Question about Bylaws and retroactive applicability

[dperiod]

Greetings - hoping someone can clarify something for me.

I used to serve on a small board of directors for a non-profit based in Virginia.  I resigned my post almost 3 years ago.  Many of the officers that were on the board at the time have also either resigned or let their terms go, so it is essentially a new board in place.  The bylaws that had been in place at that time were dated 2015.

A little over a year ago, the current board put a number of updates and amendments to their bylaws out for membership ratification.  It was an all-or-nothing vote, and everything passed.  The updated bylaws are as of 2021.  One of the bylaws that was added states that any officer that has resigned would not be eligible to run for reelection for 6 years.  There is no mention of retroactive applicability in the bylaws, nor was there any mention of retroactive applicability in any of the communications or on the ballot when the membership voting took place.  My understanding is that when bylaws have a ratification date, they are applicable from that date moving forward, not automatically retroactive.

I reached out to the board president earlier this year to ask about my eligibility to run again in the future (specifically because of this bylaw) and she told me that I was not eligible to run.  I pointed out that the current bylaws were not in effect at the time that I resigned, nor was there any mention of retroactive applicability in the current bylaws or any of the communications that went out surrounding them.  She responded and said that it was "generally known" that this bylaw was retroactive.

The bylaws state that Robert's Rules of Order shall be the governing authority in a situation of dissention.

Curious what others' thoughts are on this matter. 

Thanks.

[Josh Martin]

On 12/9/2022 at 7:36 AM, dperiod said:

A little over a year ago, the current board put a number of updates and amendments to their bylaws out for membership ratification.  It was an all-or-nothing vote, and everything passed.  The updated bylaws are as of 2021.  One of the bylaws that was added states that any officer that has resigned would not be eligible to run for reelection for 6 years.  There is no mention of retroactive applicability in the bylaws, nor was there any mention of retroactive applicability in any of the communications or on the ballot when the membership voting took place.  My understanding is that when bylaws have a ratification date, they are applicable from that date moving forward, not automatically retroactive.

Your understanding is correct, but there seems to be a disagreement regarding the meaning of the term "retroactive." I see nothing "retroactive" about the rule being applied to persons who have already resigned.

The rule in question is not "retroactive." It prohibits, from the date of adoption, any person who has resigned from running for election for a period of six years. By default, such a provision would be applicable both to persons who had already resigned within the last six years, as well as to persons who resign in the future. Such a rule does not have a delayed effect or a "grandfather clause" for persons who resigned previously - which the society is free to do, but which it has not done. The rule is applicable to all elections occurring after the adoption of the rule. It is not "retroactive" because it does not affect elections which have occurred previously.

RONR is clear that (even although it may not be a good idea), an amendment to the bylaws pertaining to eligibility will even affect persons currently in office, unless the rule provides otherwise. So I see no reason why a rule would not be applicable to persons who previously held office.

"Amendments to the article on officers may raise difficulties in relation to the time at which adopted changes take effect, unless special care is taken. A society can, for example, amend its bylaws so as to affect the emoluments and duties of the officers already elected, or even to abolish an office; and if it is desired that the amendment should not affect officers already elected, a motion so specifying should be adopted before voting on the amendment, or the motion to amend can have added to it the proviso that it shall not affect officers already elected. There is virtually a contract between a society and its officers, and while to some extent action can be taken by either party to modify or even terminate the contract, such action must be taken with reasonable consideration for the other party." RONR (12th ed.) 57:16

So while I agree that the bylaws are effective upon their adoption and are applicable from that date moving forward, I disagree that this means that persons who resigned prior to the adoption of the rule are exempt from it. The rule is applicable to all elections occurring on or after the date the amendment was adopted. The rule does not exempt persons who resigned prior to the adoption of the rule, unless a proviso is adopted stating as much.

Ultimately, of course, it is up to the organization to interpret its own bylaws.

On 12/9/2022 at 7:36 AM, dperiod said:

I reached out to the board president earlier this year to ask about my eligibility to run again in the future (specifically because of this bylaw) and she told me that I was not eligible to run.  I pointed out that the current bylaws were not in effect at the time that I resigned, nor was there any mention of retroactive applicability in the current bylaws or any of the communications that went out surrounding them.  She responded and said that it was "generally known" that this bylaw was retroactive.

I disagree with the President that the rule is "retroactive," as noted above, but this is a matter of semantics. I am in agreement that the rule is applicable to persons who resigned prior to adoption of the rule.

I have no idea whether there was any mention of this in the communications regarding this amendment or whether this was "generally known," but I do not think this makes any difference.

Edited December 9, 2022 at 02:11 PM by Josh Martin

[Atul Kapur]

Perhaps it would be helpful to consider it in a different way: they have added a new  rule regarding who is eligible to stand for election. This new rule is that you cannot have resigned a position in the last 6 years.

It is not retroactive, that is, it does not apply to any election held before the bylaws were amended. However, it applies to any election held afterwards.

In fact, depending on the wording, such amendments can disqualify the person who is currently in the office. Say that the bylaws are amended to add in a term limit. Unless there is a provision that says otherwise, it takes effect immediately and anyone in office at the time who is in excess of the term limit is automatically out of that office. 

Edited December 9, 2022 at 02:56 PM by Atul Kapur

[Richard Brown]

@dperiod, agreeing with my colleagues, RONR is clear that this bylaw provision became effective immediately upon adoption and that it validly prohibits anyone who has resigned within the previous six years from being eligible to run for “reelection”. However, I find it  noteworthy that, according to your post, the reference is to running for “reelection“.  If that is an accurate quote, I think it is a matter of bylaws interpretation as to whether that provision  is a prohibition to running for a new or different office.

The term “reelection“ usually refers to running for election (re-election) to a second or subsequent successive term for the same office.   Did you provide a direct verbatim quote  of the wording of the amendment? If not, please give us a verbatim quote. If there is an ambiguity, it is ultimately up to the members of your organization to interpret the ambiguous bylaw provision. 

I personally would not interpret a prohibition on running for “reelection“ to prohibit running for a different position.  However, my opinion is just that: an opinion from a non-member of your organization.   The only opinion that counts is the opinion of the members of your organization. They have the sole ability to interpret your bylaws, other than going to court.

[Gary Novosielski]

On 12/9/2022 at 8:36 AM, dperiod said:

Greetings - hoping someone can clarify something for me.

I used to serve on a small board of directors for a non-profit based in Virginia.  I resigned my post almost 3 years ago.  Many of the officers that were on the board at the time have also either resigned or let their terms go, so it is essentially a new board in place.  The bylaws that had been in place at that time were dated 2015.

A little over a year ago, the current board put a number of updates and amendments to their bylaws out for membership ratification.  It was an all-or-nothing vote, and everything passed.  The updated bylaws are as of 2021.  One of the bylaws that was added states that any officer that has resigned would not be eligible to run for reelection for 6 years.  There is no mention of retroactive applicability in the bylaws, nor was there any mention of retroactive applicability in any of the communications or on the ballot when the membership voting took place.  My understanding is that when bylaws have a ratification date, they are applicable from that date moving forward, not automatically retroactive.

I reached out to the board president earlier this year to ask about my eligibility to run again in the future (specifically because of this bylaw) and she told me that I was not eligible to run.  I pointed out that the current bylaws were not in effect at the time that I resigned, nor was there any mention of retroactive applicability in the current bylaws or any of the communications that went out surrounding them.  She responded and said that it was "generally known" that this bylaw was retroactive.

The bylaws state that Robert's Rules of Order shall be the governing authority in a situation of dissention.

Curious what others' thoughts are on this matter. 

Thanks.

I agree that there's nothing retroactive about this rule.  It affects who is eligible to run in future elections.   Yes, it uses a qualification that refers to the past, but it has no effect in the past.  If a job application says that a particular job requires a bachelor's degree, you can't be disqualified because your education happened in the past.

The "all or nothing" vote on amending the bylaws was probably improper but that's water over or under the dam or bridge, respectively.

Another potential problem is the language "eligible to run" if that is indeed what the bylaws say.  Inartfully drafted language can create ambiguity over whether a person who is ineligible to run is nevertheless eligible to be elected (say, by write-in vote) or to hold office (say, by being appointed to fill a vacancy).  It is important that bylaws language say exactly what it is intended to mean.

Edited December 9, 2022 at 06:28 PM by Gary Novosielski

[puzzling]

The question is.

When you resigned in ???? did you know that in 2021 you were not eligible for (re?)-election?

I think the simple answer is no  but your president seems to think that you knew. (Crystal bowl anyone?) 

[dperiod]

On 12/9/2022 at 7:05 PM, puzzling said:

The question is.

When you resigned in ???? did you know that in 2021 you were not eligible for (re?)-election?

I think the simple answer is no  but your president seems to think that you knew. (Crystal bowl anyone?) 

I was and would have been eligible to run again at the point that I resigned, and had no idea or reason to think that the bylaws would later be changed to incorporate a bylaw around resignations.

[Gary Novosielski]

Neither did you have any reason to believe they could not be changed.  After all, it's pretty well known that bylaws do get changed.  

And one common reason is for eligibility requirements for office to be amended .  The fact that one was eligible before the change does not guarantee that one will be eligible afterward. 

 

[Richard Brown]

On 12/9/2022 at 6:05 PM, puzzling said:

The question is.

When you resigned in ???? did you know that in 2021 you were not eligible for (re?)-election?

I think the simple answer is no  but your president seems to think that you knew. (Crystal bowl anyone?) 

Puzzling, that is not the issue. What he knew or thought at the time he resigned has nothing to do with the issue of the effect or validity of the bylaw amendment. 

[Alicia Percell, PRP]

Unless the bylaw itself includes some element which hinges on what a person knew and when, then it's not a factor in determining the effect of the bylaw. 

Agreeing with Martin, Brown, Kapur, and Novosielski above, the rule itself has no retroactive effect.  It merely alters who is eligible for future elections.  The membership can do that.

[puzzling]

On 12/10/2022 at 3:08 AM, Richard Brown said:

Puzzling, that is not the issue. What he knew or thought at the time he resigned has nothing to do with the issue of the effect or validity of the bylaw amendment. 

I think legally it is. No judge would let it pass.

But off course the membership can  (by majority) decide to not vote him in because he resigned that many years ago.

[dperiod]

Thank you all for your input.  The consensus here is unanimous in the thought that the 6 year rule would be applicable and in this situation, I would not be grandfathered.  That's what I was trying to understand and you all gave fantastic rationale that helped me better understand this.  Greatly appreciated!

[Joshua Katz]

On 12/10/2022 at 2:40 AM, puzzling said:

I think legally it is. No judge would let it pass.

 

I disagree.

[Richard Brown]

On 12/10/2022 at 7:14 AM, Joshua Katz said:

I disagree.

So do I. Strongly. 

[Josh Martin]

On 12/9/2022 at 6:05 PM, puzzling said:

The question is.

When you resigned in ???? did you know that in 2021 you were not eligible for (re?)-election?

I think the simple answer is no  but your president seems to think that you knew. (Crystal bowl anyone?) 

I am in agreement that there is no way the member could have known when he resigned that the assembly would, in the future, adopt an amendment to the bylaws making him ineligible for election, but this is irrelevant. The rule as written does not exempt persons who resigned adopted prior to the adoption of the rule. The assembly could have adopted a proviso exempting such persons from the rule, and the reasoning you provide here certainly could have been provided in debate as a reason to adopt such a proviso. But the society did not do so.

As a consequence, the rule is applicable to persons who resigned prior to adoption of the rule.

On 12/10/2022 at 2:40 AM, puzzling said:

I think legally it is. No judge would let it pass.

I have no idea whether it is correct that the laws of the state of Virginia applying to non-profit organizations do in fact provide that a rule of this nature is invalid, but that is beyond the scope of RONR and this forum and is a question which should be directed to an attorney if the OP wishes to pursue that.

On 12/10/2022 at 4:57 AM, dperiod said:

Thank you all for your input.  The consensus here is unanimous in the thought that the 6 year rule would be applicable and in this situation, I would not be grandfathered.  That's what I was trying to understand and you all gave fantastic rationale that helped me better understand this.  Greatly appreciated!

Well, it's technically not quite unanimous. Puzzling appears to think that it is invalid, allegedly due to legal reasons rather than something in RONR. But we don't discuss legal issues here, so you should consult an attorney if you wish to pursue that route.

[Gary Novosielski]

On 12/10/2022 at 3:40 AM, puzzling said:

I think legally it is. No judge would let it pass.

Continue thinking until that is no longer the case.