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Guest Motti

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Hello All,

 

Our bylaws and articles of incorporation state that amendments to the articles of incorporation must be mailed to our membership at least 45 days before the annual meeting. Bylaws changes need to mailed at least 30 days before the annual meeting. We have a motion that removes proxy voting from our bylaws and from the articles of incorporation. The notices, by the time they are sent out, will be about 40 days in advance of the meeting. It seems to me that the motion now needs a majority of the whole membership since it was mailed out less that 45 days before. Would that be correct?

 

So, we get to the meeting, and this will probably be pointed out (I don't see how it is ethical to NOT point it out). We amend the motion to strike out the clause dealing with the articles of incorporation. Would that then mean that since the motion was amended, previous notice no longer applies and it too needs a majority of the whole membership? What if we divided the question instead?

 

Thank you for any clarification.

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Our bylaws and articles of incorporation state that amendments to the articles of incorporation must be mailed to our membership at least 45 days before the annual meeting. Bylaws changes need to mailed at least 30 days before the annual meeting. We have a motion that removes proxy voting from our bylaws and from the articles of incorporation. The notices, by the time they are sent out, will be about 40 days in advance of the meeting. It seems to me that the motion now needs a majority of the whole membership since it was mailed out less that 45 days before. Would that be correct?

 

Well, you're getting a bit ahead of things. There is no motion yet. RONR only requires that a statement of purport be included for notice of a motion. It is not required to provide the full text of the motion unless the organization's rules so provide. If the full text is not required but has been provided anyway, that text is not binding. So really what has happened is that someone has provided notice that they intend to make motion(s) to remove proxy voting from your bylaws and from the articles of incorporation. At the meeting, they could handle that all in one motion, or they could use two separate motions.

 

Now, there was not sufficient notice of an intent to amend the Articles of Incorporation, so a motion which contains amendments to the articles will not have valid notice. If your articles state that such a motion may be adopted by a vote of a majority of the entire membership without notice, then that is what is required. If your articles simply state that 45 days of notice is required, then such a motion is not in order.

 

A motion which contains only an amendment to the bylaws would require the usual vote required by your bylaws, but there may be other problems with that.

 

We amend the motion to strike out the clause dealing with the articles of incorporation. Would that then mean that since the motion was amended, previous notice no longer applies and it too needs a majority of the whole membership? What if we divided the question instead?

 

The easiest method is simply to make the motions separately in the first place. If it is made as one motion, an amendment to strike the amendment to the articles would not void the notice since such a change would be within the "scope of notice." Dividing the question would also work.

 

It is quite likely, however, that an amendment to the bylaws which removed proxy voting would not be in order unless the articles were also amended to remove proxy voting. The articles take precedence over the bylaws, so nothing in the bylaws may conflict with what is in the articles. As a consequence, any amendment which would create such a conflict is not in order, and any attempts to change a motion to a motion which is not in order are also not in order.

 

The bottom line is that if your articles permit a motion to be amended by a vote of a majority of the entire membership without notice, and you can actually pull that off, put this all together in one motion and get it done with. If your articles don't permit that or if you can't pull that off, better luck next time.

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If you have a minute, could you give the sections where the rules state that the full text need not be provided in advance, in case anyone insists it does?

 

Well, I don't think that's your biggest problem right now (I'd worry more about that second-to-last paragraph), but here you go:

 

"Unless the rules require the full text of the motion, resolution, or bylaw amendment to be submitted in the notice, only the purport need be indicated; but such a statement of purport must be accurate and complete—as in "to raise the annual dues to $20"—since it will determine what amendments are in order when the motion is considered" (RONR, 11th ed., pg. 122).

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I think we might actually be ok on that one;

The Articles of Incorporation say:

"The Articles of Incorporation may be changed at any meeting by an affirmative vote of not less than two-thirds of the members present or represented by proxy, provided that notices concerning the meeting had been mailed to the members no less than forty-five days prior to the meeting and provided that the notices state the specific wording of the proposed amendments."

 

Bylaws

"Members shall elect the Board of Directors and shall approve all major policy or business matters identified by the Board of Directors.  Changes to the Articles of Incorporation shall require a two-thirds vote of the membership present, in person or by proxy, at a duly called meeting of the Association."

 

There are other mentions of proxy voting in the bylaws, but it seems like the only mention of proxy voting in the Articles deals with  changes to the Articles. So as long as we still allow proxies for articles changes, we should be OK, correct (the main issue here was the use of proxies for election of board members.

 

 

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There are other mentions of proxy voting in the bylaws, but it seems like the only mention of proxy voting in the Articles deals with  changes to the Articles. So as long as we still allow proxies for articles changes, we should be OK, correct (the main issue here was the use of proxies for election of board members.

 

I can't say for sure, since it will ultimately be up to the organization to interpret its own bylaws (see RONR, 11th ed., pgs. 588-591 for some Principles of Interpretation), but that would appear to be the case.

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