Amending the wrong bylaws

[smb]

An organization recently adopted several amendments to its bylaws.  As is customary, the amendments were shown in context with  strike-out to show words to be stricken and underscore to show words to be inserted or added.  All the changes were properly noticed and adopted with the required vote.  

 

Problem:  After the meeting the Secretary discovered that the marked-up language that was presented to the members came from an old version of the bylaws (2010) and not the most current (2013.)   In some cases the 2010 and 2013 language is identical so there may be no issue. But in other cases, there were intervening amendments between 2010 and 2013 so that the notice of the proposed 2014 changes is affected in different ways:

 

1) in 2010 the bylaws had "three" members on a committee.  The 2013 bylaws show "five".  The 2014 amendment, because it was based upon the incorrect 2010 version, was to "strike three" and insert "up to seven"  when it should have been shown as strike "five".  While there is a difference between the 2010 and 2013 versions, the intent of the most recent amendment is clear and the adopted amendment could easily be given effect without altering any other language.   Other instances are not so clear.  

 

2)  Some of the amendments can be given effect in the corresponding sections of the 2013 bylaws -- but would require some non- substantive changes in grammar, tense, and punctuation.

 

3) A paragraph in the treasurer's duties was amended via strike and insert.  Because they were working with the 2010 language and not 2013, the language to be inserted omitted a sentence that had been added sometime between 2010 and 2013 .  Is it still in the bylaws because it wasn't shown as stricken?  Or is it now out, because it wasn't shown in language to be inserted?   Or did the error effectively destroy the notice so that the entire amendment is null and void in any event?

 

4) Some of the amendments cannot be reconciled because they amended language in the 2010 bylaws that is no longer in the 2013 bylaws.  Others cannot be reconciled because to correct the corresponding sections of the 2013 bylaws would require collateral changes to other sections that were not noticed.   

 

Question:  Would you advise the organization that the error of using 2010 as the base document instead of 2013 renders all of the amendments null and void and they should start the entire process over? Or, would you advise the organization to salvage what can be reconciled and redo only those changes that cannot be reconciled? (I.e., give validity to (1) and (2) but have them redo (3) and (4)?

 

 

[Kim Goldsworthy]

I would not "throw the baby out with the bath water."

 

If there are amendments which (a.) still fit the notice given; (b.) are harmless in the net effect; then I would advise the organization to recognized those changes as still legitimate.

 

For those amendment which are more "iffy", then it is a judgment call.

Some will be fine. Some will be too radical. And some are in-between.

There is no way to tell which amendments do not violate the notice, or do not jump over and erase the intervening bylaw language.

 

One method of attack:

If you have a dozen changes, then go through them, one by one, and decide (by majority vote), "Yes, this is still legit in all ways," or "No, the notice is not sufficident for that depth of a change" (or "No, the new language too much obliterates the missing intermediate language to be fair to the voters who voted in the new language.")

 

To contradict Frank Sinatra, "It is not 'All Or Nothing At All'."

Keep what is fair to the voters who voted in the new language.

Rid what violates the voter's good faith.

[Dan Honemann]

This organization will have to stew in its own juice, but just to begin to try to answer the question posted here, it seems rather clear to me that if a motion is adopted to amend a certain section of the bylaws by striking out "three" and inserting "up to seven", and "three" appears nowhere in the section referred to, the adopted motion is a nullity. It cannot be complied with.

[Sean Hunt]

I agree with Dan, and I would go so far as to say that, if they were present in context, and the context is wrong, then the motion should be viewed as a nullity, because the motion is properly viewed as including the context (it could be written out as, say "To strike 'three' and insert 'up to seven' after 'The Committee shall have' and before 'members'."). The best course of action is simply for the organization to go through the amendment procedures again. In the 3->7 example, I don't think we can even assume that changing it to 5->7 is appropriate, as there may well be enough members who prefer 5 to 7 as to make a 5->7 amendment fail.

 

I would personally venture that if the amendments are time-sensitive and cannot be corrected in time, the officers of the organization could act as if they had passed, but they would be on extremely shaky ground, as their actions could not be ratified through the normal motion to Ratify; they would have to include any ratification as a proviso to the subsequent amendments, with the additional requirements it entails.