How to tell the superior body

[Tomm]

Is there a definitive statement within the Articles of Incorporation that would indicate whether the Members or the Board of Directors is the superior assembly?

Granted, the Articles of Incorporation state that the affairs of the corporation shall be conducted by the Board of Directors, but I assume the "affairs of the corporation" pertain to the facilities management, (i.e. I interpret them to be the tools and services that support the functionality, safety, and sustainability of buildings, grounds, infrastructure and real estate, and not necessarily the rules that govern the Membership?).  I would conclude that those requirements were established prior to the general membership during the establishment of the corporation?

The Articles allow the directors to amend the bylaws without the approval of the general Memberships and state, "3. The Directors shall have the power to adopt Bylaws not in conflict with the Articles of Incorporation." But they also state: "4. The Bylaws may be amended, modified, revised, or revoked by the Directors or by the Members. In the event of conflict concerning the Bylaws as amended, modified, revised, or revoked by the Directors, the action of the Members shall prevail." (emphases added)

Question: Does stating that the "action of the Membership shall prevail" place the general Membership the superior authority?

[Gary Novosielski]

It sure looks that way.

[Josh Martin]

On 6/7/2022 at 6:12 PM, Tomm said:

Is there a definitive statement within the Articles of Incorporation that would indicate whether the Members or the Board of Directors is the superior assembly?

Granted, the Articles of Incorporation state that the affairs of the corporation shall be conducted by the Board of Directors, but I assume the "affairs of the corporation" pertain to the facilities management, (i.e. I interpret them to be the tools and services that support the functionality, safety, and sustainability of buildings, grounds, infrastructure and real estate, and not necessarily the rules that govern the Membership?).  I would conclude that those requirements were established prior to the general membership during the establishment of the corporation?

The Articles allow the directors to amend the bylaws without the approval of the general Memberships and state, "3. The Directors shall have the power to adopt Bylaws not in conflict with the Articles of Incorporation." But they also state: "4. The Bylaws may be amended, modified, revised, or revoked by the Directors or by the Members. In the event of conflict concerning the Bylaws as amended, modified, revised, or revoked by the Directors, the action of the Members shall prevail." (emphases added)

Question: Does stating that the "action of the Membership shall prevail" place the general Membership the superior authority?

It should first be noted that governing documents can only be properly interpreted by reading them in their entirety. Articles of incorporation are also a legal document filed with the state, and the nature of the organization appears to be such that there are also likely also applicable laws at work, and therefore the assistance of an attorney may also be necessary. I also repeat my desperate plea for you and whatever allies you have to seek professional assistance in the ongoing issues with your organization.

Setting those caveats aside, I do not see anything in the citation you have quoted which provides a clear statement as to your general question of "whether the Members or the Board of Directors is the superior assembly?" The citation in question does indeed state that the action of the members shall prevail, but this comes at the end of a sentence which begins "In the event of conflict concerning the Bylaws as amended, modified, revised, or revoked by the Directors."

So assuming there is nothing else pertinent on this matter in your organization's rules or applicable law, this would suggest that in the event that there are conflicting actions in regard to amending the bylaws, the action of the members shall prevail. But this sheds no light in regard to the resolution of conflicts between the board and the members on matters other than amendments to the bylaws.

[Richard Brown]

On 6/7/2022 at 6:12 PM, Tomm said:

Is there a definitive statement within the Articles of Incorporation that would indicate whether the Members or the Board of Directors is the superior assembly? . . . .

. . . the Articles of Incorporation state that the affairs of the corporation shall be conducted by the Board of Directors  (Emphasis added)

In my opinion, the constitution grants the Board the exclusive right to conduct and manage the affairs of the corporation with the one stated exception as to bylaw amendments by the board which conflict with bylaw amendments by the members.  The constitution does not say that the board has this power only between meetings of the membership.  So, except as to conflicting bylaw amendments, I would say that the board is the superior body.

As others have stated, however, it is ultimately up to the members of your organization to interpret its own bylaws, not those of us on this forum.*

*Actually, the precise language in §56:68 (1) is: "Each society decides for itself the meaning of its bylaws".  It does not specifically say "the membership decides". 

It is the interpretation of your organization that is binding..... and that presents the question of whether it would be the members of the board to make that determination or the general membership as to whether the membership may overturn actions of the board in areas other than conflicting bylaw amendments.

It's an intriguing question and happens to be one I was recently confronted with myself.  I'm interested in feedback from our other members, especially when it comes to those areas in which the bylaws or constitution clearly grant the board the sole and complete authority to act for the society.

Questions:

1. When push comes to shove, which body has the ultimate authority to interpret the bylaws as to the power of the board in areas in which the bylaws unambiguously grant the board sole and compete authority? 

2. Can the membership reverse an action of the board in such a matter where the bylaws unambiguously grant the board sole and complete authority?

 

Edited June 9, 2022 at 06:10 PM by Richard Brown
Edited questions

[Josh Martin]

On 6/9/2022 at 11:36 AM, Richard Brown said:

In my opinion, the constitution grants the Board the exclusive right to conduct and manage the affairs of the corporation with the one stated exception as to bylaw amendments by the board which conflict with bylaw amendments by the members.  The constitution does not say that the board has this power only between meetings of the membership.  So, except as to conflicting bylaw amendments, I would say that the board is the superior body.

I don't think the paraphrase we are provided here, in and of itself, is sufficient to reach this conclusion. Digging through previous threads by the OP, however, I think it is correct that "except as to conflicting bylaw amendments... the board is the superior body."

https://robertsrules.forumflash.com/topic/38562-who-decides-board-or-membership/

On 6/9/2022 at 11:36 AM, Richard Brown said:

1. When push comes to shove, which body has the ultimate authority to interpret the bylaws as to the power of the board in areas in which the bylaws unambiguously grant the board sole and compete authority? 

Assuming parliamentary law is controlling and there is no higher level rule on this matter in applicable law, the body which has the ultimate authority to amend the bylaws is the body with the ultimate authority to interpret them. In this case, that is the society.

The fact that a particular question is unambiguous changes nothing about what body has the authority to reach the interpretation. It simply means that in that instance, the answer should be obvious.

If the society nonetheless reaches the "wrong" conclusion, then those who disagree with the society's decision will have to take the matter up with some higher authority, such as the courts.

On 6/9/2022 at 11:36 AM, Richard Brown said:

2. Can the membership reverse an action of the board in such a matter where the bylaws unambiguously grant the board sole and complete authority?

I'm not quite clear on what is being asked here and in what manner it differs from the previous question.