How to place matters exclusively under the control of Board in bylaws

[Guest Linda Kindseth]

What sort of language in the bylaws gives the board exclusive control?  Does the use of the word "shall" carry the day by clearly doing so?

At a recent meeting our organization agreed to gift some unused real estate to another nonprofit once 4 conditions were met.    Then the meeting got interesting.  Rather than having our Trustees ensure that the conditions were fulfilled before transferring the property, the membership voted affirmatively to appoint an ad hoc committee to ensure that the conditions were met.  This was a rather close decision and it appears that many members were concerned that the Trustees had been taking an adversarial position against this other non-profit and so preferred  a different group to interact with the other nonprofit.

During debate and afterwards, several of the Trustees objected that this motion is illegal, null and void.  They allege that it conflicts with the bylaws; in particular with this article in the bylaws:

 The Board of Trustees shall manage and dispose of the affairs and property of the corporation under and subject to the direction of the [organization] so far as such directions shall be lawful, with the exception that the [organization] delegates authority to the Board of Trustees to approve routine requests incidental to maintenance and management of real property, but which authority excludes any requests relating to purchase or disposition of real property. 

As the chair of the organization I felt that the bylaw language is ambiguous at best that the Trustees have exclusive control and as such is best interpreted by the organization.  Past practice has shown multiple times when other groups in the organization were given limited management responsibilities for particular properties. The complaining Trustees insist that this is a continuing breach because of the use of "shall" in the above article, hence in their view the language is "clear" and the organization "even by unanimous vote, cannot change [the] meaning" RONR (12th ed.) 56:68 1).  

So I guess we are arguing over whether something is clear or not.  I'd like to put the interpretation to vote but the Trustee party says that vote would  also violate RONR which is our parliamentary authority.  is there room for the organization to interpret the bylaws here?

[Joshua Katz]

On 11/14/2023 at 11:00 PM, Guest Linda Kindseth said:

s there room for the organization to interpret the bylaws here?

Of course there is. The fact that you're not allowed to violate the bylaws does not, as this board suggests, mean that you have to accept their interpretation.

On 11/14/2023 at 11:00 PM, Guest Linda Kindseth said:

with the exception that the [organization] delegates authority to the Board of Trustees to approve routine requests incidental to maintenance and management of real property, but which authority excludes any requests relating to purchase or disposition of real property

I don't see how handling the details of a disposition of property is supposed to be approving routine requests dealing with maintenance. I think it's rather clear the board lacks exclusive authority here, certainly not clear that it has it.

[Josh Martin]

On 11/14/2023 at 10:00 PM, Guest Linda Kindseth said:

What sort of language in the bylaws gives the board exclusive control?

There's not necessarily "magic words" in this regard. Just make the wording as clear as possible. Use of the word "exclusive" would probably help.

On 11/14/2023 at 10:00 PM, Guest Linda Kindseth said:

Does the use of the word "shall" carry the day by clearly doing so?

I am generally doubtful that simply using the word "shall," in and of itself, would transform an authority of the board into an exclusive authority.

On 11/14/2023 at 10:00 PM, Guest Linda Kindseth said:

 The Board of Trustees shall manage and dispose of the affairs and property of the corporation under and subject to the direction of the [organization] so far as such directions shall be lawful, with the exception that the [organization] delegates authority to the Board of Trustees to approve routine requests incidental to maintenance and management of real property, but which authority excludes any requests relating to purchase or disposition of real property. 

As the chair of the organization I felt that the bylaw language is ambiguous at best that the Trustees have exclusive control and as such is best interpreted by the organization.  Past practice has shown multiple times when other groups in the organization were given limited management responsibilities for particular properties. The complaining Trustees insist that this is a continuing breach because of the use of "shall" in the above article, hence in their view the language is "clear" and the organization "even by unanimous vote, cannot change [the] meaning" RONR (12th ed.) 56:68 1).  

So I think there are two different things going on here.

The question you originally asked was whether this clause grants the board "exclusive" authority. The meaning of "exclusive authority" in RONR is that no one - not even the membership - can override the board's decision in a particular area. I certainly do not think this rule grants the board "exclusive authority" in that sense, as the rule clearly provides that the board has this authority "under and subject to the direction of the [organization]."

"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.) 49:7

The question which is actually being asked here is slightly different, and is whether the membership can authorize a committee to carry out duties that the bylaws assign to the board. I think the board has a stronger argument on that point. If the bylaws provide that the board carries out a certain duty, it seems to me that, generally, the bylaws mean what they say. While the membership (the superior body) may override the board in a particular case, the membership may not assign such duties to a committee instead. I don't think the use of the word "shall" has much to do with it. So I am inclined to agree with the board that the membership's proposed action in this matter conflicts with the bylaws.

An alternative might be to appoint a committee to advise the membership on this matter and provide a "second opinion," and then, ultimately, the membership will make a determination on whether to override the board's decision.

With that said, however, I do not concur with the board that the meaning of this rule is so clear that there cannot possibly be another reasonable interpretation of the rule. I think there is room for interpretation of this rule, and that interpretation ultimately rests with the membership. (And in any event, the membership ultimately makes that determination.)

On 11/14/2023 at 10:00 PM, Guest Linda Kindseth said:

So I guess we are arguing over whether something is clear or not.  I'd like to put the interpretation to vote but the Trustee party says that vote would  also violate RONR which is our parliamentary authority.  is there room for the organization to interpret the bylaws here?

I believe there is room for the organization to interpret this matter. If a member raises a Point of Order that the motion is null and void on the grounds that it conflicts with the bylaws, you would rule on this point, and that ruling may be appealed from. Ultimately, the membership will decide.

On 11/15/2023 at 5:40 AM, Joshua Katz said:

I don't see how handling the details of a disposition of property is supposed to be approving routine requests dealing with maintenance. I think it's rather clear the board lacks exclusive authority here, certainly not clear that it has it.

I agree that it's certainly clear that the board lacks exclusive authority here. But I'm not actually sure that's the board's argument.

[Gary Novosielski]

On 11/14/2023 at 11:00 PM, Guest Linda Kindseth said:

What sort of language in the bylaws gives the board exclusive control?  Does the use of the word "shall" carry the day by clearly doing so?

At a recent meeting our organization agreed to gift some unused real estate to another nonprofit once 4 conditions were met.    Then the meeting got interesting.  Rather than having our Trustees ensure that the conditions were fulfilled before transferring the property, the membership voted affirmatively to appoint an ad hoc committee to ensure that the conditions were met.  This was a rather close decision and it appears that many members were concerned that the Trustees had been taking an adversarial position against this other non-profit and so preferred  a different group to interact with the other nonprofit.

During debate and afterwards, several of the Trustees objected that this motion is illegal, null and void.  They allege that it conflicts with the bylaws; in particular with this article in the bylaws:

 The Board of Trustees shall manage and dispose of the affairs and property of the corporation under and subject to the direction of the [organization] so far as such directions shall be lawful, with the exception that the [organization] delegates authority to the Board of Trustees to approve routine requests incidental to maintenance and management of real property, but which authority excludes any requests relating to purchase or disposition of real property. 

As the chair of the organization I felt that the bylaw language is ambiguous at best that the Trustees have exclusive control and as such is best interpreted by the organization.  Past practice has shown multiple times when other groups in the organization were given limited management responsibilities for particular properties. The complaining Trustees insist that this is a continuing breach because of the use of "shall" in the above article, hence in their view the language is "clear" and the organization "even by unanimous vote, cannot change [the] meaning" RONR (12th ed.) 56:68 1).  

So I guess we are arguing over whether something is clear or not.  I'd like to put the interpretation  to vote but the Trustee party says that vote would  also violate RONR which is our parliamentary authority.  is there room for the organization to interpret the bylaws here?

I concur that this language indicates that this board does not have exclusive power over anything, and that in particular any authority  regarding disposition of real property is specifically excluded. 

So the claims of this trustee, in my opinion, exist in the realm of fantasy.  Paying attention to the highlighted text above, the board is clearly subject to the direction of, and therefore subordinate to, the membership. So the membership is free to establish committees to study the matter and provide recommendations to the membership--in short, to handle this matter as it sees fit.

Even those routine matters which are delegated to the board do not indicate to me any hint that this should be an exclusive power, but rather a sharing of authority.  And read as a whole, the language indicates to me that it is the membership, and not the board, that has exclusive authority over the disposition or acquisition of real property.

The word shall indicates only the imperative nature of a rule that must be carried out, but does not imbue it with any sense of increased or decreased exclusivity compared to purely permissive rule.

But as I am not a member, my opinions qualify as "free advice" and are therefore worth every penny.

[Guest Linda Kindseth]

Thank you all. This is helpful, particularly teasing out the way that the interpretation of the bylaws by the members could go in more than a simple "yes" or "no" direction.

[Gary Novosielski]

On 11/15/2023 at 11:03 AM, Guest Linda Kindseth said:

Thank you all. This is helpful, particularly teasing out the way that the interpretation of the bylaws by the members could go in more than a simple "yes" or "no" direction.

Perhaps, but those are the only two ways they can vote.

[Guest Shea McNally]

I'm mystified as to how anyone can say that the bylaws are not CLEAR that the Board of Trustees manage the property either before or after a sale.  Read them again:

Quote

The Board of Trustees shall manage and dispose of the affairs and property of the corporation under and subject to the direction of the [organization] so far as such directions shall be lawful, with the exception that the [organization] delegates authority to the Board of Trustees to approve routine requests incidental to maintenance and management of real property, but which authority excludes any requests relating to purchase or disposition of real property. 

 

If that isn't clear, I don't know what is.  The bylaws give to the Trustees the responsibility to manage property , therefore the motion to assign this to another committee was out of order, as managing a Property for the organization, after a sale was approved, is still managing the property.  

 

[Richard Brown]

On 11/15/2023 at 11:17 PM, Guest Shea McNally said:

I'm mystified as to how anyone can say that the bylaws are not CLEAR that the Board of Trustees manage the property either before or after a sale. 

We say it primarily because the bylaws go on to say that the authority granted to the board is “subject to the direction of (the organization)“. That means that the board does not have the sole or exclusive authority over the affairs or property of the organization and It is subject to the directions and control of the membership of the organization.  In addition, the bylaws do not say or indicate that the board has the sole or exclusive authority to do those things.   It shares those powers with the membership, but the membership has the ultimate authority and can even reverse actions of the board.

 

[Dan Honemann]

On 11/15/2023 at 8:01 AM, Josh Martin said:

The question which is actually being asked here is slightly different, and is whether the membership can authorize a committee to carry out duties that the bylaws assign to the board. I think the board has a stronger argument on that point. If the bylaws provide that the board carries out a certain duty, it seems to me that, generally, the bylaws mean what they say. While the membership (the superior body) may override the board in a particular case, the membership may not assign such duties to a committee instead. I don't think the use of the word "shall" has much to do with it. So I am inclined to agree with the board that the membership's proposed action in this matter conflicts with the bylaws.

Do you think that the rule in the bylaws which has been quoted here is a rule which can be suspended so as to permit the membership's assembly to appoint the special committee which we are told it did appoint?

I suppose this is the same as asking if the rule in the last sentence of 50:10 is a suspendible rule.  It reads as follows: "A special committee may not be appointed to perform a task that falls within the assigned function of an existing standing committee."

You will note that, in 50:8, we are told that adoption of a resolution appointing a standing committee with power to act creates a special rule of order.

 

 

[Guest Shea Mcnally]

As a member of the above organization I will point out that our Bylaws contain another article that clearly states "These Bylaws may be amended only.  They shall not be suspended."  The process for amendments is clearly laid out as well:  "...upon a two-thirds vote of those members present and voting, provided that notice of intent to amend, together with the proposed amendment or amendments, shall have been distributed at least two weeks in advance of the meeting."  

The bylaws are clear and cannot be interpreted otherwise  that management and disposal of property, even for real property, is committed to the Trustees and the membership is not clear on that fact, instead wanting to interpret to their liking when according to RONR they can't do so because the meaning is clear.  They should amend the bylaws if they want to allow for other groups to share the responsibility that they gave to the Trustee.

[Dan Honemann]

On 11/16/2023 at 1:04 PM, Guest Shea Mcnally said:

As a member of the above organization I will point out that our Bylaws contain another article that clearly states "These Bylaws may be amended only.  They shall not be suspended."  The process for amendments is clearly laid out as well:  "...upon a two-thirds vote of those members present and voting, provided that notice of intent to amend, together with the proposed amendment or amendments, shall have been distributed at least two weeks in advance of the meeting."  

The bylaws are clear and cannot be interpreted otherwise  that management and disposal of property, even for real property, is committed to the Trustees and the membership is not clear on that fact, instead wanting to interpret to their liking when according to RONR they can't do so because the meaning is clear.  They should amend the bylaws if they want to allow for other groups to share the responsibility that they gave to the Trustee.

Assuming that this bylaw provision you have quoted is dispositive of the question as to the suspendability of any bylaw provision, no matter what its nature, what would prevent the membership from adopting a motion directing the Board to create the same committee as the one it attempted to create, consisting of the same persons and having the same powers?

[Joshua Katz]

On 11/16/2023 at 1:04 PM, Guest Shea Mcnally said:

The bylaws are clear and cannot be interpreted otherwise  that management and disposal of property, even for real property, is committed to the Trustees and the membership is not clear on that fact, instead wanting to interpret to their liking when according to RONR they can't do so because the meaning is clear.  They should amend the bylaws if they want to allow for other groups to share the responsibility that they gave to the Trustee.

You've said this twice. Even if you said it three times, I would maintain my belief as to the piece of text I've seen. What that means in the context of the rest of your bylaws is up to your organization.

It does not seem you have a question, it seems you have an answer you want to insist is correct, not just correct but impossible to see any other way, despite most of us here seeing it a different way. That's fine, we have no power, but this is a place for questions you'd like answered.

[Guest Shea Mcnally]

Quote

Assuming that this bylaw provision you have quoted is dispositive of the question as to the suspendability of any bylaw provision, no matter what its nature, what would prevent the membership from adopting a motion directing the Board to create the same committee as the one it attempted to create, consisting of the same persons and having the same powers?

 

That sort of motion would be in order, I imagine.  But that was not what was done.  Such a committee would then report to the Trustees, no? Are you saying that the members could create a motion directing that the Trustees create a committee with NAME, NAME and NAME to ensure that the conditions are met and to report back to the members at the conclusion of their work?

 If the bylaws cannot be suspended then is there a way to suspend a rule that would allow the membership to appoint a committee to take on the functions of the Trustees?  Is the  rule you referred to earlier in 50:8  outside of the bylaws or within them? 

[Richard Brown]

On 11/14/2023 at 10:00 PM, Guest Linda Kindseth said:

What sort of language in the bylaws gives the board exclusive control? 

As Mr. Martin said in his initial response, the best way is to have the bylaws actually say that the board has the "sole" or "exclusive" authority or control over the affairs of the society (or of whatever specific items the bylaws mention). Otherwise, using the generally accepted principles of interpretation and the fact that in a non-profit membership corporation or organization, the powers of the board are inferior to the powers of the membership unless the bylaws specify otherwise, a provision granting the board certain powers will generally be interpreted as NOT being an exclusive grant of authority.  See, for example, sections 49:5 - 49:7 and 56:39 - 56:43 of RONR (12th ed.), paying particular attention to 56:41-56:43, noting that the power granted to the board in 56:43 is the power to act between meetings of the membership and therefore still subordinate to the powers of the membership.   I note that the bylaws of your organization say specifically that the board is "subject to the direction of [the organization]".   That indicates to me that the powers granted to the board are pretty clearly not exclusive and that the membership can tell the board what to do and how to do it and can also countermand (rescind) actions of the board.

You might also see Official Interpretations 2006-13 (and 2006-12) on the main website here: https://robertsrules.com/official-interpretations/   You will have to scroll down to Nos 12 and 13 and you will also have to click on the little "down arrow" in the upper right corner of each question to see the answer. 

Finally, for any who question whether your bylaws grant the board the exclusive authority generally or over the particular area at issue, you might use the search feature to search the forum.  This question arises frequently.  As a suggestion, you might start your search with the key words board exclusive authority (or power) and have the search engine search for threads that contain ALL of the search terms rather than "any" of them.  You have to click that option.

[Richard Brown]

On 11/16/2023 at 12:04 PM, Guest Shea Mcnally said:

The bylaws are clear and cannot be interpreted otherwise  that management and disposal of property, even for real property, is committed to the Trustees and the membership is not clear on that fact, instead wanting to interpret to their liking when according to RONR they can't do so because the meaning is clear. 

 

On 11/16/2023 at 12:56 PM, Joshua Katz said:

You've said this twice. Even if you said it three times, I would maintain my belief as to the piece of text I've seen. What that means in the context of the rest of your bylaws is up to your organization.

It does not seem you have a question, it seems you have an answer you want to insist is correct, not just correct but impossible to see any other way, despite most of us here seeing it a different way.

I agree with Mr. Katz.  The provision at issue is not at all clear that it grants exclusive authority to the board in this area. In my own opinion, the provision is rather clear that it does NOT constitute an exclusive grant of authority or power.  Ultimately, it is up to the membership to interpret the bylaws and resolve ambiguities.

[Dan Honemann]

On 11/16/2023 at 1:58 PM, Guest Shea Mcnally said:

That sort of motion would be in order, I imagine.  But that was not what was done.  Such a committee would then report to the Trustees, no? Are you saying that the members could create a motion directing that the Trustees create a committee with NAME, NAME and NAME to ensure that the conditions are met and to report back to the members at the conclusion of their work?

I understand that this was not what the membership did, and I simply posed a question as to whether or not the membership could adopt a motion such as the one you describe in your question to me.  Based solely upon what has been posted, I'm inclined to believe that they could but I do not have nearly enough information to form an opinion in which I would be willing to place any real confidence.

[Josh Martin]

On 11/16/2023 at 10:06 AM, Dan Honemann said:

Do you think that the rule in the bylaws which has been quoted here is a rule which can be suspended so as to permit the membership's assembly to appoint the special committee which we are told it did appoint?

I suppose this is the same as asking if the rule in the last sentence of 50:10 is a suspendible rule.  It reads as follows: "A special committee may not be appointed to perform a task that falls within the assigned function of an existing standing committee."

You will note that, in 50:8, we are told that adoption of a resolution appointing a standing committee with power to act creates a special rule of order.

I would think not, because such a rule has application outside of the present session.

Further, we are told that the organization has (unwisely) adopted a provision that no rules whatsoever in the bylaws may be suspended, which would take precedence over the rules in RONR on this subject.

On 11/16/2023 at 12:58 PM, Guest Shea Mcnally said:

That sort of motion would be in order, I imagine.  But that was not what was done.  Such a committee would then report to the Trustees, no? Are you saying that the members could create a motion directing that the Trustees create a committee with NAME, NAME and NAME to ensure that the conditions are met and to report back to the members at the conclusion of their work?

I see no reason why not.

As I have stated previously, while I concur with you that the board is entrusted with these matters and it is improper for the membership to deprive the board of its authority in this regard and assign this authority to others, the membership itself quite clearly has the power to override the board in this matter, since the board's authority in this regard is "under and subject to the direction of the [organization]." And it seems perfectly reasonable for the membership to seek a second opinion from another trusted group in this matter.

If the committee discussed here is appointed, the membership will have the recommendations from the board and from the committee, at which time the membership can make an informed decision on the matter.

In the alternative, if the board wants to push its luck on this matter, there are other alternatives for the membership to pursue, such as firing board members or amending the bylaws to restrict the board's authority. So I think it's in the best interests of the board to reach an accommodation with the membership.