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Weldon Merritt

Adding a Proviso to an Existing Bylaw

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Assuming that the notice requirements for amending the bylaws are met, could a proviso be added to an existing bylaws provision? The bylaws were revised this year, and among the changes was a change from one-year to two-year terms (with a proviso that the two-year terms will not take effect until next year's annual meeting). The previous bylaws limited the president and vice president to two consecutive terms, and the secretary and treasurer to four. The initial draft of the revision provided that the president and vice president could not serve consecutive terms in the same office, and the secretary and treasurer could serve two consecutive terms (so that the total years served would remain at two years for the President and VP, and four years for the secretary and treasurer). There also was a proviso that the 2015-2016 and 2016-2017 terms would be deemed the equivalent of a single two-year term for purposes of term limitations.

During debate, the term limitation was amended to provide that all officers were limited to two consecutive terms, and the proviso was stricken. When the election was held, a new president, vice president, and treasurer were elected, and the secretary was re-elected. Under the previous bylaws, the secretary could have served four one-year terms; and under the original proposed revision, she could have served two one-year terms and one more two-year term. But under the wording as finally adopted, it seems that since she is now serving her second consecutive term, she cannot be elected to another term unless the bylaws are amended again or it is possible to add a proviso allowing it.

I have no idea whether the secretary would even want to run for another term, but as chair of the nominating committee, I would like to be able to nominate her if she is willing and it is possible to do so. So my question is, in lieu of amending the term limit provision, is it possible to simply add a proviso (with the same notice required for amending the bylaws) that says that the 2015-2016 and 2016-2017 terms will be treated as a single two-year term for purposes of term limitations (in essence, the same proviso that was stricken before)? I don't think there was a conscious intent to prevent anyone from running again. We just didn't consider the effect of striking that proviso.

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Weldon, my opinion is that adopting such a proviso is permissible, but doing it after the fact would require a two thirds vote, or whatever the vote requirement is for amending the bylaws. 

I realize that my interpretation may appear to conflict with the language on page 597 regarding adopting provisos, but I see no reason for not allowing it after the fact, with the above stated vote requirement.  The same thing can be accomplished by the adoption of a one sentence bylaw amendment that says "the 2015-2016 and 2016-2017 terms shall be considered as a single two year term for the purposes of this term limitation  provision" (or words to that effect).  

By adopting the proviso now, with the same notice and vote that a bylaw amendment would require, you are in essence amending the bylaws, but I like the proviso method better.   I do not think you can do it without following the procedures and vote required for a bylaw amendment.

I will add that if there is not time for the adoption of a proviso or bylaw amendment, the issue could perhaps be resolved by a ruling (and possible appeal) on a point of order that the bylaws do not permit the current secretary to run for re-election.  An appeal from such a ruling, if two members so desire, could be taken on the ground that the intent of the provision is that it not apply to the current officers.   The issue would then be resolved with a majority vote or even a tie vote, depending on what the ruling of the chair was. 

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Thanks, Richard. That's pretty much my thinking, and I was hoping to get it validated by some other folks. I reason that it would be possible to process two bylaws amendments in rapid succession; one to stricke the existing term limit (which would become effectove immediately on adoption), and another to adopt an identical term limit with the desired proviso (which also would become effective immediately and would supersede the earlier amendment). Adopting the provisio directly, with the notice and vote required for a bylaws amendment, would accomplish the same result with a much simpler process.

Part of the problem is that the revison was of my state association bylaws at our annual meeting, so unless we call a special meeeting, we can't adopt the proviso until the next annual meeting. But that's also when we will hold elctions for the new two-year terms. So as of the time we need to make our nominations, the current secretary would be term limited and we could not legitimately nominate her. In my experience, however, there aren't a lot of members who are eager to be secretary; so it may be that we could leave that position blank in the NC report, try to get the proviso adopted, and if successful, nominate her from the floor. I recall one or two other occasions when we did not have a nominee for secretary, and had to nominate from the floor.

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It seems to me that this concept of adopting a proviso to an existing bylaw provision does nothing but confuse matters.

The bylaws now provide that all officers are limited to two consecutive terms (we don't have the exact language, but this is how it has been described). The fact that the bylaw provisions regarding this limitation were recently amended, and that a proviso was proposed and rejected during this amendment process, is all irrelevant.

As a matter of parliamentary law, it seems rather clear to me that the situation now is no different than it would have been had this bylaw provision been in effect for the last twenty years.

The short answer to the question asked ("Assuming that the notice requirements for amending the bylaws are met, could a proviso be added to an existing bylaws provision?") is no.

 

 

Edited by Daniel H. Honemann
Added the last sentence, which I had forgotten to tack on.

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3 hours ago, Daniel H. Honemann said:

The short answer to the question asked ("Assuming that the notice requirements for amending the bylaws are met, could a proviso be added to an existing bylaws provision?") is no.

 

 

OK, assuming your answer is correct, how about the alternate process:

Could an amendment to strike the term limit be adopted, then at the same meeting, an amendment to insert an identical term limit with a proviso that the two one-year terms are deemed the equivalent of a single two-year term?) Assuming, of course, that proper notice of both amendments has been given.)

BTW, for whatever it is worth, the proviso that was strike was not proposed as part of the amendmsnt process. It was part of the original proposed revision, and the original intent was to preserve the same number of years of total service for each offfice. I don't think it was anyone's intent to shorten the secretary's total allowable years of servce, but that appears to be the effect. (I know that's most likely irrelevant, too, but it may have a bearing on whether any such amendment will be successful.)

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Your organization can amend its bylaws as many times and in as many ways as it wishes so long as the procedure prescribed for their amendment is properly followed in each instance.

It seems to me, however, that the nominating committee should simply do its job, which I doubt includes proposing bylaw amendments.

 

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4 minutes ago, Daniel H. Honemann said:

It seems to me, however, that the nominating committee should simply do its job, which I doubt includes proposing bylaw amendments.

 

Actually, under our byalws, "any standing or special committee may propose amendments relating to the committee’s structure or function." Arguably, at least, such an amendment would relate to the nominating committee's function, especially if we believe the current secretary is the best person for the job. But rather than getting into whether the amendment would or would not be proper for the nominating committee to propose, I may just see if I can get the board of directors to propose it. (I am a member of the board in another capacity.)

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On 5/21/2016 at 11:17 AM, Weldon Merritt said:

Actually, under our byalws, "any standing or special committee may propose amendments relating to the committee’s structure or function."

Yeah, but what about the nominating committee? :)

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26 minutes ago, Shmuel Gerber said:

Yeah, but what about the nominating committee? :)

Why do you think the nominating committee would not be either a staindg committee or a special committee? But in case there is any doubt, our byalws specifically list the nominating committee as as special committee.

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1 hour ago, Weldon Merritt said:

Why do you think the nominating committee would not be either a staindg committee or a special committee? But in case there is any doubt, our byalws specifically list the nominating committee as as special committee.

Because it shouldn't be listed under committees?  :)

That said, I would see no problem with adopting a bylaw provision that change term limits for a specific time.  Such an amendment might include a proviso or even have end date in text.  Likewise, a "grandfather clause," exempting sitting officers, could be adopted. 

 

 

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2 hours ago, Weldon Merritt said:

Why do you think the nominating committee would not be either a staindg committee or a special committee?

RONR says:

"Ordinary committees are of two types—standing committees (which have a continuing existence) and special committees (which go out of existence as soon as they have completed a specified task). . . .

"Standing committees are constituted to perform a continuing function, and remain in existence permanently or for the life of the assembly that establishes them. In an ordinary society, the members of such a committee serve for a term corresponding to that of the officers, or until their successors have been chosen, unless the bylaws or other rules otherwise expressly provide. Thus, a new body of committee members is normally appointed at the beginning of each administration." (pp. 490-91)

"A special (select, or ad hoc) committee is a committee appointed, as the need arises, to carry out a specified task, at the completion of which—that is, on presentation of its final report to the assembly—it automatically ceases to exist." (p. 492)

And it also says: "A nominating committee is automatically discharged when its report is formally presented to the assembly, although if one of the nominees withdraws before the election, the committee is revived and should meet immediately to agree upon another nomination if there is time." (p.313). In addition, the members of a nominating committee are usually appointed a certain amount of time in advance of the elections, rather than for a term of office coinciding with that of the officers.

So, if the nominating committee is a standing committee, it seems like a special type of standing committee. Or maybe it's a standing type of special committee. Or perhaps it's neither, and it's just an extraordinary type of ordinary committee.

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1 hour ago, J. J. said:

Because it shouldn't be listed under committees?  :)

 

Well, in our byalws is is listed as a special committee.

But it seems to me this is all beside the point of the original question, whether a proviso can be added to an existing bylaws provision, with the same notice and vote requirments as a bylaws amendmsnt. And despite Dan's answer, I am not conveninced that it can't. Whether I will proceed that way or take the more cautious approace of proposing an amendmsnt to the bylaws text, i have not yet decided. And of course, that decision will not be solely up to me anyway, as it will need to be proposed eithet by the nominating committee, the bylaws committee, or the board of direcors.

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49 minutes ago, Weldon Merritt said:

Well, in our byalws is is listed as a special committee.

But it seems to me this is all beside the point of the original question, whether a proviso can be added to an existing bylaws provision, with the same notice and vote requirments as a bylaws amendmsnt. And despite Dan's answer, I am not conveninced that it can't. Whether I will proceed that way or take the more cautious approace of proposing an amendmsnt to the bylaws text, i have not yet decided. And of course, that decision will not be solely up to me anyway, as it will need to be proposed eithet by the nominating committee, the bylaws committee, or the board of direcors.

Yes, all this discussion about the nature and duties of a nominating committee is beside the point, and was prompted by a comment made by me which was beside the point. Had I known what the bylaws of this organization have to say about its nominating committee, I would not have made the comment that I did.

In any event, I think it should be clear that a proviso cannot be "added" to an existing (meaning already effective) bylaws provision in order to delay its effectiveness in some respect. That idea is just plain nuts.

The ways in which provisos may be adopted are described on page 597, lines 3-23. The purpose of a proviso is to delay the effectiveness of an amendment to the bylaws in some respect, and the only way in which this can be done is to adopt the proviso either before or at the same time as the amendment is adopted.

Edited by Daniel H. Honemann
Added the last sentence.

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7 hours ago, Daniel H. Honemann said:
7 hours ago, Daniel H. Honemann said:

The ways in which provisos may be adopted are described on page 597, lines 3-23. The purpose of a proviso is to delay the effectiveness of an amendment to the bylaws in some respect, and the only way in which this can be done is to adopt the proviso either before or at the same time as the amendment is adopted.

I agree that this is true in general, but I am not convinced that it is universally true. Nevertheless, the discussion has at least convinced me that there is enough doubt that it probably is better to take the more conservative approach and propose an amendment to the bylaws langauge involved (even if the amended langauge winds up being identical with the existing langauge with the addition of a proviso).

My apology for the nested quote box. My initial try at editing the quote cut too much text, and when I tried to go back and fixx the error. I ended up with a nested quote box. I couldn't figure out how to fix it, so I left it alone.

Edited to correct typographical errors/

Edited by Weldon Merritt
Correect typos

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It seems to me that the discussion is merely one of form, anyway. It's clear that if an assembly has the power to alter its own bylaws, then it can insert and remove an exception at will (in accordance with the usual procedures to do so, of course).

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39 minutes ago, Sean Hunt said:

It seems to me that the discussion is merely one of form, anyway. It's clear that if an assembly has the power to alter its own bylaws, then it can insert and remove an exception at will (in accordance with the usual procedures to do so, of course).

That's my thinking, too. We clearly could accomplish the intended result with a couple of amendments to the bylaws language itself, so it seems logical to me (and certaily not "plain nuts," as Dan characterized it) that we should be able to accomplish that result with the simpler process of adding a proviso. The essence of a proviso (in most instances at least) is the creation of a temporary exception to a bylaws provision. I see no essential difference between doing so when the bylaws provision is being consdered for adoption and when it is already in effect. There is, of course, a huge procedural difference, since any alteration to the terms of an existing provision would have to meet the notice and vote requirments for amending the provision.

If I undestood Dan correctly, he agrees that (with proper notice and vote) the assembly could adopt an amendment to strike the langauage at issue, and moments later adopt an amendment to insert the identical langaue with the desired proviso. It occurs to me that the assembly probably could do that in one step: adopt an amendment striking the language at issue and inserting identical language with the desired proviso. If the latter amendment would be in order, then there really is no substantive difference between that and simply adding the proviso. It seems to me that arguing otherwise is elevating form over substance. Sometimes the form is critical, but I don't see this as one of those times.

Of course, this entire exericise may be moot if the current secretary decides that she does not want to run for another term anyway, since she is the only officer adversely affected by the provision.

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5 hours ago, Weldon Merritt said:

That's my thinking, too. We clearly could accomplish the intended result with a couple of amendments to the bylaws language itself, so it seems logical to me (and certaily not "plain nuts," as Dan characterized it) that we should be able to accomplish that result with the simpler process of adding a proviso. The essence of a proviso (in most instances at least) is the creation of a temporary exception to a bylaws provision. I see no essential difference between doing so when the bylaws provision is being consdered for adoption and when it is already in effect. There is, of course, a huge procedural difference, since any alteration to the terms of an existing provision would have to meet the notice and vote requirments for amending the provision.

If I undestood Dan correctly, he agrees that (with proper notice and vote) the assembly could adopt an amendment to strike the langauage at issue, and moments later adopt an amendment to insert the identical langaue with the desired proviso. It occurs to me that the assembly probably could do that in one step: adopt an amendment striking the language at issue and inserting identical language with the desired proviso. If the latter amendment would be in order, then there really is no substantive difference between that and simply adding the proviso. It seems to me that arguing otherwise is elevating form over substance. Sometimes the form is critical, but I don't see this as one of those times.

Mr. Merritt, I gather that when you refer to "simply adding the proviso" you refer to adding the "proviso" to the bylaws themselves (which, of course, requires an amendment of the bylaws), but doing so defeats a primary reason for the use of a proviso, which is to avoid the mistake of encumbering the bylaws with provisions which have effect for only a limited time. A proviso (as described in RONR), when properly utilized, never becomes a part of the bylaws. 

In any event, I gather you agree that your organization cannot accomplish what you say you may want to accomplish without amending its bylaws in some fashion. If you want to do this and call whatever it is a proviso, I certainly have no objection. This bylaw amendment is, of course, going to require previous notice and a two-thirds vote for its adoption, since it is not simply the adoption of a proviso*, but you obviously recognize this to be the case.

------------------------------------

* The adoption of a proviso (within the meaning of RONR) by use of a main, subsidiary, or incidental motion requires only a majority vote. 

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5 hours ago, Daniel H. Honemann said:

In any event, I gather you agree that your organization cannot accomplish what you say you may want to accomplish without amending its bylaws in some fashion. If you want to do this and call whatever it is a proviso, I certainly have no objection. This bylaw amendment is, of course, going to require previous notice and a two-thirds vote for its adoption, since it is not simply the adoption of a proviso*, but you obviously recognize this to be the case.

Yes, I have said from the begining that it would require the same notice and vote as any other amendment, so I think this discussion has been mostly about semantics. I do wat to avoid " encumbering the bylaws with" the temporary provision, but I think this discussion has helped me find a way to do that legitimately.

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25 minutes ago, Weldon Merritt said:

Yes, I have said from the begining that it would require the same notice and vote as any other amendment, so I think this discussion has been mostly about semantics. I do wat to avoid " encumbering the bylaws with" the temporary provision, but I think this discussion has helped me find a way to do that legitimately.

Okay, but it won't be by, as you say, "simply adding the proviso."

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On ‎5‎/‎24‎/‎2016 at 10:14 AM, Weldon Merritt said:

Yes, I have said from the begining that it would require the same notice and vote as any other amendment, so I think this discussion has been mostly about semantics. I do wat to avoid " encumbering the bylaws with" the temporary provision, but I think this discussion has helped me find a way to do that legitimately.

I don't understand why anyone would want to call it a "proviso." In my opinion, that will add to confusion of members understanding what an adopted proviso is and accomplishes. Why not just call it what it is -- a bylaw amendment?

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3 hours ago, Ann Rempel, PRP, CPP-T said:

I don't understand why anyone would want to call it a "proviso." In my opinion, that will add to confusion of members understanding what an adopted proviso is and accomplishes. Why not just call it what it is -- a bylaw amendment?

 

 

In all honestly, I don't know what a bylaw amendment with a temporary effect would be called.

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11 hours ago, J. J. said:

In all honestly, I don't know what a bylaw amendment with a temporary effect would be called.

As has been noted, a proposal to amend the bylaws, once it has been adopted, is usually called a "bylaw provision" (or at least a portion of a bylaw provision), and it will remain a bylaw provision until such time as it is removed or revised by the adoption of another amendment, regardless of whether or not it has (or had) only a temporary effect.

I suppose it might also be noted that an adopted bylaw amendment which did nothing but strike out a part of the bylaws usually isn't called anything, but this is okay since there isn't anything to refer to.  :)

 

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15 hours ago, Ann Rempel said:

I don't understand why anyone would want to call it a "proviso." In my opinion, that will add to confusion of members understanding what an adopted proviso is and accomplishes. Why not just call it what it is -- a bylaw amendment?

The interjection of some common sense into this discussion (which from time to time has gotten a little nutty) is like a breath of fresh air.

Thanks, Ann.   :)

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