Proviso-like bylaw amendments

[Bruce Lages]

Several recent threads have involved the issues and procedures regarding adding provisos to bylaw amendments in order to alter effective dates, limit length of duration, etc. My question is about amendments that are worded to include a proviso-like condition as part of the amendment.

 

As an example, a bylaw amendment is adopted which adds a sentence to a bylaw section describing some required action which says "The [required action] will be suspended between [start date] and [end date]." When the end date for this suspension is reached, can this sentence be removed from the bylaws automatically, or will it still require a bylaw amendment to remove it?

[Rev Ed]

Bruce, can you give a specific example or two?  I would say that a lot has to do with the specific issue. 

 

One example could be a grandfather rule regarding amendments to the By-laws covering the Board.  For example, if the By-laws are amended to create a term limit for the Board, the By-law could read "This By-law will not apply to directors who are currently serving a term and will only apply to directors elected after this By-law is adopted."  Once all current directors have been left office, the statement grandfathering them could be dropped as it was intended only to apply to a specific situation that cannot occur again.

 

On the other hand, it is part of the By-law and there is an argument that it should be officially removed.  I would argue against requiring another vote to again amend the By-laws but I am saying this to be more practical and not to be technical.

[Guest Edgar]

When the end date for this suspension is reached, can this sentence be removed from the bylaws automatically, or will it still require a bylaw amendment to remove it?

 

I don't think the proviso belongs in the bylaws at all. That's the whole point of a proviso.

[Josh Martin]

Several recent threads have involved the issues and procedures regarding adding provisos to bylaw amendments in order to alter effective dates, limit length of duration, etc. My question is about amendments that are worded to include a proviso-like condition as part of the amendment.

 

As an example, a bylaw amendment is adopted which adds a sentence to a bylaw section describing some required action which says "The [required action] will be suspended between [start date] and [end date]." When the end date for this suspension is reached, can this sentence be removed from the bylaws automatically, or will it still require a bylaw amendment to remove it?

 

If such a rule is actually included as a part of the bylaws, then an amendment to the bylaws will be necessary to remove it. For this reason, it is advisable to include such rules as provisos instead, whenever possible.

[Dan Honemann]

Several recent threads have involved the issues and procedures regarding adding provisos to bylaw amendments in order to alter effective dates, limit length of duration, etc. My question is about amendments that are worded to include a proviso-like condition as part of the amendment.

 

As an example, a bylaw amendment is adopted which adds a sentence to a bylaw section describing some required action which says "The [required action] will be suspended between [start date] and [end date]." When the end date for this suspension is reached, can this sentence be removed from the bylaws automatically, or will it still require a bylaw amendment to remove it?

 

The answer to your question depends upon whether or not the proviso is simply a part of the enacting words of the motion to amend or is a part of the amendment itself. The following two motions (they refer to the sample bylaws, p. 584) illustrate the difference:

 

1. That Article III, Section 1, of the bylaws be amended by striking out “two hundred members” and inserting “three hundred members”; provided, however, that this amendment shall not become effective until January 1, 2020.

 

2. That Article III, Section 1, of the bylaws be amended by adding “; provided, however, that on and after January 1, 2020, the membership of this Society shall be limited to three hundred members.”

 

In the example you have provided, it would seem that what is being proposed is clearly being offered as the entire amendment itself.

[Bruce Lages]

 

 

In the example you have provided, it would seem that what is being proposed is clearly being offered as the entire amendment itself.

 

 

That is indeed the case. What was actually adopted was an amendment to a bylaw article defining initiation fees, reading as follows:

 

(new) Section 8. The initiation fee shall be waived for all membership classes for new members joining between March 1, 2014 and December 31, 2014. 

 

I certainly agree that provisos included as part of the motion, rather than as part of the actual amendment language are preferable. I gather, though, that in this specific case, the bylaws will have to be amended again after December 31 to remove this section.

[Dan Honemann]

That is indeed the case. What was actually adopted was an amendment to a bylaw article defining initiation fees, reading as follows:

 

(new) Section 8. The initiation fee shall be waived for all membership classes for new members joining between March 1, 2014 and December 31, 2014. 

 

I certainly agree that provisos included as part of the motion, rather than as part of the actual amendment language are preferable. I gather, though, that in this specific case, the bylaws will have to be amended again after December 31 to remove this section.

 

Yes, the bylaws will have to be amended again to remove this section if the motion to add it to the bylaws is adopted.

[Shmuel Gerber]

That is indeed the case. What was actually adopted was an amendment to a bylaw article defining initiation fees, reading as follows:

 

(new) Section 8. The initiation fee shall be waived for all membership classes for new members joining between March 1, 2014 and December 31, 2014. 

 

I certainly agree that provisos included as part of the motion, rather than as part of the actual amendment language are preferable. I gather, though, that in this specific case, the bylaws will have to be amended again after December 31 to remove this section.

 

 

Yes, the bylaws will have to be amended again to remove this section if the motion to add it to the bylaws is adopted.

 

Doesn't this basically amount to a clerical question? In other words, isn't the only practical difference simply whether the next section should be called "Section 9" or "Section 8", once this Section 8 provision has expired?

 

Edited to add: Or, I suppose someone might try to amend the expired provision by modifying its language, rather than by adding a new, differently worded provision.

[Dan Honemann]

Doesn't this basically amount to a clerical question? In other words, isn't the only practical difference simply whether the next section should be called "Section 9" or "Section 8", once this Section 8 provision has expired?

 

Edited to add: Or, I suppose someone might try to amend the expired provision by modifying its language, rather than by adding a new, differently worded provision.

 

I don't know. I suppose the answer depends upon whether or not an initiation fee can be imposed upon members after they have become members.

 

If, in 2015, a motion is made and adopted amending this Article of the bylaws by striking out Section 8, will members who joined between March 1, 2014 and December 31, 2014 have to pay the fee in order to retain membership?

 

Or, as you suggest, can a motion be made in 2015 to amend Section 8 by striking out "all membership classes" and inserting a clause specifying only some of the membership classes?

[Shmuel Gerber]

Doesn't this basically amount to a clerical question? In other words, isn't the only practical difference simply whether the next section should be called "Section 9" or "Section 8", once this Section 8 provision has expired?

 

Edited to add: Or, I suppose someone might try to amend the expired provision by modifying its language, rather than by adding a new, differently worded provision.

 

 

I don't know. I suppose the answer depends upon whether or not an initiation fee can be imposed upon members after they have become members.

 

If, in 2015, a motion is made and adopted amending this Article of the bylaws by striking out Section 8, will members who joined between March 1, 2014 and December 31, 2014 have to pay the fee in order to retain membership?

 

Or, as you suggest, can a motion be made in 2015 to amend Section 8 by striking out "all membership classes" and inserting a clause specifying only some of the membership classes?

 

I never heard of an unwaiver, but it seems like I'm paying my initiation fees into the RONR A-Team all the time.

[Thomas Ralph]

Yes, the bylaws will have to be amended again to remove this section if the motion to add it to the bylaws is adopted.

In Ireland, we have a slightly farcical way of dealing with this in our constitutional amendment, including "[this proviso] shall be omitted from all officially published copies of the Constitution".

[alanh49]

Yes, the bylaws will have to be amended again to remove this section if the motion to add it to the bylaws is adopted.

 

But, in this case doesn't the section in question expire after December 31, 2014  and once it has:

 

1. is it still apart of the bylaws?

 

and

 

2. can a rule that has expired be amended or rescinded?

[Guest Edgar]

1. Yes. Think of it as something like the tonsils. Or the appendix. A vestigial organ.

 

2. No. But it could (and should) be deleted.

 

Don't confuse the map ("The Bylaws") with the territory (the bylaws).

[Josh Martin]

But, in this case doesn't the section in question expire after December 31, 2014  and once it has:

 

1. is it still apart of the bylaws?

 

and

 

2. can a rule that has expired be amended or rescinded?

 

Yes to both questions. If the section is actually adopted as a part of the bylaws, then it may only be removed by amending the bylaws. As noted, for this reason, it would be more advisable to adopt it as a proviso to avoid that problem.

 

2. No. But it could (and should) be deleted.

 

I'm not clear on why you think the rule can't be amended or rescinded, nor am I clear on how the rule is supposed to be deleted without doing that.

 

Don't confuse the map ("The Bylaws") with the territory (the bylaws).

 

I don't think there's a difference here. The original question was about a "proviso-like" amendment to the bylaws which, despite that this is a bad idea, is adopted as an amendment to the bylaws themselves instead of as a proviso. In such a case, it is a part of the bylaws and remains so until the bylaws are amended to remove it.

 

In the ordinary case, such temporary provisions are adopted as provisos rather than as amendments to the bylaws themselves. As noted, such a rule is never a part of the bylaws, although it is included in printed copies of the bylaws until the proviso expires.

[Guest Edgar]

I'm not clear on why you think the rule can't be amended or rescinded, nor am I clear on how the rule is supposed to be deleted without doing that.

My thinking was that, since the action authorized by the proviso had been completed, there's nothing left to rescind (or amend).

 

I don't think there's a difference here. The original question was about a "proviso-like" amendment to the bylaws which, despite that this is a bad idea, is adopted as an amendment to the bylaws themselves instead of as a proviso. In such a case, it is a part of the bylaws and remains so until the bylaws are amended to remove it.

I may have forgotten the "proviso-like" nature of this particular amendment. I suppose a motion could be made to strike the "proviso-like" aspects from the bylaws but I'm not sure that's the same thing as rescinding (or amending) the original motion. So I guess you can amend "The Bylaws" without rescinding (or amending) the motion that amended them.