Governance Bites #91: moving and seconding motions, with Steven Moe

In this episode, Mark Banicevich asks Steven Moe about moving and seconding motions in meetings. They discuss the history behind this practice, and introduce Robert's Rules of Order. They talk about the role of seconding, and what happens if a motion is not seconded. They also discuss alternatives to moving and seconding motions. Finally, Steven shares the best advice he has received.
Links from the episode: 
Institute of Directors, moving and seconding motions: https://www.iod.org.nz/news/articles/moving-seconding-but-why# 
Robert's Rules of Order: https://robertsrules.com/ 
Steven Moe is a Partner of commercial law at Parry Field Lawyers in Christchurch, and an experienced director. Steven qualified as a lawyer in New Zealand, and worked for more than a decade on corporate transactions worth billions of dollars while based in London, Tokyo and Sydney. He has written several legal books, including “Start-ups legal toolkit”, “Social Enterprises in New Zealand: and “Capital raising for founders”. Steven also facilitates governance law on the Company Director Course for the Institute of Directors (IoD). His Seeds Podcast, which he founded in 2017, has almost 400 episodes, interviewing interesting people about their lives. He also hosts the Board Matters podcast for the IoD, now in its third season. 
Steven Moe’s profile on LinkedIn (he is happy to connect with you): https://www.linkedin.com/in/steven-moe-0b3b008a/
Seeds podcast with 430+ interviews www.theseeds.nz 
Board Matters podcast https://open.spotify.com/show/6aHNCIYEOwqoghkGlwKruU 
Parry Field Lawyers governance resources: https://www.parryfield.com/advisory/governance/governance-essentials/
#governance, #leadership, #corporategovernance, #boardcraft, #decisionmaking, #makingadifference, #ceo, #governancebites, #boardroom, #director, #motions, #meetings

Transcript

0:00

Kia ora, everyone. It's Steven Moe here, and I work as a lawyer at Parry Field Lawyers, helping people with governance issues. Today, we're going to be looking at moving and seconding. Hi, I'm Mark Banicevich. Welcome to Governance Bites, and as you just heard, today I have the pleasure of spending time with Steven Moe. Steven, thank you very much for your time. I'm really looking forward to this. I really feel like I'm on the flip side of where I usually am because you're such an experienced podcaster, with your Seeds podcast, over 400 episodes. How many years have you been doing the Seeds podcast? It's been about seven years now. Seven years, wow! And of course, you also do Board Matters for The Institute of Directors [IoD], so a very experienced director, a very experienced lawyer in this space, and an experienced podcaster. So, I feel like quite an amateur today, but I'll do my best. First up, as you said, today's topic is around moving and seconding motions. Now, you don't have to attend many formal meetings before you encounter a process of moving motions and seconding motions. Where did it come from? It's actually really interesting. So, I did an article on this last year with Mele Wendt and Caren Rangi for the IoD[Institute of Directors], and researching the history realised that it goes back to the American Civil War. So, you wouldn't have thought that. No. How interesting. That's actually where it's from, and it spread through all of Western society basically. There was a guy named Robert, and he came up with this book called Robert's Rules of Order. Yeah, Henry Robert. Yeah. Yes. So, he was in the military, you know, working as a, like a soldier, and after the war had finished, he wrote this book about Rules of Order, and one of the rules of order was when you come to have a decision, you should ask somebody to move it and second it, and then have the vote. Right. But it's not—this is the interesting part for lawyers like me—it's not in the law. This is a completely cultural thing that we've adopted from the 1860s in America. Right. I actually understood that Henry Robert's source for it was how British Parliament ran. So interesting that, because I wonder how British Parliament ran before these. Yeah. I'm not sure. It's possible that there's an origin before the origin of Robert. I just know that Robert's approach was what then spread through the Western world - Right. - in terms of we need to have moving and seconding. Yeah, that makes sense. Yeah, so it does sound viable that it came from how British Parliament ran, and then was adopted. And I think Henry Robert had this little booklet that he carried around with him, which is now quite a thick, chunky volume. I believe you're right. Yes. I think, I've read Robert's Rules in Brief, which is a much smaller volume,- Right. - and easier to get your head around. So, why then do we move and second motions? I think it's because people—it's a cultural thing. I think it's become part of our boardroom culture, which is why I think it's important to question it and say, "Well, why, why do we do it?" I think the reason is, and I don't want to say that you should never move and second, because in some instances it is appropriate. But where it is often used is, there's an issue to be discussed. "Should we take it to a vote? Will someone move it?"Okay, Jane, you're moving it. Will someone second it? Okay, John, you're seconding it."Okay, now we have a vote." So, it's kind of a way to vet what gets put for a decision. So, I can see where it would be appropriate if it wasn't clear that it should actually go to a vote, then it would be appropriate to have a moving and a seconding, and okay, now we're going. The other place I see it's appropriate is in a large meeting. So, imagine an annual general meeting, and you've got potentially hundreds of people, and someone raises their hand and says,"I put forward a motion that we should all wear yellow shirts tomorrow. Like, clearly totally ridiculous, and I'm just making it up as an example, but the chair, instead of putting it as a motion from the floor, they could say, "Well, we have this. It's been moved. Does anyone second it?" No one seconds it. We will not be proceeding. The motion lapses. Exactly. So, I think it would be appropriate in the right circumstance. But what's happened is, because it's become cultural, I've been on boards— I'm sure you have too—where you come and you look at the minutes of the last meeting, the classic opening thing to consider at a meeting, and the chair says, "Who will move it?"Who will second it?" You don't have to do that. You could just say, "Do we accept that"the meeting minutes are accurate? Okay, we're moving on." Yeah. Yes, yeah. It also puts some rigour around the recording of those decisions too, right. When someone moves it, you have some solid wording in place for exactly what is being decided,- Yeah. - so you get a good record. And that would be another reason why you might do this. If there was a controversial topic, and you really need to record in detail, "We looked at this issue,"this person moved it, this person seconded it." But fundamentally, it's a cultural thing that we have embraced - Yes. - here in Aotearoa New Zealand. But actually, if you look at it, you have to say,"Well, why do we do this?" Because it's not encouraging a collective culture. It's encouraging an individualistic culture, which is,"Well, Jane is the individual who's pushing it forward,"and John is seconding it, and now we're going to make a decision." But I personally think a culture at a boardroom table should be about collective decision-making rather than highlighting this person and this person. So, it's almost a Western cultural mindset, would say, "Let's record who the individuals are," rather than, "We are together making a decision." Yes, yes. That individual accountability. One of the interesting things that I found having read Robert's Rules - Yeah. - is formally you're supposed to record who moved the motion, but you don't have to record who seconds it. And the interesting thing that I found is in the board meetings or the various meetings that I've been involved in—not just board meetings— people often consider the seconder as being somebody who is supporting the motion. But according to Robert's Rules, that's not the case. The seconder is somebody who says,"We should discuss this." Right. And the seconder can actually be against the motion the whole way through, and argue against it. It's just a matter that they bring it forward to the table. Yeah. So, that's, where it's quite often misunderstood. That's really interesting. It's an example of this subtlety though, that actually, is this the most appropriate way for us to consider these things? Because if you want to talk about alternatives, I would say that the chair should be guiding the meeting, setting the agenda, and if somebody is raising something, then together we should make the decision to consider this, rather than it having to be, you know, I'm picking on Jane and John, but you know, let's just as a group collectively come together. Yes, yeah. It is a really interesting process. You actually said this earlier, but I just want to clarify this. What happens then if a motion is not seconded? Well, in theory, it ends because nobody, nobody agreed that it should be considered. So, that's the end of the motion, which might be the appropriate thing for it. Maybe it's like the silly example I gave before, like, this is not appropriate, or this should be dealt with outside of this meeting. This should be a subcommittee thing, or this was already dealt with last meeting, or whatever it is. So, it might be that it's just not the right place for that particular issue. It's interesting to see how that fits in with a board agenda because these days you'll often have a board agenda, which already has these issues to be discussed. And so, as you say, that's where Robert's Rules may be judiciously applied, that, you know,"We're not actually having a moving and seconding motion here. There's a board paper on the table." Although the board paper will often have a motion associated with it if it's to be acted upon. But then you probably wouldn't go through that stage of having a second for it. It's a matter to be discussed and decided upon. Yeah, and picking up on that, one of the interesting things is, how many people around the boardroom table are reading that board paper for the first time as they get given it, because in theory, they were given it at least a week before. Yes. And I think the culture should be, it's taken as read. So, it shouldn't be, "Oh, let's just quickly skim read, because we didn't get a chance to read it before," which kind of plays into elevating the seriousness of governance. Yes. We should take this seriously, and we should read things in advance, and we should come to the table ready to discuss. And I think the chair should be guiding the discussion in a consensus-based way, rather than an individualistic-based way. Because I do worry sometimes. I think it's like,"Look at me, I'm moving this motion," you know, rather than we are together as a board. I have been on a committee where people would always take the opportunity to move or second a motion so that there was a recording that they were present. Oh, right. "I was definitely here. I was definitely paying attention." Yeah, "I was awake.""Because my name is on this motion." Yes, yeah. And again, we've covered this a little bit, but I want you to elaborate a little bit more if you don't mind. Is moving and seconding motions necessary for effective governance? And if not, what alternatives are there? Well, my view would be that it is not necessary, except for the limited exceptions that I mentioned. So, if it's a controversial thing - Yes. - like, "We actually need to decide if we should even talk about this." Or if it's used in a large, big meeting, - Right.- then I think it would be appropriate to say,"Thank you for your suggestion, but it hasn't been seconded, therefore we will not discuss it." Yes. Because otherwise, you might end up with this 15-minute discussion about how we should all wear yellow shirts tomorrow. Like, that's not what the meeting is there for. You can get derailed if you allow it. So, the other thing I should say, often when I'm presenting on this, someone will say, "But what about councils or government or, you know, like local councils,"think of the city council? We actually use it as a way to make sure that the public are involved,"and, you know, able to participate." So, there are exceptions. But where I have a problem with it is in, say, a private company. There's five directors. You all know each other. You were just together at the last meeting. I just think we could move away from this culture of, "Who's going to move and second it?" And I get a lot of people coming up to me now and say,"We just moved and seconded that we will no longer move and second." So, you know, it's going to depend on the context and the board. But why not consider it? Let's remove barriers to governance that we've just sort of, cultural accretions that are there, and no one questions why. That's what I want to get at. I've been involved on a board that did use Robert's Rules, hence my having read the Rules in Brief, and it was an international board, so people have lots of different cultures and lots of different languages and stuff involved, which potentially would be another good reason to use it, having that formality. And what we tended to find is that we moved to a stage where we would discuss an issue, agree on what the wording should be, and then have the motion. Okay. As opposed to having the motion first, and then, of course, you've got the different types of motion, to amend, and all of those sorts of things. So, instead of having a base motion and then amending the motion half a dozen times to get the wording right, we would discuss it, get the wording right, put it in the minutes, vote on it, and then move forward to the next item. I see a lot of merit in that, because then you're, the key for me is that all the board members should feel like they can participate, - Yes. - and they can be involved, and you together as a board are making a decision. Rather than, this person is moving it, and this person is seconding it. And yeah, I just think it's a better fit with how we should be operating as boards. Yes, right. In your experience then, you've said a little bit about this already, but I think you'll elaborate somewhat. What is the most effective way for a board to make decisions, and also very importantly, record them? Yeah, so my view is that we should be heading towards a consensus decision-making. In other words, we're all agreeing that this is what we should do. Except for the controversial ones, which - You're not going to get consensus.- Yeah, you're not going to get consensus. And this is important to reduce liability of the individuals. So, for example, if everyone else on the board thinks that you should sign that $10 million contract, but you have real reservations about this, like, "I'm just not sure," you should record that you voted against it. Because later on, if the company were to go into liquidation, and there was a liquidator appointed who looked back and said, "You were trading recklessly, breach of section 135, 136, 131,"[of the Companies Act 1993] those are the key director duties. Yes. If you don't have it recorded in the minutes that you objected, guess what! The judge is going to come along and say,"Well, the board just agreed that they should enter this contract, and you didn't object." So, I think it should be recorded in the minutes. Some people ask me how much detail minutes should have, and my answer would be, "What were you doing five years ago?" Because you probably don't remember the detail, right. Like 2020 or whenever. I think you need enough detail in the minutes where five years from now you'll be able to look at it and go,"We talked about this, there were three main points, and this was the decision." But what it should not be is a transcript of"This person said this, this person said this,"this person said this." And I was in a meeting recently, and I read the minutes and was like,"Wow, that's really accurate. That's, that's too accurate." It was literally blow-by-blow what people had said, which, so it's a balance, right. Yes. But you don't want to have a 50-page document transcription. What you want is key decisions; key issues, key decisions, and potentially who voted for and against it. Dissents, yes. That is an interesting point, because in Robert's Rules, in fact, that board that I talked about earlier, all the minutes were by Robert's Rules, so all you had was the motion and the decision. Right. You didn't have any of the reasons that were discussed. Interesting. If there was a vote, and it wasn't unanimous, it would simply record, as Robert's Rules says, that the motion was carried, or the motion was defeated. It wouldn't record who voted either way, which, as you say, with issues around liability, - Yeah. It's important.- you don't have any of that information. Yeah. So, having these sort of modifications that you're talking about are really important. And I have been in a couple of board meetings where we had a minute taker who was stepping in. Verbatim board minutes. Ah. Oh. I was at the board meeting. I don't want to read what everyone said again. Yeah, yeah. Takes twice as long to read as it did to say it. Yeah. And here's another thing to throw in. We've gotten so used to Zoom and Teams meetings. I'm okay with those being recorded, but that is not the official record of the meeting. That recording should be used by the minute-taker, to help to create the minutes, and then should be deleted. So, that's the role of a recording. The other thing that's happening with those recordings these days is AI [artificial intelligence] taking the transcript, and giving you summaries for you. How happy are you to use those AI summaries? Well, I view AI as an amazing tool, and so as long as you're then going through it, and making sure that it's accurate, I would probably be okay with that, actually. I guess the danger with AI, and I'm still learning myself, but it goes somewhere. And so, those transcripts, or those, the audio or the video, like if you're discussing something that's commercially sensitive and secret, and you're uploading it into an LLM [large language model], it's out there somewhere. And so, I don't, I'm still learning myself, but as a lawyer, I'm always very conscious and worried about, like, I don't want the information to go out in a way that would be accessible. Yes. So, if you are recording meetings and then using LLMs to summarise those meetings, you want to make sure that the information is kept confidential, and it isn't going to be part of the public record. Which means having a nice friendly lawyer look over your terms and conditions. That probably helps. That you've signed up to. Yeah, right. Yeah. One final question for you. What's the best governance advice you've received? Well, I think for me, that would have to be making sure that everyone around the boardroom table is being heard. I know it's really basic, but I worry because I've been in lots of, I'm on a number of boards, and I worry when someone in the room is not talking, because that's a perspective that you're missing. So, I've seen some cultures of boards where the chair is too dominant, and they're basically telling the other board members what's happened or what we're doing. And I think that's, the culture that I think we should try to instil in our boards is, we're in it together. Let's make sure we're hearing from everybody, and then make a decision. Yes. From that I would reflect on some advice I think that I've been given in the past, that the chair speaks last. Yep. So, you make sure that you're getting, because it's a chair's job ultimately, right. To make sure everyone's speaking. Yep. And if the chair's not doing their job, other directors can say, "Oh, I haven't heard from you, Steven." Yep. But ultimately it's a chair's job to make sure everybody's heard. And yes, that, - Yeah. I like that. - And then in those circumstances, quite often the chair doesn't need to speak at all, because the decision's already been made in the way that they agree with, and the key points have been made, so they don't have to speak. Which also fits in with another element of Robert's Rules that's often misinterpreted. I've seen in constitutions where you read that the chairperson has a casting vote. That's a complete misreading of Robert's Rules. In Robert's Rules, the chair doesn't vote unless it changes the decision. Right. So, the chair only gets one vote, but they cast it last, and they only cast if it's needed. That's interesting, yeah. Yeah. I have a problem. So in the template constitutions, because I work as a lawyer, we always give an option of should the board chair have the casting vote or not. And I tend to recommend to clients, don't do that, because you should all be together, - Yes. - you know, you should be making the decision, and if one person has more power, it alters the dynamics. Yeah. It's not democratic. Yeah. Yeah, so now you know the reason why, and you'll be able to say, "No, that's just a " - Yeah. That's good. -"a misunderstanding. It should never happen." Yeah. I'm so glad we've talked, because you've got a good deep understanding of Robert's Rules. Well, a little. Enough understanding, yes, but I'd recommend the book. Yeah. So anyway, thank you very much, Steven, for your time. I really appreciate it. It's been great catching up with you. You're welcome. I look forward to catching up again soon, and we'll see you next episode. Thank you for watching this episode of Governance Bites. We have more episodes on YouTube and your favourite podcast channel where I interview directors and experts on various topics relating to boards of directors and governance. We'd love to see you back, and please like, subscribe, and share the videos and podcasts.