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Board positions on bylaw amendments


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Our legislation, which governs non-share corporations (non-profits), permits bylaws to be amended by what it defines as a "special resolution" which passage at a meeting is predicated on (1) adequate notice and (2) carriage by a vote of at least 75% at a meeting duly called and at which quorum was present.

The legislation also provides, in the alternative, that a Society may if its bylaws so specify amend its bylaws via mailed referendum subject to at least 75% of the ballots cast in favor.

Mailed referendum is what is provided in my bylaws, which also provide that

  1. "The Board shall manage or supervise the management of the affairs and business of the Association [not just between meetings of the membership], and
  2. The Board from time to time may make regulations not contrary to law or to the Constitution and Bylaws to regulate the conduct of the affairs of the Association in all particulars, and may repeal or amend the same, and
  3. A proposal to amend the Constitution or Bylaws
    • may be made by (a) any voting member in good standing, by way of notice of motion signed by the proposer and one seconder, also being a voting member in good standing, setting out the proposed amendment …
    • The CEO shall distribute by mail or electronically [the resolutions], and

[*]​Except where otherwise specifically provided in these Bylaws, the current edition of Robert’s Rules of Order Newly Revised shall govern all procedural matters at all meetings of the Association, the Board, the Executive Committee and all committees

What results is a situation where the members lacked the opportunity to mutually debate and decide a matter as a deliberative body.

In RONR (11th ed) it states that approval, absent a capacity for deliberation, is subject to ratification at the next meeting but this section was specific to the case of boards (p 487 ll 4-12), others examples being listed on p 124.

Is it the view of forum members that this scenario should be subject to this requirement?

Notwithstanding that my bylaws stipulation for RONR to govern (only) all procedural matters at all meetings stands to cast RONR as having no force on approvals gained outside of meetings? Maybe such warrant is invalidated by some fundamental violation of parliamentary law?

Lastly, we have no term limits for directors, whose years on the board range from 1-23 with half averaging more than 10 years. A bylaws amendment proposal for term limits of

  • 6 years in 10 for ordinary directors
  • with officers exempt while officers, and
  • with a return to eligibility to stand for re-election after 4 years off the board

has been submitted. The bylaws are silent on the nature and extent of any materials that are to accompany the proposals.

The board is asserting a right to oppose such an amendment through the distribution, with the proposed amendment and ballots, of an information circular citing the board's reasons while denying the proposer the opportunity to supply any pros or to rebut the board's opposition and while contending freedom from conflict of interest.

Is this anything forum members care to comment on, whether such actions accord with or violate RONR or, if falling outside of RONR, to comment in principle?

Thanks!

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Our legislation, which governs non-share corporations (non-profits), permits bylaws to be amended by what it defines as a "special resolution" which passage at a meeting is predicated on (1) adequate notice and (2) carriage by a vote of at least 75% at a meeting duly called and at which quorum was present.

The legislation also provides, in the alternative, that a Society may if its bylaws so specify amend its bylaws via mailed referendum subject to at least 75% of the ballots cast in favor.

Mailed referendum is what is provided in my bylaws, which also provide that

  1. "The Board shall manage or supervise the management of the affairs and business of the Association [not just between meetings of the membership], and
  2. The Board from time to time may make regulations not contrary to law or to the Constitution and Bylaws to regulate the conduct of the affairs of the Association in all particulars, and may repeal or amend the same, and
  3. A proposal to amend the Constitution or Bylaws
    • may be made by (a) any voting member in good standing, by way of notice of motion signed by the proposer and one seconder, also being a voting member in good standing, setting out the proposed amendment …
    • The CEO shall distribute by mail or electronically [the resolutions], and

  • ​Except where otherwise specifically provided in these Bylaws, the current edition of Robert’s Rules of Order Newly Revised shall govern all procedural matters at all meetings of the Association, the Board, the Executive Committee and all committees

What results is a situation where the members lacked the opportunity to mutually debate and decide a matter as a deliberative body.

In RONR (11th ed) it states that approval, absent a capacity for deliberation, is subject to ratification at the next meeting but this section was specific to the case of boards (p 487 ll 4-12), others examples being listed on p 124.

Is it the view of forum members that this scenario should be subject to this requirement?

Notwithstanding that my bylaws stipulation for RONR to govern (only) all procedural matters at all meetings stands to cast RONR as having no force on approvals gained outside of meetings? Maybe such warrant is invalidated by some fundamental violation of parliamentary law?

Lastly, we have no term limits for directors, whose years on the board range from 1-23 with half averaging more than 10 years. A bylaws amendment proposal for term limits of

  • 6 years in 10 for ordinary directors
  • with officers exempt while officers, and
  • with a return to eligibility to stand for re-election after 4 years off the board

has been submitted. The bylaws are silent on the nature and extent of any materials that are to accompany the proposals.

The board is asserting a right to oppose such an amendment through the distribution, with the proposed amendment and ballots, of an information circular citing the board's reasons while denying the proposer the opportunity to supply any pros or to rebut the board's opposition and while contending freedom from conflict of interest.

Is this anything forum members care to comment on, whether such actions accord with or violate RONR or, if falling outside of RONR, to comment in principle?

Thanks!

It's not clear to me what your question is. Also, you have not indicated to whom the governing documents give the authority to amend the bylaws.

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Mine is a voluntary society of ~ 11,000 members distributed across more than a tri-state area and it is the membership, through its vote, that carries the authority to amend the bylaws.

My questions are:

  1. Is there not something seriously lacking where members approve (or do not), by mail, a bylaws change absent the capacity to deliberate its merits? Am I correct to believe that RONR requires that the decision be ratified at the next meeting (notwithstanding that we draw only 100-200 there could at least be the capacity for debate).
  2. Where the Board resolves to supply a position (its own) as to whether or not the members should vote in favor while disallowing the supply of competing arguments on a matter that is to be decided by the members, is there a basis to contend such conduct as out of order?

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Mine is a voluntary society of ~ 11,000 members distributed across more than a tri-state area and it is the membership, through its vote, that carries the authority to amend the bylaws.

My questions are:

  1. Is there not something seriously lacking where members approve (or do not), by mail, a bylaws change absent the capacity to deliberate its merits?

Yes, the deliberative process is missing.

Am I correct to believe that RONR requires that the decision be ratified at the next meeting (notwithstanding that we draw only 100-200 there could at least be the capacity for debate).

RONR requires this, yes, since a decision outside of a meeting is not the decision of a deliberative assembly. However, if your bylaws or higher governing documents authorize absentee voting in this manner, RONR is superseded and the voting method is valid, without need for ratification.

Where the Board resolves to supply a position (its own) as to whether or not the members should vote in favor while disallowing the supply of competing arguments on a matter that is to be decided by the members, is there a basis to contend such conduct as out of order?

The board is free to make a recommendation in its report at a general-membership meeting. I don't see that adopting a motion to make a recommendation via e-mail or postal mail or the like is out of order. However, the members are free to do the same, since all of this is taking place outside of a meeting. I don't see how the board would prevent members from making recommendations to one another on the issue.

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Is it the view of forum members that this scenario should be subject to this requirement?

No, because your Bylaws supersede RONR. Mail votes are permitted if authorized by the Bylaws. (RONR, 11th ed., pg. 14, lines 17-25; pg. 16, lines 21-27; pg. 423, lines 17-25)

Notwithstanding that my bylaws stipulation for RONR to govern (only) all procedural matters at all meetings stands to cast RONR as having no force on approvals gained outside of meetings?

The interpretation of your Bylaws is up to your society. See RONR, 11th ed., pgs. 588-591 for some Principles of Interpretation. While it is unfortunate that your society has used nonstandard wording, I don't think it necessarily holds that RONR has no application outside of meetings... but that is of little use in answering this question, as your Bylaws supersede RONR.

Maybe such warrant is invalidated by some fundamental violation of parliamentary law?

A society may adopt rules which conflict with the fundamental principles of parliamentary law, although in some cases (like this one), this requires a rule in the Bylaws - which you have. (RONR, 11th ed., pg. 10, lines 21-30)

The board is asserting a right to oppose such an amendment through the distribution, with the proposed amendment and ballots, of an information circular citing the board's reasons while denying the proposer the opportunity to supply any pros or to rebut the board's opposition and while contending freedom from conflict of interest.

RONR leaves these sorts of details for mail votes to the discretion of the society and its rules. It has no rule on this subject.

Is this anything forum members care to comment on, whether such actions accord with or violate RONR or, if falling outside of RONR, to comment in principle?

Taking a mail vote violates RONR, but that's okay because your Bylaws supersede RONR. There is nothing in RONR about what can be sent with mailed ballots. Such details are left to the society.

Is there not something seriously lacking where members approve (or do not), by mail, a bylaws change absent the capacity to deliberate its merits?

Yes, the opportunity for debate.

Am I correct to believe that RONR requires that the decision be ratified at the next meeting (notwithstanding that we draw only 100-200 there could at least be the capacity for debate).

No. Since your Bylaws authorize voting by mail, there is nothing to ratify.

Where the Board resolves to supply a position (its own) as to whether or not the members should vote in favor while disallowing the supply of competing arguments on a matter that is to be decided by the members, is there a basis to contend such conduct as out of order?

If we're still talking about the mail vote, this does not violate any rule of RONR. Your society may have rules on this subject. If it doesn't, that might be a good idea. Alternately, you could try to amend the Bylaws to get rid of mail voting since you don't seem to be a big fan of it.

If the amendment was pending at a meeting, the board could not stifle opposing arguments.

I don't see that adopting a motion to make a recommendation via e-mail or postal mail or the like is out of order. However, the members are free to do the same, since all of this is taking place outside of a meeting. I don't see how the board would prevent members from making recommendations to one another on the issue.

I think the concern is that the board has access to greater resources than the membership - they could spend the society's funds and place their materials in the same mailing as the ballots, while other members would need to mail their recommendations separately and at their own expense. It's also possible the general members don't even have access to the mailing list. If the society does continue using mail votes, it may wish to adopt rules on these subjects, since RONR does not address them.

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Thanks for confirming what I rather suspected, that there exist provisions in my bylaws which explicitly supersede RONR (even if RONR would have been arguable, on some aspects, applicable outside of meetings).

I would not as much mind mailed ballots provided their casting was informed, for example by the opportunity to view (even if they did not themselves participate in) an online members' forum in which pros and cons had gotten hashed out.

I have had it suggested to me that the action being contemplated by the board constitutes a denial of a duty of fairness, however any complaint of this type is better (or at least less expensively) pursued via the membership than in a court. Perhaps through a further bylaws improvement!

It is interesting to note, in the case of eligible and properly-submitted publicly-traded company shareholder proposals limited to 500 words, the requirement that these go out unimpeded, and with proposer recourse to the Securities Exchange Commission if there is an apprehension that the company's opposition contains materially false or misleading statements. Reference: U of Cincinnati Securities Lawyer's Deskbook - Rule 14a-8.

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