when is a bylaw amendment and amendment?

[ptc122]

I need the page numbers that describe when there is an actual amendment of a bylaw even though the standard approach not used. A possible scenario would be a motion describing a change, or a motion creating an action without realizing that there is a bylaw in place. And the society going ahead with the motion and passing it and taking the action described. Then it is discovered there is a bylaw. 

What is the effect on the existing bylaw? Has it in fact changed? If the motion initiating the change or action was handled as a previous notice and passed with 2/3 or more, has it changed the existing bylaw? paul

[Rob Elsman]

On 1/3/2022 at 11:13 AM, ptc122 said:

Has it in fact changed?

Nothing in RONR (12th ed.) gives that impression.

[Tom Coronite]

What are you saying? That a motion was made that (accidentally, perhaps) complied with the requirements for a bylaw amendment, but just wasn’t identified specifically as a bylaw amendment? Is that what not using “standard approach” means?

[Josh Martin]

On 1/3/2022 at 11:13 AM, ptc122 said:

I need the page numbers that describe when there is an actual amendment of a bylaw even though the standard approach not used.

It depends on precisely what is meant by "the standard approach is not used."

On 1/3/2022 at 11:13 AM, ptc122 said:

A possible scenario would be a motion describing a change, or a motion creating an action without realizing that there is a bylaw in place. And the society going ahead with the motion and passing it and taking the action described. Then it is discovered there is a bylaw. 

What is the effect on the existing bylaw? Has it in fact changed? If the motion initiating the change or action was handled as a previous notice and passed with 2/3 or more, has it changed the existing bylaw?

This scenario is so vague that it is impossible to conclusively answer this question. It would help if additional facts were provided.

What I will say is that if a main motion is adopted which conflicts with the bylaws, that constitutes a continuing breach. On the other hand, if a motion is properly made as an amendment to the bylaws, and the process conflicts with the bylaws in some manner, that does not, in and of itself, constitute a continuing breach. Depending on the nature of the violation, however, there may be a continuing breach for some other reason.

See RONR (12th ed.) 10:26 (including the footnote) and 23:6. 

You may also wish to refer to your previous thread on a similar subject.

[Rob Elsman]

Once the motion is fully executed, it makes no difference whether there was a continuing breach.  What is done is done.  However, the fact that the motion was adopted and executed does not have the effect of amending the bylaws.

[Atul Kapur]

On 1/3/2022 at 12:13 PM, ptc122 said:

A possible scenario would be a motion describing a change, or a motion creating an action without realizing that there is a bylaw in place. And the society going ahead with the motion and passing it and taking the action described. Then it is discovered there is a bylaw. 

What is the effect on the existing bylaw? Has it in fact changed? If the motion initiating the change or action was handled as a previous notice and passed with 2/3 or more, has it changed the existing bylaw?

 You cannot change a bylaw "through the back door".

 In the situation that you describe, it sounds like the motion would be in conflict with the current bylaw. Therefore that motion is not in order and the adoption of that motion gives rise to a continuing breach. Upon a point of order at any time, that motion is declared null and void.

 Without a chance to refer to the book, my personal opinion is that this is true even if the motion was adopted with notice and a 2/3 vote, but did not clearly, and with adequate specificity, indicate the amendment to the bylaw that is intended.

[Joshua Katz]

On 1/3/2022 at 3:43 PM, Atul Kapur said:

 Without a chance to refer to the book, my personal opinion is that this is true even if the motion was adopted with notice and a 2/3 vote, but did not clearly, and with adequate specificity, indicate the amendment to the bylaw that is intended.

I agree. When I vote for a motion, I am implicitly assuming it is authorized. If I learn it is not, I may well change my mind. After all, we expect people to put more care into changing the bylaws than into, say, approving the rental of giant gerbil balls for a picnic. Even if 2/3 vote for the balls with notice, if it turns out that the rental was not permitted by the bylaws, I say it is invalid, not that they changed the bylaws.

[Atul Kapur]

Thanks, Joshua. The quotation I was thinking of was "The notice should fairly inform the members of the changes contemplated." RONR (12th ed.) 57:14

To use Mr. Katz's example, a notice of motion to rent gerbil balls for a picnic does not fairly inform members that what is contemplated is an amendment to the bylaw that prohibits expenditures of organization money on picnics.

[ptc122]

On 1/3/2022 at 3:43 PM, Atul Kapur said:

 You cannot change a bylaw "through the back door".

 In the situation that you describe, it sounds like the motion would be in conflict with the current bylaw. Therefore that motion is not in order and the adoption of that motion gives rise to a continuing breach. Upon a point of order at any time, that motion is declared null and void.

 Without a chance to refer to the book, my personal opinion is that this is true even if the motion was adopted with notice and a 2/3 vote, but did not clearly, and with adequate specificity, indicate the amendment to the bylaw that is intended.

that is my reading. the situation is as though the board did not know a bylaw with the same wording existed. Now that is known what is the effect on the actual bylaw? What pages of RONR would be helpful? One might take the position that the bylaw was amended, another might say there was no amendment. What pages support either position? Appreciate the input, Paul

[Atul Kapur]

On 1/5/2022 at 7:11 PM, ptc122 said:

Now that is known what is the effect on the actual bylaw?

Nothing. The effect is on the motion that was improperly adopted and which, upon someone raising a point of order, should be ruled null and void.

 

On 1/5/2022 at 7:11 PM, ptc122 said:

What pages of RONR would be helpful?

Josh Martin already referred you to the relevant section, 10:26(1) "No main motion is in order that conflicts with the corporate charter, constitution, or bylaws"

On 1/5/2022 at 7:11 PM, ptc122 said:

One might take the position that the bylaw was amended

As stated by several replies above, that one would be wrong.

[Gary Novosielski]

On 1/5/2022 at 7:11 PM, ptc122 said:

One might take the position that the bylaw was amended....

There appears to be evidence that the bylaw was violated, but not that it was amended.  I'm assuming here that whatever this motion was, it did not contain new language to be inserted into the bylaws.

[Josh Martin]

On 1/5/2022 at 6:11 PM, ptc122 said:

that is my reading. the situation is as though the board did not know a bylaw with the same wording existed. Now that is known what is the effect on the actual bylaw? What pages of RONR would be helpful? One might take the position that the bylaw was amended, another might say there was no amendment. What pages support either position? Appreciate the input, Paul

If the situation is that a main motion was adopted which conflicts with the bylaws, there is no doubt that the main motion is null and void and there is no effect whatsoever on the bylaws. The language which supports this position is as follows:

"The only exceptions to the requirement that a point of order must be made promptly at the time of the breach arise in connection with breaches that are of a continuing nature, whereby the action taken in violation of the rules is null and void. In such cases, a point of order can be made at any time during the continuance of the breach—that is, at any time that the action has continuing force and effect—regardless of how much time has elapsed. Instances of this kind occur when:

a) a main motion has been adopted that conflicts with the bylaws (or constitution) of the organization or assembly," RONR (12th ed.) 23:6

There are no pages which support the other position.

I would reiterate again, however, that it would be helpful if we had additional facts as to the specifics of the situation.

[ptc122]

Thank you everyone. The page references and the comments led me to Null and Void which provided more information. I realize that more specifics could lead to a clearer diagnosis. It appears the way this one was done was improper whether done without realization that there is an actual bylaw on the subject or some thinking that a new motion would suffice and therefore only a majority needed. Bottom line (for us anyway) is if it is a bylaw it needs 2/3 and previous notice to amend it. Paul