Martha’s Rules: Advancing collective-decision making in nonprofits

In my experience, organizations are often looking for alternatives to Robert’s Rules of Order. Recently, I had the pleasure of delivering a webinar on feminist governance for nonprofits. During the session, participants shared several feminist alternatives to Robert’s Rules of Order, and this one stood out, Martha’s Rules of Order. 

This blog post is to introduce Ontario-based nonprofits to this approach to meeting procedures, and consider some of its legal implications through an Ontario corporate law perspective. I can think of no legal reason why an Ontario nonprofit looking for an alternative to Robert’s Rules more in line with its values of care and collaborative decision-making, could not adopt Martha’s Rules.

What are Martha’s Rules of Order?

Martha’s Rules were originally developed by Martha’s Housing Co-op for families in Madison, Wisconsin. They reflect a desire for more consensus-based decision-making, but a recognition that not all decisions warrant the investment of time and energy consensus decision-making takes. 

It consists of six steps:

1. Preparing: Notice to participants ahead of time with supporting information as needed. Facilitator, pre-selected or at the beginning of a meeting, proposes an agenda with time limits, which must be approved by consensus.
2. Generating proposals: when an issue is presented without a specific proposal, the group discusses the issue with the goal of exploring what can be done about the issue and what would be the implications of taking various actions. 
3. Making proposals concrete: The facilitator works with the participants to group proposals into concrete plans. For each plan, essential logistical issues are decided on, such as: who would be responsible to implement? How much would it cost? When would it happen? etc.  
4. Voting a “sense” vote: For each proposal, the facilitator takes a vote to determine (a) Who likes the proposal? (b) Who can live with the proposal? (c) Who is uncomfortable with the proposal? Those who are uncomfortable are specifically asked why, and a discussion may ensue. 
5. Taking an official vote: If no one is uncomfortable, a simple vote can be taken. If anyone voted their discomfort, a proposal is put to the group with the following question, “Should we implement this decision over the stated objections of the minority, when a majority of us feel it is workable?” A majority of yes votes on this question mean the proposal has passed. If it fails, then the group can generate new proposals or amend existing ones to accommodate the objections.
6. Implementing and reviewing: The facilitator reiterates to everyone exactly what has been decided (including the specific wording of the resolution) as a result of the vote, and assigns tasks, deadlines, etc. accordingly.

Several of Martha’s Rules distinctive aspects have the potential to help boards meet their fiduciary duties. 

Legal strengths of Martha’s Rules

Firstly, the generating proposal step, in contrast to meeting procedures that encourage discussions to begin with a fully formed question or motion, helps to avoid tunnel vision or false dichotomies when making decisions. A board that can show it turned its mind to genuine alternatives is far less likely to be open to the charge of “rubber stamping” a motion presented by an influential director or officer.

Secondly, having a distinctive step to make the proposal concrete helps to avoid ambiguity in the language of resolutions when it comes time for implementation. I have personally been the secretary at board meetings where everybody felt the resolution they were voting on was clear until a month later when a practical question about implementation came up and no one could agree on what was intended.

Thirdly, voting a sense vote in which people are asked point-blank about their feelings without that vote having to be “for” or “against” the motion is a brilliant way to surface reservations and objections. Directors have a legal duty to raise any concerns they have about a decision. However, there are many reasons why on many boards directors keep quiet. This could range from not wanting to slow things down or be perceived as difficult to doubting one’s own competency. These issues are especially acute for directors from equity-seeking communities who may face stereotypes from other directors. Martha’s Rules encourages these types of intervention from directors and even forces it a bit, so that no one can blame an individual director for answering truthfully exactly the question they were asked. 

Fourthly, framing the official vote as a question about “do we approve this over the stated objections?” creates an unambiguous record that the objections were weighed and the decision was taken anyway. Some boards are afraid of having such a written record for fear that their decision turns out to be wrong, but this attitude is exactly backwards. The law does not expect perfection from directors, but it does expect that directors have a robust decision-making process. Boards are entitled to weigh competing factors as they wish, provided they can show they considered all relevant factors and appreciated their relative seriousness.

Some potential legal pitfalls in Martha’s Rules

Martha’s Rules are compatible with Ontario corporate law, but there are some aspects that could lead to confusion or have unintended legal consequences.

Firstly, while it helps to be specific in a Board or Member’s resolution, making the wording of a resolution too specific with respect to logistics could lead to issues if upon implementation it is found that some of the agreed upon details need to be changed (e.g. the project goes over budget). For that reason, an organization adopting Martha’s Rules may wish to have a policy or include wording in the resolution that makes it clear who has the authority to vary the details if need be and to what extent.

Secondly, under Ontario’s Not-for-Profit Corporations Act, directors have the ability to object to a resolution and ask that their reason be noted in the minutes. The effect of doing this is to shield the director from liability for that decision. Voting as part of this process that an individual is “uncomfortable” with the proposal would likely not be enough (since such a vote is not an outright rejection of the proposal). Consequently, organizations using Martha’s Rules may wish to inform directors that if they wish to exercise their right to formally object so as to protect themselves legally, they would need to vote against the proposal in the final vote and ask that their reason be noted. This may lead to duplication in the minutes.

Thirdly, in order for many of the legal benefits of Martha’s Rules to be achieved, it is necessary that the minutes properly document the robustness of the conversation and in particular, when a vote is taken, make clear whether it is a sense vote or an official vote. 

Food for thought

Even if Martha’s Rules aren’t for your organization, I hope this discussion gave you some food for thought, and some individual practices you could adopt to help improve decision-making within your organization.