Can the Board of Directors override a General Membership survey in a California non-profit Social Club if the bylaws don't address it?

[Guest Bruce]

Can the Board of Directors override a General Membership survey in a California non-profit Social Club if the bylaws don't address it?

[Gary Novosielski]

No. In the usual case (where the board is subordinate to the membership of the society), no action can be taken by the board which would conflict with any action taken by the assembly of the society.

But it is not clear to me that a "survey" qualifies as an "action taken by the assembly".  Action is usually understood to mean a motion adopted by the membership at a regular or properly called meeting of the membership, at which a quorum was present.  If the board just decided to survey the membership to discover their opinions, and then went off and did the opposite, they're not in conflict with an "action" of the assembly, because giving your opinion on a survey is not the same as taking action by means of a formal motion.

So if you give a more complete description of what's going on in your club, we might be able to give a better response.

But,  again in the usual case, the board sometimes needs reminding that the membership is the superior body and the board is the subordinate body, which is elected by the membership, and gets its powers from the membership, as reflected in the bylaws.  For example, the membership can override an action of the board by moving to Amend Something Previously Adopted.  [RONR (12th ed.) §35]   It can also instruct the board to take certain actions, and the board is obliged to comply. Officers and Directors who assume powers not present in the bylaws can be subject to discipline or removal.

Edited August 19, 2023 at 12:27 AM by Gary Novosielski

[Rob Elsman]

I'm not sure I understand what is meant by "survey". Before a correct answer can be attempted, more information about the nature of the "survey" and where it was taken would be needed.

[Guest BOD override Member Survey]

Being an all-volunteer sailing club, finding willing members for many various unpaid club roles is challenging. The Board of Directors has decided to cap membership due to concerns. Expanding membership could raise dues, require hiring outside help, and strain current volunteers overseeing them. Past membership increases led to purchasing more boats. We cap members per boat, determining the total number of members. The BOD voted for 2 new boats, adding 36 members—our maximum limit before considering outside help.

The Board of Directors represents the members and is thinking about surveying the membership to see if they would like the club to buy more boats and add more people or cap the membership.  We feel that the membership will probably want to not cap the membership and continue to buy more and more boats which will bring much more working responsibility, obtaining boat slips, etc., and cause the dues to be raised.

[Rob Elsman]

I rather doubt the board has authority in these matters, but I could be wrong. To me, it seems more likely that the general membership assembly is the proper body, perhaps using a committee of the general membership assembly to prepare, administer, and compile a survey for the benefit of the general membership assembly.

[Gary Novosielski]

On 8/19/2023 at 1:41 PM, Guest BOD override Member Survey said:

Being an all-volunteer sailing club, finding willing members for many various unpaid club roles is challenging. The Board of Directors has decided to cap membership due to concerns. Expanding membership could raise dues, require hiring outside help, and strain current volunteers overseeing them. Past membership increases led to purchasing more boats. We cap members per boat, determining the total number of members. The BOD voted for 2 new boats, adding 36 members—our maximum limit before considering outside help.

The Board of Directors represents the members and is thinking about surveying the membership to see if they would like the club to buy more boats and add more people or cap the membership.  We feel that the membership will probably want to not cap the membership and continue to buy more and more boats which will bring much more working responsibility, obtaining boat slips, etc., and cause the dues to be raised.

The board has only those powers granted to it in the bylaws.  Are any of these actions authorized, or implied in the bylaws?

[Josh Martin]

On 8/19/2023 at 12:41 PM, Guest BOD override Member Survey said:

Being an all-volunteer sailing club, finding willing members for many various unpaid club roles is challenging. The Board of Directors has decided to cap membership due to concerns. Expanding membership could raise dues, require hiring outside help, and strain current volunteers overseeing them. Past membership increases led to purchasing more boats. We cap members per boat, determining the total number of members. The BOD voted for 2 new boats, adding 36 members—our maximum limit before considering outside help.

The Board of Directors represents the members and is thinking about surveying the membership to see if they would like the club to buy more boats and add more people or cap the membership.  We feel that the membership will probably want to not cap the membership and continue to buy more and more boats which will bring much more working responsibility, obtaining boat slips, etc., and cause the dues to be raised.

I think there is some question about whether the board has the authority to impose a cap on membership to begin with, which is something you will need to review the organization's bylaws to determine. It seems to me the board does not have this authority unless the bylaws so provide.

Assuming for the sake of argument, however, that the board has the authority to take these actions, the board is free to conduct a survey of the membership regarding its opinions on this matter. As described, this seems to be in the nature of an informal survey rather than a formal vote of the membership. As a result, it seems to me nothing would prevent the board from acting contrary to the opinions expressed in the survey.

Edited August 19, 2023 at 09:31 PM by Josh Martin

[Guest Bruce]

Unfortunately, the Bylaws and Standing Rules, crafted 55 years ago when membership was minimal, did not anticipate the current scenario of almost 600 members. I recall reading that if an issue isn't covered in the BL or SR, the BOD, acting on behalf of the membership and the greater good, could be subject to a vote for removal by the Members.

[Guest Bruce]

"could be subject to a vote for removal by the Members."

If the BOD enforces a cap on Membership after the addition of 2 more boats (36 new members), and if the Membership disagrees with this decision, they could potentially vote to remove the BOD at the end of the annual one-year term.

[Gary Novosielski]

They could also meet beforehand and instruct the board not to cap the membership.  Then the board would be unable act in conflict with an action of the membership.  Or if the board passes it first, the membership can reverse the board's decision as noted above.  The best way to "remove" the BOD at the end of the term is to find people to run against them.

 

[Gary Novosielski]

On 8/19/2023 at 5:39 PM, Guest Bruce said:

I recall reading that if an issue isn't covered in the BL or SR, the BOD, acting on behalf of the membership and the greater good, could be subject to a vote for removal by the Members.

I would check to see that you read that correctly.  If an issue isn't covered by the bylaws, or whatever SR is (Special Rules?), then the rules in the Parliamentary Authority (presumably RONR) would apply before the board starts doing whatever it can possibly rationalize.

If it doesn't say that, you might start thinking about a bit of sprucing up of the bylaws.  Fifty-five years is not an eternity where parliamentary procedure is concerned, but there could be some termites in there.

Edited August 20, 2023 at 04:26 PM by Gary Novosielski
Add comma.

[Josh Martin]

On 8/19/2023 at 4:39 PM, Guest Bruce said:

Unfortunately, the Bylaws and Standing Rules, crafted 55 years ago when membership was minimal, did not anticipate the current scenario of almost 600 members.

While I can't say for certain without seeing the exact provisions in the bylaws concerning the authority of the board and admitting new members, I am increasingly skeptical that the board has the authority to impose a cap on membership.

On 8/19/2023 at 4:39 PM, Guest Bruce said:

I recall reading that if an issue isn't covered in the BL or SR, the BOD, acting on behalf of the membership and the greater good, could be subject to a vote for removal by the Members.

On 8/19/2023 at 4:54 PM, Guest Bruce said:

If the BOD enforces a cap on Membership after the addition of 2 more boats (36 new members), and if the Membership disagrees with this decision, they could potentially vote to remove the BOD at the end of the annual one-year term.

Well, there's two problems with this theory.

For starters, the amount of authority granted to a Board of Directors varies from society to society and the scope of the board's authority is defined in the bylaws.

"A society has no executive board, nor can its officers act as a board, except as the bylaws may provide; and when so established, the board has only such power as is delegated to it by the bylaws or by vote of the society's assembly referring individual matters to it.

The amount of regular power delegated to an executive board under the bylaws varies considerably from one organization to another. If the society as a whole usually meets less often than within quarterly time intervals (9:7), or if its main purpose is other than to transact business, the entire administrative authority of the society is best left to the board between the society's meetings. Usually in organizations meeting monthly or oftener, and sometimes in those meeting quarterly, the board is not given so much power, since the society can attend to much of its business at its regular meetings. (For appropriate wordings for the governing provision in the bylaws in each of these two cases, see 56:43, 56:64(2).)

In any event, no action of the board can alter or conflict with any decision made by the assembly of the society, and any such action of the board is null and void (see 56:41 and 23:9). Except in matters placed by the bylaws exclusively under the control of the board, the society's assembly can give the board instructions which it must carry out, and can rescind or amend any action of the board if it is not too late (see 35). It should be noted, however, that exactly the opposite condition prevails in connection with boards of business corporations, in which the board has exclusive power and authority to operate the business." RONR (12th ed.) 49:5-7

Some boards have broad authority to take action on behalf of the membership, and are barred from taking action only if: 1) the action conflicts with the bylaws or other rules, 2) the bylaws specifically reserve particular matters for the membership, or 3) the action conflicts with a motion or instruction adopted by the membership. Some boards have less authority than that.

My response previously, that the board would not be bound by the survey, is based on my understanding that this is an informal survey of the membership. If the membership actually took a vote on this matter at a meeting of the membership (or outside of a meeting, if so authorized in the bylaws), the board would be bound by that decision, unless the bylaws or applicable law provide otherwise.

Conceivably, I suppose a society could grant a society board even more authority and eliminate #3 from the list above, and then the membership's only recourse in the event it disagrees with the board would be to amend the organization's rules or remove board members, as you suggest, but RONR does not envision most boards being granted such authority. To the extent this is correct for your society, I would note that there are also provisions in RONR (and possibly in your bylaws) for removing board members before the end of their term.

The other problem with this theory is that I expect this issue is covered in the bylaws. While the bylaws may not address a cap specifically, the bylaws presumably have rules concerning how new members are admitted. The board has no authority to impose additional limitations on admitting members unless the bylaws so provide. Therefore, the board would generally not have the authority to impose a cap on membership, because such a cap would conflict with the bylaws.

Again, however, I cannot definitely answer this question since I have not seen the relevant provisions of your organization's bylaws. It is conceivable the rules pertaining to admission of new members are written in such a manner that they would permit a cap, or that the board could "informally" enforce a cap. For example, if the bylaws require the board to approve the admission of new members, the board could effectively impose a cap by rejecting any new applications when the cap had been reached.

Edited August 20, 2023 at 10:45 PM by Josh Martin

[Gary Novosielski]

n/a

Edited August 21, 2023 at 12:58 AM by Gary Novosielski
Because delete is not a thing.

[Josh Martin]

On 8/20/2023 at 11:29 AM, Gary Novosielski said:

I think you mean "could grant a board"

Yes, that's correct.