Bylaws requiring minimum membership level to amend bylaws

[Guest Ellie O]

A club I recently became a part of has bylaws that are written as follows regarding amendments to the bylaws: 

Quote

1) Proposing Amendments. Amendments to the Bylaws may be proposed by the Board of Directors or by written petition addressed to the Secretary signed by twenty percent of the membership in good standing.  Amendments proposed by such petition shall be promptly considered by the Board of Directors and must be submitted to the members with recommendations of the Board by the Secretary for a vote within three months of the date when the petition was received by the Secretary. No amendments to the Bylaws or regulations shall be considered until the total number of members in good standing shall exceed 150 so that there are an adequate number of active members to provide a diversity of viewpoints and to prevent the originating purpose of the club from becoming seriously compromised. Administrative corrections, corrections of omissions, or further explanation of the by-laws may be accomplished at any time as needed, so as long as the “write-in” is well within the scope of the current by-laws. Administrative corrections must be reviewed and approved unanimously by the Board of Directors.
 
2) Voting on Proposed Amendments. The Bylaws may be amended at any time provided a copy of the proposed amendment has been mailed by the Secretary to each member in good standing on the date of the mailing, accompanied by a ballot on which a choice for or against the action to be taken shall be indicated.  Dual envelope procedures described in Section 5.3.e shall be followed in handling such ballots to ensure secrecy of the vote. Notice with such ballot shall specify a date not less than 30 days after the date postmarked by which date the ballots must be returned to the Secretary to be counted. A valid response of at least 1/3 of the members in good standing, and a favorable secret vote of 2/3 of the members in good standing who return valid ballots within the time limit shall be required to affect any such amendment.

Note that when the club was formed there were not 150 members, nor has this membership number been achieved at any point in the decade+ since then. Currently, there are 74 members in good standing. Is this clause regarding minimum membership required in order to propose amendments to the bylaws a legitimate inclusion? If so, is there a legitimate way to remove this clause without achieving that number of members?

Secondly, should it be interpreted that "administrative corrections", etc CAN be made prior this minimum membership requirement? If so, can they be made without voting as required in section 2, as long as there is unanimous approval from the Board, or must these "administrative corrections" also be voted on and approved by membership?

Thanks in advance!

[Josh Martin]

On 10/7/2022 at 2:31 PM, Guest Ellie O said:

Is this clause regarding minimum membership required in order to propose amendments to the bylaws a legitimate inclusion?

Yes, assuming there is no conflict with applicable law or a higher-level document.

"Within this framework under the general parliamentary law, an assembly or society is free to adopt any rules it may wish (even rules deviating from parliamentary law) provided that, in the procedure of adopting them, it conforms to parliamentary law or its own existing rules. The only limitations upon the rules that such a body can thus adopt might arise from the rules of a parent body (as those of a national society restricting its state or local branches), or from national, state, or local law affecting the particular type of organization." RONR (12th ed.) 2:2

On 10/7/2022 at 2:31 PM, Guest Ellie O said:

If so, is there a legitimate way to remove this clause without achieving that number of members?

No.

On 10/7/2022 at 2:31 PM, Guest Ellie O said:

Secondly, should it be interpreted that "administrative corrections", etc CAN be made prior this minimum membership requirement?

Yes, I think so. The rules provide "Administrative corrections, corrections of omissions, or further explanation of the by-laws may be accomplished at any time as needed, so as long as the “write-in” is well within the scope of the current by-laws." It seems clear that the intent of this rule is to provide an exception to the general rule prohibiting amendments until the society has 150 members.

On 10/7/2022 at 2:31 PM, Guest Ellie O said:

If so, can they be made without voting as required in section 2, as long as there is unanimous approval from the Board, or must these "administrative corrections" also be voted on and approved by membership?

That's an interesting question, and I think the rule is more ambiguous on that point. It is not clear to me whether this rule is intended to replace the ordinary process for adopting bylaw amendments in their entirety, or whether that process is to be followed except that unanimous approval by the board is required.

It will ultimately be up to the organization to interpret its own bylaws.

[Guest Ellie O]

On 10/7/2022 at 2:30 PM, Josh Martin said:

"Within this framework under the general parliamentary law, an assembly or society is free to adopt any rules it may wish (even rules deviating from parliamentary law) provided that, in the procedure of adopting them, it conforms to parliamentary law or its own existing rules. The only limitations upon the rules that such a body can thus adopt might arise from the rules of a parent body (as those of a national society restricting its state or local branches), or from national, state, or local law affecting the particular type of organization." RONR (12th ed.) 2:2

Could it be said that in the process of adopting this minimum membership requirement rule, the club was in fact NOT conforming to it's own rule, given there were less than 150 members at the time of the club being founded and these bylaws being posted?

Thank you for your response - this is helpful. We do have a parent body with whom I am also investigating if they have limitations on applying such a clause.

[Gary Novosielski]

On 10/7/2022 at 6:01 PM, Guest Ellie O said:

Could it be said that in the process of adopting this minimum membership requirement rule, the club was in fact NOT conforming to it's own rule, given there were less than 150 members at the time of the club being founded and these bylaws being posted?

Thank you for your response - this is helpful. We do have a parent body with whom I am also investigating if they have limitations on applying such a clause.

No, the bylaws say that any amendment requires that the membership shall have achieved 150 members.  But the initial adoption of the bylaws is not an amendment.  Furthermore, before and until the bylaws were initially adopted there was no such requirement in effect.

[Josh Martin]

On 10/7/2022 at 5:01 PM, Guest Ellie O said:

Could it be said that in the process of adopting this minimum membership requirement rule, the club was in fact NOT conforming to it's own rule, given there were less than 150 members at the time of the club being founded and these bylaws being posted?

No, for multiple reasons.

• Adopting bylaws for the first time is not an amendment to the bylaws.
• An amendment does not have retroactive effect. It has effect upon adoption and does not affect the validity of amendments adopted prior to it (or the adoption of the amendment itself).
• The amendment itself quite clearly contemplates the fact that the society does not have 150 members at the time of its founding, and that it is intended to prevent amendments to the bylaws (as they existed at the time of their initial adoption) unless and until the society grows to 150 members.

I quite understand why the society is displeased about this provision, because it seems to have been a very bad idea, but the society is nonetheless stuck with it.

Edited October 7, 2022 at 10:34 PM by Josh Martin

[Alicia Percell, PRP]

Is it particularly burdensome to become a member?  High dues?  Strict eligibility that few can meet?  Limited pool of potential members?  Could each of the current members round up one good friend (okay, that gets to 148, so two people need to get two friends) to do them a favor and join long enough to hit 150 and help you amend the bylaws?

[Guest Ellie O]

On 10/7/2022 at 8:59 PM, Alicia Percell, PRP said:

Is it particularly burdensome to become a member?  High dues?  Strict eligibility that few can meet?  Limited pool of potential members?  Could each of the current members round up one good friend (okay, that gets to 148, so two people need to get two friends) to do them a favor and join long enough to hit 150 and help you amend the bylaws?

It is currently difficult to become a member because our treasurer position has been vacated, which shut down the ability for prospective folks to pay the fee to become a member. And the positon cannot be filled until we have an agreement on the status of the bylaws, which have had multiple changes since the clubs formation, but recent changes were made that were considered outside the scope of administrative changes by some of the members and thus in violation of the 150 member minimum, and then put every change since the club's foundation into question as it turns out "administrative change" has quite a gray area. So first question is to solve what version of the bylaws can be considered legitimate, and then perhaps we could make a push to gain the membership needed to make this amendment.

[Richard Brown]

How difficult would it be for the members to simply abandon this organization and form a new one for the same purpose with a similar name and with more reasonable bylaws?

[Josh Martin]

On 10/8/2022 at 1:43 PM, Guest Ellie O said:

It is currently difficult to become a member because our treasurer position has been vacated, which shut down the ability for prospective folks to pay the fee to become a member. And the positon cannot be filled until we have an agreement on the status of the bylaws, which have had multiple changes since the clubs formation, but recent changes were made that were considered outside the scope of administrative changes by some of the members and thus in violation of the 150 member minimum, and then put every change since the club's foundation into question as it turns out "administrative change" has quite a gray area. So first question is to solve what version of the bylaws can be considered legitimate, and then perhaps we could make a push to gain the membership needed to make this amendment.

While certainly the organization should resolve its bylaws mess as soon as possible, I am unclear on why the Treasurer position cannot be filled until that is completed.

[Alicia Percell, PRP]

I'm similarly curious about why the treasurer vacancy can't be addressed until those other issues are resolved.  Is the process for filling the vacancy one of the things that has been altered as an "administrative" correction?  If the members constructed a list of the bylaw changes they agreed were legitimate administrative changes, and another list of the things which are disputed, what functions of the organization would be impacted by the list of disputed changes?

 

[Guest Ellie O]

On 10/8/2022 at 1:19 PM, Richard Brown said:

How difficult would it be for the members to simply abandon this organization and form a new one for the same purpose with a similar name and with more reasonable bylaws?

Difficult as I understand, in part because it is also a 501(c)3 non-profit and would have to go through that entire process again, as well as re-application to be recognized by our parent organization.

On 10/8/2022 at 2:04 PM, Alicia Percell, PRP said:

I'm similarly curious about why the treasurer vacancy can't be addressed until those other issues are resolved.  Is the process for filling the vacancy one of the things that has been altered as an "administrative" correction?  If the members constructed a list of the bylaw changes they agreed were legitimate administrative changes, and another list of the things which are disputed, what functions of the organization would be impacted by the list of disputed changes?

 

You are correct, the method for filling vacant positions is one of the things that was made under the "administrative change" clause, however, some of the members believe that is actually a substantive change. There are similarly many changes that have come into question on whether they are substantive or administrative that effect the ability of the club to function. We have considered putting every change to vote asking membership whether the change is administrative or not. Question is, if it would be acceptable to follow the 2/3 favorable of a 1/3 membership response, or if we need 100% agreement; or, if this is something that the bylaws give the Board power to decide (which is how they have been operating to make these changes in the first place).

[Alicia Percell, PRP]

This is a good example of why it's not a good idea to write bylaws which are highly subject to interpretation, such as what is the definition of an "administrative" change.  I'm not scolding you, and you likely didn't even write that bylaw.  I say it just so the point will stick in the heads of everyone reading so that in the future when we see vague bylaws being proposed, we'll speak up to propose more precise language instead, and argue that vagueness will cause internal fights later.

I certainly don't think that altering the procedure for how an officer vacancy is filled is administrative.  It is VERY substantive.  Recently on this forum we were hearing from someone in an organization in which the membership had basically lost control of the entity because too much power was given to a board to amend the bylaws to keep themselves in office forever.  What if your board decided that in their judgment every change was "administrative" and they rewrote the bylaws so that only they can amend the bylaws, they elect themselves, and the membership has no say?  Changing details about membership eligibility, how officers are chosen (including vacancies) are some of the most substantive decisions that an organization makes about its bylaws.

What to do about it?  At least in your case there is a bylaw-specified limit on the types of changes your board is allowed to make, so you have a path to resolution.  In a membership meeting, I think that the members should raise a point of order about each alleged administrative change they believe was made improperly because it was really a substantive change that the board is not authorized to make.  See RONR 12th ed. chapters 23 and 24 for details on points of order and how to appeal a chair's ruling.  This is certainly something which meets the exceptions in 23:5 and 23:6 for a point of order to be raised well after the perceived violation has occurred. 

A member should raise a point of order that the board has adopted a substantive change improperly, outside the scope of their authority which is limited to making administrative changes, essentially usurping the powers of the membership for substantive changes.  The chair should issue a ruling on the point of order to say whether the point is well taken or not.  If a member thinks the chair's ruling is incorrect, the ruling can be appealed by the membership, as the question of what is "administrative" is subjective.  The appeal is put to a vote of the membership with the question, "Shall the chair's ruling be sustained?"  A yes vote is to sustain (agree with) the chair's ruling, and a no vote is to overturn (disagree with) the chair's ruling. It takes a majority voting "no" to overturn the chair's ruling.

Because appeals on points of order are resolved with majority votes, and your bylaws require 2/3 votes for amendment, it is kinda dangerous territory to be in the position where the bylaws are vague and need interpretation.  It is tempting for members to cast their votes on these questions based on what they WANT the bylaws to say, rather than voting to interpret what they believe the bylaws DO actually say.  It risks a majority vote being used to "interpret" away a very clear bylaw which would otherwise require a 2/3 vote to amend.

It is very important for an organization to write clear bylaws that minimize the need for subjective interpretation.

[Richard Brown]

Guest Ellie, what are the current amended bylaw provisions re filling vacancies and what were the provisions in the bylaws before the "administrative" amendment?  Please quote both provisions verbatim, don't paraphrase. 

You have told us this organization has been in existence for over ten years.  How much has the membership grown over the years, and especially over the past five years?  Is it steadily growing?  Stagnant?  Is membership actually declining?  How do the membership numbers compare now to three years ago, five years ago, and ten years ago?