SUO: IEEE documents
SUO,
Here's a typed-up version of a paper copy of the IEEE legal opinion
referenced in the IEEE-SA BoG motion (attached). I'll forward a digital
copy if IEEE ever sends me one. This document references some messages from
Lyle Smith, which are also attached. I believe these documents comprise the
guidance from IEEE.
Jim Schoening
===========================================
DORSEY & WHITNEY LLP
250 Park Avenue
New York, NY 10177
Telephone: (212)415-9200
Fax: (212) 953-7201
www.dorseylaw.com
ROBERT J. DWYER JR.
(212) 415-9218
dwyer.robert@dorseylaw.com
November 7, 2001
Via E-Mail and FEDEX
Ms. Judith Gorman
Managing Director, IEEE Standards Activities
IEEE
445 HOes Lane
Piscataway, NJ 08855
Dear Judy:
As you know, our firm regularly acts on outside corporate councel to
IEEE, Inc. In response to requests from certain IEEE volunteers, you asked
that we summarize for you the basis for the determination given by Lyle M.
Smith, Sr. on behalf of IEEE to Messrs. Robert Spillers and James Schoening
in connection with an e-mail ballot conducted by the P1600.1 Standard Upper
Ontology Working Group (the "Working Group") to determine whether a document
should become a base document. Specifically, we understand that 42 e-mail
ballots were received including 9 abstentions, 17 affirmative votes and 16
negative votes. Mr. Smith advised Messrs. Spillers and Schoening that the
motion failed because the affirmative votes did not constitute a majority
(i.e., 22) of the total number of the ballots cast. There was no need to
determine whether a quorum was present since the motion failed.
Recently, I participated with you in a telephone conference which
included Mr. Smith, Eric Herz (Director Emeritus of IEEE and past
Parliamentarian of IEEE), Thomas Wettach (partner in the firm of Cohen &
Grisbey, which act as special counsel to the IEEE Standards Association),
Marco Migliaro (2001 President, IEEE Standards Association) and other
members of the IEEE Standards Activities staff. In reviewing this matter,
the participants in the telephone conference unanimously conclude that the
advice given by Mr. Smith to Messrs. Schoening and Spillers was correct.
The participants in the telephone conference reviewed Section 708 of
the New York Not-for-Profit Corporation Law regarding actions by the board
of directors; IEEE Bylaw I-301.7 regarding the manner in which action may be
taken by the IEEE Board of Directors and committees; IEEE Bylaw I-301.11
regarding the use of Robert's Rules of Order by the various organizational
units of the IEEE in the absence of other applicable rules of procedure; and
Robert's Rules of Order regarding bases for determining a voting result.
The participants in our call also noted that no voting rules for Standards
working groups are specified in the IEEE Bylaws or the IEEE-SA Standards
Board Bylaws or Operations Manuals.
The determination communicated to Messrs. Schoening and Spillers was
made for several reasons. First, the Corporate Governance Office of IEEE
has consistently advised organizational units of IEEE that, in order to take
action on a matter, a quorum must be present and the affirmative vote of a
majority of the members of the ruling body present at the time of the vote
must be obtained. Second, the Corporate Governance Office has consistently
advised the organizational units of IEEE that "best corporate practices"
suggest following the voting and other rules of procedure applicable to the
IEEE Board of Directors when other rules of procedure are not specified.
Third, if a majority of the ballots received were not required in order for
action to be taken by the Working Group, an absurd result might be obtained.
For example, assume 42 ballots were received with 41 abstentions and only 1
affirmative vote. If only a majority of the ballots actually cast
(excluding abstentions) were counted, the document in question would have
become a base document with only a single vote cast in its favor. Finally,
if voting procedures different from those recommended are to be used by the
Working Group (or other working groups within the Standards Association),
the IEEE Board of Directors should take action to interpret the law and the
IEEE Bylaws so as to permit the use of such different voting procedures.
In short, we believe that the IEEE Board of Directors ultimately
must approve whether an exception should be made to the rules of procedures
which have been consistently recommended to the organizational units of
IEEE. Affected parties are, of course, free to appeal the ruling of the
Corporate Governance Office of IEEE to the IEEE Board of Directors.
Finally, you also inquired regarding disclosure of information as to
contributors. With limited exceptions not applicable here, tax-exempt
organizations are not required to disclose the names and addresses of their
contributors to the public. Although a tax-exempt organization is required
to disclose to the IRS the names and addresses of its contributors who give
more than a specific amount in its annual information return, such
information is not available to the general public.
I trust that this is responsive to your requests.
Very Truly yours,
Robert J. Dwyer Jr.
. <<Questions regarding Roberts Rules of Order>> <<Re: Need response
TODAY>> <<RE: Request for Rules advice.>>
-----
Message-ID: <OFFA943559.0AD55235-ON85256AC5.00609211@ieee.org>
From: l.m.smith@ieee.org
To: skydog@postoffice.pacbell.net
Cc: "Schoening, James R CECOM DCSC4I"
<James.Schoening@mail1.monmouth.army.mil>, j.gorman@ieee.org,
s.tatiner@ieee.org, e.herz@ieee.org, dwyer.robert@dorseylaw.com
Subject: Questions regarding Roberts Rules of Order
Date: Thu, 13 Sep 2001 08:40:00 -0500
X-Mailer: Internet Mail Service (5.5.2653.19)
Mr. Spillers,
Your questions have been reviewed by the Board Parliamentarian, Legal
Counsel and Director Emeritus who act as a team any answer questions of
this nature as well as those related to all Governance Issues on behalf of
the Board.
Robert's Rules of Order are specified in the IEEE Bylaws to be used by
"....organizational units of IEEE unless other rules of procedure specified
by NY Not-
for-Profit Corporation Law.....etc." Thus, Robert's Rules are subordinated
in the hierarchy
of rules to NY law, IEEE Certificate of Incorporation, Constitution,
Bylaws, Resolutions of the
Board of Directors, Policies and Procedures, and Practices. There was some
discussion regarding using the rules for small committees but research
provides that this may apply for groups of about a dozen or smaller,
therefore Roberts Rules applies as normally used by the IEEE.
Final interpretation of IEEE bylaws and related rules are vested in the
IEEE Board of Directors.
Directors, when acting in good faith, may rely on one or more officers or
employees whom the
directors believe to be reliable and competent in the matter to be
presented, counsel,etc.
The IEEE Board of Directors uses Legal Counsel and a staff parliamentarian
for advice
about its bylaws.
The responses below have been prepared with the advice of the IEEE
Parliamentarian and
IEEE Legal Counsel, who if and when asked by the IEEE Board of Directors
would so advise
the Board.
since booth you and Mr. Schonening are ask questions about the same
incident I will provide copies of our answers to both of you in an effort
to promote a team approach to resolution.
I have included our answers in red so the question and answer is available
for review.
From: Robert Grayson Spillers <skydog@postoffice.pacbell.net>
> To: Lyle Smith <lyle.smith@ieee.org>
> Subject: Questions regarding Robert's Rules of Order
> Date: Mon, 13 Aug 2001 04:32:24 -0400
>
> Lyle,
> I have tried to isolate these questions to issues of
> parliamentary
> procedure based on the latest version of Robert's Rules of
Order
> (Robert's Rules of Order Newly Revised 10th Edition published
by
> Perseus
> Publishing Cambridge, Mass. October 2000).
>
> (1) May the chair make a motion?
> Answer> Not while sitting in the Chair. He may relinquish the
> Chair, and then make a motion.
>
> (2) May the chair participate in debate?
> Answer. Not while sitting in the Chair. See answer to 1)
>
> (3) If the chair does make a motion must he step aside as
chair
> and
> pass the gavel to an acting chair?
> Answer. Yes, see 1) and 2) above
>
> (4) May the chair (while acting as chair) vote
> Answer. The Chair may vote in certain circumstances. In the
> absence of higher level rules, such as bylaws, policies, or
even practices, the Chair
> may vote whenever his vote can affect the outcome---that is, to
make, break,
> or cause a tie vote.
> (a) on a motion
> (b) to break a tie
> (c) to create a tie
The IEEE Constitution specifies Chair votes for the Chair of
the Board of Directors and the Chair
of the Assembly, but not in general, and therefore Roberts
Rules wold apply, as explained above.
>
> (d) to break a tie after voting to create a tie
> Answer. The Chair cannot vote twice, that is to create a tie,
and
> then a second time to break a tie
>
> (5) May the person acting as chair vote on a motion while
acting
> as
> chair?
> Answer. This looks like question 4(a). Is this question meant
to
> be different?
>
> (6) What is the size (percent) of a quorum (assuming no
> parliamentary
> procedures - e.g. bylaws - other than RRO)
> Answer. A majority of voting members, (Specified in Ny Statute
and IEEE Bylaws).
>
> Is a quorum required to pass a motion?
> Answer. Yes, unless a quorum had been established, some members
> have left, and nobody has questioned whether a quorum still
exists It
> is then presumed to exist.
>
> (8) May the chair declare that a quorum is unnecessary?
> Answer. NO
>
> 9) May the rules on voting or quorums be changed without
>
> (a) a vote
> (b) a quorum
> (c) a two thirds vote in favor of the change(s)
> Answer. No, no, and no. A quorum is established by law, or by
> Certificate of Incorporation,
> or in the IEEE Bylaws
>
> Is a motion permitted (in order?) that contains within itself
> changes to the existing procedures on what is required for the
> motion to
> pass - e.g. declare a quorum unnecessary?
> Answer. No, a quorum is always needed.
>
> Thank you.
>
> Bob Spillers
Lyle M. Smith
Staff Director - Corporate Activities
732 981-3447
-----
Message-ID: <OFD1C96FD1.2913289B-ON85256B1B.005DE051@ieee.org>
From: r.gertz@ieee.org
To: "Schoening, James R CECOM DCSC4I"
<James.Schoening@mail1.monmouth.army.mil>
Cc: "Judy Gorman (E-mail)" <j.gorman@ieee.org>, "'l.gargiulo@ieee.org'"
<l.gargiulo@ieee.org>
Subject: Re: Need response TODAY
Date: Mon, 10 Dec 2001 12:09:05 -0500
X-Mailer: Internet Mail Service (5.5.2653.19)
Hi Jim:
Following is the IEEE-SA Board of Governor's action taken regarding P1600.1
The IEEE-SA BOG concluded at their November meeting that the recent ruling
by Dorsey and Whitney, IEEE legal counsel, should be upheld. At the
IEEE-SA BOG meeting, the group unanimously approved the following motion
regarding P1600.1:
There was a motion and second by Dennis Bodson and Don Loughry as follows:
The IEEE-SA BOG considered the inquiries of the IEEE 1600.1 working group
and the opinion of 7 November 2001 offered by Dorsey and Whitney and
concurs with and reaffirms the opinion stated. Therefore, the IEEE-SA BOG
directs the IEEE-SA Standards Board to inform the P1600.1 working group
that it is required to re-ballot its initial deliberation, based on the
requirements outlined in the aforementioned letter.
Further, the IEEE-SA BOG encourages the IEEE-SA Standards Board to instruct
the IEEE P1600.1 working group on the principles of consensus in the
working group processes.
Upon vote the motion was unanimously approved.
This action will be carried out before the end of 2001 and is offered as an
information item to the IEEE SASB. The IEEE SASB is encouraging the
IEEE-SA BOG to take action to clarify this issue of all working groups.
Language will be developed for approval at the February BOG meeting.
_______________________________
Rona I. Gertz
Manager, IEEE-SA Governance
IEEE Standards Activities
r.gertz@ieee.org
+1 732 562 3808 (phone); +1 732 562 1571 (fax)
IEEE Standards web site:http://standards.ieee.org/
"Schoening, James R CECOM
DCSC4I" To:
"'l.gargiulo@ieee.org'" <l.gargiulo@ieee.org>,
<James.Schoening@mail1.monmouth "Judy Gorman
(E-mail)" <j.gorman@ieee.org>, "Rona Gertz
.army.mil> (E-mail)"
<r.gertz@ieee.org>
cc:
12/07/2001 09:34 AM Subject: Need
response TODAY
Linda, Judy, and Rona,
As this has dragged on since Aug, please clue me in TODAY on
what's
going on.
Jim Schoening
-----Original Message-----
From: l.gargiulo@ieee.org [mailto:l.gargiulo@ieee.org]
Sent: Monday, December 03, 2001 10:45 AM
To: james.schoening@mail1.monmouth.army.mil
Subject: Forwarded message form Judy Gorman
Jim, Judy Gorman at the IEEE asked me to forward this to you.
Linda A. Gargiulo
Senior Administrator
IEEE Standards
445 Hoes Lane, PO Box 1331
Piscataway, NJ 08855-1331 USA
+1 732 562 3801 phone
+1 732 562 1571 fax
http://standards.ieee.org/
----- Forwarded by Linda Gargiulo/STDS/STAFF/US/IEEE on 12/03/01 11:03 AM
-----
Judith Gorman
To: Linda
Gargiulo/STDS/STAFF/US/IEEE@IEEE
12/03/01 09:06 cc:
AM Subject:
Please get this to Jim Schoening. Thanks.
Judy
----- Forwarded by Judith Gorman/STDS/STAFF/US/IEEE on 12/03/01 09:06 AM
-----
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| To: James.Schoening@mail1.monmouth
| cc:
Date: 08:48:06 AM Today
Subject:
Dear Jim:
On Thursday of last week, the IEEE-SA Board of Governors took action on
matters involving the IEEE P1600.1 standards activity. Rona Gertz, in
cooperation with me, will send out all the actions later this week, and we
will ensure that you receive a copy of the communcation.
Best regards,
Judy
-----
Message-ID: <OFB9B0EE36.3A90BD03-ON85256AC8.00049B63@ieee.org>
From: l.m.smith@ieee.org
To: "Schoening, James R CECOM DCSC4I"
<James.Schoening@mail1.monmouth.army.mil>
Cc: dwyer.robert@dorseylaw.com, e.herz@ieee.org, j.gorman@ieee.org,
s.tatiner@ieee.org
Subject: RE: Request for Rules advice.
Date: Fri, 14 Sep 2001 20:05:21 -0500
X-Mailer: Internet Mail Service (5.5.2653.19)
Jim,
Of course they did. We discussed and agreed on the responses to all
questions raised by you and Mr. Spillers. All this was also reviewed by
the Standards Staff who also agreed. That is why it took so long. I wanted
all appropriate people to review and comment. I know you contacted them
directly and they will answer the same way.
Jim, we are not trying to give you a difficult time, but IEEE groups must
operate in the same consistent way. The IEEE Board and its Committees also
must follow these and even more restrictive rules. We have provided
additional flexibility for the Standards Working Groups. I am trying to
keep that added flexibility in tact so we do not wind up in an even more
restrictive environment.
I know you contacted Eric Herz and Robert Dwyer, and I do not have a
problem with Eric considering a response. I do have a problem in adding to
the legal bill of the IEEE once these questions have been answered. If
this goes beyong a simple response to verify agreement then further
consideration must be given.
Lyle M. Smith
Staff Director - Corporate Activities
732 981-3447
"Schoening, James R CECOM
DCSC4I" To:
"'l.m.smith@ieee.org'" <l.m.smith@ieee.org>
<James.Schoening@mail1.monmouth cc: "Susan
Tatiner (E-mail)"
.army.mil>
<s.tatiner@ieee.org>
Subject: RE:
Request for Rules advice.
09/14/2001 06:53 PM
Lyle,
Please acknowledge receipt of this message.
Regarding your response on the 'majority' issue, I have no doubt
you
talked to Mr. Herz and Mr. Dwyer, but did they actually concur with your
ruling, and was this verbally or in writing/email. I have written to them
but have not received a response. Did anyone from the Standards Department
concur. I'd like to talk to them also.
You have told me about this NY law. Could you quote me the
actual
passage. Can you explain why this applies to IEEE's 800+ standards working
groups?
Isn't there a legal principle that says that if everyone follows
a
given law and ignores another, it's OK to continue to ignore it? I request
a legal opinion on that.
Also, I am not quick to complain, but I need much faster
response
time.
Jim Schoening
Chair, P1600.1 SUO WG
-----Original Message-----
From: l.m.smith@ieee.org [mailto:l.m.smith@ieee.org]
Sent: Thursday, September 13, 2001 9:39 AM
To: James.Schoening@mail1.monmouth.army.mil
Cc: skydog@postoffice.pacbell.net; j.gorman@ieee.org;
s.tatiner@ieee.org; e.herz@ieee.org; dwyer.robert@dorseylaw.com
Subject: Request for Rules advice.
Mr. Schoening,
I have reviewed your questions with IEEE Legal counsel Robert Dwyer of
Dorsey & Whitney, and Director Emeritus Eric Herz who is commissioned by
the IEEE President to be the liason with governance and legal issues.
Following included in your original text in red are our answers.
In addition, regarding your ruling that the working group is an assembly,
we find that under New York Law an Assembly is a meeting of the members
called for specific reasons, and must be comprised of members. Since
working groups were never intended to be assemblies, and since working
groups contain both members and non-members of IEEE, a working group was
never meant to be and cannot be an assembly.
Since you and Mr. Spillars are asking questions about the same incident, I
am copying each of you on the other's response in an effort to promote a
team approach to colving the problems raised by you both.
These questions have also been discussed with the Standards staff.
Lyle Smith
> Lyle,
>
> I understand you can help me with some rules. I chair P1600.1
> Standard Upper Ontology (SUO) WG, http://suo.ieee.org. Here are the
salient
> facts and postings.
>
> a. SUO WG conducted an email ballot of whether a document should
become a
> base document. The ballot was open for 3-weeks. It passed 17-16, with 9
> ABSTAINS.
Answer: New York Not-for-Profit Law and the IEEE Bylaws state that to pass
a motion
requires a majority of those present, and not a majority of those present
and voting. If 42 voting members were involved, then a majority of 22. was
required for passage of the motion, and therefore the motion failed.
>
> b. I announced the results on Aug 16th, then two people (who had voted
to
> ABSTAIN) said they wanted to change their votes to NO.
Answer: You do not say exactly what was announced, but it should have been
that the
vote failed, due to a lack of a majority.
>
> c. Bob Spillers, a SUO voting member, made a motion to reconsider. It
> arrived at 12:07 AM on 18 Aug, but was sent from a later time zone on Aug
> 17th. I believe RRO says such a motion can only be made on the day or
the
> day after the decision. Question: Was this timely, or is it my judgment?
> I'm inclined to accept this as timely, unless you suggest otherwise.
Answer: The Standards BOG with the specific permission of the IEEE Board of
Directors should
clarify what the timing rules to be ussed by their working committees
should be when voting in different time zones. Were the so called rules of
time zones to be used clearly announced to the members prior to any action
being taken? Further under the concept of fair play and not Robert's Rules,
we believe that a certain amount of flexibility should be used in an effort
to achive an equatible result.>
> d. Bob Spillers originally voted NO. Is he permitted to make a motion
to
> reconsider? If not, does this settles the matter? He claims he can if
SUO
> is considered a 'Standing Committee,' but indicates he can't if SUO is an
> Assembly. When I found his motion out of order, I asserted SUO was an
> Assembly.
Answer: Yes, since he was actually a member of the prevailing, or in this
case the
losing side.
>
> f. He then appealed my ruling to the SUO membership and it was
seconded
> by Lee Auspitz. Can he appeal something like this?
Answer: Yes, any member of a committee may appeal a ruling of the Chair.
> Your timely guidance would be most appreciated.
>
> Jim Schoening
> 732-532-5812
>
Lyle M. Smith
Staff Director - Corporate Activities
732 981-3447