Bylaws amendment protocol

[BruceVIDA]

Our bylaws have two callouts on amending the bylaws.

 

Under the Article about Committees:

 

Bylaws Committee

 

"From time to time it may become necessary in light of current events to examine and/or amend the Bylaws, and the President may appoint a Bylaws Committee which will consist of at least five members. The committee will meet as needed and prepare a written report to be presented at the annual meeting of the Association or as needed."

 

Under the article about amending the bylaws:

 

"The Constitution and the Bylaws of this Association may be amended or modified by a majority vote of the members present and in good standing at the annual meeting, or at any special meeting called (as set forth in Article VII, Section 4), for that purpose, but written or electronic notice of the proposed amendments must first be given to all members of the Association not less than seven calendar days before the meeting."

 

In RONR, it seems to suggest that a bylaws amendment is treated essentially the same as any other motion as it is a particular case of amending something previously adopted.  Given the only bylaws language above, is it reasonable to assume that any Association member may bring any motion to amend the bylaws at any regular meeting, and that it can be debated and voted upon without prior notice to the membership?

 

**Please note in the first bylaws quote above the use of  “may appoint” rather than “must appoint” in crafting your reply.

[Josh Martin]

Our bylaws have two callouts on amending the bylaws.

 

Under the Article about Committees:

 

Bylaws Committee

 

"From time to time it may become necessary in light of current events to examine and/or amend the Bylaws, and the President may appoint** a Bylaws Committee which will consist of at least five members. The committee will meet as needed and prepare a written report to be presented at the annual meeting of the Association or as needed."

 

Under the article about amending the bylaws:

 

"The Constitution and the Bylaws of this Association may be amended or modified by a majority vote of the members present and in good standing at the annual meeting, or at any special meeting called (as set forth in Article VII, Section 4), for that purpose, but written or electronic notice of the proposed amendments must first be given to all members of the Association not less than seven calendar days before the meeting."

 

In RONR, it seems to suggest that a bylaws amendment is treated essentially the same as any other motion as it is a particular case of amending something previously adopted.  Given the only bylaws language above, is it reasonable to assume that any Association member may bring any motion to amend the bylaws at any regular meeting, and that it can be debated and voted upon without prior notice to the membership?

 

**Please note in the first bylaws quote above the use of  “may appoint” rather than “must appoint” in crafting your reply.

 

It is ultimately up to the organization to interpret its own Constitution and Bylaws. See RONR, 11th ed., pgs. 588-591 for some Principles of Interpretation.

 

With that said, I do think it is reasonable to assume that any association member may bring any motion to amend the bylaws at any annual meeting (if you only meet annually, then it would also be correct to say "any regular meeting"). The part about previous notice is trickier. Based solely upon what is posted here, my first impression would be that the phrase "but written or electronic notice of the proposed amendments must first be given to all members of the Association not less than seven calendar days before the meeting" is intended to apply whether the amendments are considered at the annual meeting or at a special meeting. The way the sentence is worded, however, makes this somewhat ambiguous.

 

I don't think the section on the bylaws committee or the use of the word "may" rather than "shall" has anything to do with it. It seems to me that the President may, but is not required to, appoint a bylaws committee, but even if he was required to appoint such a committee, this would not necessarily prevent other members from submitting amendments of their own.

[BruceVIDA]

OOOh Josh, you hit on something I hadn’t thought of and thanks for that!

 

What triggered this for me is that our new President has a bug in her bum about bringing email voting to the Association.  Unfortunately, the wording she’s crafted for the bylaws amendment speaks only to the idea of the various and sundry ways that email votes can be taken and how they might be recorded.

 

I can post the language she’s proposing if you like, but it may not be necessary.

 

Unfortunately, she entirely puts the cart before the horse when she seems not to recognize the fact that a vote is the last thing that is done.  Her amendment language doesn’t seem to demonstrate that she has a firm grasp on the fact that a vote comes after debate, which comes after putting a motion on the floor which comes after the seconding of a motion that is made during a properly called meeting of either the Board of Directors or the Association membership.

 

She appears to have no idea that email voting can only take place in an asynchronous electronic meeting that must first be authorized in our bylaws. Absent that,  the State of Illinois General Not-For-Profit Corporation Act is specifically cited in our bylaws as the ultimate authority in situations where our bylaws and RONR are silent on the issue.

 

The Illinois NFP Corporation Act only authorizes electronic meetings that are held via a medium where all participants are connected in real-time via teleconference, Skype, etc.  I.E. “synchronous electronic meetings” are legal, but asynchronous meetings are not.

 

Unfortunately most all of this stuff is way over the head of most of the people in the room at any Association meeting, and I’m afraid our President just might be able to push her language through, given the anemic understanding of even the most rudimentary concepts of parliamentary procedure evident in the room at any association meeting.

 

I do not, do not, do not like being the smartest person in the room when this stuff comes up ‘cause I know that compared to a professional parliamentarian, I’m the village idiot.  What else can I do?

 

I got exposed to parliamentary procedure at 13 years old and used it through High School, but then had no need of it for the next 35 years.  It didn’t take much other than to pick up a current copy of RONR to get back into the swing of things, but I may be dealing with people who simply don’t get it.

 

“Stupid is as stupid does”  -- Forest Gump

[Richard Brown]

Under the article about amending the bylaws:

 

"The Constitution and the Bylaws of this Association may be amended or modified by a majority vote of the members present and in good standing at the annual meeting, or at any special meeting called (as set forth in Article VII, Section 4), for that purpose, but written or electronic notice of the proposed amendments must first be given to all members of the Association not less than seven calendar days before the meeting."

 

With that said, I do think it is reasonable to assume that any association member may bring any motion to amend the bylaws at any annual meeting (if you only meet annually, then it would also be correct to say "any regular meeting"). The part about previous notice is trickier. Based solely upon what is posted here, my first impression would be that the phrase "but written or electronic notice of the proposed amendments must first be given to all members of the Association not less than seven calendar days before the meeting" is intended to apply whether the amendments are considered at the annual meeting or at a special meeting. The way the sentence is worded, however, makes this somewhat ambiguous.

Josh, I don't see anything ambiguous about the requirement that notice of proposed bylaw amendments must be given not less than seven days before the meeting.  I think it pretty clearly applies to both special meetings and the annual meeting.  I don't see any wiggle room in it.

[Josh Martin]

What triggered this for me is that our new President has a bug in her bum about bringing email voting to the Association. Unfortunately, the wording she’s crafted for the bylaws amendment speaks only to the idea of the various and sundry ways that email votes can be taken and how they might be recorded.

I'm not sure what you're looking for here, but I of course concur that it is a bad idea to conduct business by e-mail, especially if the rules for doing so are poorly conceived. The society is nonetheless free to adopt such rules in its bylaws if it wishes. Questions about the Illinois Non-Profit Act are well beyond the scope of this forum. Please do not post the rules here, as discussing the specifics of such rules is also beyond the scope of this forum.

Josh, I don't see anything ambiguous about the requirement that notice of proposed bylaw amendments must be given not less than seven days before the meeting. I think it pretty clearly applies to both special meetings and the annual meeting. I don't see any wiggle room in it.

My own view of it is that the run-on sentence creates some ambiguity in what, exactly, the last clause of the sentence is meant to apply to. It would be better if the bit about notice was a separate sentence, or perhaps if it said "all proposed amendments" rather than "the proposed amendments."

Still, I concur that the most reasonable interpretation, based on the facts provided, is that notice is required for all amendments, and that other interpretations are a bit of a stretch. I do think there is some wiggle room, but not much.

[BruceVIDA]

I'm not sure what you're looking for here, but I of course concur that it is a bad idea to conduct business by e-mail, especially if the rules for doing so are poorly conceived. The society is nonetheless free to adopt such rules in its bylaws if it wishes. Questions about the Illinois Non-Profit Act are well beyond the scope of this forum. Please do not post the rules here, as discussing the specifics of such rules is also beyond the scope of this forum.

 

Point taken, Josh. I'll keep the Illinois law out of this discussion. 

 

I will offer that there is no provision in our bylaws to authorize electronic meetings. As such it would seem that attempting to bring a motion to ammend our bylaws to allow email voting without addressing the idea that holding electronic meetings aren't authorized by our bylaws would be an overreach of authority.

[Josh Martin]

I will offer that there is no provision in our bylaws to authorize electronic meetings. As such it would seem that attempting to bring a motion to ammend our bylaws to allow email voting without addressing the idea that holding electronic meetings aren't authorized by our bylaws would be an overreach of authority.

I disagree. If the bylaws are amended to allow e-mail voting, then e-mail voting is permitted, under the conditions specified in the bylaws. The rules in the bylaws take precedence over anything in Robert's Rules of Order. A society could very well adopt rules which authorize e-mail voting without the possibility of an electronic meeting. Many societies do this for mail or e-mail voting (usually limited to specific topics, such as elections or amendments to the bylaws).

The only way that an amendment to the bylaws could be an "overreach of authority" would be if the proposed amendment conflicts with a higher-level rule, such as applicable law, or if the amendment procedures in the bylaws are not properly followed (such as by not providing proper notice).

Unless it turns out that this rule conflicts with applicable law, it seems to me this proposed amendment is perfectly in order, and the only way to defeat it would be to persuade your fellow members to vote against it.

[BruceVIDA]

Josh,

 

Perhaps it would be best if I post the proposed amendment language here.  That may make it more clear that this would in effect create what in literary circles would be designated as a hanging modifier:

 

Proposed amendment to By-Laws of the Hollywood-North Park Community Association

 

Article IV, Section 6, Sub-Section A.  As a continuation of the existing language:

 

A-Sub 1. All votes of the Board of Directors carry upon majority vote of Board Members present, when voting in person.

 

A-Sub 2. Electronic votes of the Board of Directors may be conducted when the President or the Chair or the Secretary provide electronic notice that a vote of an urgent nature must be undertaken where there is insufficient time to provide advance notice to the membership.  Such e-vote notice must include a qualified “second” in order to be considered by the Board.

 

A-Sub 3. All electronic votes of the Board of directors carry upon majority vote of Board Members notified electronically and all Board Members who provide e-contact information must be notified using the e-contract information provided by the Member.

 

A-Sub 4. All electronic votes of the Board of Directors where a majority do not respond in time for the HNPCA action in question to be undertaken fail to carry and will be recorded as a failed motion.

 

A-Sub 5. All votes of the Board of Directors, electronic or in-person, must be recorded in the meeting minutes of the in-person meeting immediately following the date of the e-vote.  In the instance of a e-vote, minutes recording the e-vote must set forth the reasons for not holding the vote until an in-person meeting could be conducted and members properly notified.

 

A-Sub 6.  No e-vote of the Board of Directors can either appoint or remove a member of the Board of Directors, or deny or rescind membership of any member in good standing.  Any such vote must be undertaken at an in-person meeting and proper notice provided pursuant to the guidelines provided in these by-laws.

 

Given this language, and that electronc meetings are not specifically authorized in our bylaws, (it is clear in RONR that electronic meetings must be authorized in the bylaws) then where is the reference to a properly authorized meeting?  Lacking a properly authorized meeting, how can a motion be put before anything like a deliberative assembly?  How can a motion be seconded or debated?  How can votes be determined as coming from those authorized to make them?  How can this language do anything other than introduce enormous ambiguity that can't be reasonably resolved?

[Josh Martin]

Perhaps it would be best if I post the proposed amendment language here.

No, I don't think so.

Given this language, and that electronc meetings are not specifically authorized in our bylaws, (it is clear in RONR that electronic meetings must be authorized in the bylaws) then where is the reference to a properly authorized meeting? Lacking a properly authorized meeting, how can a motion be put before anything like a deliberative assembly? How can a motion be seconded or debated? How can votes be determined as coming from those authorized to make them? How can this language do anything other than introduce enormous ambiguity that can't be reasonably resolved?

I don't see any reference to a properly authorized meeting. Lacking a properly authorized meeting, a motion cannot be put before anything like a deliberative assembly. A motion cannot be seconded or debated. As previously noted, a society is free to adopt rules in its bylaws superseding any rules in RONR if it wishes to do so, including adopting rules which circumvent the traditional decision-making process of a deliberative assembly. Your concerns about security and ambiguity are, I think, valid questions that the society may wish to consider when debating whether this rule should be adopted, but failure to address them will not make the rule invalid.

To try and make this more clear, a society is free to adopt any rules it wishes in its bylaws, so long as those rules do not conflict with higher-level rules (such as applicable law) and they are adopted consistent with the society's rules for amending its bylaws. This rule may well be ill-advised, but that does not mean it is improper.

[BruceVIDA]

Yeah Josh, you make some excellent points.

 

I got slapped in another thread by bringing the Illinois General Not-For-Profit Corporation Act into that conversation as a legal argument and not a parliamentary argument.

 

However, that act is specifically called out in our bylaws as:

 

“Any matter or subject not covered by the Constitution and the Bylaws will be governed by the General Not-For-Profit Corporatin Act then in force under the laws of the State of Illinois.”
 

That act allows for synchronous electronic meetings that take place via media that allow all members to hear and interact with each at the same time. 

 

It does not allow for the type of asynchronous electronic meeting where people are participating from different locations at different times via standard mail, or e-mail or any method that does not allow for the simultaneous aural participation by every participant in the meeting.

 

The proposed amendment language I posted could only be proper in an environment that pre-supposes that asynchronous electronic meetings are authorized in our bylaws. Our bylaws are silent on this. (See RONR pp 98-99)

I would submit that this language does conflict with the higher level rules that I indicated above, and which I was slapped for bringing up in another thread.

[Josh Martin]

Yeah Josh, you make some excellent points.

 

I got slapped in another thread by bringing the Illinois General Not-For-Profit Corporation Act into that conversation as a legal argument and not a parliamentary argument.

 

However, that act is specifically called out in our bylaws as:

 

“Any matter or subject not covered by the Constitution and the Bylaws will be governed by the General Not-For-Profit Corporatin Act then in force under the laws of the State of Illinois.”

 

That act allows for synchronous electronic meetings that take place via media that allow all members to hear and interact with each at the same time. 

 

It does not allow for the type of asynchronous electronic meeting where people are participating from different locations at different times via standard mail, or e-mail or any method that does not allow for the simultaneous aural participation by every participant in the meeting.

 

The proposed amendment language I posted could only be proper in an environment that pre-supposes that asynchronous electronic meetings are authorized in our bylaws. Our bylaws are silent on this. (See RONR pp 98-99)

I would submit that this language does conflict with the higher level rules that I indicated above, and which I was slapped for bringing up in another thread.

 

We are in no position on this forum to comment on what the law provides, but if it is correct that the proposed amendment would be in conflict with the procedural rules in applicable state law, then the proposed amendment would indeed be improper and null and void if adopted.