Amending Bylaws with notice when no notice

[Caryn Ann Harlos]

I am referring to 57:11 

Quote

If the bylaws require previous notice for their amendment (as they should), or if they do not but notice has been given and a majority of the entire membership is not present, no amendment to a bylaw amendment is in order that increases the modification of the article or provision to be amended (see 35:2(6)). This restriction prevents members from proposing a slight change and then taking advantage of absent members by moving a greater one as an amendment to the amendment.

The bylaws in question do not require previous notice and require a 2/3 vote to amend.

If there was prior notice given, even if not required, and there IS a majority of members present, what vote threshold of those members present is required?  The 2/3 or a majority of the membership?

[Rob Elsman]

On 11/19/2023 at 10:32 AM, Caryn Ann Harlos said:

The bylaws in question do not require previous notice and require a 2/3 vote to amend.

I think you answered your own question.

[Caryn Ann Harlos]

I would think so, but I received a contrary opinion from a skilled parliamentarian.

I read this provision as requiring a certain minimum attendance only.  Not changing the vote threshold.  Someone I respect greatly stated that the vote threshold become a majority of the entire membership.

[Rob Elsman]

But, until now, you have not received an opinion from me. 🙂

[Weldon Merritt]

I concur with Mr. Eksman.

[Richard Brown]

On 11/19/2023 at 10:32 AM, Caryn Ann Harlos said:

I am referring to 57:11 

The bylaws in question do not require previous notice and require a 2/3 vote to amend.

If there was prior notice given, even if not required, and there IS a majority of members present, what vote threshold of those members present is required?  The 2/3 or a majority of the membership?

I agree with Mr. Elsman and Mr. Merritt that in the situation you described the proposed bylaw amendment can be adopted by a two-thirds vote (a vote of two-thirds of those members present and voting).  However, a proposed amendment to the original proposed amendment that exceeds the scope of notice of the original proposed amendment cannot be adopted at all unless a majority of the membership is present.   I wonder if perhaps that is the question you actually want answered.

On 11/19/2023 at 10:38 AM, Caryn Ann Harlos said:

Someone I respect greatly stated that the vote threshold become a majority of the entire membership.

I disagree with that interpretation.

[Caryn Ann Harlos]

That does raise the additional question of would that out of scope amendment just require the typical majority vote as long as there was a majority of the entire membership present?

 

(you know absolutely where I am going with this, and not to revisit the past, but I think this is a RONR provision that kinda flew under the radar in my organization with the mistaken belief that since no notice was required, as long as a quorum is present, it can be amended as much as wanted when the quorum was 40% of the membership.... and this impacts the "check out" controversy)

Edited November 19, 2023 at 05:22 PM by Caryn Ann Harlos

[Richard Brown]

On 11/19/2023 at 11:21 AM, Caryn Ann Harlos said:

That does raise the additional question of would that out of scope amendment just require the typical majority vote as long as there was a majority of the entire membership present?

In my opinion, provided a majority of the entire membership is present, a proposed "out of scope" amendment would be in order and would just require the typical majority vote for adoption.  However, the adoption of the amendment as amended would require a two-thirds vote just as the original proposed amendment would.

[Caryn Ann Harlos]

I agree.

[Richard Brown]

On 11/19/2023 at 11:21 AM, Caryn Ann Harlos said:

I think this is a RONR provision that kinda flew under the radar in my organization with the mistaken belief that since no notice was required, as long as a quorum is present, it can be amended as much as wanted when the quorum was 40% of the membership....

I agree.  I think an "out of scope" amendment would be out of order unless a majority of the membership (in this case the delegates who are registered as being in attendance) is present.   Forty percent would satisfy the quorum requirement, but not the "majority of the membership" requirement for the consideration of an "out of scope" amendment.

Edited November 19, 2023 at 05:48 PM by Richard Brown
Added the last part of the last sentence as indicated by underlining.

[Josh Martin]

On 11/19/2023 at 10:32 AM, Caryn Ann Harlos said:

The bylaws in question do not require previous notice and require a 2/3 vote to amend.

Could you clarify further what exactly the bylaws say on this matter?

On 11/19/2023 at 10:32 AM, Caryn Ann Harlos said:

If there was prior notice given, even if not required, and there IS a majority of members present, what vote threshold of those members present is required?  The 2/3 or a majority of the membership?

A 2/3 vote is sufficient.

What is said in 57:11 relates to a situation in which the default rule in RONR (or something similar) is controlling, in which previous notice is not strictly required, but without such notice, amending the bylaws requires a vote of a majority of the entire membership. In other words, amending the bylaws beyond the scope of the notice destroys the effect of the notice, and the situation is then the same as if no notice had been given.

But if the bylaws do not require any notice, and also do not place any greater requirements for adoption when no notice has been given, then there is no need to be concerned with the "scope of notice" concept. If the bylaws provide that they may be amended by a 2/3 vote without notice, period, then a proposed amendment to the bylaws may be amended in any manner the assembly desires (so long as it is germane), and the amendment will still only require a 2/3 vote for adoption. In these circumstances, it is also immaterial how many members are present (provided, of course, that a quorum is present).

On 11/19/2023 at 11:21 AM, Caryn Ann Harlos said:

That does raise the additional question of would that out of scope amendment just require the typical majority vote as long as there was a majority of the entire membership present?

Once again, the rule in 57:11 relates to a circumstance in which the bylaws permit amending the bylaws without notice, but require a higher vote threshold to do so. In the default rules in RONR, this higher threshold is a vote of a majority of the entire membership. (This is also the reason for the rule about needing a majority of the entire membership present - if there is less than a majority of the entire membership, then obviously obtaining a vote of a majority of the entire membership is impossible.)

In such circumstances, the subsidiary motion to amend (which exceeds the scope of notice) requires only a majority vote, as always. However, if the amendment is adopted, the effect of the notice is "destroyed," and the bylaw amendment, as amended, now requires the higher threshold for adoption, as if no notice had been given for the bylaw amendment.

On 11/19/2023 at 11:29 AM, Richard Brown said:

In my opinion, provided a majority of the entire membership is present, a proposed "out of scope" amendment would be in order and would just require the typical majority vote for adoption.  However, the adoption of the amendment as amended would require a two-thirds vote just as the original proposed amendment would.

I agree, but given the facts presented, I think the situation is the same even if a majority of the entire membership is not present.

On 11/19/2023 at 11:35 AM, Richard Brown said:

I agree.  I think an "out of scope" amendment would be out of order unless a majority of the membership (in this case the delegates who are registered as being in attendance) is present.   Forty percent would satisfy the quorum requirement, but not the "majority of the membership" requirement for the consideration of an "out of scope" amendment.

If the bylaws neither require notice nor set a higher threshold for adoption of an amendment without notice, then the concept of "out of scope" is immaterial.

Edited November 19, 2023 at 06:46 PM by Josh Martin

[Caryn Ann Harlos]

I agree with your reasoning Josh in isolation but that is not what RONR says-your explanation presumes things directly contradicted by the text.  It doesn't limit it in the way you say.  I do think that was the intent.  But it is not what it says.  And  actually maybe not even the intent since the next sentence appears to give the intent:

 

Quote

This restriction prevents members from proposing a slight change and then taking advantage of absent members by moving a greater one as an amendment to the amendment.

 

I cannot see any way around saying this requires a certain number of members present.  

Edited November 19, 2023 at 06:54 PM by Caryn Ann Harlos

[Caryn Ann Harlos]

I think that section is just super confusingly written.

[Caryn Ann Harlos]

Josh, this is all the Bylaws say on amendment.  By custom ONLY, the Bylaws Committee provides some notice of what they are going to propose, but proposals from the floor can happen.

 

 

Quote

 

ARTICLE 17: AMENDMENT

1. These bylaws may be amended by a 2/3 vote of the delegates at any regular convention.

 

[Josh Martin]

On 11/19/2023 at 1:02 PM, Caryn Ann Harlos said:

Josh, this is all the Bylaws say on amendment.  By custom ONLY, the Bylaws Committee provides some notice of what they are going to propose, but proposals from the floor can happen.

It remains my view that, based upon the facts presented:

• Any bylaw amendments whatsoever can be presented from the floor.
• Any subsidiary amendments are in order, regardless of "scope."
• Any bylaw amendments require a 2/3 vote for adoption.
• The above answers remain the same regardless of the number of members present, so long as a quorum is present.

Any other interpretation of what is said in 57:11 is illogical. The rule in the bylaws permits an entirely new bylaw amendment to be made from the floor, of which no notice whatsoever has been given, and for the amendment to be adopted by a 2/3 vote, irrespective of the number of members present (so long as a quorum is present). Therefore, I also see no reason why a subsidiary amendment would be out of order on the grounds that it is "out of scope" due to the fact that less than a majority of the membership is present.

I don't think the sentence "This restriction prevents members from proposing a slight change and then taking advantage of absent members by moving a greater one as an amendment to the amendment." changes anything. This once again ties the rule back to the concept of "scope of notice." If there is no requirement for notice whatsoever, this is no longer a meaningful concept.

I think it is correct that 57:11 could use some clarification, and perhaps the Authorship Team can look at that in the 13th edition, or in an Official Interpretation, if necessary. But I maintain that when read in harmony with the rules for previous notice and amending bylaws in their entirety, the rule in question should be viewed as a particular application of the "scope of notice principle," not as a separate, standalone rule, and has no meaningful application when a society chooses to require no notice at all for bylaw amendments.

There is also perhaps a question of whether it is wise to permit the bylaws to be amended by a 2/3 vote with zero notice, but that's the organization's problem.

[Caryn Ann Harlos]

On 11/19/2023 at 12:14 PM, Josh Martin said:

I think it is correct that 57:11 could use some clarification, and perhaps the Authorship Team can look at that in the 13th edition, or in an Official Interpretation, if necessary. But I maintain that when read in harmony with the rules for previous notice and amending bylaws in their entirety, the rule in question should be viewed as a particular application of the "scope of notice principle," not as a separate, standalone rule, and has no meaningful application when a society chooses to require no notice at all for bylaw amendments.

 

I think that is definitely needed.  It is very confusing and appears to want to tie back to the concept you stated but it doesn't.  It is just floating there.

On 11/19/2023 at 12:14 PM, Josh Martin said:

There is also perhaps a question of whether it is wise to permit the bylaws to be amended by a 2/3 vote with zero notice, but that's the organization's problem.

It is horribly unwise and this Bylaws Committee has a proposal to add previous notice OR a higher vote threshold and member signatures for without notice.  You know the type of persons in my organization, they will never pass anything that completely eliminates the ability to move something from the floor, just the oppositional defiant culture of the organization.

[Gary Novosielski]

On 11/19/2023 at 11:32 AM, Caryn Ann Harlos said:

I am referring to 57:11 

The bylaws in question do not require previous notice and require a 2/3 vote to amend.

If there was prior notice given, even if not required, and there IS a majority of members present, what vote threshold of those members present is required?  The 2/3 or a majority of the membership?

Do the bylaws offer a majority of the entire membership as an option?  It doesn't seem like they do.  So therefore it is not an option.  The rule in the bylaws supersedes the rules in RONR regarding Amend Something Previously Adopted.

[Caryn Ann Harlos]

On 11/19/2023 at 12:51 PM, Gary Novosielski said:

Do the bylaws offer a majority of the entire membership as an option?  It doesn't seem like they do.  So therefore it is not an option.  The rule in the bylaws supersedes the rules in RONR regarding Amend Something Previously Adopted.

There are no other options, what I quote was the entirety (with one exception there is a another sentence that provides a much higher vote threshold for one particular bylaw that is not particularly relevant).

Edited November 19, 2023 at 08:25 PM by Caryn Ann Harlos

[J. J.]

On 11/19/2023 at 2:14 PM, Josh Martin said:

I think it is correct that 57:11 could use some clarification, and perhaps the Authorship Team can look at that in the 13th edition, or in an Official Interpretation, if necessary. But I maintain that when read in harmony with the rules for previous notice and amending bylaws in their entirety, the rule in question should be viewed as a particular application of the "scope of notice principle," not as a separate, standalone rule, and has no meaningful application when a society chooses to require no notice at all for bylaw amendments.

There is also perhaps a question of whether it is wise to permit the bylaws to be amended by a 2/3 vote with zero notice, but that's the organization's problem.

I agree with your initial interpretation and the need for clarification. 

[Dan Honemann]

The rules in RONR (including the rule in 57:11) are written to be completely in accord with and within themselves, and prescribe the rules that are to apply in the absence of superior rules to the contrary.  The rule in 35:2(7) reads as follows: 

"A motion to rescind or amend provisions of a constitution or bylaws is subject to the requirements for amendment as contained in the constitution or bylaws (see 56, 57). If the bylaws or governing instrument contains no provision relating to amendment, a motion to rescind or amend applied to a constitution or to bylaws is subject to the same voting requirement as to rescind or amend special rules of order—that is, it requires (a) previous notice as described above and a two-thirds vote or (b) a vote of a majority of the entire membership."

You will note that this rule does not require previous notice, but says that if previous notice is not given, a vote of a majority of the entire membership is required for adoption. As a consequence, if a majority of the entire membership is not present, it will not in order to move the adoption of a bylaw amendment for which no previous notice has been given, since it cannot be adopted.

By the same token, if a majority of the entire membership is not present, 57:11 tells us that no subsidiary motion to amend a proposed bylaw amendment for which previous notice has been given will be in order if it proposes a change greater than that for which notice was given (see 35:2(6) to which 57:11 refers). 

 

[Caryn Ann Harlos]

I can see how it is supposed to refer to that.  But that is not at all clear.  And in fact talks about when bylaws do not require previous notice.  These bylaws in question here do not "contain no provision relating to amendment."  They have a provision.  But no notice requirement.  And this section is clear as mud in that situation.

[Dan Honemann]

On 11/19/2023 at 8:20 PM, Caryn Ann Harlos said:

I can see how it is supposed to refer to that.  But that is not at all clear.  And in fact talks about when bylaws do not require previous notice.  These bylaws in question here do not "contain no provision relating to amendment."  They have a provision.  But no notice requirement.  And this section is clear as mud in that situation.

When bylaws contain provisions for their amendment differing from those contained in RONR, then you need to look at those bylaw provisions for answers, not RONR.

[Caryn Ann Harlos]

But this section talks about its own interaction with specific bylaws... "when the bylaws don't require notice, but notice is given....." so it is not simply deferring to bylaws.

[Dan Honemann]

On 11/19/2023 at 8:32 PM, Caryn Ann Harlos said:

But this section talks about its own interaction with specific bylaws... "when the bylaws don't require notice, but notice is given....." so it is not simply deferring to bylaws.

Yes, I can see that what we say there may cause some confusion, and I thank you for calling it to our attention.

[Caryn Ann Harlos]

Thank you, appreciate the consideration.