Amending a bylaw vs. a standing rule

[Tomm]

Our board of 9 does have the authority to amend the bylaws on their own. A quorum for the board is 6 members.

I'm trying to determine how much of a difference there would still actually be between the board amending a bylaw vs a standing rule.

A standing rule requires a majority vote with previous notice, 2/3rds without previous notice or the majority of the entire membership.

Typically a bylaw would have a higher voting threshold than a standing rule but considering the board is only 9 members, and as long as a quorum is present it seems that the board can amend a bylaw with a majority of the entire membership (5). 

The only difference I can discern is that the board couldn't amend a bylaw with less than 5 votes whereas the board could a amend a standing rule with less than 5 by simply having the majority of those who actually do cast a vote. 

Am I missing something?

[Bruce Lages]

I presume you mean special rule of order instead of standing rule?

[Tomm]

On 11/26/2023 at 1:21 PM, Bruce Lages said:

I presume you mean special rule of order instead of standing rule?

This organization actually calls these rules Board Policies.

[Bruce Lages]

OK, but do they satisfy RONR's definition of a special rule of order, ie do they apply to the orderly transaction of business within a meeting?

[Tomm]

On 11/26/2023 at 1:46 PM, Bruce Lages said:

OK, but do they satisfy RONR's definition of a special rule of order, ie do they apply to the orderly transaction of business within a meeting?

The policy I'm most concerned with is one regarding committees and standing committees. That board policy describes each of the standing committees tasks as well as authorizing Ad Hoc committees, who must serve as chair and co-chair, who can serve on the committees and how to get removed from committees.

First of all, I believe many of the standing committees should be in the bylaws or special rules of order, but our organization has no special rules of order category! 

[Bruce Lages]

Many of the issues you cite, such as who can serve on committees and who can serve as chair and co-chair can be dealt with as standing rules, only requiring a majority vote without notice. The procedure for removal form a committee will depend on how one is appointed to a committee, i.e., the appointing power also has the power of removal. Ad hoc, or special committees are almost always dealt with via standing rules.

While standing committees are specified in the bylaws in many cases, they may also be established by special rules of order or by standing rules, depending on their assigned functions. Refer to RONR 50:8 to see if your organization's standing committees satisfy any of the three criteria which require standing committees to be established via a special rule of order rather than by standing rule. If they do any changes to those tasks may well involve the procedure for amending a special rule of order (2:22).

Edited November 26, 2023 at 09:38 PM by Bruce Lages

[Shmuel Gerber]

On 11/26/2023 at 3:12 PM, Tomm said:

Typically a bylaw would have a higher voting threshold than a standing rule but considering the board is only 9 members, and as long as a quorum is present it seems that the board can amend a bylaw with a majority of the entire membership (5). 

That depends on what the bylaws say regarding amendments. 

[Josh Martin]

On 11/26/2023 at 2:12 PM, Tomm said:

Typically a bylaw would have a higher voting threshold than a standing rule but considering the board is only 9 members, and as long as a quorum is present it seems that the board can amend a bylaw with a majority of the entire membership (5). 

What do the bylaws say concerning their amendment?

This would be correct to the extent that the bylaws are silent concerning their amendment (except providing that the board may amend the bylaws), or if the bylaws themselves provide that a majority of the entire membership is required for adoption.

On 11/26/2023 at 2:12 PM, Tomm said:

The only difference I can discern is that the board couldn't amend a bylaw with less than 5 votes whereas the board could a amend a standing rule with less than 5 by simply having the majority of those who actually do cast a vote. 

Am I missing something?

To the extent that it is correct that this board can amend the bylaws with a majority of the entire membership, I think this is correct. I would add, of course, that a standing rule could only be amended with fewer votes if previous notice has been given.

[Tomm]

On 11/27/2023 at 6:06 AM, Josh Martin said:

What do the bylaws say concerning their amendment?

The bylaws are silent on that however the Arizona Revised Statutes state:

"5. Unless chapters 24 through 40 of this title, the articles of incorporation or the board of directors acting pursuant to paragraph 3 of this subsection requires a greater vote or voting by class, the amendment to be adopted shall be approved by two-thirds of the votes cast or a majority of the voting power, whichever is less."

Note: Although this paragraph is specifying the articles of incorporation, the statute on amending the bylaws refers you back to this one.

[Josh Martin]

On 11/27/2023 at 11:57 AM, Tomm said:

The bylaws are silent on that however the Arizona Revised Statutes state:

"5. Unless chapters 24 through 40 of this title, the articles of incorporation or the board of directors acting pursuant to paragraph 3 of this subsection requires a greater vote or voting by class, the amendment to be adopted shall be approved by two-thirds of the votes cast or a majority of the voting power, whichever is less."

Note: Although this paragraph is specifying the articles of incorporation, the statute on amending the bylaws refers you back to this one.

Thank you. Then yes, it does appear to be correct that the bylaws may be amended by a majority of the entire membership of the board.

[Joshua Katz]

I'm not willing to conclude that. Now we're talking about the interaction of two statutes with the bylaws of the organization. Additionally, we don't know the structure of the section of ARS of which this is the fifth part. Nor weo do know case law interpreting "greater vote," if any. More to the point, I think we need to be very cautious in giving any interpretation of statutes.

[Shmuel Gerber]

On 11/27/2023 at 12:57 PM, Tomm said:

The bylaws are silent on that however the Arizona Revised Statutes state:

"5. Unless chapters 24 through 40 of this title, the articles of incorporation or the board of directors acting pursuant to paragraph 3 of this subsection requires a greater vote or voting by class, the amendment to be adopted shall be approved by two-thirds of the votes cast or a majority of the voting power, whichever is less."

Note: Although this paragraph is specifying the articles of incorporation, the statute on amending the bylaws refers you back to this one.

I doubt that this provision relates to amendments adopted by the board. We are not here to interpret statutes, but I get the sense that this issue has been raised in the past and that we are continually retreading the same ground.