontario representative on the Party's Federal Council).

August 12, 2016

Re: Unconstitutional Actions and Activities Taken by the August 2016 General Meeting

To the Ombuds and Appeals Committee:

I am submitting a complaint to you in keeping with processes outlined in the Green Party of Canada’s Constitution and By-laws, and specifically in keeping with subsection 7.5.1 of the Party’s by-laws.  I am a member in good standing in the Green Party of Canada, and believe that I meet all of the criteria in the Constitution and By-laws of the Party necessary to file this complaint.

Basis of Complaint

This complaint is based on a decision of a unit of the Party which affected my rights as a member.  Specifically, the General Meeting chose to follow Robert’s Rules of Order as a process for making decisions at the recent BGM in Ottawa, rather than the Constitutionally prescribed Rules of Procedure (also known as “Green Rules”).

More specifically, the following items form the basis of my complaint:

1)      The use of Roberts Rules of Order contravened the Party’s Constitution;

2)      As a result of this contravention, decisions made at the General Meeting after the “adoption” of the Roberts Rules motion by the General Meeting must be considered null and void, as the General Meeting had no authority to make decisions through a process not contemplated by the Party’s Constitution.;

3)      The motion brought forward to adopt the use of Roberts Rules was not of an emergency nature, nor was the emergency nature of the motion even discussed/debated.  Failing to meet the test of an emergency motion, it should have been ruled out of order;

4)      The motion brought forward to adopt the use of Roberts Rules was not in keeping with the Green Party of Canada’s Constitution and By-laws, which set out the use of Rules and Procedures for General Meetings.  The General Meeting is bound to decision-making within the framework of the Party’s Constitution and By-laws. The motion should have been ruled out of order by the General Meeting facilitator;

5)      The expectations of members of the Party both in attendance at the General Meeting and those not in attendance has been that the General Meeting would conduct itself in accordance with the Party’s Constitution and By-laws.  That the General Meeting did not use the Green Party’s Rules of Procedure contravened not only the party’s Constitution and by-laws, but the expectation of the membership that the General Meeting would conduct itself in accordance with the Party’s Constitution;

6)      As the expectation of members that the General Meeting would conduct itself in accordance with the Party’s Constitution, By-laws and Procedures was not met, my rights as a member of the Party were violated by the General Meeting.

Potential Issue with Complaint Jurisdiction - Analysis

As per subsection 7.5.1 of the by-laws, the Ombuds and Appeals committee can only accept complaints pertaining to “organized Units and Functionaries of the Party”.  The General Meeting appears not to be a “Unit” or a “Functionary” of the Party, despite the fact that it is a decision-making authority (like Federal Council, which is defined as a Unit). 

However, the list of “Units” as per Section 7 of the Constitution cannot be considered exhaustive.  Subsection 7.2.7 of the Constitution allows for the extra-Constitutional creation of new “Units” by Federal Council or the General Meeting.

While I understand that the General Meeting does not undertake to identify itself as a “Unit” of the Party, I wish to point out that one of the roles of the Ombuds and Appeals Committee is to be responsible to the general membership at General Meetings (By-law Section 7.4), and is indeed sometimes called upon to make rulings on matters in front of the General Meeting, despite the General Meeting not having met the strict definition of “Unit” or “Functionary” of the Party. 

I submit that this complaint is similar in nature to complaints which could have been submitted to the Ombuds and Appeals Committee at a General Meeting, in keeping with the Ombuds and Appeals Committee’s function as per Section 7.4 of the by-laws.  The only difference is that this appeal of a decision made at the General Meeting is coming after the fact, and from an individual who did not participate in the General Meeting. 

Based on the fact that the Ombuds and Appeals Committee does receive and rule on complaints at the General Meeting, I believe the Ombuds and Appeals Committee has jurisdiction to receive and hear this complaint regarding a decision made by the General Meeting.

A quick comparison of Robert’s Rules of Order vs. “Green Rules”

The Green Party’s Rules of Practice (“Green Rules”) establish a consensus-based approach to decision-making, one which involves the role of “facilitator” as a guide to achieving consensus.  The very outcome sought by Green Rules is different from that of Robert’s Rules, which employs a “majoritarian” form of decision-making, where the outcome is to determine whether a matter under consideration simply passes a specific threshold of support. 

Not only are the Rules quite different in terms of the way in which they are implemented, the very outcomes sought by each set of rules is quite different.  Decision-making through the use of Green Rules seeks to arrive at a decision acceptable to a consensus of the decision-making body.  Establishing that consensus often requires the use of a mediatative process built into the Rules, led by the meeting Facilitator.  Meetings held under Robert’s Rules do not seek consensus, but instead are used only to determine support.

Motion GC16-08

This motion would amend the Party’s Constitution and By-laws to replace the use of Green Rules with Roberts Rules at General Meetings and the meetings of Federal Council.  I understand that the motion was adopted by the General Meeting, along with other motions “greenlighted” through the Bonser Ballot process.

However, in keeping with Section 10.1.3 of the Constitution, Motion GC16-08, although adopted by the General Meeting, was not in effect immediately after adoption for use at the General Meeting, because the motion had not been “ratified” by Members in a subsequent mail-in ballot.  This Section of the Constitution reads:

10.1.3

Amendments shall be adopted by a majority of the votes cast by Members in good standing at a General Meeting, and shall only become effective upon Members in good standing passing an identically worded amendment by a vote of greater than 1/2 (50%) of the votes cast in a Members' vote conducted by mail-in ballot, with a ballot return date of no later than one-hundred-twenty (120) days following the General Meeting at which the amendment was passed.

Therefore, the use of Robert’s Rules was not available to the General Meeting by the simple adoption of Motion GC16-08.

Adoption of Robert’s Rules by the General Meeting

Although not in attendance at the General Meeting, I understand that, on or about the time that the General Meeting’s Agenda was adopted, that the General Meeting adopted a motion to use Robert’s Rules for the remainder of General Meeting, and that in fact Robert’s Rules were used to guide decision-making processe in workshops and at the plenary session.

The Party’s Constitution and By-laws set out a process for bringing motions forward for consideration by the General Membership.  This process to amend the Constitution and By-laws was followed for Motion GC16-08 and other motions on the Bonser Ballot (at least up until the General Meeting determined that it would use Robert’s Rules, rather than the Constitutionally prescribed Green Rules of Procedure).

As per the Party’s Constitution and by-laws, and specifically as per subsection 4.3.3 of the By-laws, only emergency motions may be considered by the General Meeting, subject to meeting certain tests.  Subsection 4.3.3 reads,

4.3.3

Motions that are not submitted in advance and are moved from the floor of the meeting shall only be considered if they are of an emergency nature and shall require a 2/3 vote to be considered by the meeting.

As per the Green Rules of Procedure, in use when the General Meeting was called by the Party, does not provide for the moving of motions from the floor of a General Meeting beyond what is prescribed in the by-laws.

Based on my understanding of discussions which took place prior to the adoption of a motion which essentially replaced the use of Green Rules with Robert’s Rules, there was no discussion that took place which would have characterized the motion as being of an “emergency” nature.  And I submit that there could have reasonably been no “emergency” pressing on the General Meeting to substitute one set of rules for another at the General Meeting.

Analysis:

Without an discussion or actual or implied emergency, the motion to use Robert’s Rules for subsequent decision-making activities by the General Meeting was no in keeping with any established process in the Party’s Constitution and by-laws.  The motion should have been ruled out of order by the General Meeting facilitator.

Further, the motion itself cannot have been considered strictly procedural in nature, and the General Meeting facilitator ought to have known that, given that Motion GC16-08, was before the General Meeting for adoption.  GC16-08 would have amended the Constitution of the Party to allow for the use of Robert’s Rules. 

It is beyond the realm of comprehension to believe that the General Meeting, with a motion to amend the Constitution of the Party in front of it, believed that it had any authority to take the same action on its own initiative when clearly that action was already deemed to be beyond the purview of the Constitution. 

Is the Use of the Green Party’s Rules of Procedure Prescribed by the Constitution?

Giving the General Meeting the benefit of the doubt that it believed it could substitute one set of Rules for another to govern its decision-making processes, the question is then raised as to whether the use of Green Rules for General Meetings is prescribed by the Party’s Constitution.  Putting aside for a moment Motion GC16-08, which was clearly formulated with the belief that the use of Green Rules is a prescribed element of the Constitution and by-laws which GC16-08 sought to amend, a closer look at the Party’s Constitution and By-laws reveals that while some problematic wording exists, that only one overall conclusion can be drawn, and that is the use of Green Rules for General Meetings is a prescribed element.

Section 8.5 of the Constitution provides that General Meetings may be called by the Party.

Constitution, 8.5

General Meetings of Members shall be called in accordance with the Bylaws.

In this case, “called” should be considered to include not just the notice given in advance of the meeting, but all activities/procedures of the meeting (in other words, with regards to a “called” meeting, the requirement is that notice be given in accordance with the by-laws, and that the meeting follows all processes and procedures as set out in those by-laws).  Any other definition would defy logic, as it would not set out how a General Meeting would conduct itself, or even whether the General Meeting or its decisions would have to be made in keeping with the Party’s Constitution and by-laws, which are paramount for all decision-making within the Party.

Although better terminology maybe ought to be in the Party’s Constitution, I submit that the term “called” here includes not just notice requirements, but also alludes to the conduct of the General Meeting.

By-law 4 sets out the processes for General Meetings.  Perhaps somewhat problematically for my assertion, the only explicit reference to “Rules of Procedure” is found in subsection 4.3.5 of the by-law These are the Rules which the Party is required to maintain available to members as per 10.1.2.  These are the Rules on which the expectations of Members reside when it comes to decision-making within the Party, including by our Federal Council and at General Meetings.

While subsection 4.3.5 refers only to specific actions which might take place at a General Meeting (amending a motion), this subsection is written in such a way as to suggest that it is presumed that the “Rules of Procedure” are already being used.  The “In accordance with” comment which prefaces this subsection implicitly implies the use of Green Rules.  Otherwise, it would make no sense that for the amendment of motions, Green Rules be used, but that for all other actions of the General Meeting, a different set of Rules could be in effect.

Subsection 4.3.5 reads,

4.3.5

In accordance with the Rules of Procedure of the Party, the text of motions, including amendments to the Constitution or Bylaws, may be changed at a General Meeting providing the original intent of the motion or amendment, as received by the Members with the notification of the General Meeting, is maintained.

By-law 10 provides a list of documents which the Party must keep available for Members.  Subsection 10.1.2 indicates that one of these documents is the “Rules of Procedure”.  The Party’s website even includes a helpful hyperlink from the Constitution to the Rules of Procedure.  It is clearly an important document for the Party – and one which I am suggesting is integral to the interpretation of decision-making processes as per the Party’s Constitution and By-laws.

The introduction of the Rules of Procedure appears to confirm the importance of this document, and makes an explicit reference that these Rules are to be used at general meetings.  In part, the Introduction reads,

Rules of Procedure - Introduction

These are the full procedures for use at Canadian Greens / Green Party of Canada general meeting (convention/gathering) plenary sessions. A more relaxed version of these procedures may be used for smaller meetings, sub-meetings or workshops.

Taken together, the “calling” of a General Meeting as per the Constitution, the requirement for the Party to make available the Rules of Procedure to all Members, the assumption that a General Meeting is already using the Rules of Procedure to guide decision-making at the meeting as per subsection 4.3.5 of the by-laws, and the explicit reference found in the Rules of Procedure that they be used by the General Meeting, it appears evident that the use of the Rules of Procedure for General Meetings is a requirement of the Constitution and by-laws.  Further, this analysis appears to be shared by the authors, supporters and all Members who voted on motion GC16-08, which sought to amend the Constitution and the By-laws to replace the ‘required’ use of Green Rules.

Article 2 of the Constitution

Article 2 of the Constitution is clear.  2.1 reads,

2.1

This Constitution and Bylaws shall govern the activities of the Party, all persons operating on behalf of the Party, and the rights, responsibilities and duties of its recognized Units, committees and membership.

Final Analysis

The General Meeting, by using Robert’s Rules for decision-making at the meeting, instead of the Constitutionally prescribed Rules of Procedures, acted in a manner which was inconsistent with and (in my opinion) offensive to the Party’s Constitution and By-laws.  By virtue of undertaking the use of a decision-making process, one based not on the consensus-based approach of Green Rules, but instead of the more adversarial and majoritarian approach offered through Robert’s Rules, the General Meeting contravened not only the letter, but the spirit of the Party’s fundamental guidance documents: the Constitution and its by-laws.

The option to substitute the use of Robert’s Rules over the use of Green Rules was not an option available to the General Meeting, as it was not in keeping with the Party’s Constitution.  More explicitly, the General Meeting should have known this, given the very presence of Motion GC16-08, which sought the same substitution of Rules, but through a process mandated by the Constitution!  In any other year, it may be that the General Meeting, had it opted for the use of Robert’s Rules, might have done so on the basis of Constitutional ignorance – but the presence of GC16-08 as a matter being dealt with by the General Meeting suggests that ignorance of this Constitutional requirement for the use of Green Rules was extremely unlikely. 

That is not to suggest that the General Meeting sought to harm the Party – but it is to suggest that the General Meeting, and especially its facilitator, ought to have known that the use of Robert’s Rules at the General Meeting was not in keeping with the Party’s Constitution.

Harm

Did the use of Robert’s Rules harm the Party?  Interestingly, the notion of “harm” does not appear to be one f the considerations which the Ombuds and Appeals Committee should use as a basis for its determination.  Instead, I point the Ombuds and Appeals Committee to the notion of Member’s “rights”.   But I will, briefly, address the notion of harm.

Despite it being fairly clear that the will of the membership was to substitute the use of Green Rules in favour of Robert’s Rules at some point in the future (as per the success of motion GC16-08), the clear expectation of Party members was that the consensus-based approach prescribed by Green Rules was to be used at this specific General Meeting of members.  The use of Green Rules might have led to different outcomes, especially where contentious issues were discussed.  I don’t know if ultimately the use of Robert’s Rules at this specific BGM has “harmed” the Party, but I strongly suspect that abiding by the prescribed Rules of Procedure might have led to different outcomes, particularly on contentious matters.

Rights

What is clear is that my rights as a member have been violated.  I chose not to attend the BGM in part based on the expectation that the General Meeting would conduct itself in a manner prescribed by the Party’s Constitution and By-laws.  This included the use of Green Rules for decision-making.  As you are probably aware by now, this kind of thing matters to me – I don’t think I would be taking the time to file this complaint with you if I did not feel that my rights had been violated.

Again, while we will never know whether different outcomes might have occurred at the BGM had Green Rules been used, I strongly suspect that there may have been a greater emphasis to find consensus at the meeting had the right set of rules been employed by the General Meeting.  The use of Robert’s Rules may have led to policy and directive motions being adopted by the General Meeting which might not have occurred through the use of Green Rules, given the significant difference in process and outcomes between the two sets of rules.

Remedy

Again, I urge the Ombuds and Complaints Committee to find that the actions and activities of the General Meeting were not in keeping with the Party’s Constitution and By-laws, and that the decisions made by the General Meeting which stemmed from a process that used Robert’s Rules should be considered null and void.  I understand that such a decision on the part of the Ombuds and Appeals Committee may appear heavy-handed, given the significant work undertaken by the developers of policy and directive proposals (of which I am one), along with the hard work by members constituting the General Meeting.  But nevertheless the fruits of that work have been irrevocably tainted through the use of a decision making process not in keeping with the Party’s Constitution and By-laws.

The Ombuds and Appeals Committee has the authority to deal with this complaint.  Please hit the reset button and declare the decisions of the General Meeting null and void.  My rights as a Member of the Party require you to take this action.

Sincerely,

Steve May, Officer of the Nickel Belt Greens EDA

(opinions expressed in this blogpost are my own and should not be considered consistent with the policies and/or positions of the Green Parties of Canada and Ontario)