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Authority of the Board


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On 9/20/2017 at 5:37 PM, J. J. said:

That would require authorization in the bylaws. 

How do we know that?  Since the board is presumably subordinate to the general membership, why could the membership not appoint a committee with power of oversight over the board?

The board may not delegate its power to a committee, but the membership can.

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10 minutes ago, Gary Novosielski said:

How do we know that?  Since the board is presumably subordinate to the general membership, why could the membership not appoint a committee with power of oversight over the board?

The board may not delegate its power to a committee, but the membership can.

A society, in its bylaws, creates the board and grants the board the power to do certain things.  The assembly cannot change that power unless it goes into the bylaws. 

 

 

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On 9/21/2017 at 10:35 PM, J. J. said:

A society, in its bylaws, creates the board and grants the board the power to do certain things.  The assembly cannot change that power unless it goes into the bylaws. 

Sure it can, on a case-by-case basis.  The society can instruct the board or repeal/amend things the board has done.

Anyway, we're not talking about changing the power of the board, we're talking about delegating other powers to an oversight committee.

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23 minutes ago, Gary Novosielski said:

Sure it can, on a case-by-case basis.  The society can instruct the board or repeal/amend things the board has done.

Anyway, we're not talking about changing the power of the board, we're talking about delegating other powers to an oversight committee.

In the case where there is some action that the bylaws assign to the board, the assembly can neither instruct or rescind/amend that action. (p. 483, ll. 9-11).  The assembly may instruct the board in all cases "[e]Except in matters placed by the bylaws exclusively under the control of the board...."

For example, if the bylaws state "The board shall have the sole authority to buy real estate," and says nothing else, the assembly may not instruct the board to buy Lot 49.  The assembly may recommend that the board buy Lot 49.  They may be able to change the composition of the board to one that is favorable to buying Lot 49.  They may be able to amend the bylaws giving themselves the authority to buy real estate.  They cannot order the board to buy Lot 49. 

The same principle will apply to this "oversight committee."  The committee is not established in the bylaws, and cannot oversee something established in the bylaws.  They may establish a rule permitting members of a committee to attend all board meeting, and even make recommendations to the board.  They can amend their bylaws to create such a committee the power to supersede the board.  That committee cannot supersede the board 's actions unless the bylaws grant the assembly the authority to create such a committee. 

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I believe that the assembly can instruct the board and rescind/amend its actions except where the board is given what RONR calls exclusive authority, and what you've called sole authority.  But this is typically not the language that is used in bylaws.  Bylaws often list areas of board responsibility and even specific powers without specifying exclusive authority.  In such cases the assembly can overrule the board.  I agree with you that if the bylaws assign any powers to the board exclusively, then the assembly has no recourse, except to amend the bylaws.

Most bylaws grant boards general responsibility for the business affairs of the society between general meetings. This wording also fails to give sole or exclusive power to the board, and the general assembly has the power to instruct/repeal/amend, subject to all the usual limitations of those motions.

Since the assembly (but not the board) has the right to delegate its power(s) to a committee, I don't see why it would be prohibited from authorizing an oversight committee that could do all the things the assembly itself could do, relating to board decisions.

I am definitely not weighing in on whether this is a good idea, i just don't see a rule that prohibits it.

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1 hour ago, Gary Novosielski said:

 

Most bylaws grant boards general responsibility for the business affairs of the society between general meetings. This wording also fails to give sole or exclusive power to the board, and the general assembly has the power to instruct/repeal/amend, subject to all the usual limitations of those motions.

 

I have no problem with the delegation.  However even a weak board generally has the power to act between meetings of the assembly; that power is expressed in the bylaws.  The assembly cannot remove the power of the board to act between meetings of the assembly, except by placing this ability in the bylaws. 

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13 hours ago, J. J. said:

I have no problem with the delegation.  However even a weak board generally has the power to act between meetings of the assembly; that power is expressed in the bylaws.  The assembly cannot remove the power of the board to act between meetings of the assembly, except by placing this ability in the bylaws. 

Undeniably true.  The board has only the powers granted in the bylaws, but it has those powers in no uncertain terms.

But it's also true that in the "weak" case where a power is not exclusive, the assembly can overrule the board on a case-by-case basis without actually removing that power from the board in general.

With the exception of my service on an elected board of ed, where the board was essentially the organization, it has been my experience that most organizations with an active and involved memberrship find this "weak" board empowerment to be the closest to ideal.  Routine matters get handled routinely, and unusual situations can be handled quickly when necessary, yet the membership retains the ultimate authority.  \

A board with reasonable political savvy will usually recognize when it can safely handle a particular situation on its own authority versus when it should reach out proactively to the membership for direction.  But even the most experienced boards can be surprised.

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3 hours ago, Gary Novosielski said:

But it's also true that in the "weak" case where a power is not exclusive, the assembly can overrule the board on a case-by-case basis without actually removing that power from the board in general.

 

It is here where I disagree.  The bylaws provide, presumably, that the board would act for the society "between meetings."  The assembly cannot create some other body that acts for the assembly "between meetings" except by authoring that body in the bylaws or at least change the bylaws to permit other bodies to act for the society between meetings.

If the bylaws say that the board can conduct business of the assembly between meetings, and say nothing else, then only the board can conduct for the society between meetings of the society.  That is the rule of interpretation #4 pp. 589-90.i.e. "If the bylaws authorize certain things specifically, other things of the same class are thereby prohibited."

Now, the society may amend its bylaws to permit the assembly to appoint an oversight committee; they may establish a board that does not to have the exclusive ability to conduct the business of the society between meetings.  However, if none of those are in the bylaws, this committee cannot reverse, or be required to approve, any actions of the committee.

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4 hours ago, Gary Novosielski said:

But it's also true that in the "weak" case where a power is not exclusive, the assembly can overrule the board on a case-by-case basis without actually removing that power from the board in general.  [Emphasis added]

 

1 hour ago, J. J. said:

It is here where I disagree.  The bylaws provide, presumably, that the board would act for the society "between meetings."  The assembly cannot create some other body that acts for the assembly "between meetings" except by authoring that body in the bylaws or at least change the bylaws to permit other bodies to act for the society between meetings.

Okay, but you're jumping ahead.  The sentence you quoted doesn't refer to a committee. Before we get to that, do we agree that the assembly has the power referred to?  Is your objection only against it delegating that power?

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Just now, Gary Novosielski said:

 

Okay, but you're jumping ahead.  The sentence you quoted doesn't refer to a committee. Before we get to that, do we agree that the assembly has the power referred to?  Is your objection only against it delegating that power?

I agree that the assembly has the power to refer things, but not in violation of the bylaws.1  The bylaws have already assigned the authority to act on the behalf of the society, between meeting of the members, to the board.  This is not a question of if the meeting of members can delegate, at this point. 

 

1I will concede that their may other functions that the assembly cannot delegate.

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22 minutes ago, J. J. said:

I agree that the assembly has the power to refer things, but not in violation of the bylaws.1  The bylaws have already assigned the authority to act on the behalf of the society, between meeting of the members, to the board.  This is not a question of if the meeting of members can delegate, at this point. 

 

1I will concede that their may other functions that the assembly cannot delegate.

I'm just trying to take this a piece at a time. 

I contend that the membership, without referring anything, can itself second-guess the board.  I think we agree on that.

You contend that the membership may not delegate (refer to a committee with power) such actions.  In fact you seem to say that they may not refer such things at all, but I'm not sure that's what you mean.  Surely if the assembly has the right to consider something itself, it has the right to refer the question to a committee, with instructions to report recommendations (but otherwise take no action).

If I have it right, our only disagreement is whether, say, a committee to which is referred a question on rescinding a board action, can or cannot be given power to do the rescission themselves, should they agree it is the advisable course.  Or, perhaps we don't disagree as long as this is a one-off referral.  But let me know if I understand your position correctly at least this far.

 

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1 hour ago, Gary Novosielski said:

I'm just trying to take this a piece at a time. 

I contend that the membership, without referring anything, can itself second-guess the board.  I think we agree on that.

You contend that the membership may not delegate (refer to a committee with power) such actions.  In fact you seem to say that they may not refer such things at all, but I'm not sure that's what you mean.  Surely if the assembly has the right to consider something itself, it has the right to refer the question to a committee, with instructions to report recommendations (but otherwise take no action).

If I have it right, our only disagreement is whether, say, a committee to which is referred a question on rescinding a board action, can or cannot be given power to do the rescission themselves, should they agree it is the advisable course.  Or, perhaps we don't disagree as long as this is a one-off referral.  But let me know if I understand your position correctly at least this far.

 

I agree with the first line. 

I'm going to quote the others in italics.  I can't break up you post.

You contend that the membership may not delegate (refer to a committee with power) such actions. 

No, I don't.  I contend that the membership cannot act between meetings of the society.  There is no delegation to a committee, because the membership cannot delegate authority it does not have.  The bylaws say that, between meetings, the board has the authority to run the organization.  Between meetings, all the authority in the organization is vested in the board, except for things that the bylaws give to the membership.

In fact you seem to say that they may not refer such things at all, but I'm not sure that's what you mean.  Surely if the assembly has the right to consider something itself, it has the right to refer the question to a committee, with instructions to report recommendations (but otherwise take no action).

The membership meeting is saying, in effect:

"This committee that we just appointed will exercise the authority of the society between meetings of the assembly." 

The bylaws, hypothetically, have a clause that says:

"The board shall exercise the authority of this society between meetings of the assembly.

That motion adopted by the assembly violates that clause in the bylaws that says that the board has the authority to act between meeting.  The assembly does not have the authority to act between meetings, therefor, it cannot delegate that authority that is does not have. 

In an analogy, assume that the bylaws give the board the power to elect officers from among its members of the board (which is not uncommon).  The meeting of the society could not adopt a motion directing the board to elect Mr. Smith.  The assembly does not have the authority to choose the president.  The bylaws grant the board that authority.

The bylaws give the board the ability to run things between meetings of the society.  The meeting of the society cannot say, this committee shall run things between meeting of the society, without violating that bylaw.

The society could amend the bylaws to permit a committee to run this society between meetings of members, effectively second guessing the board.  It is also possible that the society could remove members on the board, a put members on the board that would do (or not do) something that the members who want the committee want done.

 

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