Amendment was out of order, but is result voided?

[Guest board1234]

Our board amended its bylaws to add a board position at one meeting.  There was no previous notice as called for in the bylaws.  This was entered into the notes and notice of the new position was sent out to the membership.  At the next meeting, someone was elected to the position.  They have not begun their term yet, but the election was three weeks ago.  Now some people say the amendment was out of order (it was never even written into the bylaws) and therefore the person is note really a board member.  Would this be correct?  We know we can elect them again after doing it right, but do we need to do that?  

[Josh Martin]

9 minutes ago, Guest board1234 said:

Would this be correct?

Yes, this is correct. If previous notice is required, failure to provide such notice constitutes a continuing breach and means that the amendment is null and void. As a consequence, the subsequent election would also be null and void. The chair should rule as much at the next meeting.

The fact that the amendment was not printed in the printed copies of the bylaws is irrelevant. If the amendment had been properly adopted, such administrative errors would not invalidate it. Failure to provide the required notice of the amendment is the issue.

Additionally, do your bylaws grant the board the power to amend the bylaws? That power is generally reserved for the membership.

13 minutes ago, Guest board1234 said:

We know we can elect them again after doing it right, but do we need to do that?  

Yes.

[Joshua Katz]

This is correct. Failure to follow the rules in your bylaws for their amendment voids any amendment supposedly adopted.  (Does your board have the power to amend the bylaws?)  You say "We know we can elect them again after doing it right," but in fact you only think that, you don't know it.  The results of the vote on the bylaw amendment might be different if notice is provided.

[Richard Brown]

Well, if the notice of the amendment as required by your bylaws was not given, then the amendment was not validly adopted and the recent election would likewise be void.  Whether the bylaws have been reprinted with the amendment is not a controlling factor, but could, perhaps, be construed by some as evidence that the secretary does not think the amendment was validly adopted.  It is not unusual for it to take a while for bylaws to be reprinted with recently adopted amendments.

The proper way to correct this is for someone to make a point of order at the next meeting that the bylaws were not validly adopted due to lack of notice as required by the bylaws.  A notice requirement is something that cannot be suspended or waived.  It must be complied with or the resulting action is null and void.  The chair will (or should!!) rule on the point of order.  His ruling can be appealed to the assembly.  It requires a majority vote to overturn the decision of the chair.

You really need to start over by giving notice of the proposed bylaw amendment in the manner required by the bylaws.  Then adopt the amendment again (this time validly).  Then give notice of an election to elect someone to the newly created position and hold an election.  The election can actually be conducted at the same meeting at which the bylaw amendment is adopted, provided notice is given to the membership that an election will be held at that meeting if the amendment is adopted.  If not, do the election at the next meeting after the adoption of the bylaw amendment.

btw, you refer to the fact that the board adopted the bylaw amendment.  Usually the membership has to vote on bylaw amendments.  Is your board authorized to adopt bylaw amendments?

[Guest Student]

59 minutes ago, Richard Brown said:

The proper way to correct this is for someone to make a point of order at the next meeting that the bylaws were not validly adopted due to lack of notice as required by the bylaws.  A notice requirement is something that cannot be suspended or waived.  It must be complied with or the resulting action is null and void.  The chair will (or should!!) rule on the point of order.  His ruling can be appealed to the assembly.  It requires a majority vote to overturn the decision of the chair.

Given the facts as provided here ("there was no previous notice as called for in the bylaws"), I don't understand why an appeal would be entertained? It doesn't appear that there could be two reasonable opinions on whether the notice was given - we are told as a fact that it was not. 

I could see grounds for an appeal if the notice requirement was vague ("reasonable notice must be given") and the ruling was on whether the notice was reasonable. 

[Joshua Katz]

1 hour ago, Richard Brown said:

The proper way to correct this is for someone to make a point of order at the next meeting that the bylaws were not validly adopted due to lack of notice as required by the bylaws.  A notice requirement is something that cannot be suspended or waived.  It must be complied with or the resulting action is null and void.  The chair will (or should!!) rule on the point of order.  His ruling can be appealed to the assembly.  It requires a majority vote to overturn the decision of the chair.

 

Although, depending on the notice requirements, maybe they can give notice first, so that the new bylaw can be properly adopted at the same meeting as this ruling is made? 

[Guest Zev]

26 minutes ago, Joshua Katz said:

Although, depending on the notice requirements, maybe they can give notice first, so that the new bylaw can be properly adopted at the same meeting as this ruling is made? 

As long as both items are in the call of the meeting it seems good to me.

[Guest board1234]

I misspoke about the board - our meetings are poorly attended, so it all seems the same.

If they were elected along with other members (with no amendment issues), and because there were no contested areas we just voted the whole slate in, does that void the entire election or just the two positions in question?

[Guest Who's Coming to Dinner]

What two positions? You only mentioned one position in the original post.

[Guest boardnightmare]

33 minutes ago, Guest Who's Coming to Dinner said:

What two positions? You only mentioned one position in the original post.

Yes, I'm sorry, I was focusing on the one, but there is another in question too.  It was a mess.  But most of the positions elected were already in the bylaws.  They were all elected as once as there was only one candidate for each.  

[Joshua Katz]

The issue here has to do with the bylaw amendment, not the election (so far as we know). If the election was conducted properly, the only people impacted are those occupying non-existent positions.

[Josh Martin]

14 hours ago, Richard Brown said:

You really need to start over by giving notice of the proposed bylaw amendment in the manner required by the bylaws.  Then adopt the amendment again (this time validly).  Then give notice of an election to elect someone to the newly created position and hold an election.  The election can actually be conducted at the same meeting at which the bylaw amendment is adopted, provided notice is given to the membership that an election will be held at that meeting if the amendment is adopted.  If not, do the election at the next meeting after the adoption of the bylaw amendment.

Strictly speaking, it does not seem to me that any notice is required for the election of the new position. I do not think a newly created position is viewed as a “vacancy” in the sense the term is used in RONR. It certainly would not harm anything, however, to provide such notice.

13 hours ago, Guest Student said:

Given the facts as provided here ("there was no previous notice as called for in the bylaws"), I don't understand why an appeal would be entertained? It doesn't appear that there could be two reasonable opinions on whether the notice was given - we are told as a fact that it was not. 

I assume Mr. Brown’s caution in this regard is due to the fact that we have not actually seen the language in the bylaws, and therefore to suggest that there cannot be two reasonable opinions about whether the rules in the bylaws regarding notice have been followed is a bit presumptuous.

If an organization was using the sample bylaws in RONR, and there was no doubt that notice had not been provided in writing at the previous regular meeting, I concur that there could not be two reasonable opinions on that question.

13 hours ago, Joshua Katz said:

Although, depending on the notice requirements, maybe they can give notice first, so that the new bylaw can be properly adopted at the same meeting as this ruling is made? 

I see no reason why not, although such notice should likely include the caveat of “provided that the amendment adopted at the X meeting is determined to be null and void.”

11 hours ago, Guest board1234 said:

If they were elected along with other members (with no amendment issues), and because there were no contested areas we just voted the whole slate in, does that void the entire election or just the two positions in question?

Just the two positions in question.