J. J. Posted March 15, 2011 at 08:03 PM Report Share Posted March 15, 2011 at 08:03 PM The Board of Directors shall have full power and authority over the affairs of the society except A, B, and C. [see p. 560, l. 1-4)]"A, B, and C" being specific classes of business.The board adopts a motion, M-1, relating to D, that clearly does not fall under A, B, or C. All members agree that M-1, clearly, is not something that would fall under A, B, or C. That is not an issue.The members don't like M-1, and want to rescind it at the next regular meeting. Can they, or is D one of those "matters placed by the bylaws exclusively under the control of the board (p. 466, l. 9-10)," and not subject to rescission? Link to comment Share on other sites More sharing options...
Robert B Fish Posted March 15, 2011 at 08:10 PM Report Share Posted March 15, 2011 at 08:10 PM The rules on page 466 seem to state pretty clearly that M-1 is NOT subject to recission. -Bob Link to comment Share on other sites More sharing options...
J. J. Posted March 15, 2011 at 08:17 PM Author Report Share Posted March 15, 2011 at 08:17 PM The rules on page 466 seem to state pretty clearly that M-1 is NOT subject to recission. -BobThat is how I would interpret it, but I'm looking for a possible counter argument. Link to comment Share on other sites More sharing options...
Chris Harrison Posted March 15, 2011 at 08:21 PM Report Share Posted March 15, 2011 at 08:21 PM That is how I would interpret it, but I'm looking for a possible counter argument.I am trying to find one but am not being successful and would be interested to hear what it might be. It seems to me that if the Board has exclusive control over the matter that it would be strictly "hands off" for the Membership. Link to comment Share on other sites More sharing options...
Robert B Fish Posted March 15, 2011 at 08:41 PM Report Share Posted March 15, 2011 at 08:41 PM Without knowing the organization, typical items under A, B, and C would be amending the bylaws, electing officers, and - perhaps - purchase and sale of real property. If M-1 related to, e.g. rules for use of the clubhouse or dues (assuming that did NOT require amending the bylaws), then the aggrieved members might be best advised to address the problem by FAQ#20 or by electing directors who would work to rescind the action when elected.-Bob Link to comment Share on other sites More sharing options...
J. J. Posted March 15, 2011 at 08:50 PM Author Report Share Posted March 15, 2011 at 08:50 PM Without knowing the organization, typical items under A, B, and C would be amending the bylaws, electing officers, and - perhaps - purchase and sale of real property. If M-1 related to, e.g. rules for use of the clubhouse or dues (assuming that did NOT require amending the bylaws), then the aggrieved members might be best advised to address the problem by FAQ#20 or by electing directors who would work to rescind the action when elected.-BobBob, no offense, but that wasn't the (very limited) question I was asking. Link to comment Share on other sites More sharing options...
Rev Ed Posted March 15, 2011 at 09:34 PM Report Share Posted March 15, 2011 at 09:34 PM I would generally say no. It is the responsibility of the Board to use make these decisions on behalf of the membership as it has the authority to do so. The membership also has the right to remove directors and/or officers according to Chapter XX or the organization's By-laws.I would add the cavaet that the By-laws of an organization, barring limitations set out in any statute, should allow the membership the specific right to hold a special meeting to rescind, or approve for that matter, any decision made by the Board. Link to comment Share on other sites More sharing options...
Dan Honemann Posted March 16, 2011 at 11:45 AM Report Share Posted March 16, 2011 at 11:45 AM The Board of Directors shall have full power and authority over the affairs of the society except A, B, and C. [see p. 560, l. 1-4)]"A, B, and C" being specific classes of business.The board adopts a motion, M-1, relating to D, that clearly does not fall under A, B, or C. All members agree that M-1, clearly, is not something that would fall under A, B, or C. That is not an issue.The members don't like M-1, and want to rescind it at the next regular meeting. Can they, or is D one of those "matters placed by the bylaws exclusively under the control of the board (p. 466, l. 9-10)," and not subject to rescission?Yes, the members may rescind this action taken by the Board (assuming no other relevant and material facts). The exceptions (A, B, and C) specify those classes of business over which the membership reserves exclusive authority, and by listing these matters as to which the board may not take action the membership does not intend to divest itself of its own authority over everything else.This is why, after referring to the two examples of bylaw provisions found on pages 560 and 568, RONR immediately goes on to say that: "In any event, no action of the board can conflict with any action taken by the assembly of the society; and except in matters placed by the bylaws exclusively under the control of the board, the society's assembly can give the board instructions which it must carry out, and can countermand any action of the board if it is not too late (as it would be, for example, when a contract has already been made)." (RONR, 10th ed., p. 466, ll. 7-14; emphasis supplied). Link to comment Share on other sites More sharing options...
David A Foulkes Posted March 16, 2011 at 12:07 PM Report Share Posted March 16, 2011 at 12:07 PM Mr. Honemann, are you saying then that the sample wording on page 560 still does not place exclusive authority in the board to act on matters D-Z? Is it that the wording of "full power and authority" does not also mean "exclusive"? Must the word "exclusive" be included in the bylaws to impart that authority? Or does the wording on page 466 truly say that, in any event (no matter what the bylaws say), the membership always retains the authority to override the board's decisions?I had taken the wording on page 559 (bottom) to suggest that the wording on page 560 was in fact how it should be phrased in the bylaws to give the board "exclusive" authority over the membership with noted exceptions. But your post above leads me to think that's not quite right. Link to comment Share on other sites More sharing options...
Dan Honemann Posted March 16, 2011 at 12:37 PM Report Share Posted March 16, 2011 at 12:37 PM Mr. Honemann, are you saying then that the sample wording on page 560 still does not place exclusive authority in the board to act on matters D-Z? Is it that the wording of "full power and authority" does not also mean "exclusive"? Must the word "exclusive" be included in the bylaws to impart that authority? Or does the wording on page 466 truly say that, in any event (no matter what the bylaws say), the membership always retains the authority to override the board's decisions?I had taken the wording on page 559 (bottom) to suggest that the wording on page 560 was in fact how it should be phrased in the bylaws to give the board "exclusive" authority over the membership with noted exceptions. But your post above leads me to think that's not quite right.I meant exactly what I said, and no, the book does not say that, no matter what the bylaws say, the membership always retains the authority to override the board's decisions.Read very carefully the paragraph that begins on page 465, line 26, and ends on page 466, line 17. Two situations are discussed, and examples of each referred to, and what is said on page 466, lines 7-14, very clearly refers to both. Link to comment Share on other sites More sharing options...
J. J. Posted March 16, 2011 at 02:27 PM Author Report Share Posted March 16, 2011 at 02:27 PM Like I said, I was looking for the counterargument. Thank you, Mr. Honemann.I assume no other relevant facts (i.e. M-1 was completely carried out).I will admit that I find the phrase, "except in matters placed by the bylaws exclusively under the control of the board" confusing in this matter. Link to comment Share on other sites More sharing options...
Tim Wynn Posted March 16, 2011 at 10:27 PM Report Share Posted March 16, 2011 at 10:27 PM Yes, the members may rescind this action taken by the Board (assuming no other relevant and material facts). The exceptions (A, B, and C) specify those classes of business over which the membership reserves exclusive authority, and by listing these matters as to which the board may not take action the membership does not intend to divest itself of its own authority over everything else.This is why, after referring to the two examples of bylaw provisions found on pages 560 and 568, RONR immediately goes on to say that: "In any event, no action of the board can conflict with any action taken by the assembly of the society; and except in matters placed by the bylaws exclusively under the control of the board, the society's assembly can give the board instructions which it must carry out, and can countermand any action of the board if it is not too late (as it would be, for example, when a contract has already been made)." (RONR, 10th ed., p. 466, ll. 7-14; emphasis supplied).I find this very enlightening. Link to comment Share on other sites More sharing options...
Gary Novosielski Posted March 17, 2011 at 03:44 AM Report Share Posted March 17, 2011 at 03:44 AM The Board of Directors shall have full power and authority over the affairs of the society except A, B, and C. [see p. 560, l. 1-4)]Having full power and authority does not, in my view, necessarily imply exclusive authority. Even if the bylaws did not exclude A, B, and C, the "full power and authority" phrase, which is common in many bylaws, means that the powers of the board are not limited in any way, but at all times the "power and authority" of any board is presumably exercised on behalf of, and subject to the will of the (membership of the) Society. If the intent of the membership is to grant exclusive and irreversible authority to the board, unreachable by any decision of the full assembly, they're going to have to be a lot more explicit than that in the bylaws. Using the actual word "exclusive" would be a good start.Of course there are timing issues with the question too. If the board's action is completed before a meeting of the assembly occurs, there's nothing to rescind. The only thing that can happen at that point is that heads can roll. Link to comment Share on other sites More sharing options...
J. J. Posted March 17, 2011 at 07:36 PM Author Report Share Posted March 17, 2011 at 07:36 PM Having full power and authority does not, in my view, necessarily imply exclusive authority. Even if the bylaws did not exclude A, B, and C, the "full power and authority" phrase, which is common in many bylaws, means that the powers of the board are not limited in any way, but at all times the "power and authority" of any board is presumably exercised on behalf of, and subject to the will of the (membership of the) Society. If the intent of the membership is to grant exclusive and irreversible authority to the board, unreachable by any decision of the full assembly, they're going to have to be a lot more explicit than that in the bylaws. Using the actual word "exclusive" would be a good start.I think this answer is the clearest. Link to comment Share on other sites More sharing options...
Guest Kenton Posted November 18, 2011 at 06:25 PM Report Share Posted November 18, 2011 at 06:25 PM Can the membership (delegates) amend the bylaws and take away a specific governing duty of the board and give that duty to the membership that meets once a year? Link to comment Share on other sites More sharing options...
Gary c Tesser Posted November 18, 2011 at 06:58 PM Report Share Posted November 18, 2011 at 06:58 PM Sure. Link to comment Share on other sites More sharing options...
Shmuel Gerber Posted November 18, 2011 at 07:08 PM Report Share Posted November 18, 2011 at 07:08 PM Sure.I would like to say, "Advanced Discussion at its finest!", but I'm on the fence about whether this response actually qualifies. Link to comment Share on other sites More sharing options...
alanh49 Posted November 19, 2011 at 01:13 PM Report Share Posted November 19, 2011 at 01:13 PM I meant exactly what I said, and no, the book does not say that, no matter what the bylaws say, the membership always retains the authority to override the board's decisions.Always even if the bylaws clearly give the board sole and exclusive authority over something? Link to comment Share on other sites More sharing options...
Dan Honemann Posted November 19, 2011 at 01:45 PM Report Share Posted November 19, 2011 at 01:45 PM Always even if the bylaws clearly give the board sole and exclusive authority over something?I think if you read all of post #10 again (including post #9 to which it was responding), you will see that I said that "the book does not say that, no matter what the bylaws say, the membership always retains the authority to override the board's decisions.You will find my response to J.J.'s question in post #8, and you really need to start with it. Link to comment Share on other sites More sharing options...
Trina Posted November 19, 2011 at 01:47 PM Report Share Posted November 19, 2011 at 01:47 PM Always even if the bylaws clearly give the board sole and exclusive authority over something?That's not what Mr. Honemann said: -- perhaps your eye slid over the word 'not' in the quoted post:I meant exactly what I said, and no, the book does not say that, no matter what the bylaws say, the membership always retains the authority to override the board's decisions.... Link to comment Share on other sites More sharing options...
Dan Honemann Posted November 19, 2011 at 01:52 PM Report Share Posted November 19, 2011 at 01:52 PM That's not what Mr. Honemann said: -- perhaps your eye slid over the word 'not' in the quoted post:Thank you, Trina. Had I waited a couple more minutes, I could have saved myself a bunch of typing. Link to comment Share on other sites More sharing options...
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