Voting on Amendments to Current Not-for-Profit By-Laws

[Guest Stan Banash]

The current By-Laws of our non-profit historical society does not have a provision to amend its By-Laws by snail mail. During the pandemic, in-person Board elections and in-person By-Laws amendment elections could not be held, according to a national presidential directive pertaining to all in-person meetings. Therefore, our organization reverted to snail-mail voting to amend its By-Laws in 2022 to allow in-person mail in our annual elections of officers and directors. In May 2023, President Biden lifted the prohibition of in-person meetings, enabling organizations to, once again, return to normal operations of meeting in person. My question is this: Since our non-profit organization set a precedent in 2022 by conducting a By-Laws amendment election by snail-mail ballot, can we use a snail-mail ballot in an upcoming By-Laws amendment ballot for 2023? This election will take place on December 13, and ballots have already been sent to eligible members. We have received both in-person ballots and snail-mail ballots as of December 9. These ballots are kept in a ballot box. Snail mail ballots will not be opened until the election closes at 7 p.m., on December 13. Also our membership is 350. A quorum of 10% or 35 members need to be present on December 13 to ratify the results. Thank you to all those who can assist in providing some clarity to our current situation on whether our election will be legal and binding, whatever the voting outcome. 

[Joshua Katz]

On 12/9/2023 at 8:31 PM, Guest Stan Banash said:

Since our non-profit organization set a precedent in 2022 by conducting a By-Laws amendment election by snail-mail ballot, can we use a snail-mail ballot in an upcoming By-Laws amendment ballot for 2023?

No. I'm not even convinced your organization successfully amended its bylaws in 2022. 

 

On 12/9/2023 at 8:31 PM, Guest Stan Banash said:

A quorum of 10% or 35 members need to be present on December 13 to ratify the results.

If you could vote by mail, it's not clear to me why it would need to be "ratified." Such a rule does not appear in your bylaws, which do not allow mail voting in the first place, as I understand it. So where does this rule come from?

[Atul Kapur]

On 12/9/2023 at 8:31 PM, Guest Stan Banash said:

The current By-Laws of our non-profit historical society does not have a provision to amend its By-Laws by snail mail. During the pandemic, in-person Board elections and in-person By-Laws amendment elections could not be held, according to a national presidential directive pertaining to all in-person meetings. Therefore, our organization reverted to snail-mail voting to amend its By-Laws in 2022

Did the Presidential Directive authorize voting by mail despite the fact that your bylaws do not allow it? Some executive orders did explicitly do that? If not, then I agree with @Joshua Katz that your 2022 actions may not have been valid?

On 12/9/2023 at 8:31 PM, Guest Stan Banash said:

My question is this: Since our non-profit organization set a precedent in 2022 by conducting a By-Laws amendment election by snail-mail ballot, can we use a snail-mail ballot in an upcoming By-Laws amendment ballot for 2023?

In other words, did the action we took because of a Presidential Directive set a precedent for a time when no such directive is in effect? I hope that this way of expressing it makes clear that the answer is No. 

[Josh Martin]

On 12/9/2023 at 7:31 PM, Guest Stan Banash said:

The current By-Laws of our non-profit historical society does not have a provision to amend its By-Laws by snail mail.

Then your bylaws cannot be amended by snail mail.

On 12/9/2023 at 7:31 PM, Guest Stan Banash said:

During the pandemic, in-person Board elections and in-person By-Laws amendment elections could not be held, according to a national presidential directive pertaining to all in-person meetings. Therefore, our organization reverted to snail-mail voting to amend its By-Laws in 2022 to allow in-person mail in our annual elections of officers and directors. In May 2023, President Biden lifted the prohibition of in-person meetings, enabling organizations to, once again, return to normal operations of meeting in person.

This is a bit beyond the scope of RONR and this forum, but I am not certain of the premise of this question. While the past few years have blurred together a bit, I am not aware of any "national presidential directive pertaining to all in-person meetings" or presidential "prohibition of in-person meetings" let alone one which continued until May 2023. In fact, I distinctly remember attending a number in-person meetings somewhat earlier than that.

The reference to May 2023 appears to relate to President Biden ending the national emergency relating to COVID-19 on May 11, 2023. But as best as I can recall, there never was a national directive prohibiting in-person meetings. There were a number of state and local regulations prohibiting various types of in-person meetings (even, at various points, all or almost all in-person meetings), but most of those expired well before May 2023. I suppose it is conceivable, albeit unlikely, that the regulations in your state or local jurisdiction lasted longer than usual, and that those regulations were in effect until May 2023, or at least until the time of your annual meeting in 2022.

On 12/9/2023 at 7:31 PM, Guest Stan Banash said:

My question is this: Since our non-profit organization set a precedent in 2022 by conducting a By-Laws amendment election by snail-mail ballot, can we use a snail-mail ballot in an upcoming By-Laws amendment ballot for 2023?

No.

First, your premise is flawed. Your organization did not "set a precedent in 2022 by conducting a By-Laws amendment election by snail-mail ballot." A precedent is not created simply by doing something a certain way in the past. A precedent is created by a ruling of the chair and by any subsequent appeal. Rather, you are thinking of a custom. And RONR is clear that a custom which conflicts with the written rules (your bylaws and RONR, in this case) yields to the written rule.

"In some organizations, a particular practice may sometimes come to be followed as a matter of established custom so that it is treated practically as if it were prescribed by a rule. If there is no contrary provision in the parliamentary authority or written rules of the organization, such an established custom is adhered to unless the assembly, by a majority vote, agrees in a particular instance to do otherwise. However, if a customary practice is or becomes in conflict with the parliamentary authority or any written rule, and a Point of Order (23) citing the conflict is raised at any time, the custom falls to the ground, and the conflicting provision in the parliamentary authority or written rule must thereafter be complied with. If it is then desired to follow the former practice, a special rule of order (or, in appropriate circumstances, a standing rule or a bylaw provision) can be added or amended to incorporate it." RONR (12th ed.) 2:25

Even if a precedent had been created in this manner, I still think the precedent would not be applicable here, because a.) the precedent would now be in direct conflict with the bylaws, and therefore the precedent would be incorrect and should be overturned and b.) to the extent a precedent was created in this manner, it would seem to be applicable to similar situations - that is, situations where in-person meetings were prohibited due to a national emergency, which is no longer the case.

There is also perhaps some doubt as to whether it was in order even in 2022 to conduct business by mail. You will need to look to the state and local regulations in effect at the time (because again, I do not think it is correct there was a national regulation on this matter) to see what they said concerning holding in-person meetings and what they provided for alternative means of conducting business.

On 12/9/2023 at 7:31 PM, Guest Stan Banash said:

We have received both in-person ballots and snail-mail ballots as of December 9. These ballots are kept in a ballot box. Snail mail ballots will not be opened until the election closes at 7 p.m., on December 13. Also our membership is 350. A quorum of 10% or 35 members need to be present on December 13 to ratify the results. Thank you to all those who can assist in providing some clarity to our current situation on whether our election will be legal and binding, whatever the voting outcome. 

Based upon all of the facts presented, I see nothing to suggest this election will be legal or binding.

With that said, however, I suppose that if a quorum is present on December 13, the assembly present at that time could (but is under no obligation to) adopt (or defeat) the same amendment to the bylaws as has been recommended by the informal, nonbinding poll of members conducted by mail, provided that the rules actually in the bylaws for their amendment are followed.

In the long run, if your organization desires to continue voting in this manner, the bylaws should be amended to provide for voting by mail.

Edited December 10, 2023 at 04:47 PM by Josh Martin

[Gary Novosielski]

On 12/9/2023 at 8:31 PM, Guest Stan Banash said:

a national presidential directive pertaining to all in-person meetings.

I'm aware of a CDC guidance document giving advice on in-person meetings, but I am not aware of any presidential directive that would have superseded your bylaws' provisions regarding their own amendment.  Are you a federal agency, or a private organization?

[Guest Reply to Mr. Novosielski]

Thank you for your response and to the other responders, as well. To answer your question, we are a domestic not-for-profit corporation, according to the laws of the State of Illinois.

[Gary Novosielski]

On 12/10/2023 at 2:27 PM, Guest Reply to Mr. Novosielski said:

Thank you for your response and to the other responders, as well. To answer your question, we are a domestic not-for-profit corporation, according to the laws of the State of Illinois.

Then I am not sure what presidential declaration you're relying on that would have allowed you to amend your bylaws by mail. 

It seems to me that your bylaws were never, in fact, amended and whatever rules were in effect then are still the ones in effect today.  If you want to be able to use any absentee voting for any reason it must be provided for in your bylaws, and appropriate  rules for how the election is to be carried out (e.g. the dual-envelope method outlined in RONR) should be adopted. 

And of course any vote to implement such a change must still be carried out by in-person voting.