procedure to amend bylaws

[adam]

Good morning; the homeowner's association I preside over is in the process of making substantial amendments to its bylaws, I have three questions related to the process.

 

For reference, our bylaws state the following in regards to amending the bylaws: 

 

VOTE: All By-Laws of the Corporation shall be subject to amendment or repeal, and new By-Laws may be made, by a two-thirds vote of those members in good standing present at a general meeting or a special meeting of the members, called for such purposes.

 

PROCEDURE: Upon approval of the Board of Directors, the President shall present to the general membership, the changes in the By-Laws so made, amended, or repealed, together with a concise statement of the changes, at a meeting of the members called for such purpose. These changes shall be mailed to each regular member at least twenty-five (25) days prior to the meeting.

 

1) at our most recent board meeting, the board approved the amended bylaws and set a date for the special meeting. Several board members not in attendance that day have raised a great hue and cry regarding some language added to the bylaws regarding membership, which may in fact have a significant negative impact on our association. I'll save you the backstory, suffice to say that I have not yet instructed the corresponding secretary to mail the bylaws until I have heard back from our attorney. I fear that I am violating something; it's not really my call to send/not send the document, now that the board has voted, correct? However, three members have agreed that a special meeting is called for, which meets our requirements for calling a special meeting; can I then suspend the action of the board to accommodate a special meeting?

 

2) I have interpreted Chapter XVIII (Bylaws), Sec. 57 of RONR to mean that, during our deliberation of the amendments to the bylaws, we can go through the document section by section and (slightly) amend the language by motions subject to a majority vote. Once we have reached the end, the document (as amended during the proceeding) would be subject to a 2/3 vote of those present. However, several members of our community (including one fairly well versed in the workings of deliberative bodies) insist that any change to the document must be mailed 25 days in advance; that the amended bylaws as approved by the board and mailed 25 days in advance cannot be altered in any way--doing so requires the process to repeat. Which is correct?

 

3) Our bylaws allow for the use of proxy votes. Some have interpreted "2/3 of those members present" to mean that proxies cannot be counted, because that member is not present. Is that correct? I suspect not, which leads me to wonder, are the proxies counted as a member "present" and thus part of the total number we figure the 2/3 from?

 

 

Thank you for your time

 

Adam

 

 

[Josh Martin]

I fear that I am violating something; it's not really my call to send/not send the document, now that the board has voted, correct?

 

Correct.

 

However, three members have agreed that a special meeting is called for, which meets our requirements for calling a special meeting; can I then suspend the action of the board to accommodate a special meeting?

 

No.

 

2) I have interpreted Chapter XVIII (Bylaws), Sec. 57 of RONR to mean that, during our deliberation of the amendments to the bylaws, we can go through the document section by section and (slightly) amend the language by motions subject to a majority vote. Once we have reached the end, the document (as amended during the proceeding) would be subject to a 2/3 vote of those present. However, several members of our community (including one fairly well versed in the workings of deliberative bodies) insist that any change to the document must be mailed 25 days in advance; that the amended bylaws as approved by the board and mailed 25 days in advance cannot be altered in any way--doing so requires the process to repeat. Which is correct?

 

The members are incorrect and you have read Section 57 correctly. The proposed amendments to the bylaws may be amended, provided they are within the scope of notice.

 

I'd also note that it sounds like you are proposing a revision (replacing the bylaws in their entirety with a new version) rather than proposing individual amendments. If this is correct, then any amendment would be within the scope of notice.

 

3) Our bylaws allow for the use of proxy votes. Some have interpreted "2/3 of those members present" to mean that proxies cannot be counted, because that member is not present. Is that correct? I suspect not, which leads me to wonder, are the proxies counted as a member "present" and thus part of the total number we figure the 2/3 from?

 

You're on your own on that one. See FAQ #10.

[jstackpo]

Much of your bylaw amendment process differs in substantial measure from what RONR describes or gives examples of as more or less "standard", so figuring out what they "mean" in specific situations will be up to your association - see p. 588 for the process to follow to do that figuring.

 

And it looks as though Josh beat me to the punch about some particular issues, so I'll quit now!

[sMargaret]

 

For reference, our bylaws state the following in regards to amending the bylaws: 

 

VOTE: All By-Laws of the Corporation shall be subject to amendment or repeal, and new By-Laws may be made, by a two-thirds vote of those members in good standing present at a general meeting or a special meeting of the members, called for such purposes.

 

PROCEDURE: Upon approval of the Board of Directors, the President shall present to the general membership, the changes in the By-Laws so made, amended, or repealed, together with a concise statement of the changes, at a meeting of the members called for such purpose. These changes shall be mailed to each regular member at least twenty-five (25) days prior to the meeting.

 

1) at our most recent board meeting, the board approved the amended bylaws and set a date for the special meeting. Several board members not in attendance that day have raised a great hue and cry regarding some language added to the bylaws regarding membership, which may in fact have a significant negative impact on our association. 

 

Maybe it is just that it's early in the morning for me, but I'm a bit confused over who approves the bylaws. The VOTE section seems to indicate that it is the general membership that amends the bylaws. Period, end, full stop. However, the PROCEDURE section has the Board approving something or other, and the Board also seems to have recently "approved the amended bylaws".

 

Did the Board actually "approve the amended bylaws", or is the Board acting as some sort of Bylaws Committee, and voted to approve a report suggesting a particular revision of the bylaws? 

[adam]

Thank you all for your input.

 

Josh, the changes proposed are substantial--nearly every article contains at least one revision, some are rewritten entirely--which I interpret as a revision. You've said "any amendment would fall within the scope. Do you mean that the amendments made during the meeting would not need to conform to the examples in RONR? For example, if the dues were set at $5, the amended dues were $10, a motion to change it to $15 would be in order? Regarding the proxies, our bylaws are silent as to whether or not the proxy votes count towards a quorum etc., except to say: 

 

Any regular member may authorize another person to act for him/her by proxy in all matters in which a member may participate

 

Is it safe to assume then that they wouldn't count towards determining "members present"? Is there a legal precedent? 

 

JDStackpole, are you referring to determining what might or might not be in scope, in terms of motions to amend during the meeting called to adopt the amended bylaws?

 

sMargaret, it is the latter; essentially the board directs the president to present the membership with the amendment(s). The membership adopts the amendment(s).

[Josh Martin]

Josh, the changes proposed are substantial--nearly every article contains at least one revision, some are rewritten entirely--which I interpret as a revision.

 

Well, whether it's a revision isn't determined by how extensive the changes are, but by how those are presented. Will you be presenting a series of individual amendments and voting on them one by one, or will you be presenting the revised set of bylaws as a whole, debating and amending each article and section as you go through it? It sounded earlier like you're doing the latter, and if that's the case, it's a revision.

 

For example, if the dues were set at $5, the amended dues were $10, a motion to change it to $15 would be in order? 

 

For a revision, yes, that's correct. With a revision you aren't really presenting an amendment to change the dues from $5 to $10. Rather, you're replacing the bylaws in their entirety with a new set of bylaws (and the new set happens to have a different amount for dues). Since you're effectively changing the bylaws in their entirety, any amendment would be within the "scope." So not only could you make a greater change than was proposed for a particular item, but you could even change something for which no change is currently proposed.

 

Regarding the proxies, our bylaws are silent as to whether or not the proxy votes count towards a quorum etc., except to say: 

 

Any regular member may authorize another person to act for him/her by proxy in all matters in which a member may participate

 

Is it safe to assume then that they wouldn't count towards determining "members present"? Is there a legal precedent? 

 

RONR prohibits proxies and has no guidance for organizations which disregard its advice on the subject. So far as RONR is concerned, "present"' means physically present, but it's possible your bylaws change that. It's up to your organization to interpret its own bylaws. See RONR, 11th ed., pgs. 588-591 for some Principles of Interpretation. Legal questions should be directed to a lawyer.

[adam]

Thank you Josh, regarding the method of presentation: is there a choice? We are sending the amended bylaws in their entirety to each member, as opposed to only the articles/sections containing amendments; my intent was to approach it as a revision, considering each section at a time and then, finally, adopting the revision. Is it also an option to adopt each section, one at a time?

 

I believe I have misinterpreted RONR regarding Amending a Proposed Amendment to the Bylaws. Because of our "25 day notice," I assumed that an amendment could not be modified from the way it was presented to the membership, whereas a revision could; but it sounds like even a single amendment to the bylaws could be modified by a majority vote (then passed by 2/3 of those present) so long as the change was not out of "scope."

 

Is there any provision within RONR that would allow me (or the board) to stop, pause or suspend the motion to mail the bylaws? I suspect that the majority of members would move to reconsider once presented with the legal opinion regarding a portion of the amended bylaws, however we make no provision for electronic meetings or emergency meetings. I would add that the board inadvertently set the date of the bylaws meeting on the same day as a scheduled board meeting--our bylaws prohibit the board from meeting before any general meeting except in the case of an emergency. 

 

Thank you

[Josh Martin]

Thank you Josh, regarding the method of presentation: is there a choice? We are sending the amended bylaws in their entirety to each member, as opposed to only the articles/sections containing amendments; my intent was to approach it as a revision, considering each section at a time and then, finally, adopting the revision. Is it also an option to adopt each section, one at a time?

 

There is a choice, but you wouldn't be adopting each section one at a time, since if you've prepared a complete revision, the sections will all work as part of a unified whole, and adopting the sections separately could lead to conflicts. What you could have done (although it seems undesirable due to the extent of the changes) would be to present each change as a separate amendment and vote on each change separately. So I suppose I will slightly clarify my earlier statement - while the extent of the changes doesn't necessarily determine whether it's a revision, it can certainly be more convenient to present extensive changes as a revision rather than individual amendments.

 

I believe I have misinterpreted RONR regarding Amending a Proposed Amendment to the Bylaws. Because of our "25 day notice," I assumed that an amendment could not be modified from the way it was presented to the membership, whereas a revision could; but it sounds like even a single amendment to the bylaws could be modified by a majority vote (then passed by 2/3 of those present) so long as the change was not out of "scope."

 

That's correct. The scope of notice principle, which you alluded to earlier with the dues example, principally applies to individual amendments.

 

Is there any provision within RONR that would allow me (or the board) to stop, pause or suspend the motion to mail the bylaws? I suspect that the majority of members would move to reconsider once presented with the legal opinion regarding a portion of the amended bylaws, however we make no provision for electronic meetings or emergency meetings. I would add that the board inadvertently set the date of the bylaws meeting on the same day as a scheduled board meeting--our bylaws prohibit the board from meeting before any general meeting except in the case of an emergency. 

 

You can't do anything to stop, pause, or suspend the motion. The board may rescind or amend the motion at a meeting of the board. The motion to Rescind or Amend Something Previously Adopted requires a 2/3 vote, a vote of a majority of the entire membership (of the board, in this case), or a majority vote with previous notice.

[adam]

Thank you Josh, your input has been immensely helpful. If on the off chance I am asked to substantiate my position regarding a revision and proper methods of amendment in the face of our 25 day notice requirement, besides handing over my copy of RONR, can I quote you?

Adam

[Josh Martin]

Thank you Josh, your input has been immensely helpful. If on the off chance I am asked to substantiate my position regarding a revision and proper methods of amendment in the face of our 25 day notice requirement, besides handing over my copy of RONR, can I quote you?

 

I think RONR itself is more authoritative than me, but you can quote me if you like.

[adam]

Thank you. One final question: the dates for this year's board meetings were set at the meeting prior to the meeting at which the motion was adopted to set the date of the bylaws. Which takes precedence? Setting the dates was very casual, approved by general consent.

[Guest Edgar]

That's correct. The scope of notice principle, which you alluded to earlier with the dues example, principally applies to individual amendments.

 

Indeed. Regardless of how extensively (or not) the bylaws are eventually "revised", it's the notice of a revision, not the "revision" itself, that's significant. And its significance is that it removes any "scope of the notice" restrictions.

 

You could, for instance, give notice of a revision and yet emerge with the bylaws essentially unchanged.

 

Conversely, you could give notice of extensive, but specific, changes and the bylaws might emerge substantially "revised".

[Josh Martin]

Thank you. One final question: the dates for this year's board meetings were set at the meeting prior to the meeting at which the motion was adopted to set the date of the bylaws. Which takes precedence? Setting the dates was very casual, approved by general consent.

 

If the second motion is in conflict with the first (which may be the case, due to your rules), the second motion is null and void. A main motion which conflicts with an earlier motion is null and void, unless you use Rescind or Amend Something Previously Adopted.

[adam]

Thank you--

 

Adam

[Rockp2]

Thank you. One final question: the dates for this year's board meetings were set at the meeting prior to the meeting at which the motion was adopted to set the date of the bylaws. Which takes precedence? Setting the dates was very casual, approved by general consent.

 

Just a little piece of info...from my reading, "General Consent" is now "Unanimous Consent" RONR 11th ed. p. 54 - 56.  The only reason I point this out is because sometimes a Chair may believe that if only one or two people appear to maybe disagree with the consent...the word "General" implies that only majority of consent is required (at least that is how I take it). Thereby skipping debate, etc.  In reality, even though under "Unanimous Consent" it is not required that every Member agree, the Chair must still ask if there are any objections.  If one Member objects to Unanimous Consent, the question must be stated by the Chair, allow any desired debate, and put the question to vote.  This protects the minority's right to be heard.  Read the pages cited, it explains much better than my post.  This is may seem a little anal for a calendar, but I point it out to prevent "General Consent" being used by your Board on future motions/discussions.

[Guest Vijay N, Koli]

The amendments to the bylaws were presented by the Chairperson of the bylaws committe to the assembly. White debating many proposed changes in a form of motion. As the Speaker I allowed the motions. The general ruling was that bylaws amendments once presented by a committee can be voted up or down but any suggestion can be discussed but motions cannot be made

Is it true

Thank you

[Guest Edgar]

The general ruling was that bylaws amendments once presented by a committee can be voted up or down but any suggestion can be discussed but motions cannot be made

 

Is it true

 

No. Not to mention the fact that it makes no sense to allow discussion on changes that can't be made.

 

For future reference, please post new questions as new topics, even if you find an existing topic (this one is over two months old) that seems similar.