What constitutes "previous notice"

[Tomm]

 

There’s a debate among the General Membership regarding what constitutes “previous notice.”

This relates to the meetings of the Board of Directors. There are 9 members.

Nowhere in the bylaws or articles of incorporation are there any requirements for the Board of Directors to amend the bylaws. No requirement of previous notice or 2/3^rd’s vote. The articles of incorporation do, however, give the Board the plenary power to amend the bylaws.

The bylaws do state under the heading of Meetings of the Board the following: “At least seven (7) days prior to all Board meetings, excluding Executive Sessions, Special Sessions and Member/Board Exchanges, an agenda, subject to amendment, shall be posted in XXXX Facilities and/or on the XXXX website...”

One argument is; the bylaw is only requiring the Agenda to be posted and nothing about any motions, but to be fair, the motions are specified in the agenda.

To add to the confusion, the agenda’s are not approved at the beginning of the meeting, but since the motions are listed and posted I suppose that they do satisfy a previous notice requirement?

However, the bylaw also allows for the agenda to be amended which means a motion to amend the agenda could be made and a brand new amendment to the bylaws may be offered and no previous notice would have been given?

The issue being, what vote is required by the Board to amend a bylaw, 2/3’rd’s with previous notice (6 members) or a majority of the entire membership (5 members) because nothing in the bylaws specifies a requirement?

We are assuming that the majority of the entire membership (only 5 members) is always an acceptable alternative because it is viewed as being a higher threshold?

Please advise.  

 

[Josh Martin]

On 8/17/2022 at 12:40 PM, Tomm said:

To add to the confusion, the agenda’s are not approved at the beginning of the meeting, but since the motions are listed and posted I suppose that they do satisfy a previous notice requirement?

To the extent that there is a requirement of previous notice (or at least previous notice is required for adoption by a 2/3 vote, as is the case in RONR), what constitutes previous notice for a proposed amendment to the bylaws, as that term is used in RONR, is as follows:

"Unless the rules require the full text of the motion, resolution, or bylaw amendment to be submitted in the notice, only the purport need be indicated; but such a statement of purport must be accurate and complete—as in “to raise the annual dues to $20”—since it will determine what amendments are in order when the motion is considered." RONR (12th ed.) 10:47

So if what is "listed and posted" concerning the motions includes an accurate and complete statement of purport at a minimum (or even better, the exact text of the motions), that satisfies the definition of "previous notice" in RONR.

The fact that the agendas are not approved at the beginning of the meeting has no relevance whatsoever for this question, because previous notice is given prior to the meeting.

I would also state that, in my view, the provision you have cited (which deals with agendas generally) has nothing to do with whether previous notice is required for bylaw amendments.

On 8/17/2022 at 12:40 PM, Tomm said:

However, the bylaw also allows for the agenda to be amended which means a motion to amend the agenda could be made and a brand new amendment to the bylaws may be offeed and no previous notice would have been given?

We are told that the rules pertaining to amending the bylaws have "No requirement of previous notice or 2/3rd’s vote." It would be helpful if we could see the exact language of the rules in question, but it certainly seems to me that if there is "No requirement of previous notice," then it is indeed correct that a brand new amendment to the bylaws may be offered, with no previous notice given.

On 8/17/2022 at 12:40 PM, Tomm said:

The issue being, what vote is required by the Board to amend a bylaw, 2/3’rd’s with previous notice (6 members) or a majority of the entire membership (5 members) because nothing in the bylaws specifies a requirement?

I don't think I can definitively answer this without knowing what exactly the articles of incorporation say regarding this matter. What RONR says in this regard is as follows:

"Special requirements for this motion’s adoption should be specified in the bylaws, and they should always include at least notice and a two-thirds vote, which (with a vote of a majority of the entire membership as an allowable alternative) are the requirements for its adoption if such specification in the bylaws is neglected (see 56:50–56)." RONR (12th ed.) 57:1

So if the articles say something to the effect of "The board may amend the bylaws," and say nothing further regarding this matter, then it would seem reasonable to conclude that the requirements for adopting an amendment to the bylaws are a 2/3 vote with previous notice (which could be fewer than six members, due to absences and abstentions) OR a vote of a majority of the entire membership (five members, assuming there are no vacancies), either one of which will suffice.

On 8/17/2022 at 12:40 PM, Tomm said:

We are assuming that the majority of the entire membership (only 5 members) is always an acceptable alternative because it is viewed as being a higher threshold?

A majority of the entire membership is always an acceptable alternative for a motion to amend the bylaws if the rules in RONR are controlling. It is not necessarily a "higher" voting threshold depending on the particular facts and circumstances, but such a voting threshold does demonstrate that a majority of the entire membership of the assembly approves of the motion, as opposed to a temporary majority due to absences. 

If an organization adopts its own rules for bylaw amendments (as RONR recommends that an organization should do), then a majority of the entire membership may or may not be an acceptable alternative - that is at the organization's discretion. If an organization wishes to provide that amending the bylaws requires a 2/3 vote with previous notice with no alternative (or whatever else it deems appropriate), the organization is free to do so.

I should add that it is conceivable that applicable law has its own rules pertaining to this matter, so it may be prudent to check that as well.

Edited August 17, 2022 at 08:17 PM by Josh Martin

[Richard Brown]

RONR provides that if the governing documents are silent as to the method of amending the bylaws, that previous notice and a two thirds vote or, in the alternative, the vote of a majority of the entire membership is required to amend the bylaws.

Sections 10:44–47 and 56:50 provide that if the governing documents are silent as to the method of amending the bylaws,  previous notice means giving notice of the proposed amendment in the call of the meeting or at the previous meeting. 

We have been told that the Board of Directors is authorized to amend the bylaws, but we have not been told that they provide for the method of amendment. it therefore seems to me that the default notice provisions in RONR for amending the bylaws would be applicable.

FWIW, We also have not been told whether the general membership has the authority to amend the bylaws.
 

[Tomm]

On 8/17/2022 at 1:28 PM, Richard Brown said:

We also have not been told whether the general membership has the authority to amend the bylaws.

The only reference in the Articles of Incorporation that relates to amending the bylaws is as follows and there are no additional requirements found in the bylaws at least for the board:

"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."

[Josh Martin]

On 8/17/2022 at 3:43 PM, Tomm said:

The only reference in the Articles of Incorporation that relates to amending the bylaws is as follows and there are no additional requirements found in the bylaws at least for the board:

"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."

Based on these additional facts, my view is that the provisions in RONR concerning previous notice and the vote threshold required are controlling. It may well be that the previous notice rules will largely be moot for the board if it has high attendance, but they will likely be relevant for amendments by the membership.