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"Exclusive" Powers of a Board - P. 578


jstackpo

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Although RONR doesn't use the word "exclusive" in reference to the powers of a board on p. 578, knowledgeable people here have stated (entirely reasonably) that while the sample bylaw article on p. 578 confers on the Board the power to do anything that the assembly can (properly) do (with possible exceptions), it doesn't prohibit the assembly from superseding (amending or rescinding, most likely) something the Board has done. In order to give the Board "total" or "absolute" (oligarchical-?) power to do things and prevent the assembly from changing what the Board did, i.e., giving the assembly no say at all, the word "exclusively" has to be in that bylaw provision somewhere.

But is that enough? p.483, ll. 9-13 Seems to imply the the "matters" that the Board does have "exclusive" control over should be spelled out in the bylaws. Listing "exceptions", as suggested on p. 578, doesn't hack it.

Is that the case, or may a bylaw provision state that the Board has exclusive control over everything without saying what "everything" covers?

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True, Rev. Ed, but I was basically asking if the bylaws granted exclusive right over everything, without specifying what was covered by "everything" in detail, was that sufficient.

Isn't the point of saying "everything" is that you don't have to be specific?

Conversely, wouldn't it be virtually impossible to specify what was covered by "everything" in detail?

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True, Rev. Ed, but I was basically asking if the bylaws granted exclusive right over everything, without specifying what was covered by "everything" in detail, was that sufficient.

But shouldn't that be sufficient - it sounds like it would be. For example, "The Board has the exclusive authority to operate the organization, unless otherwise specified in the By-laws."

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Although RONR doesn't use the word "exclusive" in reference to the powers of a board on p. 578, knowledgeable people here have stated (entirely reasonably) that while the sample bylaw article on p. 578 confers on the Board the power to do anything that the assembly can (properly) do (with possible exceptions), it doesn't prohibit the assembly from superseding (amending or rescinding, most likely) something the Board has done. In order to give the Board "total" or "absolute" (oligarchical-?) power to do things and prevent the assembly from changing what the Board did, i.e., giving the assembly no say at all, the word "exclusively" has to be in that bylaw provision somewhere.

But is that enough? p.483, ll. 9-13 Seems to imply the the "matters" that the Board does have "exclusive" control over should be spelled out in the bylaws. Listing "exceptions", as suggested on p. 578, doesn't hack it.

Is that the case, or may a bylaw provision state that the Board has exclusive control over everything without saying what "everything" covers?

Well now, I'm sure that you don't really mean what you have said here in the last sentence of the first paragraph, do you? :)

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Although RONR doesn't use the word "exclusive" in reference to the powers of a board on p. 578, knowledgeable people here have stated (entirely reasonably) that while the sample bylaw article on p. 578 confers on the Board the power to do anything that the assembly can (properly) do (with possible exceptions), it doesn't prohibit the assembly from superseding (amending or rescinding, most likely) something the Board has done. In order to give the Board "total" or "absolute" (oligarchical-?) power to do things and prevent the assembly from changing what the Board did, i.e., giving the assembly no say at all, the word "exclusively" has to be in that bylaw provision somewhere.

But is that enough? p.483, ll. 9-13 Seems to imply the the "matters" that the Board does have "exclusive" control over should be spelled out in the bylaws. Listing "exceptions", as suggested on p. 578, doesn't hack it.

Is that the case, or may a bylaw provision state that the Board has exclusive control over everything without saying what "everything" covers?

I am most grateful to you for broaching the subject. Will need to ponder answers.

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I am most grateful to you for broaching the subject. Will need to ponder answers.

It seems to me that the idea is that the assembly delegates business to a board in between annual meetings. So at the annual meetings at least the general assembly is back in the saddle...

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Well now, I'm sure that you don't really mean what you have said here in the last sentence of the first paragraph, do you? :)

(Dan is referencing back to post #7.)

Sure I did, and according to my (informal - no specific reference available) notes I was quoting you.

So... if an association wanted to turn over all of its power to the Board and NOT allow itself to second guess the Board's actions, how would that "Powers of the Board" bylaw provision be worded?

P. 483 describes the possibility for some "matters" exclusively belonging to the Board and, for a business corporation, the board has "exclusive power and authority" over operating the business.

A foolish thing to do, but ...

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(Dan is referencing back to post #7.)

Sure I did, and according to my (informal - no specific reference available) notes I was quoting you.

So... if an association wanted to turn over all of its power to the Board and NOT allow itself to second guess the Board's actions, how would that "Powers of the Board" bylaw provision be worded?

P. 483 describes the possibility for some "matters" exclusively belonging to the Board and, for a business corporation, the board has "exclusive power and authority" over operating the business.

A foolish thing to do, but ...

John, you have no specific reference available because I have never said anything quite so stupid.

Please be more careful in the future.

Whatever nuance Dr. Stackpole is missing is (so far) invisible to me also.

Although RONR doesn't use the word "exclusive" in reference to the powers of a board on p. 578, knowledgeable people here have stated (entirely reasonably) that while the sample bylaw article on p. 578 confers on the Board the power to do anything that the assembly can (properly) do (with possible exceptions), it doesn't prohibit the assembly from superseding (amending or rescinding, most likely) something the Board has done. In order to give the Board "total" or "absolute" (oligarchical-?) power to do things and prevent the assembly from changing what the Board did, i.e., giving the assembly no say at all, the word "exclusively" has to be in that bylaw provision somewhere.

...

The bolded sentence doesn't seem out of line with what is said here:

http://robertsrules....dpost__p__43505

here:

http://robertsrules....dpost__p__43509

or here:

http://robertsrules....dpost__p__43617

However, since Mr. Honemann characterizes the bolded sentence as 'stupid', there's obviously something I'm missing.

[pre-emptively puts on duncecap :rolleyes: ]

Seriously though, I would like to see further discussion of this topic, as I never feel quite sure of the delineation between board powers and general membership authority. It would be nice to get it nailed down once and for all.

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Whatever nuance Dr. Stackpole is missing is (so far) invisible to me also.

The bolded sentence doesn't seem out of line with what is said here:

http://robertsrules....dpost__p__43505

here:

http://robertsrules....dpost__p__43509

or here:

http://robertsrules....dpost__p__43617

However, since Mr. Honemann characterizes the bolded sentence as 'stupid', there's obviously something I'm missing.

[pre-emptively puts on duncecap :rolleyes: ]

Seriously though, I would like to see further discussion of this topic, as I never feel quite sure of the delineation between board powers and general membership authority. It would be nice to get it nailed down once and for all.

Where did I say that the word "exclusively" has to be in that bylaw provision somewhere?

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My apologies for my attribution of "exclusively" to you.

However the book sure uses it on p. 483, clearly in the context of what bylaws need to say to place something "exclusively under the control of the board".

Yes, of course the word “exclusively” is used on page 483, and the sentence in which it is used means exactly what it says. However, that certainly does not mean that the word “exclusively” has to be in a bylaw provision in order for that bylaw provision to vest exclusive authority in an organization’s executive board. The vesting of exclusive authority in a board can obviously be accomplished by the use of other words.

Because it is so obviously true that there is nothing magic in the word “exclusively” that mandates its use in this connection, I was confident that you did not really intend to have that sentence of yours (the last sentence of your first paragraph in post #1) taken literally, and so in post #4 I invited your agreement that this was the case. Needless to say I was rather taken aback by your response that you did, indeed, mean what you said, and that you were quoting me.

So naturally I blew my stack. :) I’m sorry about that (but I still don’t believe that you mean to have that sentence of yours taken literally).

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Where did I say that the word "exclusively" has to be in that bylaw provision somewhere?

No, you did not say that. And I certainly wouldn't claim that 'exclusive' is some sort of magic word; obviously other (equivalent in meaning) language could be used to give a board exclusive authority. The possibility that the sentence was being castigated for recommending exclusive use of the word 'exclusive' didn't dawn on me until late last night.

Unfortunately, this leaves me as confused as ever about the effect of bylaws language on the delineation of power between board and membership. In this recent thread in the general discussion forum:

http://robertsrules....annual-meeting/

you said:

A bylaw provision that "The affairs of the organization will be managed by a board of directors" may very well suffice to vest in the board sole power and authority to manage the affairs of the organization, although it is, of course, necessary to read and understand the organization's governing documents in their entirety (and applicable law, if any) in order to be sure.

Really? That bylaws sentence, with no use of the word 'exclusive' or of any other language with equivalent meaning, is enough to give the board sole authority, without possibility of membership intervention? (Let's assume there is no other confounding language anywhere else in the bylaws).

Apologies to Dr. Stackpole for trying to pull this thread away from the specific question he posed in the original post.

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No need to apologize, T. Arriving at a bylaws phrasing that DOES give a Board, well, exclusive, control over all matters without specifying what those matters may be, whether the words "exclusive" is used or not, is my goal.

At present, in RONR, there seem to be two "levels" of authority delineated in sample bylaws.

One, on p. 586 (in the sample bylaws) is the least powerful: essentially the board does what it is told to do or can "attend to any business that cannot wait" but such "attending" must be consistent with previous decisions by the assembly. No striking out on its own.

The second, p. 578, says the Board can do whatever the assembly could do (with possible specific exceptions), subject to subsequent modifications (or rescissions) by the assembly. The board can strike out on its own (subject to bylaw limitations, of course).

I seek the phrasing for a third level (which is partially explicated on p. 483) that says the Board can do as it pleases (again with possible exceptions, and subject to the bylaws) and the assembly can do nothing about their actions. Whether this third level phrasing uses the word "exclusive" is immaterial, although "exclusive" seems to me to be the most apposite word.

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I believe the question should be: Can a membership body give up its "right" to countermand the actions of the organization's Board of Directors, through a generalized delegation of authority clause, without the organization's bylaws specifically specifying that the delegation of authority also includes the membership body's right to countermand the board action by way of the motion to Rescind or Amend Something Previously Adopted.

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I believe the question should be: Can a membership body give up its "right" to countermand the actions of the organization's Board of Directors, through a generalized delegation of authority clause, without the organization's bylaws specifically specifying that the delegation of authority also includes the membership body's right to countermand the board action by way of the motion to Rescind or Amend Something Previously Adopted.

Oh, I think the answer to this question is clearly "yes".

My recollection is that a request very much like the one in the middle of post #10 was made by someone quite some time ago, and it seemed to me that the person making the request was just as competent to draft such a bylaw provision as anyone else. I think this is also true now.

If what is being asked is whether or not there is any official RONR phraseology for a provision of this sort, the answer is "no".

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No need to apologize, T. Arriving at a bylaws phrasing that DOES give a Board, well, exclusive, control over all matters without specifying what those matters may be, whether the words "exclusive" is used or not, is my goal.

...

I seek the phrasing for a third level (which is partially explicated on p. 483) that says the Board can do as it pleases (again with possible exceptions, and subject to the bylaws) and the assembly can do nothing about their actions. Whether this third level phrasing uses the word "exclusive" is immaterial, although "exclusive" seems to me to be the most apposite word.

'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 rescind or amend any action of the board if it is not too late. (p. 483 ll. 9-13, just before the language you are probably referring to)

Mr. Honemann seems to suggest that

"The affairs of the organization will be managed by a board of directors."

could be adequate to do what you're asking, and to be sufficient to place all matters 'exclusively under the control of the board' (a la p. 483)

That is a surprise to me (if I'm understanding his comment correctly).

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Perhaps, a better way of tackling the concept is to think of the principle that the assembly of the society cannot adopt a motion in conflict with the bylaws (exceptions aside). So, if the bylaws say that the color of the club house shall be red, the assembly cannot adopt a motion to paint the club house blue. In the same way, if the bylaws say that the color of the club house shall be chosen by the board, the assembly cannot adopt a motion to paint the club house blue… because it conflicts with something that the the assembly already adopted that is still in force: the bylaws. The assembly's recourse, of course, is to amend the bylaws.

If the bylaws say the board shall arrange for the club house to be painted each year, I would say, in general, without seeing the rest of these hypothetical bylaws, that the assembly of the society can give instructions as to the color and could even adopt a standing rule on the subject. :)

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'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 rescind or amend any action of the board if it is not too late. (p. 483 ll. 9-13, just before the language you are probably referring to)

Mr. Honemann seems to suggest that

"The affairs of the organization will be managed by a board of directors."

could be adequate to do what you're asking, and to be sufficient to place all matters 'exclusively under the control of the board' (a la p. 483)

That is a surprise to me (if I'm understanding his comment correctly).

Before you open a can of worms, it's best make sure there is a can to begin with.

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Before you open a can of worms, it's best make sure there is a can to begin with.

I would be glad to follow this advice, if I understood what it meant.

My main reason for following this thread is to better understand the division of authority between board and general membership, especially given the often wishy-washy language about board responsibilities that is found in real-life bylaws. Real-life board members do tend to assume that the responsibilities they have been given by the bylaws are the board's exclusive province (it's not just that the general membership is usually content to let the board make decisions, but that both the board members and the general members often come to believe that the general membership has no right to stick its oar in on those board decisions). The fact that years may go by without any attempt by the general membership to exercise its authority vis-a-vis the board sets up a sort of custom in the organization, and reinforces people's belief that the board does have exclusive authority.

Following on from what Mr. Wynn said about the membership having to follow the bylaws, perhaps a key element is whether the general membership retains its normal authority to interpret ambiguous language in the bylaws. So long as that right has not been explicitly taken away from the GM, then the ultimate meaning of unclear statements of the extent of board authority (e.g. "the affairs of the organization will be managed by a board of directors.") would remain subject to some interpretation by the general membership -- as to whether this sentence means that the board will manage the affairs with no chance of intervention by the general membership, or whether it means that the board normally manages day-to-day affairs but that the GM maintains its authority to instruct/amend/rescind.

This view also goes along (I think) with Mr. Honemann's comment that RONR does not provide an official example of language which accomplishes the goal of giving a board exclusive authority.

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I would be glad to follow this advice, if I understood what it meant.

My main reason for following this thread is to better understand the division of authority between board and general membership, especially given the often wishy-washy language about board responsibilities that is found in real-life bylaws. Real-life board members do tend to assume that the responsibilities they have been given by the bylaws are the board's exclusive province (it's not just that the general membership is usually content to let the board make decisions, but that both the board members and the general members often come to believe that the general membership has no right to stick its oar in on those board decisions). The fact that years may go by without any attempt by the general membership to exercise its authority vis-a-vis the board sets up a sort of custom in the organization, and reinforces people's belief that the board does have exclusive authority.

Following on from what Mr. Wynn said about the membership having to follow the bylaws, perhaps a key element is whether the general membership retains its normal authority to interpret ambiguous language in the bylaws. So long as that right has not been explicitly taken away from the GM, then the ultimate meaning of unclear statements of the extent of board authority (e.g. "the affairs of the organization will be managed by a board of directors.") would remain subject to some interpretation by the general membership -- as to whether this sentence means that the board will manage the affairs with no chance of intervention by the general membership, or whether it means that the board normally manages day-to-day affairs but that the GM maintains its authority to instruct/amend/rescind.

This view also goes along (I think) with Mr. Honemann's comment that RONR does not provide an official example of language which accomplishes the goal of giving a board exclusive authority.

Trina, I did say (in another thread) that:

“A bylaw provision that "The affairs of the organization will be managed by a board of directors" may very well suffice to vest in the board sole power and authority to manage the affairs of the organization, although it is, of course, necessary to read and understand the organization's governing documents in their entirety (and applicable law, if any) in order to be sure.”

I also should have added that, even after becoming fully familiar with the governing documents and applicable law, it will probably still be necessary to gather a substantial amount of additional background facts in order to properly interpret the bylaw provision under consideration. On the other hand, it may also be relatively easy. For example, it would not surprise me in the least to find that, in the case described in that other thread, the bylaw provision simply tracks the language of an applicable statute vesting sole authority of management in the board (it is very close to some statutory provisions with which I am familiar).

In post #16 you ask:

“Really? That bylaws sentence, with no use of the word 'exclusive' or of any other language with equivalent meaning, is enough to give the board sole authority, without possibility of membership intervention? (Let's assume there is no other confounding language anywhere else in the bylaws).”

This sort of question is impossible to answer, since there will always be other relevant and material factors involved in these “real life” situations to which you refer. The notion that we should assume that there will not be any is asking us to ignore reality.

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