Two thirds Majority

[Keller]

I did a search and found a couple of posts and I think I am on the right track. 

So my understanding is that 11.1 as stated below in our bylaws means that we have to have a two thirds vote of the whole membership to enable a bylaw amendment.  

If I am correct then at a meeting we would need at least 187 members (out of 250 total) to be there and  all vote the same way.  

Another way would be to do an email/mail in vote but again we would need a minimum of 187 returned ballots unless we can count non returns as a yes or no, which I think we have to count as an abstain so that would mean they don't factor in to the count correct?

I think I am answering my own question but I hope not.  A meeting of a min 187 is never going to happen, the most we have had is about 110, an email/mail in vote will I very much doubt result in 187 replies going the same way.

Now I am stuck, the last revision was passed with this put into place, now I am wondering if we are going to be stuck with the bylaws we have and never be able to change them.  I really want to correct the error to read two thirds of the membership present which is what was intended by the writers of the last bylaws but they thought they knew what they were doing apparently and nobody caught it.

Any ideas
 
ARTICLE 10 
PARLIAMENTORY AUTHORITY 
The rules contained in the current edition of Robert's Rules of Order shall govern the Organization in all cases to
which they are applicable and in which they are not inconsistent with these bylaws and any special rules of order the
Organization may adopt.
 
ARTICLE 11 
 
AMENDMENTS TO BYLAWS 

11.1.  Adoption.  Except as otherwise provided herein with respect to greater voting requirements, if any,
these Bylaws may be adopted, amended, restated or repealed by a two-thirds majority of the voting membership.  

 

[Richard Brown]

On 1/11/2022 at 10:44 PM, Keller said:

these Bylaws may be adopted, amended, restated or repealed by a two-thirds majority of the voting membership.

Actually, I think you’ve got much more wiggle room than you think you do. That is because your bylaws refer to a “two thirds majority of the VOTING membership“, rather than a two thirds majority of the entire membership.

This is ultimately a question of interpretation of bylaws, and I think it is perfectly reasonable to interpret the phrase “Voting membership“ as meaning those members who are present and actually voting.  Now, if you have two classes of members, voting and non-voting, then that makes it more difficult. But, if all members are voting members, I would interpret the bylaw provision to mean that you need an ordinary two thirds vote of the members present and voting to amend the bylaws.

BTW, The wording used in that bylaw provision is exceedingly awkward and should be corrected as soon as possible. Use the precise language that RONR suggests when setting your vote threshold. Don’t tinker with it.

[Guest Keller]

On 1/12/2022 at 2:14 AM, Richard Brown said:

Actually, I think you’ve got much more wiggle room than you think you do. That is because your bylaws refer to a “two thirds majority of the VOTING membership“, rather than a two thirds majority of the entire membership.

This is ultimately a question of interpretation of bylaws, and I think it is perfectly reasonable to interpret the phrase “Voting membership“ as meaning those members who are present and actually voting.  Now, if you have two classes of members, voting and non-voting, then that makes it more difficult. But, if all members are voting members, I would interpret the bylaw provision to mean that you need an ordinary two thirds vote of the members present and voting to amend the bylaws.

BTW, The wording used in that bylaw provision is exceedingly awkward and should be corrected as soon as possible. Use the precise language that RONR suggests when setting your vote threshold. Don’t tinker with it.

We do have a class of non voting members, which muddies the water. 

If at a meeting we don't count them in the overall member count attending for voting purposes will that suffice to interpret the bylaw as voting membership present, or do we have to count them as they are members and entitled to be there?

I agree the wording is very awkward and needs changing asap but with the vote threshold as it stands I don't see how we can 

[Josh Martin]

On 1/12/2022 at 4:24 PM, Guest Keller said:

We do have a class of non voting members, which muddies the water. 

If at a meeting we don't count them in the overall member count attending for voting purposes will that suffice to interpret the bylaw as voting membership present, or do we have to count them as they are members and entitled to be there?

I agree the wording is very awkward and needs changing asap but with the vote threshold as it stands I don't see how we can 

I don't think the fact that there is a class of nonvoting "members" muddies the waters at all. Obviously people who do not have the right to vote are not included in determining the result of a vote. Doing so would make no sense.

[Dan Honemann]

On 1/12/2022 at 5:30 PM, Josh Martin said:

I don't think the fact that there is a class of nonvoting "members" muddies the waters at all. Obviously people who do not have the right to vote are not included in determining the result of a vote. Doing so would make no sense.

I'm afraid that it does make it easier to argue that "a two-thirds majority of the voting membership" means a two-thirds vote of the entire membership entitled to vote, but for all practical purposes I'd still stick with Mr. Brown's interpretation.

,

 

[Rob Elsman]

Mr. Honemann is waiting breathlessly for me to chime in, so...

It is your rule; you tell us.  😐

Having said that, RONR (12th ed.) 1:4 equates "voting members" to the term "member", as the latter is used in the organization's parliamentary authority.  "Voting members" is the term used in organizations that have multiple classes of membership, some of which do not include the right to vote.  So, I would venture that "voting members" in this organization's bylaws means that fraction of the total membership that has the right to vote.  It follows that two-thirds of the voting membership means two out of three of the number of members of that fraction of the total membership that has the right to vote.  However...

It is your rule; you tell us.  😐

[Guest Keller]

On 1/13/2022 at 2:02 PM, Rob Elsman said:

Mr. Honemann is waiting breathlessly for me to chime in, so...

It is your rule; you tell us.  😐

Having said that, RONR (12th ed.) 1:4 equates "voting members" to the term "member", as the latter is used in the organization's parliamentary authority.  "Voting members" is the term used in organizations that have multiple classes of membership, some of which do not include the right to vote.  So, I would venture that "voting members" in this organization's bylaws means that fraction of the total membership that has the right to vote.  It follows that two-thirds of the voting membership means two out of three of the number of members of that fraction of the total membership that has the right to vote.  However...

It is your rule; you tell us.  😐

Yes It does mean two out of three of the members who can vote.  I came into this after these bylaws were enacted, the previous so called bylaws were a single sheet of paper someone had written up (probably on the back of a cigarette packet), the one that is in effect now looks official but needs work.  In talking to one of the writers of the bylaws the intent was to have two thirds of the voting membership present at a general meeting.  There are other changes that need to be made but with the voting requirement set the way it currently is nothing can be changed. 

It wasn't until a bylaw amendment was put forth that this came to light and now it has to be dealt with, I need to find a way to rectify the issue or there is a possibility that the current bylaws can never be changed.

From what I have read here I could just say that my reading of the bylaws says it means two thirds of the voting members present and if it's not challenged the new amendments' can go ahead and be voted on, or I can say that my reading is that it means two-thirds of the full voting membership.  It was originally bought to my attention by other members so I know I am going to have to back up my decision one way or another to them.

 

[Richard Brown]

Mr. Honemann and I gave you your solution. As chair, you rule that the only reasonable interpretation is a 2/3 vote of the members present and voting. If someone appeals from your ruling, they have a right to. It requires a majority vote to overturn your ruling. The appeal is debatable, but each member only gets to speak once, except for the chair, who has the right to speak twice, usually to open and to close.

Having members simply say that they object or they disagree does not constitute an appeal from the ruling of the chair. To do that, a member has to specifically state “I  appeal from the ruling of the chair”. It requires a second.

Edited to add: if you do a good job of explaining why your interpretation is the only reasonable one and that to take the other position means you cannot amend your bylaws, I would think that your ruling would be sustained.

Edited January 14, 2022 at 12:28 AM by Richard Brown
Added last paragraph

[Joshua Katz]

On 1/13/2022 at 7:26 PM, Richard Brown said:

Mr. Honemann and I gave you your solution. As chair, you rule that the only reasonable interpretation is a 2/3 vote of the members present and voting. If someone appeals from your ruling, they have a right to. It requires a majority vote to overturn your ruling. The appeal is debatable, but each member only gets to speak once, except for the chair, who has the right to speak twice, usually to open and to close.

 

Mr. Brown,

If the ruling is that only one meaning is reasonable, doesn't that make an appeal dilatory?

[Richard Brown]

On 1/14/2022 at 5:28 AM, Joshua Katz said:

Mr. Brown,

If the ruling is that only one meaning is reasonable, doesn't that make an appeal dilatory?

Not in my opinion, but I am not a fan of declaring appeals dilatory.  I think the members are entitled to appeal the ruling on the chair on the interpretation of the bylaw provision regarding the vote required to amend the bylaws.

I do see your point, though, and the chair might well be justified in taking that position.

If they wind up using that interpretation, I suggest that they then amend the bylaws forthwith to change that provision so it never presents a problem again.  And I suggest very strongly that they use the suggested language in RONR verbatim when setting the vote requirement

[Joshua Katz]

On 1/14/2022 at 11:35 AM, Richard Brown said:

Not in my opinion, but I am not a fan of declaring appeals dilatory.  I think the members are entitled to appeal the ruling on the chair on the interpretation of the bylaw provision regarding the vote required to amend the bylaws.

 

I agree, and in this instance, I don't think there's only one reasonable interpretation anyway. I think the interpretation that it means 2/3 of the total voting membership is at least reasonable. 

 

On 1/14/2022 at 11:35 AM, Richard Brown said:

If they wind up using that interpretation, I suggest that they then amend the bylaws forthwith to change that provision so it never presents a problem again.  And I suggest very strongly that they use the suggested language in RONR verbatim when setting the vote requirement

I agree.

[Gary Novosielski]

On 1/14/2022 at 6:28 AM, Joshua Katz said:

If the ruling is that only one meaning is reasonable, doesn't that make an appeal dilatory?

Perhaps, but I don't think I would rule that only one meaning is reasonable.  I would simply rule that my interpretation is the correct one.  

[Guest Zev]

It appears as though this question is similar to number 107 in Parliamentary Law, which follows:

107. QUES. The by-laws of a society provide that they may be amended by a three-fourths vote of the entire membership, notice having been given at the previous regular meeting. These by-laws were adopted when the society was very small. Since that time it has grown to more than 600 members. It is a necessity that the by-laws be amended to meet the requirements of such a large organization. Repeated attempts have been made for two years to amend them, but it is impossible to get an attendance of three fourths of the entire membership. What can be done about it?

ANS. Since the society has adopted a provision for amendment in its by-laws that is impracticable to carry out, the only thing that can be done is to change that provision to a reasonable one, complying, in making the change, with the spirit of the existing by-laws as nearly as possible. The makers of the by-laws did not foresee that the time would come when it would be impracticable to secure the attendance of three fourths of the membership at a meeting. If notice of the amendment of this by-law is given as required by the by-laws, and it is adopted by a three-fourths vote of the members present, and then a mail vote is taken on the adoption of the amendment as described in R. O. R., pp. 199, 200, and three fourths of the votes cast are in favor of the amendment, the amendment is adopted by a method as nearly in the spirit of the by-laws as is practicable. While voting by mail is not allowed by R. O. R. unless it is provided for in the by-laws, yet this rule must be broken in order to comply with the spirit of an unwise by-law. In R. O. R., p. 270, the committee on by-laws is warned against similar provisions in by-laws. [See Ques. 105.]

[Rob Elsman]

Now you know why I almost never resort to PL as persuasive.  What parliamentary god gets to declare another organization's bylaw "unwise"?  What authority gets to conjure up the "spirit of the by-laws" to make up a solution out of thin air to a problem perceived on one side of the question only? For, you see, there may be a lot of other members who would not concur that "...it would be impracticable to secure the attendance of three fourths of the membership at a meeting", or even that "...[i]t is a necessity that the by-laws be amended to meet the requirements of such a large organization".

As you know, if you have read me very much on this forum, I am firmly opposed to the notion that there is some kind of anointed parliamentary priesthood that gets to pronounce these kinds of views from the throne.  I say that the organization itself saw the wisdom of adopting the bylaw (hopefully, after a full and thorough deliberation), and that it had the responsibility to amend the bylaw, at any time, if and when it became generally apparent to a wide faction of members that it was advisable to do so..  There is no spirit to conjure up in parliamentary law, and there is no holy priesthood to make up a solution that is not present in the text of the bylaw.  The responsibility lies with the membership assembly--and that's the answer, and all of the answer.

[Shmuel Gerber]

On 1/15/2022 at 5:49 PM, Rob Elsman said:

As you know, if you have read me very much on this forum, I am firmly opposed to the notion that there is some kind of anointed parliamentary priesthood that gets to pronounce these kinds of views from the throne.

I agree with this. However, General Robert is answering the question asked, accepting the premises given.

The questioner stated, "It is a necessity that the by-laws be amended to meet the requirements of such a large organization. … but it is impossible to get an attendance of three fourths of the entire membership."

Why are you imagining that these statements are untrue, or subject to differences of opinion within the organization? Or do you think that it doesn't matter, and that it is acceptable and necessary for a society to continue in existence with unsatisfactory bylaws that are impossible to amend because of a previous oversight?

[Guest Zev]

I was stunned and taken aback by Mr. Elsman's posting. I was going to say something but perhaps I should just keep my mouth shut.

[Rob Elsman]

Even if the premises were heaven-sent, no parliamentarian should be invoking the phantasmic "spirit of the by-law" to circumvent the reality of the more-than-obvious meaning of the text itself, even if heaven says it is "impossible" (not "difficult", not "improbable", but "impossible"!) to obtain sufficient attendance to amend the bylaw or if heaven says the bylaw is "unwise".

The best that can be said is that the deliberative assembly is free to be unwise, reckless, or negligent.  It is the responsibility of the assembly to be what it wants to be; the buck stops there.

[Rob Elsman]

I apologize to Guest Zev for the stunning effect of my reply.  He has not been following the forum long enough to have become familiar with my Average Reader, which is the gold standard I use for interpreting texts.  It is a simple proposition:  Would the obviously theoretical Average Reader be able to reach a proposed conclusion simply by reading the text in good faith?  A layman's familiarity with the subject, no particular expertise, no spirits of the whatever, just an average person's effort made with common sense and good faith.  If not, that conclusion is not there.  Thus, I claim, it is the genius of the authors of RONR over the last century, beginning with Gen. Robert, to have written a book that is readable by ordinary people of varying occupations throughout the country who have no particular training or expertise in parliamentary law and can draw from a common sense and good faith reading of the book the rules and guidance for ordinary societies that the authors intend to communicate.

All these years later, Gen. Robert seems to have pulled my string. 😐

 

[Shmuel Gerber]

I don't think that general Robert thought his answer was correct and true as a matter of parliamentary law.

He was simply giving practical advice. Based on the facts presented, the organization could either be stuck forever (or at least until the organization crumbled under its own weight) with bylaws that do not suit its conditions, or it could ask its members to agree to a change in them by a procedure not sanctioned under the existing rules but that demonstrates sufficient support to preclude any reasonable complaint that the members' substantive rights have been violated. (Again, assuming the premise of the question is correct.)

You might choose to advise the organization that its only choice is to crumble because of poorly drafted by laws. General Robert chose to give what he thought was practical advice to do otherwise, and indeed to adhere to the spirit of the bylaws in doing so.

[Rob Elsman]

I agree with you that General knew his reply was not exactly true and correct as a matter of parliamentary law.  I get the impression he was a pretty smart, experienced, and talented guy.

Nevertheless, the parliamentarian is off base when he starts making up advice that obviously conflicts with the rules.  He is out of his lane.  He is not the backstop for an assembly that chooses to be "unwise" and, later, negligent, even if he compassionately desires to be "practical" about a sorry situation of the assembly's making.  When he leaves his lane, he necessarily becomes a partisan to the question, however good are his intentions.  He sets himself up as an augur, annointed to examine the guts and read out of them the "spirit".

Edited January 17, 2022 at 05:15 PM by Rob Elsman

[smb]

There is a solution to every problem -- as already noted, it often lies with practicality rather than slavish adherence to a bylaw that no longer works.  What follows is California nonprofit corporation code section 7515.   I recognize this is not a legal forum here; but the legal solution that CA enacted for its incorporated nonprofits also provides a workable model for unincorporated associations engaging in self-help .  

====

(a) If for any reason it is impractical or unduly difficult for any corporation to call or conduct a meeting of its members, delegates or directors, or otherwise obtain their consent, in the manner prescribed by its articles or bylaws, or this part, then the superior court of the proper county, upon petition of a director, officer, delegate or member, may order that such a meeting be called or that a written ballot or other form of obtaining the vote of members, delegates or directors be authorized, in such a manner as the court finds fair and equitable under the circumstances.

(b) The court shall, in an order issued pursuant to this section, provide for a method of notice reasonably designed to give actual notice to all parties who would be entitled to notice of a meeting held pursuant to the articles, bylaws and this part, whether or not the method results in actual notice to every such person, or conforms to the notice requirements that would otherwise apply. In a proceeding under this section the court may determine who the members or directors are.

(c) The order issued pursuant to this section may dispense with any requirement relating to the holding of and voting at meetings or obtaining of votes, including any requirement as to quorums or as to the number or percentage of votes needed for approval, that would otherwise be imposed by the articles, bylaws, or this part.

(d) Wherever practical any order issued pursuant to this section shall limit the subject matter of the meetings or other forms of consent authorized to items, including amendments to the articles or bylaws, the resolution of which will or may enable the corporation to continue managing its affairs without further resort to this section; provided, however, that an order under this section may also authorize the obtaining of whatever votes and approvals are necessary for the dissolution, merger, sale of assets or reorganization of the corporation.

(e) Any meeting or other method of obtaining the vote of members, delegates or directors conducted pursuant to an order issued under this section, and which complies with all the provisions of such order, is for all purposes a valid meeting or vote, as the case may be, and shall have the same force and effect as if it complied with every requirement imposed by the articles, bylaws, and this part.

[Dan Honemann]

On 1/13/2022 at 5:05 PM, Guest Keller said:

Yes It does mean two out of three of the members who can vote.  I came into this after these bylaws were enacted, the previous so called bylaws were a single sheet of paper someone had written up (probably on the back of a cigarette packet), the one that is in effect now looks official but needs work.  In talking to one of the writers of the bylaws the intent was to have two thirds of the voting membership present at a general meeting.  There are other changes that need to be made but with the voting requirement set the way it currently is nothing can be changed. 

It wasn't until a bylaw amendment was put forth that this came to light and now it has to be dealt with, I need to find a way to rectify the issue or there is a possibility that the current bylaws can never be changed.

From what I have read here I could just say that my reading of the bylaws says it means two thirds of the voting members present and if it's not challenged the new amendments' can go ahead and be voted on, or I can say that my reading is that it means two-thirds of the full voting membership.  It was originally bought to my attention by other members so I know I am going to have to back up my decision one way or another to them.

 

I think the train in this thread may have run off its tracks when the Q&A in PL was quoted and debated, and it surely crashed with the latest post quoting a portion of California's nonprofit corporation code (unless your organization is a California nonprofit corporation).

You tell us that a provision of your bylaws reads as follows: "Except as otherwise provided herein with respect to greater voting requirements, if any,
these Bylaws may be adopted, amended, restated or repealed by a two-thirds majority of the voting membership."

You have also told us that your organization does, in fact, have a class of nonvoting members, which, as you say "muddies the water."

The bylaw provision quoted here is clearly ambiguous, and you have told us that: "In talking to one of the writers of the bylaws the intent was to have two thirds of the voting membership present at a general meeting."  You previously have said that:  "I really want to correct the error to read two thirds of the membership present which is what was intended by the writers of the last bylaws but they thought they knew what they were doing apparently and nobody caught it."  If what was actually intended was to require a two-thirds vote (the same thing as a two-thirds majority vote) of the membership present and entitled to vote, I think you have a strong argument that this is the way in which your bylaw provision should be interpreted. In other words, two thirds of the votes cast by the members present and entitled to vote.

RONR, 12th ed., 56:68(1) reads as follows (emphasis supplied):

"Each society decides for itself the meaning of its bylaws. When the meaning is clear, however, the society, even by a unanimous vote, cannot change that meaning except by amending its bylaws. An ambiguity must exist before there is any occasion for interpretation. If a bylaw is ambiguous, it must be interpreted, if possible, in harmony with the other bylaws. The interpretation should be in accordance with the intention of the society at the time the bylaw was adopted, as far as this can be determined. Again, intent plays no role unless the meaning is unclear or uncertain, but where an ambiguity exists, a majority vote is all that is required to decide the question. The ambiguous or doubtful expression should be amended as soon as practicable."