Bylaw amendments done incorrectly in the past

[Guest Paul March]

Regarding amendments, our current bylaws state:

"...may be amended by a two-thirds vote of the members present and voting at any regular business meeting or at any specially called meeting for that purpose, provided that such amendment proposed shall be given to the clerk in writing and shall be presented to the membership by a written copy at least thirty (30) days before the time the vote is to be taken."

 

In addition, it has been the common practice to provide the written notice at a business meeting and then vote on it at the next business meeting.  The problem is that the time between business meetings may be anywhere from 28 to 35 days.  Consequently, we have at times approved amendments without the full 30 day notice.

 

We intend to modify the bylaws to better fit reality, but my question for now is:  are the amendments passed with less than 30 days notice valid?

[jstackpo]

Yes, they are valid.

 

The time to complain (i.e., raise a point of order) about the "short" notice was at the time the amendments were introduced for discussion and voting.  Too late now.

[Guest Guest]

That is good news.

 

Thanks for the quick response!

[Timothy]

I would extend "the time to complain" to the next meeting, since this is a violation of the bylaws and it involves a shorter amount of time than is required, but if a point of order is not raised then, it seems like it would be untimely to do so later.

[Edgar Guest]

I would extend "the time to complain" to the next meeting, since this is a violation of the bylaws and it involves a shorter amount of time than is required, but if a point of order is not raised then, it seems like it would be untimely to do so later.

 

I was under the impression that a point of order needed to be made either at the time of the infraction or, in the case of a continuing breach, there is no time limit. I didn't know that there was a "next meeting" time limit.

[Timothy]

I was under the impression that a point of order needed to be made either at the time of the infraction or, in the case of a continuing breach, there is no time limit. I didn't know that there was a "next meeting" time limit.

 

Clearly, this is a violation of the bylaws, which would make it a continuing breech, except that it might be considered in the nature of a special rule of order. Because of that, it could be said that a point of order must be timely. Certainly, a point of order could be raised at the meeting, but since this is before the 30 day requirement, perhaps the person who would raise a point of order isn't even there. The next meeting will be after the 30 day requirement, so that person will have had the required notice time and can show up at that meeting and raise the point of order. I would say a point of order is untimely after that because it is extending protection beyond what is required by the bylaws.

[Guest Guest]

I understand the reasoning behind extending the time to complain and will certainly keep that in mind. In our case, no one is complaining (or ever wished to), we were more concerned that by violating the bylaws we had not actually amended the bylaws (i.e. we broke the rules so it doesn't count).  Thanks to all taking time to reply!

[Edgar Guest]

 . . . we were more concerned that by violating the bylaws we had not actually amended the bylaws (i.e. we broke the rules so it doesn't count). 

 

It counts until a member raises a point of order to the effect that it doesn't count and the chair rules that the point of order is well-taken and, in the face of an appeal, the assembly sustains the ruling of the chair.

[Richard Brown]

Regarding amendments, our current bylaws state:

"...may be amended by a two-thirds vote of the members present and voting at any regular business meeting or at any specially called meeting for that purpose, provided that such amendment proposed shall be given to the clerk in writing and shall be presented to the membership by a written copy at least thirty (30) days before the time the vote is to be taken."

. . . .

We intend to modify the bylaws to better fit reality, but my question for now is:  are the amendments passed with less than 30 days notice valid?

 

Yes, they are valid.

 

The time to complain (i.e., raise a point of order) about the "short" notice was at the time the amendments were introduced for discussion and voting.  Too late now.

 

I would extend "the time to complain" to the next meeting, since this is a violation of the bylaws and it involves a shorter amount of time than is required, but if a point of order is not raised then, it seems like it would be untimely to do so later.

 

I was under the impression that a point of order needed to be made either at the time of the infraction or, in the case of a continuing breach, there is no time limit. I didn't know that there was a "next meeting" time limit.

 

We seem to be all over the ball park on this one:  Dr. Stackpole says a point of order must be raised at the meeting where the amendments are adopted.  Mr. Fish says a point of order can be raised at that meeting or at the next meeting.  Mr. Guest is of the opinion that it is a continuing breach and that a point of order can be raised at any time.

 

I initially agreed with Mr. Guest, and am still inclined to do so, but I'm re-thinkng the whole thing.  It strikes me as a continuing breach.  At a minimum, members should have until the following meeting to object. 

 

I will add this point in the way of anecdotal evidence (or as legal precedent--- take your pick):  A year or so ago I sat in on a hearing where a large and well  known local organization with members all over the country had a special meeting at which the dues were raised significantly.  The required notice that was mailed to the members by the secretary was mailed one day short of the required notice period. (I think 20 days was required and the notice was mailed 19 days prior to the meeting).  The court invalidated the action taken at the special meeting (the dues increase) because it violated the notice requirement in the bylaws by one day.

[Richard Brown]

Yes, they are valid.

 

The time to complain (i.e., raise a point of order) about the "short" notice was at the time the amendments were introduced for discussion and voting.  Too late now.

 

I'm curious:  If the required written notice is given only one or two days prior to the meeting, would you still be of the opinion that a point of order must be raised at that meeting or it is waived?

 

What if one week's notice is given?   Two weeks?  Three weeks?

 

What is the difference?  The bylaws require 30 days notice. 

[Guest Paul March]

So, the beginner (me) attempting to put all of the opinions together and make sense of it:

 

It seems that RONR 11th edition p. 251 re: continuance of the breach is relevant to the overall question.  The motion adopted does not, in and of itself, conflict with the bylaws.  The conflict is "with a rule in the nature of a rule of order".  Therefore, this is not a continuing breach and the point of order needed to be timely and, the amendments are valid. Timely, in the most reasonable case, would allow for the meeting immediately after the 30 days.

[jstackpo]

It is up to the membership at the meeting to raise the (completely valid) point of order that the notice was not timely, no matter how little or how much non-timelyness is the case (29 days is no more or no less untimely than 2 days) , but a failure to accede to the time period of notice does not generate a continuing breach.

 

Look closely at p. 251 (a).    It is the adoption of a motion that itself conflicts with the bylaws that generates a continuing breach, not the failure to follow some procedural rule leading up to the motion.  The adopted motion, in Guest_Paul's case, was the election, a perfectly proper motion.

 

I suppose you might be able to make a continuing breach case from (d) or (e) but there are judgment calls involved with those options, as applied to Paul's case.

 

And as I was typing this, Paul ringed in with the correct conclusion.

[Richard Brown]

Why isn't this provision on pages 263 and 264 relevant?

 

"Rules protecting absentees cannot be suspended, even by unanimous consent or an actual unanimous vote, because the absentees do not consent to such suspension. For example, the rules requiring the presence of a quorum, restricting [page 264] business transacted at a special meeting to that mentioned in the call of the meeting, and requiring previous notice of a proposed amendment to the bylaws protect absentees, if there are any, and cannot be suspended when any member is absent.*"

 

Isn't a notice requirement a rule  protecting absentees?

[Richard Brown]

So, the beginner (me) attempting to put all of the opinions together and make sense of it:

 

It seems that RONR 11th edition p. 251 re: continuance of the breach is relevant to the overall question.  The motion adopted does not, in and of itself, conflict with the bylaws.  The conflict is "with a rule in the nature of a rule of order".  Therefore, this is not a continuing breach and the point of order needed to be timely and, the amendments are valid. Timely, in the most reasonable case, would allow for the meeting immediately after the 30 days.

 

I think that lines 3 - 7 and 18 - 26 on page 251, which in turn refer the reader to the section I quoted on pages 263-264, are very relevant and are being overlooked. 

[Edgar Guest]

The motion adopted does not, in and of itself, conflict with the bylaws. 

 

That's beside the point. The meeting itself was out of order since proper notice was not provided.

[jstackpo]

This one is gonna end up on the Advanced Discussion page before long, I'll bet...

[jstackpo]

That's beside the point. The meeting itself was out of order since proper notice was not provided.

 

I wouldn't say the meeting was out of order, just the premature introduction of the bylaw amendment.

[Timothy]

I think that lines 3 - 7 and 18 - 26 on page 251, which in turn refer the reader to the section I quoted on pages 263-264, are very relevant and are being overlooked. 

 

Relevant, yes, but I don't think anyone is saying that it was proper to vote on bylaw amendments without proper notice. The question is, given that it was done improperly, can someone now raise a point of order and get them declared null and void. Perhaps the safest thing to do would be to give notice of a motion to ratify any and all previous amendments that may have been out of order, wait the required 30 days, and vote on that.

 

That's beside the point. The meeting itself was out of order since proper notice was not provided.

 

The meeting isn't out of order, since it was a regular meeting (apparently), but it is out of order to vote on bylaw amendments in the March regular meeting after notice was given in February.

[Richard Brown]

Yes, they are valid.

 

The time to complain (i.e., raise a point of order) about the "short" notice was at the time the amendments were introduced for discussion and voting.  Too late now.

 

How, exactly, is an absent member who isn't present because he wasn't given timely notice supposed to raise a point of order at this meeting of which he had improper and inadequate notice?

[Edgar Guest]

I wouldn't say the meeting was out of order, just the premature introduction of the bylaw amendment.

 

Yes, thanks. I may have to do some re-thinking.

[jstackpo]

How, exactly, is an absent member who isn't present because he wasn't given timely notice supposed to raise a point of order at this meeting of which he had improper and inadequate notice?

 

Rhetorical questions are the best kind...

 

A friend, who knows the rules might, of course.

 

However, more to the point, if someone at a future meeting (perhaps the absentee showed up, loaded for bear because he had been reading this forum) raised the point that the notice was inadequate and that this did result in a continuing breach, the chair's ruling on the point could be appealed.   One could argue that a 28 day notice (Guest_Paul's example) was entirely reasonable as a protection of the absentee's rights even though it was two days shy of the required 30 days.   Then a majority vote would settle the question.

[Timothy]

Rhetorical questions are the best kind...

 

A friend, who knows the rules might, of course.

 

However, more to the point, if someone at a future meeting (perhaps the absentee showed up, loaded for bear because he had been reading this forum) raised the point that the notice was inadequate and that this did result in a continuing breach, the chair's ruling on the point could be appealed.   One could argue that a 28 day notice (Guest_Paul's example) was entirely reasonable as a protection of the absentee's rights even though it was two days shy of the required 30 days.   Then a majority vote would settle the question.

 

After which, the person loaded for bear might sue the organization and the judge would ask, "what do the bylaws say?"

[Richard Brown]

After which, the person loaded for bear might sue the organization and the judge would ask, "what do the bylaws say?"

Yup.  :-)  

[Dan Honemann]

Why isn't this provision on pages 263 and 264 relevant?

 

"Rules protecting absentees cannot be suspended, even by unanimous consent or an actual unanimous vote, because the absentees do not consent to such suspension. For example, the rules requiring the presence of a quorum, restricting [page 264] business transacted at a special meeting to that mentioned in the call of the meeting, and requiring previous notice of a proposed amendment to the bylaws protect absentees, if there are any, and cannot be suspended when any member is absent.*"

 

Isn't a notice requirement a rule  protecting absentees?

 

Yep.

[Gary Novosielski]

If you're worried about whether the validity of the bylaws might someday be questioned, and if the membership wishes to forestall any action to declare the changes null and void, they can and probably should give proper notice of a revision to the bylaws, present the document as they think it should be as the revision, and vote it in properly, once and for all.

 

Another way, which I am not recommending because it strikes me as somewhat unethical, would be to intentionally raise a point of order, allow the chair to rule, and if the ruling is unfavorable, appeal it.  That would settle the matter, and would require a lower vote threshold.

 

But I don't like it because I believe that the vote on an appeal should not be based on what I wish the rule was, but rather on what the rule actually is, and whether the chair ruled correctly.  

 

In fact the argument could be made that since there cannot be two reasonable opinions on whether 28 is less than 30, such a ruling would not be subject to appeal at all.