Bylaw Amendments - allowed or not allowed

[Dave Bennett]

 

Good afternoon,

I could use some expert advice and thank you in advance for your feedback. 

I belong to a Branch (regional component) of a national association.  Recently, the National Board of Directors approved a resolution that would change the Branch Bylaws in order to reduce their quorum for annual meetings and include the ability to hold electronic meetings through ZOOM.  Each Branch has their own bylaws as per the national association’s bylaws... (see below).  Their intent of the resolutions is to assist Branches during the COVID restrictions. 

The approved resolution is as follows:

“It was agreed by consensus that, effective 1 January 2021, the bylaws of all branches of the National Association of Federal Retirees are deemed to include the following:
Notwithstanding any provision in these bylaws to the contrary:

1) Notice of any meeting of members of the branch may be given electronically to all members of the branch for whom the Association has an email address, no later than 30 days prior to the meeting and by posting notice of the meeting on the branch website—including the branch’s section on federalretirees.ca—and such notice shall be deemed to be notice to all members of the branch. 

In addition, during 2021 or until such times as in-person meetings of branches are permitted, the following provisions shall apply:

2) The Board of Directors of the branch may decide to reduce the quorum otherwise provided in these bylaws for a meeting of the branch members, including the annual general meeting, to a number no less than the greater of the following: 

a) 50% plus one of the number of members required by the branch’s bylaws on 31 December 2020; 

b) two times the number of directors on the branch’s Board of Directors plus one.

3) If the Board of Directors of the branch decides to reduce the quorum for a meeting of the branch members in accordance with section 2, the notice of meeting referred to in section 1 will include a statement to the effect that the reduced quorum will be in effect for the meeting in question.” 

 

Our Branch Bylaws are very specific as to the quorum and how amendments are approved... (shown below).  There is no permission granted in our Branch bylaws to allow for electronic meetings.  

Neither our Branch bylaws, nor the national bylaws grant the national Board of Directors the authority to revise Branch Bylaws.   

The relevant Articles from the National and Branch Bylaws are as follows

NATIONAL BYLAWS - PART V – BRANCHES 

Section 1 –Governance, Function, Formation, and Dissolution 

Governance 

5.1 All Branches are subject to these By-laws. 

5.1.1 Branches shall have their own by-laws and are required to forward such by-laws and subsequent amendments to the Association national office for review and Board approval. In the event of a discrepancy or disagreement between Branch by-laws and these By-laws, the provisions of these By-laws shall govern. 

Robert’s Rules of Order, Newly Revised, Latest Edition is the national associations adopted parliamentary authority.

 

The national association’s Articles of Incorporation (Continuance) does not include any authority to change Branch Bylaws.

 

 

BRANCH BYLAWS

Part VIII – Branch Meetings

8.5       Quorum

At any Branch Annual, Special or General meeting, the quorum required to conduct business, is 50 members.

PART X - Amendments to Branch By-laws

10.1     A proposal to amend these by-laws requires approval by a majority of the votes cast at a Branch Annual Meeting or Branch Special Meeting. 

10.1.1 The text of the proposed amendment must be included in the Notice for the Branch Annual Meeting. 

10.2 Interim amendments 

Between Branch Annual Meetings, the Branch board may make, amend or repeal any section of the Branch by-laws except those relating to the number or terms of directors. 

10.2.1 Such by-law, amendment or repeal shall be effective from the date it is approved by the Branch board until the next Branch Annual Meeting, where it may be confirmed, amended or rejected by a majority (50% + 1) of the votes cast at the meeting. 

10.2.2 The by-law, amendment or repeals ceases to have effect if it is not submitted to the members at the next Branch Annual Meeting or if it is rejected by the members at the Branch Annual Meeting or if it is rejected by the National Board. 

10.2.3 Review and Approval 

The Branch is required to forward their by-laws and any subsequent amendments to the Association national office for review and Board of Association approval.

10.2.4 Precedence

In the event of a discrepancy or disagreement between Branch by-laws and the National By-laws, the provisions of the National By-laws shall govern. 

 

I argue that, regardless of the good intent, the national association’s Board of Directors do not have the authority to make amendments to the Branch Bylaws... only the members of the Branch can approve such amendments.  The national representative to the branches said that their lawyer told them they can amend Branch Bylaws and developed the wording for them.

I now ask for your input and feedback on the national association’s Board having the authority to change Branch Bylaws.

Much appreciated... Dave

 

[Rob Elsman]

Not wishing to wade into the waters of the bylaws and the executive board's authority, I would only point out that resolutions and bylaws written in the passive voice are just trouble in the making.  I realize that the invariable use of the active voice may seem boring, but absolute clarity should take precedence over style.

[Richard Brown]

Is there anything in the bylaws of the parent association which give it the authority to arbitrarily change provisions in the bylaws of affiliates?   You mentioned the Articles of Incorporation,  but not the bylaws.   Any such authority would have to be in the parent association's governing documents.  Nothing in RONR permits such action.

Note:  Your question may get moved to the general discussion portion of the forum, where it should probably have been posted.   If you come back to look for it and don't see it here, look in the general discussion forum.

Edited to add:  A provision permitting the parent association to arbitrarily amend your affiliate bylaws could also be in your own affiliate bylaws, but I rather doubt that such a provision is there.

Edited March 1, 2021 at 10:23 PM by Richard Brown
Added last paragraph

[Dave Bennett]

Richard... Neither our Branch bylaws, nor the national bylaws grant the national Board of Directors the authority to revise Branch Bylaws.  Dave

 

[Richard Brown]

9 hours ago, Dave Bennett said:

I argue that, regardless of the good intent, the national association’s Board of Directors do not have the authority to make amendments to the Branch Bylaws... only the members of the Branch can approve such amendments.

Based on everything you have stated and the information you provided, I agree. I do not see where the national Association’s board of directors can unilaterally impose a bylaw change on the affiliates. 

[Atul Kapur]

On 3/1/2021 at 12:34 PM, Dave Bennett said:

Neither our Branch bylaws, nor the national bylaws grant the national Board of Directors the authority to revise Branch Bylaws. 

I'll take a somewhat contrary opinion here, @Dave Bennett. I think that 5.1 and 5.1.1 of the national bylaws are very broad, broad enough that the National bylaws could impose any requirement on the branches. So if these provisions were incorporated in the national bylaws, then all branches would be bound by them.

You say this motion was adopted by a board resolution. Can the board amend the bylaws by itself (CNCA would give it that authority, if it applies to your association)? If the board amended the national bylaws to include these requirements, then I think the branches would be bound by them.

[J. J.]

I agree with Dr. Kapur's question, at least.  Presumably, the national bylaws could be amended.  5.1 of the national bylaws grant absolute authority on this matter to the national organization's bylaws.  10.2.4 in the local chapter's bylaw would also establish this supremacy.

If the bylaws grant the authority to the board to issue a binding edict of this type, the board may do so.  Likewise, if the board has the ability to amend the bylaws, they could be amended to authorize this. 

[Gary Novosielski]

I don't see where in the quoted language it authorizes electronic meetings via Zoom.  I see where it allows electronic notice, but not electronic meetings.  Did I just miss it?

[Dave Bennett]

On 3/6/2021 at 9:37 PM, Atul Kapur said:

I'll take a somewhat contrary opinion here, @Dave Bennett. I think that 5.1 and 5.1.1 of the national bylaws are very broad, broad enough that the National bylaws could impose any requirement on the branches. So if these provisions were incorporated in the national bylaws, then all branches would be bound by them.

You say this motion was adopted by a board resolution. Can the board amend the bylaws by itself (CNCA would give it that authority, if it applies to your association)? If the board amended the national bylaws to include these requirements, then I think the branches would be bound by them.

Fortunately, they are not incorporated in the current national bylaws and until they are, they couldn’t argue for that broad a interpretation.

Yes, CNCA gives them the authority to amend their own bylaws, which would be in effect until their AGM, at which time the members can approve, further amend or reject the board amendments.  However, they did not do this.  As for quorum, they would still need the current quorum for the members meeting in order to do business and approve a change to the quorum.  As they permit the Branches to adopt their own bylaws, I would argue that their amendment to the national bylaws would have to be specific in wording to allow them to amend Branch bylaws. The current interpretation of Article 5.1 is that Branch bylaws can not be in conflict with the national bylaws. Hence, the need to be very specific in wording to give them such authority.

[Dave Bennett]

On 3/13/2021 at 3:05 AM, Gary Novosielski said:

I don't see where in the quoted language it authorizes electronic meetings via Zoom.  I see where it allows electronic notice, but not electronic meetings.  Did I just miss it?

Nope, you didn’t miss it.  It is not there and therefore not permitted.

[Josh Martin]

13 hours ago, Dave Bennett said:

Nope, you didn’t miss it.  It is not there and therefore not permitted.

I think Mr. Novosielski's point is not only that the bylaws do not contain such language, but even the adopted resolution (which we are told was intended to "change the Branch Bylaws in order to reduce their quorum for annual meetings and include the ability to hold electronic meetings through ZOOM") does not, in fact, make any reference to electronic meetings.

[Dave Bennett]

12 hours ago, Josh Martin said:

I think Mr. Novosielski's point is not only that the bylaws do not contain such language, but even the adopted resolution (which we are told was intended to "change the Branch Bylaws in order to reduce their quorum for annual meetings and include the ability to hold electronic meetings through ZOOM") does not, in fact, make any reference to electronic meetings.

Good catch.  That was a different resolution adopted by the the national board to be amended to Branch bylaws.  I obviously missed attaching it.  The Canada Not-for-Profit Act has an article that allows an association to hold meetings entirely by electronic means providing it is in the association’s bylaws.  Currently, Branch bylaws do not include that provision.