Bylaws Amendment

[Mark Apodaca, PRP]

From an organization's bylaws:

Article XIII Bylaw Amendments Section 13.01: Amendments. These bylaws may be amended by a two-thirds (2/3) vote of the Association members present and voting at the SDAD biennial conference, provided that the amendments are submitted to the Governance Committee in writing sixty (60) days prior to the conference.

This is very self-explanatory.  Simple and to the point.  Two years ago during the state conference and after completing the amendments to the bylaws, during new business, a member made a motion to amend a section in the bylaws. The motion passed.  

I was asked if the amendment should added to the bylaws two years ago or does it become effective at this year's conference.  My answer was that the motion was out of order due to not meeting the 60 days and previous notice.  It needs to be resubmitted at this year's conference.  Because they thought that it was already effective two years ago, it does not need to be submitted again. Again it failed to meet this year's 60 days meaning that it will need to be brought up 60 days before the 2023 conference.  Are we in agreement?

[Guest Zev]

From what you have indicated, the amendment was not even submitted to the Governance Committee sixty days prior to the conference two years ago. How can anyone then make the argument that the bylaws requirements were fulfilled?

[Dan Honemann]

8 hours ago, Mark Apodaca said:

From an organization's bylaws:

Article XIII Bylaw Amendments Section 13.01: Amendments. These bylaws may be amended by a two-thirds (2/3) vote of the Association members present and voting at the SDAD biennial conference, provided that the amendments are submitted to the Governance Committee in writing sixty (60) days prior to the conference.

This is very self-explanatory.  Simple and to the point.  Two years ago during the state conference and after completing the amendments to the bylaws, during new business, a member made a motion to amend a section in the bylaws. The motion passed.  

I was asked if the amendment should added to the bylaws two years ago or does it become effective at this year's conference.  My answer was that the motion was out of order due to not meeting the 60 days and previous notice.  It needs to be resubmitted at this year's conference.  Because they thought that it was already effective two years ago, it does not need to be submitted again. Again it failed to meet this year's 60 days meaning that it will need to be brought up 60 days before the 2023 conference.  Are we in agreement?

What do the bylaws say about what the Governance Committee is to do with the proposed bylaw amendments which are summitted to it?

[Mark Apodaca, PRP]

Mr. Honemann,

The bylaws do not cover anything else about amendments except for what is stated in 13.01.

Mark

[Dan Honemann]

35 minutes ago, Mark Apodaca said:

Mr. Honemann,

The bylaws do not cover anything else about amendments except for what is stated in 13.01.

Mark

Do you mean that the bylaws give no hint whatsoever about why proposed bylaw amendments are to be submitted to this Committee? What do the bylaws say about what this Committee is to do?

[Mark Apodaca, PRP]

This is what the South Dakota Association of the Deaf's bylaws says about the Governance Committee:

Section 8.06: Governance Committee. Governance Committee chair shall appoint SDAD members in good standing to serve on the committee, consisting of at least three (3) members and no board members to be on the committee.

Being the only PRP in the USA who is deaf, I am working with a number of nonprofit organizations for the deaf whose bylaws require an overhaul.  A number don't understand the scope of bylaws nor have they had any training.

Mark 

[Dan Honemann]

44 minutes ago, Mark Apodaca said:

This is what the South Dakota Association of the Deaf's bylaws says about the Governance Committee:

Section 8.06: Governance Committee. Governance Committee chair shall appoint SDAD members in good standing to serve on the committee, consisting of at least three (3) members and no board members to be on the committee.

Being the only PRP in the USA who is deaf, I am working with a number of nonprofit organizations for the deaf whose bylaws require an overhaul.  A number don't understand the scope of bylaws nor have they had any training.

Mark 

Based solely upon what has been posted, I'm not at all sure why the bylaw amendment which was adopted two years ago is now to be considered null and void.  This amendment was not submitted to the persons who then constituted this Governance Committee (that apparently has no duties to perform concerning bylaw amendments) at least 60 days prior to the convention, but so what? 

[Richard Brown]

22 minutes ago, Daniel H. Honemann said:

but so what? 

This answer concerns me.  The bylaws are clear that any proposed amendments must be submitted to the Governance Committee at least 60 days prior to the biennial conference.  However, the bylaws say nothing about what the committee is to do with a proposed amendment once submitted.  It seems to me that is a bylaws interpretation question to be determined by the organization itself.  Perhaps the committee has the power to  kill (or veto) the proposal, perhaps it can just make a recommendation.  That seems like  a bylaws interpretation issue. 

This sort of situation happens frequently with requirements of convention rules that certain proposed resolutions first be submitted to a resolutions committee. The rules frequently aren't clear as to just what power the committee has with regard to submitted resolutions.  It seems to me that, absent a provision to the contrary, that this "Governance Committee" should be treated as a committee with the power only to make a recommendation.  Ultimately, however, that is a matter of bylaws interpretation for the assembly itself to make.

It seems to me that failing to submit the proposed amendment to the committee as clearly and unequivocally required by the bylaws constitutes a continuing breach that invalidates the supposed "adoption" of the bylaws at the conference in disregard of that requirement.

I'm not convinced that that requirement, clearly stated in the bylaws, can just be ignored.

[Dan Honemann]

13 minutes ago, Richard Brown said:

This answer concerns me.  The bylaws are clear that any proposed amendments must be submitted to the Governance Committee at least 60 days prior to the biennial conference.  However, the bylaws say nothing about what the committee is to do with a proposed amendment once submitted.  It seems to me that is a bylaws interpretation question to be determined by the organization itself.  Perhaps the committee has the power to  kill (or veto) the proposal, perhaps it can just make a recommendation.  That seems like  a bylaws interpretation issue. 

This sort of situation happens frequently with requirements of convention rules that certain proposed resolutions first be submitted to a resolutions committee. The rules frequently aren't clear as to just what power the committee has with regard to submitted resolutions.  It seems to me that, absent a provision to the contrary, that this "Governance Committee" should be treated as a committee with the power only to make a recommendation.  Ultimately, however, that is a matter of bylaws interpretation for the assembly itself to make.

It seems to me that failing to submit the proposed amendment to the committee as clearly and unequivocally required by the bylaws constitutes a continuing breach that invalidates the supposed "adoption" of the bylaws at the conference in disregard of that requirement.

I'm not convinced that that requirement, clearly stated in the bylaws, can just be ignored.

What rule would you cite to support the claim that this failure renders the action taken null and void?

[Mark Apodaca, PRP]

I would think that since the proposed bylaw amendment was made during the 2019 business meeting and passed, and since the 60-days requirement was not met, this new amendment becomes effective during the 2021 business meeting.

Mark

[George Mervosh]

15 hours ago, Mark Apodaca said:

From an organization's bylaws:

Article XIII Bylaw Amendments Section 13.01: Amendments. These bylaws may be amended by a two-thirds (2/3) vote of the Association members present and voting at the SDAD biennial conference, provided that the amendments are submitted to the Governance Committee in writing sixty (60) days prior to the conference.

This is very self-explanatory.  Simple and to the point.  Two years ago during the state conference and after completing the amendments to the bylaws, during new business, a member made a motion to amend a section in the bylaws. The motion passed.  

I was asked if the amendment should added to the bylaws two years ago or does it become effective at this year's conference.  My answer was that the motion was out of order due to not meeting the 60 days and previous notice.  It needs to be resubmitted at this year's conference.  Because they thought that it was already effective two years ago, it does not need to be submitted again. Again it failed to meet this year's 60 days meaning that it will need to be brought up 60 days before the 2023 conference.  Are we in agreement?

If you posted this already, I apologize, but what do you mean by "and previous notice"?  Notice to the association members?  I don't see in 13:01 where it says there's a set number of days to be given to the members, only the committee.  Is there some other provision you're referring to?

[Mark Apodaca, PRP]

Those are the two parts from the bylaws I shared covering the Governance Committee and Amendments to the Bylaws.  The 60-day clause is considered "previous notice" because when members read the bylaws, they have at least 60 days before the biennial conference business meeting to submit their proposed amendments.  Also members are notified long ahead of time.

Edited July 1, 2021 at 05:34 PM by Mark Apodaca

[George Mervosh]

39 minutes ago, Mark Apodaca said:

Those are the two parts from the bylaws I shared covering the Governance Committee and Amendments to the Bylaws.  The 60-day clause is considered "previous notice" because when members read the bylaws, they have at least 60 days before the biennial conference business meeting to submit their proposed amendments.  Also members are notified long ahead of time.

Bear with me for a couple more questions.  Okay, so I submit a proposal to the Governance Committee well within the sixty day requirement.  What happens next?  Does the committee have to get them to membership within a certain number of days before the biennial conference?  I ask because if the membership did not receive the required notice obviously that's a problem.  

Edited July 1, 2021 at 06:13 PM by George Mervosh

[Mark Apodaca, PRP]

Here is the process as has been the practice for this organization as well as a number of organizations.   When the organization announces that the biennial conference date is set, the membership is also notified that the governance committee will begin to accept bylaws amendments proposals up to 60 days before the conference.  After that deadline, it will not accept any further proposals.  

Then during the biennial conference, the members will receive a list of proposed amendments before the governance chair goes through them for their vote to accept or reject the proposed amendments.  Those which pass will become effective immediately. 

[George Mervosh]

8 minutes ago, Mark Apodaca said:

Here is the process as has been the practice for this organization as well as a number of organizations.   When the organization announces that the biennial conference date is set, the membership is also notified that the governance committee will begin to accept bylaws amendments proposals up to 60 days before the conference.  After that deadline, it will not accept any further proposals.  

Then during the biennial conference, the members will receive a list of proposed amendments before the governance chair goes through them for their vote to accept or reject the proposed amendments.  Those which pass will become effective immediately. 

Thank you.  In my view, the fact that no previous notice of the amendments is needed for the members prior to the conference, part of the rule in 13:01 is one for the benefit of the governance committee to get prepared for the conference.  Based on the facts presented I don't see any continuing breach of the rules which would render any adopted amendments in 2019 null and void, in my opinion.

Edited July 1, 2021 at 07:51 PM by George Mervosh

[Mark Apodaca, PRP]

Informing the membership that they can provide the Governance Committee with proposed amendments to the bylaws up to 60 days before the conference is considered to be previous notice.  After that, the committee will not accept any more proposals.

Of all the conferences I have attended throughout the years, members never made motions to amend the bylaws during new business due to the passing of the 60-day deadline.

[Dan Honemann]

9 minutes ago, George Mervosh said:

Thank you.  In my view, the fact that no previous notice of the amendments is needed for the members prior to the conference, part of the rule in 13:01 is one for the benefit of the governance committee to get prepared for the conference.  Based on the facts presented I don't see any continuing breach of the rules which would render any adopted amendments in 2019 null and void, in my opinion.

Based solely upon what has been posted, I agree.

[Richard Brown]

4 hours ago, Daniel H. Honemann said:

What rule would you cite to support the claim that this failure renders the action taken null and void?

Well, now that you put it that way and I have done a bit of reading, I'm not really sure there is one.  In fact, I'm coming to the conclusion that, if there is no notice requirement other than that which we have been told about, there probably is not a breach of a continuing nature.  Although the process which was actually followed for amending the bylaws clearly did not follow the process set out in the bylaws, it appears there is not a breach of a continuing nature as described in §23:6 (a) or 23:6 (1), including the footnotes to both sections. We haven't been told that the text of the bylaw amendments violate the bylaws in any way, just that they violate the procedure set out in the bylaws for amending them.   I don't see where RONR provides that failing to follow the proper procedure constitutes a continuing breach.  Therefore, I suppose a timely point of order would be required.  

It also isn't clear that the provision requiring that proposed bylaw amendments be submitted to the governance committee is actually a notice provision as we haven't been told of any provision which requires any type of notice to the membership.  Some might consider not providing the proposed bylaw amendments to the governance committee to be a violation of a notice requirement, but I don't see it that way.

So, unless there is a provision we haven't been told about which requires that actual notice be provided to the membership, I suppose there is violation of a notice requirement and no continuing ut, breach.

Now, having said all that, I do wish your "so what?" response had included your reason for believing that failure to furnish the proposed bylaw amendments to the governance committee was of no significance, particularly after your series of questions to Mr. Apodaca about the responsibilities of that committee with regard to proposed bylaw amendments.  But, it appears we have now had that discussion anyway.

[Richard Brown]

4 hours ago, Mark Apodaca said:

I would think that since the proposed bylaw amendment was made during the 2019 business meeting and passed, and since the 60-days requirement was not met, this new amendment becomes effective during the 2021 business meeting.

Mark

Mark, what makes you think that if the bylaw amendment was not properly adopted in the 2019 biennial conference so as to become effective then, that it automatically becomes effective during the 2021 conference?  I don't follow your logic on that.  It seems that if it was properly adopted that it became effective when adopted and that if it was not properly adopted, that it must go through the process again and be adopted again at the 2021 conference. 

Also, are you telling us that there is no requirement that the membership be given any type of notice of proposed bylaw amendments prior to them actually being introduced (moved) at the conference?    If that's the case, a bylaw amendment to require notice to the membership of proposed bylaw amendments might be in order.

[Richard Brown]

53 minutes ago, Mark Apodaca said:

Informing the membership that they can provide the Governance Committee with proposed amendments to the bylaws up to 60 days before the conference is considered to be previous notice.  After that, the committee will not accept any more proposals. . . .  (Emphasis added)

Mr. Apodaca, did you perhaps mean "at least 60 days before the conference" rather than "up to 60 days before the conference"?   Up to 60 days before the conference means members can provide the governance committee with proposed bylaw amendments the day before they are presented to the membership for consideration.... or even on the same day.

It seems this organization might have a custom of the Governance Committee providing notice to the membership, but we haven't been told of any requirement for the committee to do so.

Edited to add:  I realize that "up to 60 days before the conference" can also  be interpreted to mean "at least 60 days" and that in this case, that is the only reasonable interpretation.  It would be less confusing, though, to say "at least 60 days" rather than "up to 60 days".

Edited July 1, 2021 at 09:01 PM by Richard Brown
Added last paragraph

[Mark Apodaca, PRP]

Article XIII Bylaw Amendments Section 13.01: Amendments. These bylaws may be amended by a two-thirds (2/3) vote of the Association members present and voting at the SDAD biennial conference, provided that the amendments are submitted to the Governance Committee in writing sixty (60) days prior to the conference.

I meant 60 days prior to the conference.

From our discussion, this one sentence does not give sufficient information and the other article covering the governance committee does not cover the bylaws.  Shows that this article is up to interpretation.  I read NAP's bylaws which is more specific:

ARTICLE XVI
AMENDMENT OF ARTICLES OF INCORPORATION AND BYLAWS
Section 1. Convention Action. The Articles of Incorporation and these bylaws may be amended, and any other action defined as a fundamental transaction by the applicable law of the jurisdiction in which NAP is incorporated may be authorized, at any biennial convention:
A. Amendment with Notice before Convention. By a two-thirds vote, provided that the amendment:
1. has been submitted by the bylaws committee, the NAP Board of Directors, a standing or special committee, a district conference, two associations or their board of directors, three units, or at least ten NAP members-at-large;
2. if originated by other than the bylaws committee, has been submitted to that committee on or before February 1 in the year of the convention; and
3. has been mailed or sent by electronic communication in accordance with Article XII, Section 2 to the members no later than July 1 in the year of the convention together with identification of proposer(s) and the committee’s recommendations for action.
B. Amendment with Notice at Convention. By a nine-tenths vote, provided previous notice has been given at an earlier meeting of the same session of the convention.
Section 2. Revision. These bylaws shall be revised only upon authorization by the convention.
A. Preparation of Revision. Preparing and presenting an authorized revision shall be the duty of the bylaws committee.
B. Notice of Proposed Revision. The proposed revision shall be sent to the members no later than July 1 of the convention year.
C. No Amendment to Existing Bylaws. If a revision is authorized, there shall be no other amendments proposed to the existing bylaws.

Also, NAP's bylaws covers the Bylaws Committee:

B. Bylaws Committee. In regard to NAP Bylaws and Standing Rules, the bylaws committee shall:
1. review all submitted amendments and edit for composition;
2. consolidate similar amendments for joint proposal subject to acceptance by the proposers;
3. possess the right to originate amendments;
4. submit proposed amendments to the members together with the committee’s recommendations for action;
5. ensure, with the assistance of legal counsel, that the bylaws are in compliance with applicable federal and state statutes;
6. in the event a revision is authorized, prepare and submit the proposed revision; and
7. review and approve bylaws for new associations, units, and youth groups.

If the bylaws mentioned under 13.01 that bylaws amendments would not be accepted during the business meeting at the conference, that would have taken care of the issue.  I will inform the President that the amendment made in 2019 should have already been included in the current bylaws.

I will re-read the conversations and if I have any further thoughts or comments, I will let you know.  I will also look at other Associations of the Deaf's bylaws to see if this is common.

Thanks,

Mark

Time for my ibuprofen. 

[Richard Brown]

@Mark Apodaca there might well be members of the forum who consider the requirement to submit proposed bylaw amendments to the Governance Committee to be a "notice" requirement which would render the failure to do so a continuing breach.  Mr. Mervosh and Mr. Honemann seem to be of the  opinion that it is not a "notice  requirement" in that sense, and I'm leaning in that direction as well, but I think it is a grey area. 

Failure to submit the amendments to the members of the Governance Committee deprived them of the opportunity to study the proposed amendments prior to the meeting and to make recommendations to the membership.  It also deprived them of the opportunity to notify the membership of the proposed amendments even though they have no bylaw imposed duty to do so. 

I have seen a situation where an organization requires proposed motions to be submitted to the president of the organization a certain number of days in advance of the meeting, presumably for agenda preparation purposes, and members of this forum (and other parliamentarians) opine that  such a requirement is a notice requirement for the benefit of one member that cannot be waived and that failure to provide the notice will constitute a continuing breach, at least if that one member objects.  If any member of the Governance Committee objects, or objected at the time, that might create a different situation.

I'm really curious to know if any of our regulars are of the opinion that the notice required to be given to the Governance Committee of a proposed bylaw amendment does constitute a "notice requirement", violation of which constitutes a continuing breach.

 

[Guest Zev]

It seems to me that the bylaws requirement to submit bylaw amendments to the Governance Committee is no different than a subordinate unit or delegate submitting his proposal to a convention Resolutions Committee.

My question is this: If the organization wanted bylaw amendments to be submitted directly from the floor then why is this requirement in the bylaws at all?

Allow me to make a confession. The repeated twisting of the bylaws until it says something that is the opposite of what it actually says is nothing but astonishing. I never expected this from such a highly skilled group.
 

[J. J.]

On 6/30/2021 at 9:35 PM, Mark Apodaca said:

Article XIII Bylaw Amendments Section 13.01: Amendments. These bylaws may be amended by a two-thirds (2/3) vote of the Association members present and voting at the SDAD biennial conference, provided that the amendments are submitted to the Governance Committee in writing sixty (60) days prior to the conference.

I agree with my learned associates Mr. Honemann and Mr.  Mervosh, though perhaps for more expansive reasons. 

This rule, alone, appears to be a rule in the nature of a rule of order.   In other words, absent a bylaw requirement, the following rules of order by the society (by a two thirds vote or a majority of the entire membership) could be adopted:

Rule 1.  These bylaws may be amended by a two-thirds (2/3) vote of the Association members present and voting at the SDAD biennial conference.

Rule 2.  A proposed bylaw amendment shall be submitted to the Governance Committee in writing sixty (60) days prior to the conference.

Rule 1. clearly refers to business being transacted within a meeting as per 2:14.  Rule 2. clearly may be accomplished by a rule of order (50:8) and therefor must be in the nature of a rule of order.

If these rules were not in the bylaws, but were adopted as special rules, they would be treated exactly the same way.  I would, agreeing with Mr. Mervosh, note that a rule requiring some motion to be sent to a committee does create any right for an absent member. 

If there was a special rule that required a certain class of business to be submitted to a committee, could that rule of order be suspended.  The rule deals with the orderly transaction of of business within a meeting.  It does not create a right of an individual member, nor a right for any absentee.  There is no fundamental principle of parliamentary law that anything must be  sent to a committee.  It is not in conflict another main motion.  Even placing this rule in the bylaws would not change this (10:26 fn. 1) as this rule may be "effectively suspended."

Because there was no violation of any rule that would create a breach of a continuing nature (23:6), the bylaw amendment was adopted in 2019, absent reference to any other bylaw  provision.  It could not be challenged solely on the ground that that the proposed amendment was not sent to a committee.

As an aside, if, hypothetically, the meeting in 2019 had adopted the bylaw by less than a two thirds vote, and the vote was conducted in a manner that did not create a violation of 23:6, and there was not timely point of order, the amendment would be adopted.  I also might refer to these rule being "suspended by implication," though we can quibble over semantics. 

 

 

Edited July 2, 2021 at 04:49 PM by J. J.