Guest Sally Posted January 27, 2015 at 12:33 AM Report Share Posted January 27, 2015 at 12:33 AM Good afternoon, In October, our group hired a compliance attorney to review our bylaws and the attorney noted several instances of inurement. At the October meeting, the chair of that committee brought a motion to adopt the recommendations of the attorney and announced that the bylaws will be changed accordingly. No one has seen any bylaw changes since then, but the association has already started to enforce the attorney recommendations. Can they do that without changing the bylaws? Thank you. Sally Link to comment Share on other sites More sharing options...
Hieu H. Huynh Posted January 27, 2015 at 12:50 AM Report Share Posted January 27, 2015 at 12:50 AM The bylaws could be amended by following the procedures in the bylaws for amending them. If the bylaws contain no provision for their amendment, they can be amended by a two-thirds vote if previous notice has been given, or they can be amended by the vote of a majority of the entire membership. Unless the bylaws are amended, a motion that has been adopted that conflicts with the bylaws is null and void. In addition, applicable rules prescribed by federal, state, or local law supersede the bylaws (and those in RONR). Link to comment Share on other sites More sharing options...
Edgar Guest Posted January 27, 2015 at 01:00 AM Report Share Posted January 27, 2015 at 01:00 AM Unless the bylaws are amended, a motion that has been adopted that conflicts with the bylaws is null and void. In addition, applicable rules prescribed by federal, state, or local law supersede the bylaws (and those in RONR). If the bylaws are superseded by applicable federal, state, or local law, would a motion that conforms to the superior law but violates the bylaw (which violates the superior law) be out of order? Link to comment Share on other sites More sharing options...
Richard Brown Posted January 27, 2015 at 01:02 AM Report Share Posted January 27, 2015 at 01:02 AM In October, our group hired a compliance attorney to review our bylaws and the attorney noted several instances of inurement. At the October meeting, the chair of that committee brought a motion to adopt the recommendations of the attorney and announced that the bylaws will be changed accordingly. No one has seen any bylaw changes since then, but the association has already started to enforce the attorney recommendations. Can they do that without changing the bylaws?I agree with Hieu's comments. Based on the limited information you provided, it doesn't look to me like your bylaws have been amended yet, but you haven't provided us with enough information to make a judgment as to whether your bylaws provisions for amending them have been followed. What do your bylaws that were in force prior to this purported amendment say about the amendment process? Was it followed? Link to comment Share on other sites More sharing options...
Hieu H. Huynh Posted January 27, 2015 at 01:04 AM Report Share Posted January 27, 2015 at 01:04 AM Yes. A motion in violation of the bylaws or of applicable law is out of order. (see p. 251) Edited to add: However, see clarifications below. Link to comment Share on other sites More sharing options...
Edgar Guest Posted January 27, 2015 at 01:08 AM Report Share Posted January 27, 2015 at 01:08 AM Yes. A motion in violation of the bylaws or of applicable law is out of order. (see p. 251) So if the bylaws say that a unanimous vote is required but the applicable superior law says that requiring unanimous votes is prohibited and only majority votes are permitted, adopting a motion by majority vote would be out of order? Link to comment Share on other sites More sharing options...
Josh Martin Posted January 27, 2015 at 01:17 AM Report Share Posted January 27, 2015 at 01:17 AM Yes. A motion in violation of the bylaws or of applicable law is out of order. (see p. 251) If a rule in the bylaws is in conflict with a procedural rule in applicable law, the rule in the bylaws is null and void. Link to comment Share on other sites More sharing options...
Richard Brown Posted January 27, 2015 at 01:28 AM Report Share Posted January 27, 2015 at 01:28 AM If the bylaws are superseded by applicable federal, state, or local law, would a motion that conforms to the superior law but violates the bylaw (which violates the superior law) be out of order? Yes. A motion in violation of the bylaws or of applicable law is out of order. (see p. 251)Huh?? I think that a motion is in order if complies with a requirement of state law but violates a provision in the bylaws. For example, let's assume the bylaws provide that a majority vote of the directors at a special or regularly scheduled meeting is necessary to authorize certain action, but state law says that "notwithstanding any provisions to the contrary in the bylaws, [certain actions] may be taken by all of the directors executing a Waiver of Notice and Consent to Action in Lieu of a Meeting". I am confident that actions of the specified type would be valid if adopted by means of the Waiver of Notice and Consent to Action provision of state law even though doing so violates both the bylaws and RONR. The unanimous vote scenario by Edgar Guest in post # 6 above is another.... and perhaps better.... example. Link to comment Share on other sites More sharing options...
Hieu H. Huynh Posted January 27, 2015 at 01:30 AM Report Share Posted January 27, 2015 at 01:30 AM I agree. Thanks to all for the clarifications. Link to comment Share on other sites More sharing options...
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