Booster Club transition to Non-Profit

[Mjktcook]

We just changed Officers for our Booster Club. The Booster Club is currently not a non-profit. We want it to be. Does this election need to be a member vote? Or is the decision to gain non-profit status made by the Officers? 

[Joshua Katz]

That depends on the authority your bylaws give the .. well, that's the first question. Do you have a board, or just a bunch of officers? Assuming you have a board, it depends on the authority your bylaws give the board. It may (although this would require a legal opinion) depend on the non-profit form you wish to adopt, and any rules in the applicable IRC section. 

[Mjktcook]

We have a Board and the bylaws are not very thorough. We are working on drafting new bylaws. 

“At least four Officers of the @@@@ Athletic Booster Club and any number of active due paying members shall be necessary for a quorum at any general meeting: majority of all members to any committee shall constitute thereof. Members are eligible to vote on any @@@@@ Athletic Booster Club business if all dues have been paid and they have attended at least two (2) prior meetings. The Booster Club will elect to electronic voting if needed. Each member will have 72 hours to respond to the electronic vote before the decision is made.”

The problem is - we haven’t had two meetings and no one has paid dues yet, so technically, there aren’t any “active” members. 

 

[Joshua Katz]

I don't follow. You said your club just changed officers, which implies to me that it had a set of officers, and now has a new set. How could an organization old enough to have had 2 sets of officers not have yet held two meetings or received any dues?

(The bylaws are a mess, if that is a verbatim quote.)

The section of the bylaws quoted here, so far as I can tell, though, has nothing to do with a board, and certainly doesn't say you have a board. Is there a section of your bylaws that does, and that also specifies the power of the board? What's quoted here is about membership meetings. Also, presumably, your membership elects the officers - how did you manage that if, in fact, you don't have any voting members?

In any case, taking your word for it that a board exists, the board has those powers, and only those powers, delegated to it in the bylaws. If it is given the power to manage the affairs of the organization, it can (subject to applicable law) elect the organization's tax treatment, provided that the conditions thereby imposed do not violate the bylaws. If it is given the exclusive authority, then that choice cannot be countermanded by the membership (except by electing a different board to change it, or passing a bylaw), but if the power is not exclusive, the membership may reverse or amend the decision of the board. Of course, even if the board makes such a decision, each change to conform to the laws for the tax treatment is a separate decision, over which the board may or may not (again, depending on the bylaws) have power - the decision to be a 503(c)(3), for instance, does not thereby prevent the membership from voting to give money to a candidate. Breaking the law, of course, is a bad idea.