Trina Posted June 7, 2012 at 11:17 AM Report Share Posted June 7, 2012 at 11:17 AM 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.Thank you for taking the time to make these additional comments.One question -- with reference to the bolded sentence -- in that situation it would be the applicable statute itself that actually gives the board sole authority of management, correct? Not the fact that the bylaws language echoes some of the language in the statute? Link to comment Share on other sites More sharing options...
Dan Honemann Posted June 7, 2012 at 11:27 AM Report Share Posted June 7, 2012 at 11:27 AM Thank you for taking the time to make these additional comments.One question -- with reference to the bolded sentence -- in that situation it would be the applicable statute itself that actually gives the board sole authority of management, correct? Not the fact that the bylaws language echoes some of the language in the statute?Yes, in that situation the applicable statute is controlling.However, since it may be cheating to simply give the easy answer to an easy question, I should add that there is a real distinction to be drawn between a bylaw provision which mandates that something will be done by the board of directors and one which simply confers power upon the board to do it. This is what I think Tim Wynn was getting at when he said, in post #22, that “… 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…” Link to comment Share on other sites More sharing options...
Guest Loose Posted June 11, 2012 at 07:44 AM Report Share Posted June 11, 2012 at 07:44 AM Thank you for your attention to my question. I'm afraid it's a bit over my head. Maybe somebody kind will give me step by step instructions what to do. I have an annual meeting coming up. I want to wrest control away from the board and put it back in the hands of the members. Link to comment Share on other sites More sharing options...
Guest Loose Posted June 11, 2012 at 07:55 AM Report Share Posted June 11, 2012 at 07:55 AM Our state code under "definitions" says, (7) "Board of directors" means the group of persons vested with the management of the affairs of the corporation irrespective of the name by which such group is designated in the articles or bylaws. Under Board of directors it says "The affairs of a corporation shall be managed by a board of directors." So this language was borrowed straight out of the code. Whoever our attorney was was being lazy. Link to comment Share on other sites More sharing options...
Guest Loose Posted June 11, 2012 at 09:01 AM Report Share Posted June 11, 2012 at 09:01 AM Yes, in that situation the applicable statute is controlling.However, since it may be cheating to simply give the easy answer to an easy question, I should add that there is a real distinction to be drawn between a bylaw provision which mandates that something will be done by the board of directors and one which simply confers power upon the board to do it. This is what I think Tim Wynn was getting at when he said, in post #22, that “… 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…”The clause in our Bylaws "The affairs of the corporation shall be managed by a board of directors" comes straight out of our state code. Does that help? There is nothing in our articles of incorporation about powers. Does that help? Sounds like you're saying the language is such that management by anyone besides the board would be in violation of the bylaws. Link to comment Share on other sites More sharing options...
Dan Honemann Posted June 11, 2012 at 10:00 AM Report Share Posted June 11, 2012 at 10:00 AM Guest Loose, I'm afraid that you are going to have to consult with an attorney in order to see what, if anything, the members of your organization can do to, as you say, "wrest control away from the board and put it back in the hands of the members" (although perhaps they never had it to begin with).Parliamentary law (as codified in RONR and the kind of "law" that parliamentarians deal with) takes a back seat to applicable corporate law (the kind of "real law" that lawyers deal with), and it is apparent that your state's law, embodied in the statutes to which you refer, is controlling.Sorry about that. Link to comment Share on other sites More sharing options...
Gary Novosielski Posted June 11, 2012 at 05:41 PM Report Share Posted June 11, 2012 at 05:41 PM 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, it does, but as I opined in the previous thread, using the word "would be a good start", but I'd have to admit that the English language is versatile enough that something can be placed exclusively under the control of the board without using the word "exclusive(ly)" in the actual bylaws. For example: "The board shall have complete and unquestioned control over all matters, and in this they shall be answerable to no one" would, I think, do the job. Link to comment Share on other sites More sharing options...
Guest Loose Posted June 12, 2012 at 05:58 AM Report Share Posted June 12, 2012 at 05:58 AM Guest Loose, I'm afraid that you are going to have to consult with an attorney in order to see what, if anything, the members of your organization can do to, as you say, "wrest control away from the board and put it back in the hands of the members" (although perhaps they never had it to begin with).Parliamentary law (as codified in RONR and the kind of "law" that parliamentarians deal with) takes a back seat to applicable corporate law (the kind of "real law" that lawyers deal with), and it is apparent that your state's law, embodied in the statutes to which you refer, is controlling.Sorry about that. I'm sorry to be a pest. Just to be clear, you are not able to give an opinion that counts on whether my bylaws clause means oligarchy or not? I have to see the statutes? Do I have that right? Link to comment Share on other sites More sharing options...
jstackpo Posted June 12, 2012 at 08:47 AM Author Report Share Posted June 12, 2012 at 08:47 AM See the other thread - the only "opinion that counts" is what your association (see p. 588) concludes is the meaning of your bylaws. Link to comment Share on other sites More sharing options...
Dan Honemann Posted June 12, 2012 at 10:19 AM Report Share Posted June 12, 2012 at 10:19 AM I'm sorry to be a pest. Just to be clear, you are not able to give an opinion that counts on whether my bylaws clause means oligarchy or not? I have to see the statutes? Do I have that right?Well, yes, you have the first part right. We are not able, here in this forum, to give you a definitive opinion as to the meaning of your organization's bylaws. But no, I didn't say that you have to see the statutes. I said that you are going to have to consult with an attorney. Link to comment Share on other sites More sharing options...
Guest Loose Posted June 13, 2012 at 06:24 AM Report Share Posted June 13, 2012 at 06:24 AM 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. By this reasoning it seems to me if the bylaws say the affairs off the corporation shall be managed by a board it still leaves room for the general assembly to dictate "how." Am I being silly here? Link to comment Share on other sites More sharing options...
Dan Honemann Posted June 13, 2012 at 01:41 PM Report Share Posted June 13, 2012 at 01:41 PM By this reasoning it seems to me if the bylaws say the affairs off the corporation shall be managed by a board it still leaves room for the general assembly to dictate "how." Am I being silly here?Well, perhaps just a bit inattentive.I suggest you carefully read the response in post #25, in particular, and also #31 and #35. Link to comment Share on other sites More sharing options...
Guest Loose Posted June 14, 2012 at 08:08 PM Report Share Posted June 14, 2012 at 08:08 PM Mr. Honeman, I am a newbie, okay? Have no idea what you mean by this "real life" stuff that is supposed to provide context for interpretation of our bylaws. Maybe that's MY problem. Of course the statutes are controlling, but what do they mean? You say ask the attorney. Right. Sincere thanks. Link to comment Share on other sites More sharing options...
Dan Honemann Posted June 14, 2012 at 08:11 PM Report Share Posted June 14, 2012 at 08:11 PM Mr. Honeman, I am a newbie, okay? Have no idea what you mean by this "real life" stuff that is supposed to provide context for interpretation of our bylaws. Maybe that's MY problem. Of course the statutes are controlling, but what do they mean? You say ask the attorney. Right. Sincere thanks.You're welcome. Link to comment Share on other sites More sharing options...
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