Addendum to Base Constitution

[suvasshah]

We have a constitutional question which most directors and trustees do not understand. Following is details:

 

1) We had base constitution which gave authority to Board of Directors to manage this non-profit organization.

2) In 2009, members amended the constitution and added Board of Trustees which includes major donors and elected ex-directors. Responsibilities and Authority of the trustees were added considering that when there is a conflict, addendum will supercede the base. Some of key info in the addendum is copied at the end:

3) Directors are looking at base constitution and says that they have all the authority and trustees do not have any authority

4) In the middle of election, Board of Directors, removed election committee members and removed one candidate from the list. Initially there were 9 nominations for 3 positions. Three of them filed withdrawal by the deadline, so election committee announced six candidates. Board of Directors removed election committee member and removed one candidate so at least one of their 3 candidates will win the election and continue with majority.

5) Board of Trustees are looking at the situation and wants to redo the election because of the above plus one major problem of 25% of the membership (out of 1200 members) which was receiving electronic newsletters, were not sent newsletter for 3 months and were not aware of the nominations.

6) New Election Committee with current directors supporter have sent the ballots without the sixth candidate and Board of Trustees are trying to figure out what authority they have to stop the elections.

 

I believe following sections ( and (I) gives Board of Trustees sufficient authority to nullify the election. Any suggestions? Thanks.

  

   4A.1 Authority of Board of Trustees. The following property, business

   and affairs of the Society shall be managed by the Board of Trustees (the”Board

   of Trustees”):

     (a) Continually improve the financial stability of the Society;

     ( Enhance image of the Society in the community at large;

     © Establish a long range vision of the Society;

     (d) At the request of the Board of Directors, assist in the resolution of

          issues and disputes;

     (e) Each fiscal year’s budget is prepared by the Board of Directors (as

         approved, the “Budget”) and submitted to the Board of Trustees no

         later than March 1st. The Board of Trustees shall approve the

        Budget within 30 days from the submission date.

     (f) Approval of changes of more than 10% of the overall Budget;

    (g) Approval of any expenditure not included in the Budget of more

         than 5% of the overall Budget;

    (h) Establishment of minimum fund raising requirements before

         commencement of acquisition or construction of a real estate

         project (it is recommended, but not required, that such requirement

        be at least 30% of the cost of the project);

    (i) Interpretation of the Society’s Constitution and Bylaws;

    (j) Approval of real estate assets acquisitions and sales; ......

 

Please respond sooner. There is another meeting tomorrow morning.

[Edgar Guest]

Without getting into any of the details of your post, a rule is either in the constitution or it's not. There's no "base" and no "addendum".

 

If your constitution was properly amended then those amendments are part of the constitution. They don't have a second-class status.

 

I'll also suggest that it's not wise to have two boards, a board of directors and a board of trustees. Typically there's only one board (which could go by either name).

 

In short, I think you've got a mess on your hands though I'm confident some of our regulars will have more patience than I seem to have these days. So stay tuned.

[suvasshah]

Base and Addendum was just to show time sequence. There is a constitution where all authority was under Board of Directors. Many years, directors were getting elected since there were not sufficient nominations. Since it is a big society with $$ assets, it was decided to add checks and balances and form Trustees. Addendum that created Board of Trustees was approved by members where quorum 50% of membership (over 1000 members) and 2/3 approval required. Instead of rewriting the constitution with directors and trustees, this addendum had included authority and responsibilities of the trustees.

 

Another major error by Board of directors was that 25% of the membership were never informed of elections which happens thru newsletters. They forgot to send newsletters to members who had selected electronic newsletters. This should be sufficient ground to null the elections and start again but Board of Directors do not listen. How to make them listen?

[Edgar Guest]

Base and Addendum was just to show time sequence.

Then you might want to stop using those terms as they have no meaning in RONR-Land.

 

Instead of rewriting the constitution with directors and trustees, this addendum had included authority and responsibilities of the trustees.

 

When you adopted the "addendum" you rewrote your constitution. Presumably.

[suvasshah]

Some additional information on the section may help and reclassifying issues: (1) Not all members informed of elections and nomination forms (2) Replacing election committee in the middle of election cycle (3) Removing a candidate after being announced (4) Withdrawal candidate is not given a chance to come back.

 

None of this board members ever look at constitution or Robert's rule of order. (Notification only went to members who were getting newsletter thru postal mail. One member has complained (even before the deadline) that he was not getting newsletters and nothing was done.)

 

4.3 Nomination. Nominations for election to the Board of Directors may be made by the

Board of Directors and shall be solicited by the Election Committee. By October 15th of each year,

the Election Committee shall notify the Members of the number of vacancies of the Board of

Directors and seek nominations. The nominations shall be closed at 5:00 p.m. on November 1st. At

least 4 weeks prior to the Annual Meeting, the Election Committee shall notify the Members of

those individuals who have been nominated for election to the Board of Directors.

 

4.4 Election of Directors. Except as provided in this Article, if there are more

nominations than open positions, the Directors shall be elected by the Members in a written ballot

mailed to and returned by Members and those persons who receive the highest number of votes shall

be deemed to have been elected. If there are less or equal nominations than open positions, the

nominations will be accepted and announced at the general body meeting. Cumulative voting is not

permitted.

[Hieu H. Huynh]

I think that determining the authority of these two boards could only be made after reading both documents ("base constitution" and "addendum") in their entirety, which is beyond the scope of this forum. In any case, it will ultimately be up to your organization to interpret your rules.

 

 

... (j) Approval of real estate assets acquisitions and sales; ......

 

I think that legal aspects will be involved and in that case, an attorney should be consulted.

[Edgar Guest]

I think that determining the authority of these two boards could only be made after reading both documents ("base constitution" and "addendum") . . .

 

You don't think they're the same document?

 

Base and Addendum was just to show time sequence.

[Hieu H. Huynh]

You don't think they're the same document?

 

Possibly. Maybe it also has to do with that "map" and "territory" I keep reading about.

 

In any case, I'm not sure if the regulars will be able to provide much assistance by tomorrow morning.

[suvasshah]

If we ignore trustees and directors and other issues, just a fact that 300 members (approx. 25% of the membership) were never informed of the vacancies and elections and never got a chance to stand for election. i.e. basic membership rights violated is sufficient grounds to start the whole process again? Sorry for putting too many issues in one append. This would simplify the suggestions.

[Hieu H. Huynh]

"Unless the bylaws clearly provide otherwise, notice of filling of a vacancy in office must always be given to the members of the body that will elect the person to fill it." (RONR 11th ed., p. 575, ll. 7-9)

[Josh Martin]

 

Another major error by Board of directors was that 25% of the membership were never informed of elections which happens thru newsletters. They forgot to send newsletters to members who had selected electronic newsletters. This should be sufficient ground to null the elections and start again but Board of Directors do not listen. How to make them listen?

 

Some additional information on the section may help and reclassifying issues: (1) Not all members informed of elections and nomination forms (2) Replacing election committee in the middle of election cycle (3) Removing a candidate after being announced (4) Withdrawal candidate is not given a chance to come back.

 

None of this board members ever look at constitution or Robert's rule of order. (Notification only went to members who were getting newsletter thru postal mail. One member has complained (even before the deadline) that he was not getting newsletters and nothing was done.)

 

4.3 Nomination. Nominations for election to the Board of Directors may be made by the

Board of Directors and shall be solicited by the Election Committee. By October 15th of each year,

the Election Committee shall notify the Members of the number of vacancies of the Board of

Directors and seek nominations. The nominations shall be closed at 5:00 p.m. on November 1st. At

least 4 weeks prior to the Annual Meeting, the Election Committee shall notify the Members of

those individuals who have been nominated for election to the Board of Directors.

 

4.4 Election of Directors. Except as provided in this Article, if there are more

nominations than open positions, the Directors shall be elected by the Members in a written ballot

mailed to and returned by Members and those persons who receive the highest number of votes shall

be deemed to have been elected. If there are less or equal nominations than open positions, the

nominations will be accepted and announced at the general body meeting. Cumulative voting is not

permitted.

 

Yes, based on these facts, I would concur that the election must be redone.

 

I'm not convinced, however, that the board has the authority to take such an action. It seems to me that only the membership could order such a thing (and that may be the case anyway, since even if the board could order the election to be redone, it seems unwilling to do so).

 

"Unless the bylaws clearly provide otherwise, notice of filling of a vacancy in office must always be given to the members of the body that will elect the person to fill it." (RONR 11th ed., p. 575, ll. 7-9)

 

Well, this is not an election to fill a vacancy. It seems, however, that the bylaws themselves provide that notice is required.