How limiting is a statement as to number of trustees in Charter

[csmith4rmath]

I am parliamentarian for a non-profit seniors group in California. Our charter states that we will have 12 trustees (or directors). Our Bylaws states that we have 12 elected board members (7 officers and 5 "trustees"), but also specifies that the chairpersons of 2 important committees are ex-officio members. Since the naming of ex-officio members brings the total size of the board beyond the number of trustees, is that an illegal provision? or are the non-elected ex-officio members not counted as trustees for this matter?

 

I suspect this may need to be answered by a California attorney, but I hope someone can give me some Parliamentary Procedure-based guidance also.

[Chris Harrison]

Procedurally it is up to you all to interpret your own bylaws and Charter and I would refer you to RONR pp. 588-591 for some principles to help with the interpretation.  However, I suspect your suspicion that you will need to talk to a lawyer is a good one. 

[Edgar Guest]

Our charter states . . .

 

Our Bylaws states . ..  

 

Let's assume your charter supersedes your bylaws. What you need to do, instead of trying to reconcile the irreconcilable, is amend your bylaws so there's no conflict. In the meantime, I'd obey the charter. Tough luck for those ex-officio members but your board's quota has already been filled.

 

Edited to add: Or you could assume you bylaws supersede your charter (I assume they at least pre-date them). But that seems a more perilous option.

[csmith4rmath]

Thanks for both replies. I'll check out the RONR reference, but since the Charter/Constitution takes precedence over the Bylaws, I'm fairly certain that this is a legal question of whether ex-officio members count under the charter, or only elected directors.

 

Actually I'm recommending dropping the ex-officio members at the next board meeting for this reason and two more:

1. We may have some members who would make good committee chairs but don't want the added responsibility of being on the board, and

2. Since the President appoints the committee chairs (with the approval of the board), a President might be tempted to appoint a "yes-man" over a more qualified but more independent member.

 

I'm new to the club's parliamentarian position, with limited experience as a parliamentarian--and I was very happy to find this resource. I plan to be an active reader in the future, and look forward to the time I can help others with answers.

[Timothy]

It depends on what your rules actually say, but in reading what you wrote, I don't see a conflict. You state that you have 12 trustees, but the board is made up of the 7 officers and five trustees. Nothing in RONR requires that officers be trustees, so unless your rules state otherwise, these officers could be anyone. It is possible that only some (at least five) of the trustees are on the board. And if that is possible, then the 2 ex-officio members would have as much right to be on the board as the officers who are not trustees.

[Edgar Guest]

It is possible that only some (at least five) of the trustees are on the board. 

 

Is it? Assuming this is a board of trustees, then every member of the board is a trustee, and vice versa. Five of them are also "officers" and two of them are ex-officio members.

[Richard Brown]

Our charter states that we will have 12 trustees (or directors). Our Bylaws states that we have 12 elected board members (7 officers and 5 "trustees"), but also specifies that the chairpersons of 2 important committees are ex-officio members. Since the naming of ex-officio members brings the total size of the board beyond the number of trustees, is that an illegal provision? or are the non-elected ex-officio members not counted as trustees for this matter?

 

I suspect this may need to be answered by a California attorney, but I hope someone can give me some Parliamentary Procedure-based guidance also.

 

I agree with the others who have said that this is a matter of interpreting your governing documents (your corporate charter and your bylaws) which only your organization itself can do.  I'm assuming that when you refer to your charter you are referring to a corporate charter.  It seems to me that there is a conflict between the two documents, but my opinion doesn't really count and I have not actually read the applicable provisions in your Charter and Bylaws.  For example, do the bylaws specify whether the two ex-officio members are voting members?    It may well be that a California attorney can best advise you on your question. 

 

 

Let's assume your charter supersedes your bylaws. What you need to do, instead of trying to reconcile the irreconcilable, is amend your bylaws so there's no conflict. In the meantime, I'd obey the charter. Tough luck for those ex-officio members but your board's quota has already been filled.

 

Edited to add: Or you could assume you bylaws supersede your charter (I assume they at least pre-date them). But that seems a more perilous option.

 

Everything I have ever read consistently says that the corporate charter supersedes the bylaws and controls when there is a conflict between the two.   RONR certainly says that on page 11 at lines 30 - 34 and again on page 14 at lines 17 - 22.   In my experience, it is usually the Charter which is drafted first, but it should not matter which was drafted first.   I agree that if there is a conflict, the Charter normally controls and if there is a conflict, the bylaws should be brought into conformity with the Charter, but it is also normally possible to amend the Charter if the assembly prefers the provisions in the bylaws.

 

 

 Assuming this is a board of trustees, then every member of the board is a trustee, and vice versa. Five of them are also "officers" and two of them are ex-officio members.

 

I agree.

[Guest Edgar]

In my experience, it is usually the Charter which is drafted first, but it should not matter which was drafted first. 

 

I know of at least one organization (a local historical society) which had to first adopt bylaws before it could be granted a charter from the State (first a provisional charter then, after some years of operation, a "permanent" one). In any case, I suspect amending the charter would be much more difficult than amending the bylaws.

[Richard Brown]

 In any case, I suspect amending the charter would be much more difficult than amending the bylaws.

 

No, not necessarily.  I have seen situations where it is easier to amend the Charter.  It depends on the language in the Charter (or Articles of Incorporation) and the Bylaws and also state law.  I've seen organizations amend their Articles of Incorporation rather than their bylaws when the two came into conflict and when, over the course of time, members came to believe the original Articles of Incorporation were too restrictive or otherwise needed updating.

[Timothy]

Is it? Assuming this is a board of trustees, then every member of the board is a trustee, and vice versa. Five of them are also "officers" and two of them are ex-officio members.

 

The OP doesn't state that it is a "board of trustees." I've been involved with some organizations that elected "trustees" for legal reasons, but the structure of the organization was such that the board of trustees was insignificant, and the real power rested elsewhere. If the bylaws don't specify that they are referring to the "board of trustees" then they may be referring to a different board that is made up of the officers, five of the trustees, and two committee chairmen.

[Richard Brown]

The OP doesn't state that it is a "board of trustees." . . . .  If the bylaws don't specify that they are referring to the "board of trustees" then they may be referring to a different board that is made up of the officers, five of the trustees, and two committee chairmen.

 

True, but in his first post, the OP does say, "Our charter states that we will have 12 trustees (or directors)."

 

Based on that statement, I believe both Mr. Guest and I are assuming (I know, it's a dangerous thing to do!) that it is in fact a "Board of Trustees" which serves as a board of directors.  I, too, would prefer that he be a bit clearer on that issue.  Maybe he will elaborate. 

[Edgar Guest]

No, not necessarily. 

 

I didn't say it was necessarily the case, I said I suspected it was the case. And I base that suspicion on the assumption that the bylaws are within the sole control of the association while the charter is a sort of compact between the association and the State (or whoever the chartering agent is).

[Edgar Guest]

 . . .  it is in fact a "Board of Trustees" which serves as a board of directors. 

 

Well, I'm assuming that, in this instance, the executive board is called a board of trustees (see pp.481-482). Mr. Fish could be right that there is a board of directors which includes trustees from some other board but it seems less likely that there are two boards rather than one.