Timing of bylaw amendments

[RONR93]

Can a bylaw amendment have an effective date that is backdated?  I am testing creative solutions to addressing actions taken due to the pandemic for societies that did not have electronic meetings in their bylaws.  For example, if a group moved forward with hosting meetings electronically, including actions taken by the body, like elections), could this be a solution?  Let me know your thoughts! 

[Richard Brown]

9 minutes ago, SanJohn said:

Can a bylaw amendment have an effective date that is backdated?  I am testing creative solutions to addressing actions taken due to the pandemic for societies that did not have electronic meetings in their bylaws.  For example, if a group moved forward with hosting meetings electronically, including actions taken by the body, like elections), could this be a solution?  Let me know your thoughts! 

Short answer, no, you cannot make a bylaw amendment effective retroactively.

Depending on the circumstances,  it might be possible at a future meeting for the membership to ratify certain actions taken by officers in reliance on those votes taken in your electronic  meetings.  You might take a look at Official Interpretation # 2020-1, recently issued by the RONR authorship team. https://robertsrules.com/interp_list.html#2020_1

Edited to add:  Note that this official interpretation refers to authorizing the actions of OFFICERS (and certain others) taken in reliance on votes at such an improper electronic meeting.  That is not the same thing as actually ratifying the votes themselves.

Edited July 16, 2020 at 01:48 AM by Richard Brown
Added last paragraph

[Josh Martin]

31 minutes ago, Richard Brown said:

Short answer, no, you cannot make a bylaw amendment effective retroactively.

Depending on the circumstances,  it might be possible at a future meeting for the membership to ratify certain actions taken by officers in reliance on those votes taken in your electronic  meetings.  You might take a look at Official Interpretation # 2020-1, recently issued by the RONR authorship team. https://robertsrules.com/interp_list.html#2020_1

Edited to add:  Note that this official interpretation refers to authorizing the actions of OFFICERS (and certain others) taken in reliance on votes at such an improper electronic meeting.  That is not the same thing as actually ratifying the votes themselves.

Well, we already told SanJohn about this option a while ago, so it looks like he's now looking for a solution for the rare few actions where this strategy won't work (like elections).

40 minutes ago, SanJohn said:

Can a bylaw amendment have an effective date that is backdated?  I am testing creative solutions to addressing actions taken due to the pandemic for societies that did not have electronic meetings in their bylaws.  For example, if a group moved forward with hosting meetings electronically, including actions taken by the body, like elections), could this be a solution?  Let me know your thoughts! 

As I understand it, the main concern here is how to move forward with elections. If there are also other concerns, please note those as well.

Could you please provide the language in your bylaws regarding the term of office for your officers, and what your bylaws say regarding filling vacancies? 

Edited July 16, 2020 at 02:15 AM by Josh Martin

[RONR93]

12 hours ago, Josh Martin said:

Well, we already told SanJohn about this option a while ago, so it looks like he's now looking for a solution for the rare few actions where this strategy won't work (like elections).

As I understand it, the main concern here is how to move forward with elections. If there are also other concerns, please note those as well.

Could you please provide the language in your bylaws regarding the term of office for your officers, and what your bylaws say regarding filling vacancies? 

 

12 hours ago, Josh Martin said:

Well, we already told SanJohn about this option a while ago, so it looks like he's now looking for a solution for the rare few actions where this strategy won't work (like elections).

As I understand it, the main concern here is how to move forward with elections. If there are also other concerns, please note those as well.

Could you please provide the language in your bylaws regarding the term of office for your officers, and what your bylaws say regarding filling vacancies? 

I am looking to understand solutions for groups who have already conducted elections. 

Also, it would be good to understand if it is appropriate to backdate the effective timing of an amendment, in general.  This could come up in other situations should you want something to go into effect for a full reporting year versus mid-year or the next reporting year. 

[Richard Brown]

1 hour ago, SanJohn said:

Also, it would be good to understand if it is appropriate to backdate the effective timing of an amendment, in general.  This could come up in other situations should you want something to go into effect for a full reporting year versus mid-year or the next reporting year. 

No, it is not appropriate (or permissible) to backdate the effective date of a bylaw amendment.

[Josh Martin]

4 hours ago, SanJohn said:

I am looking to understand solutions for groups who have already conducted elections. 

Well, what exactly the solution will be for these groups will depend on what their bylaws say about the term of office and filling vacancies.

Do you have a particular group's bylaws to look at where you can answer these questions? It would also be helpful to know helpful to know in what manner, exactly, this group "conducted elections."

4 hours ago, SanJohn said:

Also, it would be good to understand if it is appropriate to backdate the effective timing of an amendment, in general.  This could come up in other situations should you want something to go into effect for a full reporting year versus mid-year or the next reporting year. 

I hesitate to answer this question of "backdating" the timing of an amendment "in general" because when people speak of amendments being effective "retroactively," what exactly is meant by that tends to vary depending on the person and the particular amendment. So it might be helpful if you could explain what these "other situations" are and what exactly is meant by "backdating" the effective date in regard to those amendments.

I quite agree with Mr. Brown that it is not in order to "backdate" the timing of an amendment for the purpose of making valid a meeting which was not valid under the bylaws as they existed at the time the meeting was held.

Edited July 16, 2020 at 07:19 PM by Josh Martin

[topazfae]

President must be done in secret (Secret Ballot) - I can do that by using poll.  And good thing, my by laws did not say that meetings have to be done in person.  So we are lucky.  But I have one item where it requires members to be in a good standing with the sorority (paying dues before election).  Due to COVID-19, we decided not to ask them for dues but they still owe and the dues have been decreased into half since we were sent home in the middle of the term.  Now how do we I waive this requirement so we can go ahead and do the election with members.  The requirement is This member have paid chapter dues in full by the semester immediately prior to the election/appointment, the semester of election/appointment, and maintain dues in the semesters during the term of office.  How do I "suspend" this requirement so we can go ahead with the election?  And I would like to assign an exppiration date on this.  For exampkle, We are suspending Article IV Section 1 Item B due to ongoing pandemic.  Candidates now do not have to follow this requirement during the pandemic.  At the end of the pandemic, the item B will be effective. Something like that.

[J. J.]

18 hours ago, Josh Martin said:

I quite agree with Mr. Brown that it is not in order to "backdate" the timing of an amendment for the purpose of making valid a meeting which was not valid under the bylaws as they existed at the time the meeting was held.

Why not?  An amend that X will come into force on 3/1/20 would effectively mean that such action would not be subject to a point of order after the bylaw is amended.  

 

[Weldon Merritt]

11 minutes ago, topazfae said:

President must be done in secret (Secret Ballot) - I can do that by using poll.  And good thing, my by laws did not say that meetings have to be done in person.  So we are lucky. 

No, you aren't. It's not enough that the bylaws don't "say that meetings have to be done in person." Rather, the bylaws must specifically authorize some other mode of meeting.

15 minutes ago, topazfae said:

But I have one item where it requires members to be in a good standing with the sorority (paying dues before election).  Due to COVID-19, we decided not to ask them for dues but they still owe and the dues have been decreased into half since we were sent home in the middle of the term.  Now how do we I waive this requirement so we can go ahead and do the election with members.  The requirement is This member have paid chapter dues in full by the semester immediately prior to the election/appointment, the semester of election/appointment, and maintain dues in the semesters during the term of office.  How do I "suspend" this requirement so we can go ahead with the election?  And I would like to assign an exppiration date on this.  For exampkle, We are suspending Article IV Section 1 Item B due to ongoing pandemic.  Candidates now do not have to follow this requirement during the pandemic.  At the end of the pandemic, the item B will be effective. Something like that.

Sorry; can't do it. Bylaws can't be suspended unless they are "in the nature of a rule of order," which this requirement is not.

[Atul Kapur]

1 hour ago, J. J. said:

Why not?  An amend that X will come into force on 3/1/20 would effectively mean that such action would not be subject to a point of order after the bylaw is amended.  

 

That's a dangerous path to go down. If that's the principle, what would stop an organization from, for example,

• retroactively raising the dues, or
• retroactively changing the code of conduct in the bylaws to say that a certain behaviour/action is subject to disciplinary action when, at the time the behaviour/action occurred, it was not, or
• retroactively changing the code of conduct in the bylaws to say that a certain behaviour/action is NOT subject to disciplinary action when, at the time the behaviour/action occurred, it was?

[Josh Martin]

In the future, please post a new question as a new topic, even if an existing topic appears similar.

3 hours ago, topazfae said:

And good thing, my by laws did not say that meetings have to be done in person. 

Okay, but that isn't enough on its own. The bylaws actually need to specifically authorize electronic meetings in order for them to be held.

3 hours ago, topazfae said:

Now how do we I waive this requirement so we can go ahead and do the election with members.  The requirement is This member have paid chapter dues in full by the semester immediately prior to the election/appointment, the semester of election/appointment, and maintain dues in the semesters during the term of office.  How do I "suspend" this requirement so we can go ahead with the election? And I would like to assign an exppiration date on this.  For exampkle, We are suspending Article IV Section 1 Item B due to ongoing pandemic.  Candidates now do not have to follow this requirement during the pandemic.  At the end of the pandemic, the item B will be effective. Something like that.

The only way to accomplish this would be by amending the bylaws. An amendment to the bylaws could be adopted (consistent with the requirements in your bylaws for their amendment) which provides that, for the duration of the pandemic, members are eligible to serve in office notwithstanding their delinquency in dues. Since I expect that there may be some disagreement among persons as to exactly when the pandemic has "ended," it would likely be advisable to specify which body or person (the membership, the board, the President, etc.) makes this determination.

Short of amending the bylaws, there is no method to accomplish this objective. The rule in question cannot be suspended unless the bylaws specifically provide for its suspension (which I take it they do not, or there would be no need for this question).

So it may be that members who wish to run for office will need to pay their dues.

3 hours ago, J. J. said:

Why not?  An amend that X will come into force on 3/1/20 would effectively mean that such action would not be subject to a point of order after the bylaw is amended.  

Even if this were to be in order, I really don't know that this is the best way to go about it, as I think it leads to a lot of questions.

Assuming such a course of action was in order, I might suggest wording like the following "A meeting held in compliance with the rules of this section held on or after XXXX date shall be considered a valid meeting of the society, notwithstanding that the meeting was not valid under the bylaws as they existed at the time the meeting was held." This more clearly indicates what the intent of the amendment is, rather than simply saying "The amendment is effective 3/1/20" and leaving it up to members to guess why that language is there and what it means.

I think there are probably simpler solutions to the OP's problem, however, which we could try to provide if he would answer my questions.

1 hour ago, Atul Kapur said:

That's a dangerous path to go down. If that's the principle, what would stop an organization from, for example,

• retroactively raising the dues, or
• retroactively changing the code of conduct in the bylaws to say that a certain behaviour/action is subject to disciplinary action when, at the time the behaviour/action occurred, it was not, or
• retroactively changing the code of conduct in the bylaws to say that a certain behaviour/action is NOT subject to disciplinary action when, at the time the behaviour/action occurred, it was?

Well, the fact that it's dangerous doesn't, in and of itself, mean it's improper. Organizations can already do all kinds of crazy things by amending their bylaws, but that doesn't make them improper.

I also don't know that these are particularly good examples, since I am inclined to think that these objectives can generally be accomplished without needing to make the amendments "retroactive," or possibly even without needing to amend the bylaws at all.

In the first case, the society could achieve a similar effect by adopting a rule in the bylaws that "The dues are increased from $20 to $25. Additionally, for the current membership year, members are required to pay an additional $5 for each year they have been a member."  (If what you're trying to get it is that the backdating could be used to try to make members immediately become delinquent in their dues, I agree this is improper.)

In the second case, the society could likely already discipline the member under the very, very broad "tending to injure the good name of the organization, disturb its well-being, or hamper it in its work" language in RONR, since RONR states that "In any society, behavior of this nature is a serious offense properly subject to disciplinary action, whether the bylaws make mention of it or not." (RONR, 11th ed., pg 644) So I don't think it's necessary to amend the bylaws at all unless the bylaws explicitly provide that members may only be disciplined for violations of the Code of Conduct. Additionally, even if it was necessary to amend the bylaws, I still don't know that it's necessary to make the amendment retroactive. So far as I am aware, there is no rule in RONR which prohibits a society from disciplining a member for conduct occurring in the past, even if the conduct was not subject to discipline at the time the conduct occurred.

In the third case, the society can solve the problem by simply not disciplining the person in question.

Edited July 17, 2020 at 05:21 PM by Josh Martin

[J. J.]

I have tried to come up with a procedural reason to rule a bylaw amendment out of order on the ground that is retroactive.  In this case, the bylaws would clearly supersede any rule in RONR.

I do agree with Mr. Martin that there probably easier methods to solve just about any problem.   I recognize Dr. Kaptur's point that it could create problems, however, RONR does not make creating problems out of order.

Amending the bylaws, and making a bylaw amendment retroactive, would be a solution.  It may be ill advised and overly complicated, but it is not out of order. 

Edited July 18, 2020 at 12:18 AM by J. J.

[RONR93]

Thanks, everyone!  Great debate!

[Bob G]

Where in RONR does it state that backdating of a By-Law change to make it retroactive to an earlier date is against the rules?    Or is this just an opinion of a couple of members??

Bob

[Josh Martin]

57 minutes ago, Bob G said:

Where in RONR does it state that backdating of a By-Law change to make it retroactive to an earlier date is against the rules?    Or is this just an opinion of a couple of members??

There is no rule in RONR which explicitly provides that making a bylaw change "retroactive" is against the rules.

I think that such a vague, general question, however, is not at all helpful or that there can be a general answer to such a question. I also have not in fact said that "backdating of a By-Law change to make it retroactive to an earlier date is against the rules." What I have said on this subject (which I acknowledge is just my opinion) is as follows:

On 7/16/2020 at 2:17 PM, Josh Martin said:

I hesitate to answer this question of "backdating" the timing of an amendment "in general" because when people speak of amendments being effective "retroactively," what exactly is meant by that tends to vary depending on the person and the particular amendment. So it might be helpful if you could explain what these "other situations" are and what exactly is meant by "backdating" the effective date in regard to those amendments.

I quite agree with Mr. Brown that it is not in order to "backdate" the timing of an amendment for the purpose of making valid a meeting which was not valid under the bylaws as they existed at the time the meeting was held.

 

On 7/17/2020 at 12:18 PM, Josh Martin said:

Even if this were to be in order, I really don't know that this is the best way to go about it, as I think it leads to a lot of questions.

Assuming such a course of action was in order, I might suggest wording like the following "A meeting held in compliance with the rules of this section held on or after XXXX date shall be considered a valid meeting of the society, notwithstanding that the meeting was not valid under the bylaws as they existed at the time the meeting was held." This more clearly indicates what the intent of the amendment is, rather than simply saying "The amendment is effective 3/1/20" and leaving it up to members to guess why that language is there and what it means.

I think there are probably simpler solutions to the OP's problem, however, which we could try to provide if he would answer my questions.

So if you wish to pursue this line of inquiry further, I would suggest that you provide specific facts regarding the amendment you have in mind, what situation or problem that amendment is intended to address, and what you mean by "backdating" and "retroactive" in the context of your situation.

[Bob G]

Josh, Thank you,

A Director on the Board I serve on put a backdating motion on the agenda for our monthly teleconference meeting scheduled for this evening.  It loosely fell under this thread's subject line and discussion.

The change has not even been discussed or voted on  by the BOD, let alone presented to the membership for consideration yet.  If it grows legs I will come back with questions under a new subject line.

Bob