2/3 vote requiring a majority of those present

[smb]

This may look like a legal question, but I am just looking for some scrivening advice....

A non-profit association's bylaws require a 2/3 vote [present and voting] to take certain actions. The state's non-profit code states "the bylaws may not provide for a lesser vote than a majority of the directors present."  If there are a significant number of abstentions, a 2/3 affirmative vote may be less than a majority of those present.  E.g. with 50 present a majority of those present id 26.  A vote of 17-8 meets the 2/3 threshold but is insufficient to comply with the statute.   Similarly, a vote of 26-24 meets the statutory requirement, but is less than 2/3 required by the bylaws. They want to change the language to avoid these anomalies.   One suggestion is: "...requires approval by 2/3 of those present and voting, provided the number of affirmative votes is at least a majority of members present."    This works, but it seems awkward and could be confusing without including examples an as outlined above.  

Does anyone have any suggestions for better phrasing?

Thanks

[Josh Martin]

On 9/20/2023 at 12:43 AM, smb said:

This may look like a legal question, but I am just looking for some scrivening advice....

A non-profit association's bylaws require a 2/3 vote [present and voting] to take certain actions. The state's non-profit code states "the bylaws may not provide for a lesser vote than a majority of the directors present."  If there are a significant number of abstentions, a 2/3 affirmative vote may be less than a majority of those present.  E.g. with 50 present a majority of those present id 26.  A vote of 17-8 meets the 2/3 threshold but is insufficient to comply with the statute.   Similarly, a vote of 26-24 meets the statutory requirement, but is less than 2/3 required by the bylaws. They want to change the language to avoid these anomalies.   One suggestion is: "...requires approval by 2/3 of those present and voting, provided the number of affirmative votes is at least a majority of members present."    This works, but it seems awkward and could be confusing without including examples an as outlined above.  

Does anyone have any suggestions for better phrasing?

I think the wording you have proposed is reasonable. I have only minor suggestions for improvement. I would suggest the following wording:

"...requires approval by 2/3 of the members present and voting, provided that the number of affirmative votes is at least a majority of the members present."

Another potential wording might be:

"...requires approval by 2/3 of the members present and voting, or an affirmative vote of a majority of the members present, whichever is greater."

In either case, I think you are correct that this will be "awkward and could be confusing without including examples an as outlined above." I do not think it would be desirable, however, to include further explanation in the rule itself. Rather, I would propose a separate one-page explanatory document which explains in more detail why these unusual provisions exist (because of the state code), and then provide illustrative examples of how, in some unusual circumstances, a vote of a majority of the members present can be more than a 2/3 vote.

Edited September 20, 2023 at 02:31 PM by Josh Martin

[Atul Kapur]

On 9/20/2023 at 1:43 AM, smb said:

"... requires approval by 2/3 of those present and voting, provided the number of affirmative votes is at least a majority of members present."

I prefer this wording, with the deletion indicated ("majority" means "more than half" so at least is superfluous). It's clear and unambiguous and the calculations of the two criteria are easy to do. An explanatory page with examples may be helpful, but does not belong in the bylaws themselves.

I prefer this language to @Josh Martin's because I foresee people not understanding how to determine which of the two is "greater" than the other, particularly because one is a ratio and the other is an absolute number (I recognize that the ratio produces an absolute number, but I can easily see people getting confused).

[Dan Honemann]

On 9/20/2023 at 1:43 AM, smb said:

One suggestion is: "...requires approval by 2/3 of those present and voting, provided the number of affirmative votes is at least a majority of members present."

 

On 9/20/2023 at 3:28 PM, Atul Kapur said:

I prefer this wording, with the deletion indicated ("majority" means "more than half" so at least is superfluous). It's clear and unambiguous and the calculations of the two criteria are easy to do.

So does this mean that if the number of affirmative votes is less than a majority of members present a two-thirds vote is not required?

[Atul Kapur]

On 9/20/2023 at 7:06 PM, Dan Honemann said:

So does this mean that if the number of affirmative votes is less than a majority of members present a two-thirds vote is not required?

I don't read it that way, but rather that it means that both conditions must be met. 

Approval requires Condition 1, provided that Condition 2 is also met.

[Dan Honemann]

On 9/20/2023 at 7:54 PM, Atul Kapur said:

Approval requires Condition 1, provided that Condition 2 is also met.

But it doesn't say "provided that Condition 2 is also met." It says "provided that Condition 2 is met."

[Atul Kapur]

On 9/20/2023 at 8:01 PM, Dan Honemann said:

But it doesn't say "provided that Condition 2 is also met." It says "provided that Condition 2 is met."

I'll give you that (I read "provided" as incorporating the concept of 'also' but won't claim that is the only correct interpretation).

If we strike out "provided" and insert in the same place, "as long as", would that work?

On 9/20/2023 at 1:43 AM, smb said:

"...requires approval by 2/3 of those present and voting, provided as long as the number of affirmative votes is at least a majority of members present."

 

[smb]

Yes, it's both.  I agree with Mssr. Atul that 'provided' includes the concept of 'also', but have no problem with his alternate language.

Thanks to all.

 

[Dan Honemann]

 

 

On 9/20/2023 at 8:29 PM, Atul Kapur said:

I'll give you that (I read "provided" as incorporating the concept of 'also' but won't claim that is the only correct interpretation).

If we strike out "provided" and insert in the same place, "as long as", would that work?

 

This is better, but not by much.

As I understand it, these bylaws require a two-thirds vote for the adoption of certain motions.  It's not easy to draft something without noting the context in which it will be placed, but I suspect that what is needed is something such as "Adoption of such a motion requires a vote which is both a two-thirds vote and the vote of a majority of the directors present."

[puzzling]

My two cents 

Adoption of such a motion requires a vote of the majority of the directors present and has at least twice the number of votes in favour of adaption than the number of votes against adoption.

(Name the majority of nembers present first , and give the full definition of a 2/3 vote, so no need to go looking for it)

 

[Dan Honemann]

On 9/22/2023 at 9:15 PM, puzzling said:

My two cents 

Adoption of such a motion requires a vote of the majority of the directors present and has at least twice the number of votes in favour of adaption than the number of votes against adoption.

(Name the majority of nembers present first , and give the full definition of a 2/3 vote, so no need to go looking for it)

 

I don't find this to be an improvement over what I suggested.

[puzzling]

On 9/23/2023 at 1:22 PM, Dan Honemann said:

I don't find this to be an improvement over what I suggested.

In my version you don't need to look into RONR what a two/third vote is, all is right in front of your nose.

(Mislaid my copy of RONR , feared that my description of 2/3 vote differed from the RONR one)

[Weldon Merritt]

On 9/24/2023 at 8:21 AM, puzzling said:

In my version you don't need to look into RONR what a two/third vote is, all is right in front of your nose.

True. But if you do that for everything in the bylaws that depends on a term in RONR, you are likely to have very long bylaws. And there is always the danger that you will not get if quite right. I prefer to educate members on what RONR terms mean.

[puzzling]

On 9/24/2023 at 5:11 PM, Weldon Merritt said:

True. But if you do that for everything in the bylaws that depends on a term in RONR, you are likely to have very long bylaws. And there is always the danger that you will not get if quite right. I prefer to educate members on what RONR terms mean.

I would  not do that for everything in the bylaws, but for situations as in this case where a rule gets complex and not one item in RONR covers the whole lot,  direct descriptions are good. (notice that in my suggestion it is not even called a 2/3 vote, but i agree i am still not sure if it is exactly as RONR defines it.)

And off course educating members on what RONRvterms mean is a good thing.