Retroactively Amending Bylaws?

[imjustcarrie]

Hello, new friends!  I have been spending a lot of hours with my  Robert's Rules book and my grad school's constitution and bylaws (C&BL) of the student body, but I need your help, please.  Nominations are ramping up for our school's student leadership board open, and I have a mess on my hands.  Currently, our C&BL allow for "A President of the Student Body," that is "A Member" of the school.  However, we have two nominees that wish to run in our annual election as co-presidents to share the work load.  As moderator and current president, I know this is in conflict with the language of our C&BL, not to mention a potential mess affecting a lot of students.  

Our time table is like this:

April 2: Nominations Open

April 9: President election begins

April 14: Voting Closed

April 16: Election Results Announced

April 25: Student Body Regular Meeting

With this time table, an amendment to the C&BL would not moved and voted into record until 2 weeks after a potentially illegal election.  

The Student Senate is split on the issue, and a few are considering calling a special meeting of the entire student body to vote to amend the C&BL to allow for co-presidents...retroactively, but with our mandated 10-days notice, that meeting could not be held until April 10, after the ballots have already been distributed.  Even then, there is no guarantee the amendment would pass and that the allowance of a co-presidential ticket would be in compliance.   I hate to ask a question that should be so common-sensical, but I am having trouble finding the exact verbiage in my Robert's Rules to discourage the idea that "they are our bylaws, we can amend anything at any point in time...even in the past." 

Any help is greatly appreciated!  I have the 11th edition in front of me, so feel free to holler page numbers at me, if that's easiest.  Thanks so much!

[Guest Zev]

35 minutes ago, imjustcarrie said:

...we can amend anything at any point in time...even in the past." 

The answer is no. If such a thing were possible rules could be changed to penalize someone for behavior that in the past was acceptable but now illicit.

My suggestion is for your organization to forgo the idea of co-presidents and instead consider a slight re-organization by creating several categories of vice-presidents that would be in charge of different sectors of the organization's work, such as programs, excursions, finances, etc.

[Richard Brown]

A regular contributor to this forum, Dr. John Stackpole, has written an excellent article about why co-presidents or co- anythings are a bad idea. Keep checking back. He will probably see this thread and chime in with a link to his article. Are you here @jstackpo ?

I do not have RONR in front of me, but there is a sentence in it to the effect that co-chairs are generally a very bad idea. I think the same principle applies to co-presidents.

Also, if the bylaws refer to "a president" or "the president", that seems to me a clear indication that a single individual for the office is contemplated.

Edited to add:  Here you go, from the top of page 176: 

"If the committee's task is heavy and will require some time to complete, it often is advisable to appoint a vice-chairman. The anomalous title "co-chairman" should be avoided, as it causes impossible dilemmas in attempts to share the functions of a single position.

Edited March 30, 2019 at 09:50 PM by Richard Brown
Added last paragraph

[Richard Brown]

@jstackpo you might be interested in this thread.

[Atul Kapur]

I don't have the book in front of me, but there is language that states that amendments to the bylaws take effect immediately upon adoption. Not before adoption, upon adoption. This is more a law of physics, rather than parliamentary law (time travels in one direction).

[jstackpo]

Sheesh...  never a moments rest...

And on a weekend yet!

Here:   Link this

[imjustcarrie]

Thank you, everyone!  Especially because it was a weekend.   

[J. J.]

A bylaw could be adopted to have a retroactive effect.  It would be possible for a bylaw amendment to say, "The individuals who received the highest and  second highest number of votes in the 2019 election shall serve as co-presidents," possibly as a proviso.  You would have to create the office of "co-president" in your bylaws.

I, however, agree with the others when they indicate having co-presidents is an extremely bad idea.

[Atul Kapur]

But wouldn't that just apply once the amendment was adopted and carry forward? Before then, there was a president. If the amendment is passed to create co-presidents and include your proviso, then there are co-presidents from that point forward. But until then, there was just a president and the 2nd-place finisher. 

[J. J.]

On 4/1/2019 at 1:00 AM, Atul Kapur said:

But wouldn't that just apply once the amendment was adopted and carry forward? Before then, there was a president. If the amendment is passed to create co-presidents and include your proviso, then there are co-presidents from that point forward. But until then, there was just a president and the 2nd-place finisher. 

I'm not sure what difference it would make.  If there was some specific act, the bylaws could legitimize that act. 

[Guest Zev]

5 hours ago, J. J. said:

I'm not sure what difference it would make.  If there was some specific act, the bylaws could legitimize that act. 

I appreciate your candor, except that I do think it could have made a difference. In the case of elections there exists a certain "political landscape" that leads the individual members to select a particular candidate. In the future we arbitrarily change that "landscape" and deny the members the opportunity to make a different selection which could have changed the result. If, however, we conduct another election after the bylaw amendment then any concerns about this type of issue evaporate since the electorate will take into account any change in that "landscape." There is a good reason why ex post facto actions are a bad idea.

[J. J.]

3 minutes ago, Guest Zev said:

I appreciate your candor, except that I do think it could have made a difference. In the case of elections there exists a certain "political landscape" that leads the individual members to select a particular candidate. In the future we arbitrarily change that "landscape" and deny the members the opportunity to make a different selection which could have changed the result. If, however, we conduct another election after the bylaw amendment then any concerns about this type of issue evaporate since the electorate will take into account any change in that "landscape." There is a good reason why ex post facto actions are a bad idea.

A bylaw amendment could specify the person who would be president, even after a valid election.  A bylaw amendment that says "Zev shall be president for the term beginning in 2019," means that you are president, even if I had a majority of the votes cast for president at the last election.  That bylaw amendments changes, or perhaps bulldozes, that landscape.

Why?  The people that voted for me have chosen this course of action, in a manner to which they have previously approved.  They have done that by amending their bylaws.

[Atul Kapur]

Let's try to clarify by use of an example relevant to the OP (who - because of notice requirements - can't amend their bylaws until after the election).

On Jan 2 an election is held and J.J. is elected president. The bylaws give the president some specific powers. J.J. starts exercising those powers. On April 2, the following bylaw amendment is adopted: "Zev shall be president for the term beginning in 2019".

Then, as of April 2, Zev is president. But there is no retroactivity. All of J.J.'s actions as president were and remain valid. Zev can reverse those that are reversible but can't say that the bylaw invalidates any of them.

[J. J.]

1 hour ago, Atul Kapur said:

Let's try to clarify by use of an example relevant to the OP (who - because of notice requirements - can't amend their bylaws until after the election).

On Jan 2 an election is held and J.J. is elected president. The bylaws give the president some specific powers. J.J. starts exercising those powers. On April 2, the following bylaw amendment is adopted: "Zev shall be president for the term beginning in 2019".

Then, as of April 2, Zev is president. But there is no retroactivity. All of J.J.'s actions as president were and remain valid. Zev can reverse those that are reversible but can't say that the bylaw invalidates any of them.

Any acts that Zev took as president between 1/2 and 4/2 are valid.  If only the president can appoint committees members, and Zev has appointed them, they are validly appointed. 

[Atul Kapur]

I disagree. Zev was not President before April 2.

Your argument would mean that a committee meeting held on, for example, Feb 2nd should consist of the members appointed by Zev even though the bylaw amendment making him president hasn't been adopted and won't be for another two months.

I can only describe this argument as absurd.

[J. J.]

7 hours ago, Atul Kapur said:

I disagree. Zev was not President before April 2.

Your argument would mean that a committee meeting held on, for example, Feb 2nd should consist of the members appointed by Zev even though the bylaw amendment making him president hasn't been adopted and won't be for another two months.

I can only describe this argument as absurd.

Zev was not president, but the bylaws may grant him that authority retroactively.

The English Parliament went so far as declaring John Beaufort, 1st Earl of Somerset, legitimate, some 29 years after he was born to unmarried parents   Some of his descendants are still around, including the head of state of the country in which you reside.   I would not call that "absurd" in the least. 

As another example, the US Constitution prohibits Congress from making ex post facto laws.  The implication is that, without this prohibition, Congress could make ex post facto laws; the prohibition would not be needed otherwise. 

In theory, an assembly is sovereign and is only limited, internally, by its own self created rules; it may even establish how those rules will be changed.  Internally, the bylaws/constitution of the organization may authorize or prohibit anything.