Adoption of a Policy in conflict with bylaws

[Karen Beck]

Our not for profit's bylaws state that our meetings are to be held in a "LOCATION."  There is no allowance for virtual meetings.

With the onset of COVID, how can this be handled?  We are obligated to hold an annual meeting, but we can't meet virtually.  The state in which we are incorporated doesn't have a proviso for online annual meetings in their legislation. Roberts says it must be in our bylaws.

The board wants to hold a special meeting of delegates to have them adopt a policy that says we can meet virtually.  Is this allowable? Can a policy ever supersede bylaws?

We have submitted an amendment to the bylaws that would allow for meetings to be called virtually in an emergency situation, but we can't update our bylaws until we hold our annual meeting.  Can we adopt that bylaw retroactively?  I've read the comments that this is not suggested, but in this emergency situation, how can we meet our legal requirements and still hold to our bylaws?

[J. J.]

There are several options.

1.  Meet outdoors where there can be social distancing.

2. Meet with less than a quorum and ratify the action taken retroactively.  Nothing would prevent absent members from listening in and expressing their opinions.

3.  Hold a meeting with less than a quorum in a location, perhaps with just one or two members and adjourn at the call of the chair.  You will have complied with a requirement that the meeting be held.

4.  Take the action via an electronic meeting and, at a future point in an in person meeting, adopt a bylaw provision that authorizes this particular meeting.

A "policy" will not permit electronic meeting; it must be in the bylaws. 

You may want to look at the pinned thread about how to deal with this situation.  Note that most of the solutions have a downside or risks.  

[J. J.]

Here is the link to that thread: 

 

[Dan Honemann]

3 minutes ago, J. J. said:

There are several options.

1.  Meet outdoors where there can be social distancing.

2. Meet with less than a quorum and ratify the action taken retroactively.  Nothing would prevent absent members from listening in and expressing their opinions.

3.  Hold a meeting with less than a quorum in a location, perhaps with just one or two members and adjourn at the call of the chair.  You will have complied with a requirement that the meeting be held.

4.  Take the action via an electronic meeting and, at a future point in an in person meeting, adopt a bylaw provision that authorizes this particular meeting.

A "policy" will not permit electronic meeting; it must be in the bylaws. 

You may want to look at the pinned thread about how to deal with this situation.  Note that most of the solutions have a downside or risks.  

In my opinion, option 4 is not a viable action. No bylaw amendment can retroactively validate an invalid meeting. 

[J. J.]

Just now, Daniel H. Honemann said:

In my opinion, option 4 is not a viable action. No bylaw amendment can retroactively validate an invalid meeting. 

I see no prohibition in RONR.  The effect would be that no point of order could be raised against the action after a bylaw amendment is adopted to approve that action. 

[Dan Honemann]

16 minutes ago, J. J. said:

I see no prohibition in RONR.  The effect would be that no point of order could be raised against the action after a bylaw amendment is adopted to approve that action. 

This sort of statement nicely befuddles the issue.

A bylaw amendment can neither retroactively validate action previously taken that was invalid when it was taken, nor retroactively invalidate action previously taken that was valid when it was taken. A proper understanding of the reasoning behind the General's responses in Q&A 58 and Q&A 108 in PL will be informative in this regard.

 

[J. J.]

30 minutes ago, Daniel H. Honemann said:

This sort of statement nicely befuddles the issue.

A bylaw amendment can neither retroactively validate action previously taken that was invalid when it was taken, nor retroactively invalidate action previously taken that was valid when it was taken. A proper understanding of the reasoning behind the General's responses in Q&A 58 and Q&A 108 in PL will be informative in this regard.

 

Q & A 58 deals with if a specific amendment is retroactive, not  a general principle.  Q & A 108 also deals with a specific amendment.  I will agree that those amendments are not retroactive.  108 notes that "Such an amendment is not retroactive, as it did not affect anything prior to its adoption."  It does not say that this amendment cannot be retroactive, could not affect anything previously adopted. 

RONR is clear that actions can be approved after the fact, retroactively.  That, of course, is the motion to ratify. That particular actions can be approved, "made valid an action already taken by the assembly(10:54)."  So a concept that an assembly can approve an action after the fact is part of RONR.  (I will also note that the list is not necessary all inclusive.)

RONR also establishes that bylaws "prescribes how the society functions (2:8)."  A retroactive bylaw amendment certainly would do that.  Bylaws are limitations of power of the assembly (2:14).  I see nothing improper in approving some previous action taken by application of a bylaw.  I see nothing "befuddling" this in citations of RONR.

 

 

[Dan Honemann]

19 hours ago, J. J. said:

Q & A 58 deals with if a specific amendment is retroactive, not  a general principle.  Q & A 108 also deals with a specific amendment.  I will agree that those amendments are not retroactive.  108 notes that "Such an amendment is not retroactive, as it did not affect anything prior to its adoption."  It does not say that this amendment cannot be retroactive, could not affect anything previously adopted. 

RONR is clear that actions can be approved after the fact, retroactively.  That, of course, is the motion to ratify. That particular actions can be approved, "made valid an action already taken by the assembly(10:54)."  So a concept that an assembly can approve an action after the fact is part of RONR.  (I will also note that the list is not necessary all inclusive.)

RONR also establishes that bylaws "prescribes how the society functions (2:8)."  A retroactive bylaw amendment certainly would do that.  Bylaws are limitations of power of the assembly (2:14).  I see nothing improper in approving some previous action taken by application of a bylaw.  I see nothing "befuddling" this in citations of RONR.

 

 

Needless to say, I strongly disagree with the conclusions reached here as to the meaning of the answers given by General Robert in the Q&As referred to, and also to the meaning ascribed to what is said in the referenced paragraphs in RONR.

 

[J. J.]

2 hours ago, Daniel H. Honemann said:

Needless to say, I strongly disagree with the conclusions reached here as to the meaning of the answers given by General Robert in the Q&As referred to, and also to the meaning ascribed to what is said in the referenced paragraphs in RONR.

 

 

Respectfully, the idea that the assembly can "made valid an action already taken(10:54)" has been around since 1915, at least.  It is only a question of the proper method to make that past action valid. 

[Gary Novosielski]

1 hour ago, J. J. said:

 

Respectfully, the idea that the assembly can "made valid an action already taken(10:54)" has been around since 1915, at least.  It is only a question of the proper method to make that past action valid. 

As is so often the case, using the proper method is preferred.

[Guest Jane]

So is the proper action to make a motion to make the bylaw retroactive? Our group decided in a by-law revision that each position on the board should have a 2 year term. so they are saying we don’t need to hold elections this year since they were elected last year and now they have a two year term (aka one year left to serve). Do we have to make a specific motion to say this applies to currently held board positions? 

[Atul Kapur]

Guest Jane, the administrators of this forum ask that you post your specific question as a new thread. When you do, it would help to copy the exact wording of the previous and amended bylaws provision, and the exact wording of the motion to adopt the bylaws amendment. Also let us know when the elections were held and when the amendment was adopted.