Presenting changes to constitution

[PatMassier]

A group of 5 members of our HOA met over a period of 2 months to work on proposed changes to our constitution and by-laws along with some rule changes. None of us are on the board and this is not a board appointed committee. The chair suggested I get a group together and present our findings and also suggested some topics that we could consider. The board was not, as a group, aware of our group and what we were doing. We believe we have the right to present our recommendations at the AGM to the members for vote or for changes made by them and then a vote.

Our constitution says:

ARTICLE 7: Amendments: (a) The Constitution may only be amended by a 66 2/3% affirmative vote of the members present and/or by proxies at an AGM or Special Meeting called for that purpose. (b) By-laws may be amended with a simple majority vote at any AGM or Special Meeting called for that purpose. (c) Proposed amendments to the Constitution or By-Laws must be presented in writing to the board no less than thirty (30) days prior to such meeting signed by a minimum of five (5) members. (d) The board will notify all members of the proposed amendments in writing at least seven (7) days prior to the AGM or Special Meeting at which the amendments will be presented.

Our group falls under c) and we presented the proposed changes to the full board six weeks before the AGM and the cover letter was signed by all 5 of us. 

The vice- chair and one of his cronies say that it cannot be presented to the members at the AGM without their approval and he is very busy trying to squelch the recommendations or change them to suit what he thinks. The AGM is scheduled for June 8. The Chair has resigned over this impasse.

What is the right way for these recommendations to proceed?

[Josh Martin]

41 minutes ago, PatMassier said:

We believe we have the right to present our recommendations at the AGM to the members for vote or for changes made by them and then a vote.

Based on the facts presented, this appears to be correct. The rules you have quoted do not appear to place any limits on who may propose amendments to the constitution, and there are no such limits in RONR.

41 minutes ago, PatMassier said:

The vice- chair and one of his cronies say that it cannot be presented to the members at the AGM without their approval and he is very busy trying to squelch the recommendations or change them to suit what he thinks.

I see nothing in the quoted rules which suggests any such thing. The rules in question state “(c) Proposed amendments to the Constitution or By-Laws must be presented in writing to the board no less than thirty (30) days prior to such meeting signed by a minimum of five (5) members. (d) The board will notify all members of the proposed amendments in writing at least seven (7) days prior to the AGM or Special Meeting at which the amendments will be presented.”

It seems to me that if the proposed amendments are presented to the board no less than thirty days prior to the meeting and are signed by a minimum of five members, the board is then required to notify members of the proposed amendments at least seven days prior to the meeting. I see nothing indicating that the board’s approval is needed or that the board has the authority to amend the proposed amendments.

If the board does not care for the proposed amendments, it is free to submit recommendations for amendments to them at the meeting (provided that they are within the scope of notice), to submit their own proposed amendments with sufficient notice, or to recommend that the society vote against the amendments, but the board does not appear to be authorized, on its own, to amend or reject proposals submitted by others.

41 minutes ago, PatMassier said:

What is the right way for these recommendations to proceed?

The board should submit the proposed amendments, as written, to the society no less than seven days before the meeting. At the meeting, the amendments will be moved by a member (presumably one of the original proposers) and, at that time, amendments will be in order (provided that they are within the scope of notice). Ultimately, the society will decide whether to adopt the amendments as proposed, to adopt them after amendment, or not to adopt them at all.

Edited May 15, 2019 at 05:23 PM by Josh Martin

[Richard Brown]

I agree completely with Mr. Martin's comments.  My concern, though, is that if the board does not like these proposed amendments, it can perhaps thwart the process by simply refusing to give the membership the required notice. 

I don't have a solution for what to do if the board refuses to give the required notice.  Perhaps your group of five can send your proposals to the secretary and ask that the secretary send the required notice, but I doubt that the secretary would be required to do so. 

I'm interested in what our other contributors suggest as a course of conduct if the board refuses to provide the required notice or submits proposals different from the ones your group presented.  I'm looking for options other than disciplinary action and voting people out of office, which are always options.

[Joshua Katz]

10 minutes ago, Richard Brown said:

I'm interested in what our other contributors suggest as a course of conduct if the board refuses to provide the required notice or submits proposals different from the ones your group presented.  I'm looking for options other than disciplinary action and voting people out of office, which are always options.

The way I read it, there is one requirement: presentation to the board. Then there is an obligation on the board: notification. Thus, I think the response, if the board fails to act on its obligation, is to send your own notice out. I do not think that the obligation of the board to give notice creates a veto power.

[PatMassier]

Thank you very much for your information and guidance. .

[Richard Brown]

1 hour ago, Joshua Katz said:

The way I read it, there is one requirement: presentation to the board. Then there is an obligation on the board: notification. Thus, I think the response, if the board fails to act on its obligation, is to send your own notice out. I do not think that the obligation of the board to give notice creates a veto power.

Joshua, that is what I would be inclined to suggest, too... or to try to have the secretary do it.  However, I got my hand slapped many months ago when I made a similar suggestion.  It was in a thread about a secretary refusing to mail a notice properly requested by a member. I suggested that the member mail the notice himself.  Shmuel Gerber, and perhaps also Dan Honemann, opined that if the bylaws require the secretary to send the notice then ONLY the secretary can send the notice.  They.... or Shmuel, at least, as I remember.... could not conceive of a secretary refusing to send a required notice.  Apparently we have different experiences with secretaries, so I think we just agreed to disagree.

The point of this post being that perhaps a search of the forum for what to do when a secretary refuses to send a required notice such as a notice of a special meeting or of a proposed bylaw change might yield helpful results.  I'm not able to do such a search right now.

Another point of this post is to suggest to the authorship team that perhaps a clarification of who can send a required notice if the secretary (or in this case the board) refuses to do so.  It DOES happen.

[Josh Martin]

1 hour ago, Richard Brown said:

Joshua, that is what I would be inclined to suggest, too... or to try to have the secretary do it.  However, I got my hand slapped many months ago when I made a similar suggestion.  It was in a thread about a secretary refusing to mail a notice properly requested by a member. I suggested that the member mail the notice himself.  Shmuel Gerber, and perhaps also Dan Honemann, opined that if the bylaws require the secretary to send the notice then ONLY the secretary can send the notice.  They.... or Shmuel, at least, as I remember.... could not conceive of a secretary refusing to send a required notice.  Apparently we have different experiences with secretaries, so I think we just agreed to disagree.

The point of this post being that perhaps a search of the forum for what to do when a secretary refuses to send a required notice such as a notice of a special meeting or of a proposed bylaw change might yield helpful results.  I'm not able to do such a search right now.

Another point of this post is to suggest to the authorship team that perhaps a clarification of who can send a required notice if the secretary (or in this case the board) refuses to do so.  It DOES happen.

I think I may have opined differently in the past, but I am coming around to the view that, if the organization’s bylaws require a particular person or group to send a notice, and that person or group refuses to do so, the proper (or least improper) next step is indeed for another person to send out the notice, if it is possible to do so. I think it is somewhat comparable to the recommended procedures to be used when the chairman fails to (or refuses to) properly perform his duties. While I suppose this is technically a violation of the bylaws, it is also a violation of the bylaws for the responsible party to refuse to send the notice, and it seems to me that a notice which is sent by a different person, but is otherwise in compliance with the rules in the bylaws, is a lesser violation than violating the rights of the members to send the notice of their proposed motions and, as a consequence, of their rights to make those motions. Ultimately, it will be up to the society itself to determine whether the notice is sufficient, but I am inclined to think that it should be found sufficient. The society could also adopt a motion reimbursing these persons for the expenses incurred in sending the notice,

I would add two caveats to this. The first is that it may be difficult as a practical matter for other persons to send a notice which is otherwise in compliance with the rules in the bylaws. The contact information of members, for instance, may not be available to these persons, and would therefore make it impossible to properly send a notice to all members. Secondly, the organization in question is an HOA. Such groups are frequently subject to numerous regulations in applicable law, and given the high stakes often involved in the decisions of these organizations, members may be more likely to pursue legal action than they would in other societies. It may be prudent to consult an attorney to see if this solution is also proper from a legal perspective, or if not, what other options may be available.

In addition, I would also suggest initiating procedures to remove from office all persons responsible for refusing to send out the notice.

Edited May 15, 2019 at 10:10 PM by Josh Martin

[Gary Novosielski]

Hear hear.

[Joshua Katz]

To clarify my view a bit: it really depends on what the bylaw language is doing. This language seems to me to clearly create an obligation on the part of the board. At the other extreme, if the language said: "No amendment may be considered unless the board sends notice," I would take that as not allowing anyone else to send the notice, and effectively creating a veto power. That's the question - does the language grant the board veto power over a proposal? (I would recommend against adopting such language, and I think it will be quite hard to ever change if you have it, but that's another issue.) If it does, so be it. My comments above are in reference to the language we were provided here.

[Atul Kapur]

7 hours ago, Josh Martin said:

The first is that it may be difficult as a practical matter for other persons to send a notice which is otherwise in compliance with the rules in the bylaws.

The other practical problem is that the other persons will not know if the notice was not sent until it's too late. If the obligation is to send the notice seven days in advance of the meeting, the other persons won't know if this hasn't been done until six days in advance, at which time it's too late to give notice.

[Josh Martin]

2 hours ago, Atul Kapur said:

The other practical problem is that the other persons will not know if the notice was not sent until it's too late. If the obligation is to send the notice seven days in advance of the meeting, the other persons won't know if this hasn't been done until six days in advance, at which time it's too late to give notice.

Yes, this is a good point. So I suppose the strategy will be limited to cases where the responsible party not merely fails to give notice, but outright refuses to give notice, and makes their intentions in this matter fairly clear (as it seems may be the case here).

[Drake Savory]

Even if the Board doesn't send notice, I don't think that would bar the member from presenting the amendments.  At worse there would be an issue for anything requiring previous notice.  Of course at that meeting the membership could also prefer charges against members of the Board for not following the bylaws.

[Richard Brown]

24 minutes ago, Drake Savory said:

Even if the Board doesn't send notice, I don't think that would bar the member from presenting the amendments.  At worse there would be an issue for anything requiring previous notice.  

But previous notice is a requirement for an amendment to the Constitution. Such a notice provision cannot be waived or suspended. The proposed bylaw Amendment cannot be considered by the assembly without the required previous notice

Edited May 16, 2019 at 03:49 PM by Richard Brown
Edited first sentence

[Joshua Katz]

Another option is to be prepared to send the notice if you think the board might not (or just every time you present something), and be prepared to send it overnight if you realize the board's notice is not forthcoming.

Which brings up a thought - what if a member, as a matter of routine, gave notice at a meeting every time he presented proposals to the board? Under this bylaw, would notice at a meeting suffice if the board fails to send the written notice, or do you think this bylaw requires, at least, written notice?

[Richard Brown]

On 5/15/2019 at 11:41 AM, PatMassier said:

Proposed amendments to the Constitution or By-Laws must be presented in writing to the board no less than thirty (30) days prior to such meeting signed by a minimum of five (5) members. (d) The board will notify all members of the proposed amendments in writing at least seven (7) days prior to the AGM or Special Meeting at which the amendments will be presented.   (Emphasis added)

 

2 hours ago, Joshua Katz said:

Under this bylaw, would notice at a meeting suffice if the board fails to send the written notice, or do you think this bylaw requires, at least, written notice?

The quoted bylaw provision seems to me to require written notice.  I don't see any way around that unless, perhaps, the written notice can be sent by someone else such as the secretary or the members who are proposing the amendment.

[Joshua Katz]

6 minutes ago, Richard Brown said:

The quoted bylaw provision seems to me to require written notice. 

I guess I'm still stuck on that. The bylaw seems to me to impose an obligation on the board to provide written notice. It's not clear to me, though, that it imposes a requirement that all notice be in writing. Part d says what the board will do, while part c tells us what must be done for a proposal to be considered. Part c does not require written notice to the members, and part d is not about the requirements for a proposal to be considered. Where am I wrong?

[Atul Kapur]

I think that you're wrong (your word) in that you've dissected the Article so far that you are looking at its component parts instead of reading it as a whole. If I was a member of this organization reading this Article, I would definitely expect to receive notice, from the Board, of any proposed amendment.

Even if you only look at part (d), if this notice to the members is not required for the proposed amendment to be considered at the meeting, then what's the point of having it? "There is a presumption that nothing has been placed in the bylaws without some reason for it." (p. 589, line 34 - p. 590, line 1).

[Joshua Katz]

35 minutes ago, Atul Kapur said:

Even if you only look at part (d), if this notice to the members is not required for the proposed amendment to be considered at the meeting, then what's the point of having it? "There is a presumption that nothing has been placed in the bylaws without some reason for it." (p. 589, line 34 - p. 590, line 1).

You're likely right, but to answer your question, the point of having it is to create an obligation for the board to send notice; I think we all agree on that. I think what you're saying is something like - why create such an obligation, if not because we want people to get notice? And that makes sense to me.

I agree that a member would reasonably expect to get notice, from the board, of a proposal. But what to do with that expectation when, as here, the board has made clear it will not be sending notice? We could say the proposal won't be considered, but that strikes me as enabling quite a bit more of a power grab than I'm comfortable with.

[Shmuel Gerber]

On 5/15/2019 at 4:29 PM, Richard Brown said:

Joshua, that is what I would be inclined to suggest, too... or to try to have the secretary do it.  However, I got my hand slapped many months ago when I made a similar suggestion.  It was in a thread about a secretary refusing to mail a notice properly requested by a member. I suggested that the member mail the notice himself.  Shmuel Gerber, and perhaps also Dan Honemann, opined that if the bylaws require the secretary to send the notice then ONLY the secretary can send the notice.  They.... or Shmuel, at least, as I remember.... could not conceive of a secretary refusing to send a required notice.  Apparently we have different experiences with secretaries, so I think we just agreed to disagree.

I think you misread the original discussion and continue to have the wrong impression.

Check out this

https://robertsrules.forumflash.com/topic/26031-canceling-special-meetings/?do=findComment&comment=147776

and this

https://robertsrules.forumflash.com/topic/26165-constitutional-change/?do=findComment&comment=148730