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Amending or Repealing Bylaws


Guest FDD
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As a volunteer director of a nonprofit organization that initially adopted its bylaws in 1992, I am concerned that the nonprofit organization did not properly amend its bylaws in April 1994 (“4/94”), November 1995 (“11/95”) and October 2004 (“10/04”). 

The nonprofit’s initial bylaws state:

 

“Article X, Section 1. Power to Amend or Repeal.  The power to amend or repeal the bylaws or adopt new bylaws is reserved exclusively to the board of directors by a two-thirds (2/3) vote.  To amend or repeal the bylaws, or adopt new bylaws, the board must review such proposed amendments at a regular board meeting with counsel of a certified parliamentarian prior to voting on such amendments at the next annual [emphasis added] meeting.” 

 

“Article III, Section 7. Regular Meetings. ...Regular meetings of the board shall be held at least two times a year, including the annual meeting which will be held in the month of March or April [emphasis added].”

 

Is it possible that the bylaws were properly amended in 11/95 and 10/04, given the annual meetings are to be held in April or May?

Is it ok to assume that the 4/94 amendments were properly made since the amendments occurred in April or must it be verified that such amendments were made at an annual meeting and the proposed changes were presented at a prior regular board meeting with counsel of a certified parliamentarian?

 

Thank you.

 

 

 

 

 

 

 

 

 

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2 hours ago, Guest FDD said:

Is it possible that the bylaws were properly amended in 11/95 and 10/04, given the annual meetings are to be held in April or May?

What do the minutes say? Was an annual meeting held in April or May of those years? 

 

2 hours ago, Guest FDD said:

Is it ok to assume that the 4/94 amendments were properly made since the amendments occurred in April or must it be verified that such amendments were made at an annual meeting and the proposed changes were presented at a prior regular board meeting with counsel of a certified parliamentarian?

What do the minutes say? 

Also, do the bylaws contain a requirement that notice of proposed amendments be distributed to the membership or to the board?

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I do not know if an annual meeting was held in 1995 or 2004.

The 11/95 minutes state:

"I. Call to order

The Board of Directors…met in regular session on Saturday, November 4, 1995…

Bylaws Amendments

------------------------------------------------------------------

MOVED by [director A], seconded by [director B], to make the following addition to the bylaws in Article III, Board of Directors:  After ‘The board shall have discretion in the disbursement of its funds,’ insert ‘The Board shall establish guidelines for and approve of all affiliated local groups.’ Approved unanimously.

------------------------------------------------------------------

Board Member Qualifications

------------------------------------------------------------------

Moved by [director C], seconded by [director D], to make the following addition to Board Member Qualifications:  ‘If a Board member has unexcused absences for two consecutive meetings, the Board has a right to remove that member from office.’ Approved unanimously.

------------------------------------------------------------------"

The 10/04 minutes state:

1. Call to order - The Board of Directors…met in regular session on Saturday, October 23, 2004…

6. Old business – …

b. Bylaws change regarding quorum – the bylaws change presented at the previous Board meeting (June 26, 2004) was presented for a vote to change the definition of a quorum to a simple majority.

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MOVED by [director X], seconded by [director Y], to approve changing the bylaws, as recommended at the previous Board meeting on June 26, 2004, to reflect a quorum being a simple majority for both Board and committee meetings.  Approved unanimously.

------------------------------------------------------------------"

The 4/94 minutes state:

"I. Call to Order - The Board of Directors...met in regular session on Saturday, April 30, 1994...

X. Unfinished business -

A. Bylaws changes - Proposed changes had been presented to the Board within the appropriate time frame prior to the Board meeting.

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Moved by [director M], seconded by [director N], that the board approve the proposes bylaws changes in toto.  Approved unanimously..."

------------------------------------------------------------------"

Although the bylaws contain provisions regarding the notice of regular and special meetings, the bylaws do NOT contain a notice requirement regarding the amending or repealing bylaws.  The bylaws state:

"ARTICLE X

Amending or Repealing Bylaws

Section 1.  Power to Amend or Repeal.  The power to amend or repeal the bylaws or adopt new bylaws is reserved exclusively to the board of directors by a two-thirds (2/3) vote.  To amend or repeal the bylaws, or adopt new bylaws, the board must review such proposed amendments at a regular board meeting with counsel of a certified parliamentarian prior to voting on such amendments at the next annual meeting."

Thank you.

 

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10 hours ago, Guest FDD said:

Is it possible that the bylaws were properly amended in 11/95 and 10/04, given the annual meetings are to be held in April or May?

It is conceivable that the rules concerning amending the bylaws, or the time at which annual meetings were held, were amended in the past 25 years. That is, it may be that in the years in question, the bylaws did not require that they be amended at an annual meeting, or perhaps the annual meeting was held in different months.

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The initial bylaws (dated 4/92) and each of the amended bylaws (dated 4/94, 11/95, and 10/04) state:

Regular meetings of the board shall be held at least [x] times a year, including the annual meeting which will be held in the month of March or April.”

Does this mean that the annual meeting must be held in March or April?

 

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Just now, Guest FDD said:

The initial bylaws (dated 4/92) and each of the amended bylaws (dated 4/94, 11/95, and 10/04) state:

Regular meetings of the board shall be held at least [x] times a year, including the annual meeting which will be held in the month of March or April.”

Does this mean that the annual meeting must be held in March or April?

Yes.

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If (a) the annual meeting must be held in March or April, and (b) “[t]o amend or repeal the bylaws, or adopt new bylaws, the board must review such proposed amendments at a regular board meeting with counsel of a certified parliamentarian prior to voting on such amendments at the next annual meeting,” are the 11/95 and 10/04 amendments null and void (because such amendments were not made at an annual meeting in March or April)?

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3 hours ago, Guest FDD said:

If (a) the annual meeting must be held in March or April, and (b) “[t]o amend or repeal the bylaws, or adopt new bylaws, the board must review such proposed amendments at a regular board meeting with counsel of a certified parliamentarian prior to voting on such amendments at the next annual meeting,” are the 11/95 and 10/04 amendments null and void (because such amendments were not made at an annual meeting in March or April)?

 

This seems to me to be a matter of bylaws interpretation.  It is ultimately up to the members of your organization to interpret its bylaws.  We cannot do that.  However, as a general rule, failure to hold the annual meeting at the time specified in the bylaws does not render action taken at an annual meeting held after that date invalid.  It frequently happens that for one reason or another an organization does not hold its annual meeting on the date specified in the bylaws, but holds it at a later date. We regularly advise people in this forum that if they cannot or did not hold the annual meting on the date specified, that they should simply hold it as soon as possible.  That may be what happened in the years in question.  The board may have not held an annual meeting when it should have but held it later.  That would violate the bylaws, but doesn't necessarily render action taken at the meeting invalid.

I am concerned with the bylaw provision that  requires the proposed bylaw amendments to be submitted at a regular meeting prior to the annual meeting.  That  sounds like a "notice" provision.  If that is the way the organization interprets it, then voting on the amendments at a meeting (regular meeting or annual meeting) might amount  to voting on them without notice, which could amount to a continuing breach and result in the adoption of the amendments being null and void if a point of order is raised.

If a point of order is raised that any of the amendments were improperly adopted and are null and void, the chair would rule on the point of order.  The chair's ruling can be appealed to the assembly (the board) which has the final say.

Stay tuned to see what our other members have to say about this.

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7 hours ago, Guest FDD said:

...with counsel of a certified parliamentarian...

I'm not a big fan of this type of condition. If the board cannot hold its review except a few days before the annual meeting and for some reason is incapable of finding a "certified parliamentarian", (whatever that means) some action on bylaw amendments may be thrown into doubt by the opponents of the change. I would get rid of this language and leave the board  to decide for itself whether it is advisable, with or without such counsel.

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