Precedence or conflict

[Tomm]

The Article of Incorporation state:

"3. The Directors shall have the power to adopt Bylaws not in conflict with the Articles of Incorporation."

"4. The Bylaws may be amended, modified, revised, or revoked by the Directors or by the Members. In the event of a conflict concerning the Bylaws as amended, modified, revised, or revoked by the Directors, the action of the Members shall prevail."

Question: If the Article in the Bylaws that governs the "Meetings of the Board" has rules that add additional requirements, such as, a requirement for 3 readings of the motion, or a requirement that motions must be posted 7 days prior, would it be a legitimate argument that those additional requirements in the Bylaws can be over ruled and ignored because the Articles of Incorporation takes precedence over the Bylaws and the authority given to the Directors of the Board in the Articles of Incorporation require no such requirements?  

[Josh Martin]

3 hours ago, Tomm said:

The Article of Incorporation state:

"3. The Directors shall have the power to adopt Bylaws not in conflict with the Articles of Incorporation."

"4. The Bylaws may be amended, modified, revised, or revoked by the Directors or by the Members. In the event of a conflict concerning the Bylaws as amended, modified, revised, or revoked by the Directors, the action of the Members shall prevail."

Question: If the Article in the Bylaws that governs the "Meetings of the Board" has rules that add additional requirements, such as, a requirement for 3 readings of the motion, or a requirement that motions must be posted 7 days prior, would it be a legitimate argument that those additional requirements in the Bylaws can be over ruled and ignored because the Articles of Incorporation takes precedence over the Bylaws and the authority given to the Directors of the Board in the Articles of Incorporation require no such requirements?  

No, I do not find this interpretation to be persuasive.

"The Corporate Charter (in different states variously called the Certificate of Incorporation, Articles of Incorporation, Articles of Association, etc.) is a legal instrument that sets forth the name and object of the society and whatever other information is needed for incorporating the society under the laws of the particular state—or under federal law in the case of a few special types of organizations...

In an incorporated organization, the corporate charter supersedes all its other rules, none of which can legally contain anything in conflict with the charter. Nothing in the charter can be suspended by the organization itself unless the charter so provides. For these reasons, a corporate charter generally should contain only what is necessary to obtain it, and to establish the desired status of the organization under law—leaving as much as possible to the bylaws or to lower-ranking rules if appropriate in accordance with the principles explained below and in 56." (RONR, 11th ed., pgs. 11-12)

Because the recommended course of action for the articles of incorporation is to include as little information as possible and to leave as much as possible to the bylaws or other lower-ranking rules, I do not find it persuasive that because the articles of incorporation contain no requirements for three readings of a motion, or that motions must be posted seven days prior to their consideration, that this means that the adoption of such rules in the bylaws (or special rules of order) is prohibited.