Amendment to Bylaws Change Validity

[jtc0601]

I have 3 questions on the validity of amendments to bylaws. I have been tasked to research questions the membership and BOD have concerning practices.  I hope I have made these questions clear.  I have tried to keep all my question separate by subject.  

 

At our Annual General Meeting [i was not a member at the time] in 2011 the BOD proposed an amendment to the bylaws.  The change was not entered as it was proposed, please see below.  I understand it could have changed after discussion of the membership, but the minutes do not specifically state that the amendment was approved.  It only states the BOD was in consensus of the change.  I realize this may have just been poor record keeping of the Secretary.  We just want to make sure changes are valid. The previous BOD was asked to resign due to questionable practices and the current BOD is trying to correct and make everything transparent to the membership in an effort to rebuild the Organization, I being a new BOD member.  

 

There were other changes made the following two years, however, the past BOD refuses to turn over the minutes for 2012-2013 and other past members seem to not have a copy of any of those minutes.  Would that make the those amendments invalid? 

 

How do you ensure the validity of a mail or proxy vote?  The amendment was changed to allow voting on amendment changes to allow voting by mail or proxy?  No rules or discussions were established to ensure these votes are valid?

 

ORIGINAL 2003 BYLAWS

 “Provided the Membership meets quorum requirements, these Bylaws may be amended at any regular or special meeting of the Association by an affirmative two-thirds vote of the members present.”

 

[PROPOSE AT GENERAL MEETING 08/11/11]

§ Now: Article IX Amendments of Bylaws: “Provided the Membership meets quorum requirements, these Bylaws may be amended at any regular or special meeting of the Association by an affirmative two-thirds vote of the total membership vote cast either in person, by mail or by proxy.”

 

[GENERAL MEMBERSHIP MINUTES DATE: August 11, 2011, the only part that mentions the amendments]

• Review of the proposed Amendments to the LCPAAA Bylaws

 

[secretary] then reviewed each of the proposed 5 Amendments to the Bylaws, along with the reasoning behind the Boards request to change the Bylaws. [President] noted that the Board is in consensus with all 5 Amendments and asked if there were any questions from the floor.  a member of the nominating committee - proposed Amendment #5 should read 2/3 of all votes cast either in person, by mail or by proxy - adding the "by mail".

 

CURRENT 2013 BYLAWS

Provided the Membership meets quorum requirements, these Bylaws may be amended at any regular or special meeting of the Association by an affirmative two-thirds vote cast either in person, by mail or by proxy.

[Edgar Guest]

I have 3 questions on the validity of amendments to bylaws. 

Is there some reason you chose a smaller than normal font size?

 

ORIGINAL 2003 BYLAWS

 “Provided the Membership meets quorum requirements, these Bylaws may be amended at any regular or special meeting of the Association by an affirmative two-thirds vote of the members present.”

 

Is there some reason you then chose an even smaller than normal font size? Some of us are not as young as we used to be.

[Hieu H. Huynh]

The secretary should make the minutes and records available to members upon request.

 

These amendments are valid if they were validly adopted. Not having the minutes or the minutes not containing the correct information does not make those amendments invalid.

[jtc0601]

The secretary should make the minutes and records available to members upon request.

 

These amendments are valid if they were validly adopted. Not having the minutes or the minutes not containing the correct information does not make those amendments invalid.

 

As I said before the request was made but the previous Secretary and BOD [they were asked to resign] refused to make these records available to the new BOD nor do any members seem to have copies of the minutes.  I thought I made that clear.  Apparently not.  

 

There were other changes made the following two years, however, the past BOD refuses to turn over the minutes for 2012-2013 and other past members seem to not have a copy of any of those minutes.  Would that make the those amendments invalid? 

[jtc0601]

Is there some reason you chose a smaller than normal font size?

 

 

Is there some reason you then chose an even smaller than normal font size? Some of us are not as young as we used to be.

I was trying to distinguish between my question and the part of our bylaws I copied for reference.  I used a 12pt font.  Any advise would be appreciated.   

 

I have 3 questions on the validity of amendments to bylaws. I have been tasked to research questions the membership and BOD have concerning practices.  I hope I have made these questions clear.  I have tried to keep all my question separate by subject.  

 

At our Annual General Meeting [i was not a member at the time] in 2011 the BOD proposed an amendment to the bylaws.  The change was not entered as it was proposed, please see below.  I understand it could have changed after discussion of the membership, but the minutes do not specifically state that the amendment was approved.  It only states the BOD was in consensus of the change.  I realize this may have just been poor record keeping of the Secretary.  We just want to make sure changes are valid. The previous BOD was asked to resign due to questionable practices and the current BOD is trying to correct and make everything transparent to the membership in an effort to rebuild the Organization, I being a new BOD member.  

 

There were other changes made the following two years, however, the past BOD refuses to turn over the minutes for 2012-2013 and other past members seem to not have a copy of any of those minutes.  Would that make the those amendments invalid? 

 

How do you ensure the validity of a mail or proxy vote?  The amendment was changed to allow voting on amendment changes to allow voting by mail or proxy?  No rules or discussions were established to ensure these votes are valid?

 

ORIGINAL 2003 BYLAWS

 “Provided the Membership meets quorum requirements, these Bylaws may be amended at any regular or special meeting of the Association by an affirmative two-thirds vote of the members present.”

 

[PROPOSE AT GENERAL MEETING 08/11/11]

§ Now: Article IX Amendments of Bylaws: “Provided the Membership meets quorum requirements, these Bylaws may be amended at any regular or special meeting of the Association by an affirmative two-thirds vote of the total membership vote cast either in person, by mail or by proxy.”

 

[GENERAL MEMBERSHIP MINUTES DATE: August 11, 2011, the only part that mentions the amendments]

• Review of the proposed Amendments to the LCPAAA Bylaws

 

[secretary] then reviewed each of the proposed 5 Amendments to the Bylaws, along with the reasoning behind the Boards request to change the Bylaws. [President] noted that the Board is in consensus with all 5 Amendments and asked if there were any questions from the floor.  a member of the nominating committee - proposed Amendment #5 should read 2/3 of all votes cast either in person, by mail or by proxy - adding the "by mail".

 

CURRENT 2013 BYLAWS

Provided the Membership meets quorum requirements, these Bylaws may be amended at any regular or special meeting of the Association by an affirmative two-thirds vote cast either in person, by mail or by proxy.

[Hieu H. Huynh]

There were other changes made the following two years, however, the past BOD refuses to turn over the minutes for 2012-2013 and other past members seem to not have a copy of any of those minutes.  Would that make the those amendments invalid? 

 

No.

[Josh Martin]

 

The change was not entered as it was proposed, please see below.  I understand it could have changed after discussion of the membership, but the minutes do not specifically state that the amendment was approved.  It only states the BOD was in consensus of the change.  I realize this may have just been poor record keeping of the Secretary.  We just want to make sure changes are valid.

 

If the amendment was adopted, then it was adopted. The wording of the amendment was the wording stated by the chair when putting the question.  

 

There were other changes made the following two years, however, the past BOD refuses to turn over the minutes for 2012-2013 and other past members seem to not have a copy of any of those minutes.  Would that make the those amendments invalid? 

 

The fact that there are not minutes available is unfortunate, but it does not undermine the validity of the amendments.

 

Since it seems you're not going to get the minutes from those meetings, a committee should be appointed to recreate those minutes to the best of its ability.

 

How do you ensure the validity of a mail or proxy vote?  The amendment was changed to allow voting on amendment changes to allow voting by mail or proxy?  No rules or discussions were established to ensure these votes are valid?

 

RONR has some guidance regarding ensuring the validity of votes by mail. See RONR, 11th ed., pgs. 424-425. You're on your own with the proxies.

[Guest calbear77]

If you can actually get quorum in person (without proxy votes or mail in votes) and have the support of the membership, I would just entirely strike any "questionable" bylaws and adopt new ones to the same effect (or to the effect that the new board thinks is appropriate). In practical sense it seems like you're not going to get those minutes. Someone who is better versed than me in RONR could also comment to whether a motion to ratify would be a better alternative.

 

Regarding the procedures to use for these votes, Josh Martin pointed out that RONR does have them for mail votes. As RONR does not provide anything for proxy votes, I have personally used Webster's New World Robert's Rules of Order Simplified and Applied, Third Edition which contains some model rules (which would have to be adopted by your organization) for proxy votes (specifically in the context of Homeowner's Associations). [Note that ROSA is NOT AN OFFICIAL VERSION of RONR and is published by a different company under the generalized trademark of "Robert's Rules".]

 

 

 

[Guest calbear77]

Here is an excerpt from their website with model procedures: http://www.parli.com/homeowners-association/proxy-voting. Remember that none of this applies to you unless you specify so in your governing documents.

[Dan Honemann]

Readers should be warned that the book and website referred to the last two responses (#8 and #9) are, in my humble opinion, two of the worst places they could possibly go to learn anything at all about parliamentary law.

[Edgar Guest]

I was trying to distinguish between my question and the part of our bylaws I copied for reference.  I used a 12pt font.  Any advise would be appreciated.

 

Don't mess with the font or the font size.

 

First choice: italics

 

Second choice: bold

Third choice: underline

Anything else (e.g. colors) . . .

 

Stay away from them.

[SaintCad]

If minutes are unavailable, how do you know the text of the motion was as presented by the chair?

[Josh Martin]

If minutes are unavailable, how do you know the text of the motion was as presented by the chair?

You don't (nor do you really know this if the minutes are available, as the minutes may be wrong). Nonetheless, the fact that the minutes are unavailable does not invalidate a properly adopted motion.

[SaintCad]

You don't (nor do you really know this if the minutes are available, as the minutes may be wrong). Nonetheless, the fact that the minutes are unavailable does not invalidate a properly adopted motion.

I get that.  I'm just curious how the OP claims to know the question as put to the membership.  Was it written on a ballot?  Someone's memory?  A proposed amendment presented in writing in advance to the membership but may or may not have changed during the meeting?

 

If the first one, jtc may have a valid claim that the bylaws were written incorrectly and should be changed to reflect the actual motion passed.  I think this could be done with a regular main motion as you are not actually changing the bylaws, just correcting the printed copy.

 

If the latter two, I would say jtc is out of luck as there is no definitive proof of the form the motion was when voted on.

 

But here is another question: why does the past BOD refuse to turn over the minutes?  Shouldn't those be in the custody of the current secretary?  Assuming the general membership passes a motion requiring that BOD to turn over the minutes of that AGM and they refuse, could those members be disciplined?

[Josh Martin]

I get that. I'm just curious how the OP claims to know the question as put to the membership. Was it written on a ballot? Someone's memory? A proposed amendment presented in writing in advance to the membership but may or may not have changed during the meeting?

If the first one, jtc may have a valid claim that the bylaws were written incorrectly and should be changed to reflect the actual motion passed. I think this could be done with a regular main motion as you are not actually changing the bylaws, just correcting the printed copy.

If the latter two, I would say jtc is out of luck as there is no definitive proof of the form the motion was when voted on.

My understanding is that the society does have the minutes from the annual meeting held in 2011, and the wording in the bylaws does not match what is in the minutes. I don't believe the OP claims to know what happened at the meetings in 2012 or 2013, for which the society does not have the minutes.

Shouldn't those be in the custody of the current secretary? Assuming the general membership passes a motion requiring that BOD to turn over the minutes of that AGM and they refuse, could those members be disciplined?

Yes, the minutes should be in the custody of the current Secretary. The former board members can indeed be disciplined for failing to turn over the minutes. I don't think it is strictly necessary to adopt a motion specifically requiring this (as it is already required), but it couldn't hurt.

[Gary Novosielski]

If minutes are unavailable, how do you know the text of the motion was as presented by the chair?

 

If the minutes are unavailable, you don't know if they're correct because you can't see them.  But one thing you can be sure of--the text of the motion was as presented by the chair, because that's what defines what was voted on.

[Josh Martin]

If the minutes are unavailable, you don't know if they're correct because you can't see them. But one thing you can be sure of--the text of the motion was as presented by the chair, because that's what defines what was voted on.

Yes, but I think Saint Cad's point is that, because these meetings happened two to four years ago, it is unlikely at this point that anyone has the slightest idea what the chair said when he put the question.