Provisional Bylaw Amendments

[William Kennedy]

Happy (belated) New Year!

 

Our Board of Directors has adopted a resolution "provisionally" amending the bylaws "pending legal advice as to clarification of the wording." There is nothing in the existing bylaws that allows for such a measure.  Does this signify anything other than acceptance in principle?

[Gary c Tesser]

I don't quite follow.  The bylaws were not amended (should I assume that the board has the authority to amend the bylaws in the first place?), but a resolution to chat about them was?

[William Kennedy]

Yes, the Board has the authority. But my position is that the bylaw has either been amended or not. A "provisional" amendment is nonsense. Nevertheless, that is what I was told by the Board's secretary!

 

Thanks, Gary. I just wanted to make sure I wasn't missing a page from my well-worn copy of RONR.

[George Mervosh]

Yes, the Board has the authority. But my position is that the bylaw has either been amended or not. A "provisional" amendment is nonsense. Nevertheless, that is what I was told by the Board's secretary!

 

Thanks, Gary. I just wanted to make sure I wasn't missing a page from my well-worn copy of RONR.

 

A proviso can be adopted to delay the time at which a bylaw amendment takes effect (pp. 597-8), I simply doubt "pending legal advice as to clarification of the wording." is a proper proviso.

[Timothy]

I agree that a provisional bylaw is nonsense. Effectively, every bylaw is provisional, because they can be changed. If the intent is to follow the bylaw until the lawyer says otherwise, then just approve it and amend it if a legal problem is discovered. If the intent is not to follow it until after legal advice, then use some means to delay the adoption until the legal position is known. Calling it provisional makes it impossible to know what was intended.

[Robert B Fish]

Unless the amendment section of your bylaws give you the authority to adopt amendments provisionally, you can't do it because doing so would be a violation of your bylaws section on amendments.  Assume, for example, that your bylaws say something equivalent to the sample bylaws in RONR, "These bylaws may be amended at any regular meeting of the Society by a two-thirds vote, provided that the amendment has been submitted in writing at the previous regular meeting." [page 588]

 

Then, IMHO, the principles of interpretation preclude making a provisional amendment. RONR says, "If the bylaws authorize certain things specifically, other things of the same class are thereby prohibited.' [page 589]

 

Any amendment to the bylaws adopted "provisionally" is null and void.  [page 251]

 

-Bob

[Gary Novosielski]

So since that was null and void...

 

Here's what would work: 

 

Consider the amendment, debate it, perfect it, get the language exactly the way you want it, and then, if you're not comfortable passing it without the advice of counsel, refer it to a committee with instructions to provide the motion to the lawyer for review, and to report back with any recommendations, by some date (say, the next meeting). 

 

If the committee reports back that everything is okay, take the actual vote on the amendment then.  Otherwise, tidy it up as necessary (according to, or in spite of, the lawyer's recommendations) and then vote on it.

[William Kennedy]

Gary,

 

Unfortunately, I am not a member of the Board. They will have to actually adopt the bylaw amendment as they see fit. However, it must then be presented at the AGM for confirmation by the general membership. 

 

The governing statutes state that the general membership must then confirm (by a 2/3 majority), reject, amend, or otherwise deal with the amendment.  If rejected by the general membership, the bylaw ceases to have effect from that point.

 

With respect to the last option, would it be in order to simply refer it back to the Board for further consideration, with or without specific instructions from the assembly?

[Josh Martin]

 

The governing statutes state that the general membership must then confirm (by a 2/3 majority), reject, amend, or otherwise deal with the amendment.  If rejected by the general membership, the bylaw ceases to have effect from that point.

 

With respect to the last option, would it be in order to simply refer it back to the Board for further consideration, with or without specific instructions from the assembly?

 

Once again, I'm afraid this question deals with the highly customized rules in applicable statute, and is therefore beyond the scope of this forum.

 

So far as RONR is concerned, it would certainly be in order, but I have no idea whether that is permitted under the statute.

[William Kennedy]

With all due respect, Josh, I have never seen a "standard" statute (Statutes R us?)!

 

In any case, our statute concludes with the phrase "otherwise deal with." I think we may be safe in saying that, in the event, RONR (our parliamentary authority in the bylaws) apply.

 

Just to be safe - and to avoid the risk of incurring "the Wrath" we will certainly be seeking legal counsel.

 

Thanks.

[Bruce Lages]

Who said anything about a "standard" statute?

[William Kennedy]

Point taken, Bruce, it helps to be precise; "highly customized" is entirely different. Fortunately, we are at least operating with the "gold" standard in our parliamentary rules!

 

Sorry, Josh!