Is Previous notice required?

[Tomm]

We're talking about a senior, over 55, community. The corporation is only responsible for all the recreation facilities and has nothing to do with the municipality, roads, bridges, etc. those are administered by the county.

The Articles of Incorporation pretty much gives exclusive powers to the Board of Directors to amend, modify, revise or revoke the Bylaws. The general membership can "propose" amendments to the Board but only the Board can vote on approval or disapproval. The Bylaws that pertain to the Annual Membership Meeting are as follows:

Section 1, Annual Membership Meeting

a. An annual meeting of the Members shall be held each year.

b. Written notice stating the place, day and hour of the annual meeting of the Members shall be posted in XXXX Facilities and/or published in the XXXX newsletter (XXXXXXX) and/or on the XXXXwebsite , not less than ten (10) days, nor more than sixty (60) days before the date of the meeting.

c. With respect to amendments to the Bylaws, notice of any proposed amendment shall be posted in XXXX Facilities and/or on the XXXX website (www.xxxxx.org) at least ten (10) days prior to a Board meeting at which these changes shall be considered.

d. With respect to amendments to the Articles, notice of any proposed amendment shall be posted in XXXX Facilities and/or published in the XXXX (XXXXXXX) newsletter and/or on the XXXX website (www.xxxxxxx.org) at least thirty (30) days prior to a Membership meeting at which these changes shall be considered. Such notice shall include the proposed changes to the Articles.

Question: Is previous notice required at the General Membership Meeting?

Paragraph b. only talks about previous notice as to the place, day and hour  of the meeting.

Paragraph c. only talks about "proposed" amendments. And since the General Membership and their meeting has no real authority to actually amend a Bylaw, I'm wondering if a "previous notice" would even be required for the General Membership Meeting supposing they were even to come up with an amendment? Seems to me that the "previous notice" requirement would be fulfilled with the "at least (10) days prior to a Board meeting at which these changes shall be considered".

[Transpower]

Apparently, if a member of the assembly wishes to propose a bylaws amendment, previous notice must be given.  The amendment would be debated and voted on; if passed, the amendment would then go the board for its consideration.  I must say this is a rather strange situation; usually, the general membership has the final say on amendments, not the board.

[Tomm]

I agree it's strange but the truth is, the general membership hasn't been able to hold its annual meeting since 2009, which was the last time they were able to have a quorum in attendance.

 

[Rob Elsman]

I notice that the passage cited is written almost entirely in the "agentless" passive voice, making it impossible to know who is to do what.

The use of the passive voice in rules and bylaws is unfortunate. Those who are charged with drafting should take care to eliminate or severely restrict the use of the passive voice. In those instances where the passive voice seems the more necessary, drafters should double-check the text to make sure that all verbs in the passive voice have a clearly identifiable agent.

[Bruce Lages]

Section c, dealing with proposed amendments to the bylaws, requires posting 'in XXXX Facilities' and/or 'on the XXXX website' at least 10 days before the board meeting at which the proposed amendment(s) will be considered. Doesn't the general membership have access to the XXXX facilities and/or the XXXX website? If so, these postings will give notice to the membership and presumably allow members to suggest any further changes to the amendment(s) under consideration to the board, which you say is their right, even if they can not vote on them.

I'm also wondering why the quoted sections c and d are listed under the heading of the Annual Membership Meeting, since they do not seem related to that meeting at all.

[Tomm]

That's what has me confused! If at the Annual Membership Meeting a proposed amendment to Bylaws is offered, but the Annual Membership Meeting can't actually approve the amendment and cause it to go into affect (that can only be done by a vote of the Board of Directors) then is a previous notice prior to the Annual Membership Meeting required or can an amendment to the Bylaws simply originate at the Annual Membership Meeting and, if passed, the previous notice requirement would be satisfied once the proposed amendment is passed up to the Board?    

[Bruce Lages]

All that is said here (by me as well as others) is with the understanding that the society itself must interpret its own bylaws and is the ultimate arbiter of what its bylaws say and mean.

Nothing in the sections of the bylaws that you have quoted requires notice at the Annual Membership Meeting (or at any membership meeting, for that matter) of a proposal for a bylaws amendment that ultimately will be sent to the board for consideration. In fact, based solely on the bylaws section you quoted, there appears to be no requirement for notice about any of the business that will come before the membership at that Annual Meeting, with the exception of notice about a proposed amendment to the Articles if such an amendment is to be presented at the Annual Meeting.

Having said that, however, if a member wishes to put forward a bylaws amendment proposal at the Annual Membership Meeting with the hope that the membership will agree, by vote, to recommend this proposal to the board, nothing in the bylaws prevents that member from asking that his proposal be included in the call for the annual meeting. The bylaws specify what information about the Annual Membership Meeting must be included in the call for the meeting, but this does not preclude providing additional information in the call, such as notice of specific proposals to be presented. For something as important as a potential bylaw amendment there is no good reason not to include such notice to the membership.

Edited March 16, 2020 at 02:25 AM by Bruce Lages
added the section about notice required for an amendment to the Articles.