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State statute disagrees with Bylaw provision for member voting


GAdams

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Our bylaws give members the voting power on any amendments to the bylaws. Recent changes to state statutes changed this to give the amendment power vote to the Board of Directors (trustees) only. Any thoughts on how to effect such a change within the bylaws without creating a revolution? Local governance attorney advices us we are to comply with state statute and can make the change as an action of the Board bringing the non-profit corporation in compliance with state law.

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Our bylaws give members the voting power on any amendments to the bylaws. Recent changes to state statutes changed this to give the amendment power vote to the Board of Directors (trustees) only. Any thoughts on how to effect such a change within the bylaws without creating a revolution? Local governance attorney advices us we are to comply with state statute and can make the change as an action of the Board bringing the non-profit corporation in compliance with state law.

If state statute provides that the Board of Directors has the authority to amend the bylaws, then the Board of Directors has the authority to amend the bylaws. The statute takes precedence over the conflicting rule in the bylaws.

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I agree with both Josh Martin and Godel Fan and urge you to check this out further.  Unless you are an organization subject to particular laws and procedures, such as a homeowners' association, I find it unlikely unusual that when it comes to ordinary non profit corporations, the Board has the sole authority to amend the bylaws.  It has been my experience that such statutes usually contain a caveat, such as, "unless provided otherwise in the articles of incorporation or bylaws".   Sometimes that caveat is contained in a separate section or in an earlier part of the statute and applies to a series of provisions that follow.
 

If the law has indeed been changed to say what you believe it says, then it is what it is and I agree that the statute will prevail.

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Our bylaws give members the voting power on any amendments to the bylaws. Recent changes to state statutes changed this to give the amendment power vote to the Board of Directors (trustees) only. Any thoughts on how to effect such a change within the bylaws without creating a revolution? Local governance attorney advices us we are to comply with state statute and can make the change as an action of the Board bringing the non-profit corporation in compliance with state law.

I am not a lawyer, but I question whether failing to change the bylaws would actually violate any law.  Since procedural rules in state law supersede those in the bylaws, they are already in effect whether the bylaws are changed or not.  As long as the organization acts in accordance with the law, the provisions in the bylaws are simply unenforceable language, but I don't think any harm would be done if they remained.

 

In that case, should the state's rules be changed by legislative or court action, the original language (if still there) might come back into play.  Depending on your point of view, that might be a good thing or a bad thing.

 

And I also would agree strongly with those who have suggested that this purported rule should be checked very carefully to make certain that it actually says what it has been described as saying.  

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I am not a lawyer, but I question whether failing to change the bylaws would actually violate any law.  Since procedural rules in state law supersede those in the bylaws, they are already in effect whether the bylaws are changed or not.  As long as the organization acts in accordance with the law, the provisions in the bylaws are simply unenforceable language, but I don't think any harm would be done if they remained.

Legal issues aside, it seems to me that it would be prudent to amend the bylaws to be in compliance with the law, even if it is not strictly required to do so. Leaving the conflicting rule in the bylaws is bound to be confusing for members.

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