Changing the Scope of Notice

[Guest Tom]

It's in the bylaws that Members may attend and comment at meetings of the board.

The agenda is posted 7 days prior to the board meeting with the motions and amendments to the bylaws stated.

Question: During the debate process to approve a bylaw amendment, can a director amend the amendment exceeding the scope of notice?

Example: The motion to be made is to amend the bylaw and reduce the current quorum at the annual Membership meeting from 1250 down to 500. 

Question: Because the Members are allowed to comment on the posted motions would a change to the amendment to increase the 500 to 800 be exceeding the scope of notice,

or, because it is a meeting of the board, and if all the directors were in attendance, all the directors would be considered having received proper previous notice?  

If any directors were absent, then I would assume it would be a violation of exceeding the scope of notice, but if they were all there then no harm, no foul?

[Gary Novosielski]

If the previous notice stated an intent to lower the quorum from 1200 to 500, then 800 is well within those extremes.  It would not exceed the scope of the notice at all.  Whether non-board-members are allowed to comment or not has no effect on what is in order or not.

What's striking, from the point of view of RONR is the board having the power to amend the bylaws in the first place.  Do your bylaws really grant the board that extraordinary power?

 

[Tomm]

Actually the Articles of Incorporation allow for both the board and the Members to amend them. In case of a conflict the Members shall prevail.

I was kinda under the understanding that each motion is a single, stand alone, event and what may already established doesn't affect the content of what's attempting to be voted on?

[Gary Novosielski]

On 5/22/2023 at 9:54 PM, Tomm said:

Actually the Articles of Incorporation allow for both the board and the Members to amend them. In case of a conflict the Members shall prevail.

I was kinda under the understanding that each motion is a single, stand alone, event and what may already established doesn't affect the content of what's attempting to be voted on?

I don't know what you mean by the second sentence, or how it would affect the scope of notice.

From everything you've said, the scope of notice is not exceeded at any point.

[Tomm]

I get it that the 500 is less than the current 1250 but the motion is only for 500. Perhaps some members may agree with the 500 and decide not to attend the meeting, but if the amendment suddenly changed to 800 they may have objected and would want to attend the meeting to debate against the 800.

In my mind the scope is what's specified in the motion and the immediate issue of concern and not what the current bylaw may already have established.

[Gary Novosielski]

On 5/22/2023 at 10:31 PM, Tomm said:

I get it that the 500 is less than the current 1250 but the motion is only for 500. Perhaps some members may agree with the 500 and decide not to attend the meeting, but if the amendment suddenly changed to 800 they may have objected and would want to attend the meeting to debate against the 800.

In my mind the scope is what's specified in the motion and the immediate issue of concern and not what the current bylaw may already have established.

In 35:2(6) we find: 

When these motions require previous notice (as may be the case with respect to a motion to rescind or amend a provision of the bylaws or a special rule of order), such a motion cannot be amended so as to make the proposed change greater than that for which notice has been given.

So it does matter what the current bylaws says, because that's the reference point by which the amount of change is measured.  The proposed amendment seeks to reduce it from 1250 to 500, a reduction of 750.  So the scope of the notice is a reduction of not more than 750 people.  That is the change for which notice has been given.

A reduction to 850 is a smaller change than reducing it to 500, and therefore remains within the scope of the previous notice.  An amendment to reduce it below 500, or to increase it above 1250 would exceed the scope of notice.

 

 

[Atul Kapur]

On 5/22/2023 at 10:31 PM, Tomm said:

Perhaps some members may agree with the 500 and decide not to attend the meeting, but if the amendment suddenly changed to 800 they may have objected and would want to attend the meeting to debate against the 800.

Then they should have attended the meeting. 

On 5/22/2023 at 10:31 PM, Tomm said:

In my mind the scope is what's specified in the motion and the immediate issue of concern and not what the current bylaw may already have established.

To put @Gary Novosielski's reply in other words: the boundaries for scope of notice are 

A - the current status (1250), and

B - the proposal (500).

It is reasonable to anticipate that the outcome of the meeting will be between (and including) those two boundaries.

It is not reasonable to anticipate that the motion will not be amended at all so that the only possible outcomes are either of the two boundaries.

[Josh Martin]

On 5/22/2023 at 6:31 PM, Guest Tom said:

Question: During the debate process to approve a bylaw amendment, can a director amend the amendment exceeding the scope of notice?

It's not possible to conclusively answer this question without knowing what the bylaws say concerning their amendment.

If the bylaws require previous notice for their amendment but provide an exception (perhaps permitting an amendment to be adopted without notice with a higher voting threshold), then an amendment which exceeds the scope of notice is in order, but adopting such an amendment will cause the situation to be the same as if no notice had been given for the bylaw amendment, and the higher threshold will be required for adoption. The chair should make this clear if such an amendment is made.

On the other hand, if the bylaws require previous notice for their amendment, period, then an amendment which exceeds the scope of notice is not in order. The same applies if the bylaws do permit an exception, but as a practical matter it is impossible to meet the higher voting threshold specified in the exception. (For example, if the higher voting threshold is a majority of the entire membership, and fewer members than that are present.)

As you note, it is also correct that the rules concerning this matter may be suspended in the event the entire membership is present. The rules concerning previous notice are intended for the protection of absentees, and if everyone is present, there are no absentees to protect.

There is also the question of whether the bylaws authorize the board to amend the bylaws at all, or whether that power is reserved for the membership. (It appears that the board does have this power.)

On 5/22/2023 at 6:31 PM, Guest Tom said:

Example: The motion to be made is to amend the bylaw and reduce the current quorum at the annual Membership meeting from 1250 down to 500. 

Question: Because the Members are allowed to comment on the posted motions would a change to the amendment to increase the 500 to 800 be exceeding the scope of notice, or, because it is a meeting of the board, and if all the directors were in attendance, all the directors would be considered having received proper previous notice?  

If any directors were absent, then I would assume it would be a violation of exceeding the scope of notice, but if they were all there then no harm, no foul?

This isn't a very good example, because this is actually within the scope of notice.

The bounds on the "scope of notice" are a.) the status quo and b.) what is proposed in the amendment. Those are the goalposts, and something which is in between those two is acceptable. So in the present circumstances, where the proposed motion is to reduce the quorum from the annual membership meeting from 1,250 to 500, an amendment to strike "500" and insert "800" is within the scope of notice, because it is a lesser change than what is proposed by the original amendment.

If an amendment were instead proposed to increase the quorum requirement, or to decrease it below 500, that would be an example of an amendment which exceeded the scope of the notice.

As noted above, the rules concerning this matter may be suspended in the event all members are present, although I wouldn't quite describe this as the directors "having received proper notice."

Edited May 23, 2023 at 01:09 PM by Josh Martin

[Shmuel Gerber]

On 5/23/2023 at 8:54 AM, Atul Kapur said:

On 5/22/2023 at 10:31 PM, Tomm said:

Perhaps some members may agree with the 500 and decide not to attend the meeting, but if the amendment suddenly changed to 800 they may have objected and would want to attend the meeting to debate against the 800.

Expand  

Then they should have attended the meeting. 

That's true under the rules in RONR. But I can see why it may not be self-evident in all cases.

For example, suppose the annual dues are currently $100 and notice is given of a motion to amend the amount to $10, with the rationale that the organization should charge only minimal dues to broaden the membership and should raise the needed funds by other means. There may be many members who are perfectly OK with adopting such an amendment, but would be adamantly opposed to reducing the dues to $90, which would neither encourage much new membership nor provide the funds needed to run the organization. If such members think that this amendment exceeds the scope of notice, they would be wrong but not illogical. 

[Gary Novosielski]

On 5/23/2023 at 5:56 PM, Shmuel Gerber said:

If such members think that this amendment exceeds the scope of notice, they would be wrong but not illogical. 

They would be wrong though.  Although their opposition to some intermediate value might be logical, it will avail them not if they choose to claim such an amendment was improper.  

The concept of scope of notice is often framed in terms of what might motivate a member to attend, but that's not the whole rule.  In this case those members, presumably having informed themselves on the scope of the notice should realize that to promote their view it will be necessary for them to attend, as they cannot rely on the scope to protect them from changes that, though they find them undesirable, are nevertheless more moderate changes than the notice called for.