Board Policies

[Dominator]

What class of rules are "board policies"? Can they hide in executive session minutes so the general membership remain clueless as to what they are and when to object?

 

It seems my organization has a situation where the Board has created a policy to grant themselves authority to spend organization funds receive without prior specified approval to spend organization funds. "Board Policies" are a mechanism used to sidestep the constitution. 

 

The Board's arguments are variations of the following: 

 

"There are no constitutional restrictions, but Board Policies allow us to... or restrict you from..."

"There are no constitutional permissions, but Board Policies allow us to... or restrict you from..."

 

I cannot attack an inappropriate policy if I don't know what it is, and I can't find much on the makeup and design of policies in RONR. I feel like I'm swinging at phantoms over here.

 

If it matters, our constitution doesn't provide devices such as "Board Policies" are authorized in or restricted from Board creation.

 

Your insight is appreciated. 

 

[Rob Elsman]

I guess we would need to know the nature of the particular "board policy" in question to know how to intelligently discuss this further.

[Dominator]

On 3/18/2024 at 11:00 PM, Rob Elsman said:

I guess we would need to know the nature of the particular "board policy" in question to know how to intelligently discuss this further.

For example, our constitution requires its members to pay X in membership fees.

The Board crafted a policy that exempts new members from paying any membership dues for their first Y months of membership.

Simultaneously, as part of the policy, a member who recruits a new member gets paid Z from the organization's treasury. 

Mind you, our constitution's member rates do not provide any dues discount or exemption to members. This discount and payment incentive mechanism is strictly a device of "board policy".

 

As to the nature of the policy, I understand that [t]he various kinds of rules which a society may formally adopt include the following: Corporate Charter, Constitution and/or Bylaws, Rules of Order (which include a standard work on parliamentary law adopted as the society’s Parliamentary Authority, and any Special Rules of Order), and Standing Rules (RONR §2:3), I'm not entirely certain what sort of rule this or other "board policies" are. They certainly aren't a corporate charter or a constitution and/or bylaw provision. The rule is also not a "rule of order".

Calling a board policy a "custom" sounds off to me. A "board policy" at least implies that it came from the board, and a Board's decision to craft a rule occurs at a "board meeting".

It appears to me that this particular "board policy" is just a (standing) rule that operates outside of a meeting, however, the rule was not offered or adopted by the general membership; it was just accepted as "board policy" by the board and argued that "it does not conflict with or amend any existing rule or act of the society."

 

Under rule-theories considering public and private sectors, I understand that two fundamental questions frame whether an act is authorized or prohibited:

Public sector: Does a rule grant positive authority to act? If no, then the act is prohibited.

Private sector: Does a rule prohibit authority to act? If no, then the act is authorized. 

 

It's the "It doesn't say we can't so we're gonna..." or "it doesn't say we must so we're not gonna..." routine. Basically, if they don't want an outcome, they'll create a "board policy" that prohibits it. Likewise, if they do want an outcome, they'll create a "board policy" to authorize it. Challenging the policy is difficult as it is either not in writing or (allegedly) in executive session minutes not available to the general membership.

 

My major premise is that a proper board mimics a public sector rule-compliance model; they are behaving in trust, and are administrators of the organization's government and mission. Our constitution does not provide authority to unilaterally change certain member's rates when no discriminatory rate mechanism exists. Our constitution also does not provide any device to grant kickbacks for "recruiting" via the organization's coffers, nor authorize compensation for whatever man-hours are (allegedly) needed to advertise and process any related paperwork involving recruiting efforts.

The problem is that the Board has merged these contrapositive theories, but only utilize (and later argue) the theory that beneficially services their personal and/or political interests surrounding the issue. This essentially makes contesting the "board policy" impossible because you can't effectively articulate the violation.

If there is a default rule-theory in Robert's such as "authorized unless restricted" or "restricted unless authorized", this would be a quick admonishing.

I hope this helps

[Richard Brown]

I question whether you’re board has the authority to adopt “policies” of this sort. It really depends upon what authority and powers your bylaws grant to the board.

Can you provide an exact verbatim quote of what the bylaws say about the powers and authority of the board? But will be a big help to us.

[Gary Novosielski]

If the rules in RONR apply:

The board has only such powers as are enumerated in the bylaws, or which are necessary to carry out actions it is instructed by the Membership to accomplish.  The board cannot assume new powers to itself on the excuse that doing so is not prohibited.  It is prohibited.  And it would subject the board to disciplinary action if it attempted to do so.

No action of the board may conflict with the bylaws.  No action of the board may conflict with a decision of the Membership, and a board must obey such instructions as are duly adopted by the Membership.  It does not issue instructions to the Membership, which is the superior body.

[Rob Elsman]

An ordinary main motion that conflicts with a bylaw is not in order, and the adoption of such a main motion is null and void.  I will leave it to the original poster to determine whether either of these cases apply to this particular situation.  To be frank, I do not know enough about the delegation of authority to the board to be able to ascertain whether the board exceeded the scope of its authority or not.

[Dominator]

On 3/19/2024 at 6:21 PM, Richard Brown said:

I question whether you’re board has the authority to adopt “policies” of this sort. It really depends upon what authority and powers your bylaws grant to the board.

Can you provide an exact verbatim quote of what the bylaws say about the powers and authority of the board? But will be a big help to us.

The constitution doesn't state a mechanism for crafting, implementing, modifying, or rescinding "board policies", nor are "board policies" defined.

As to Board power and authority, the constitution (we have no separate bylaws) states:

The Board shall perform such duties as are prescribed in this Constitution.

There are bits and pieces of board and officer obligations scattered throughout. It's as organized as a kindergarten class toybox.

The organization's purpose statement to "[p]romote fraternal spirit among its members" is a far stretch from unconditional authority. What's to stop such circular reasoning that something is "a good idea" simply because "it's a good idea"?

Challenging the Board with, "What authorizes you to perform X" will land you a "the constitution doesn't specifically forbid us so we're free to do it" routine, knowing it won't be at least until the next annual meeting when the issue might be discussed. 

[Dominator]

On 3/19/2024 at 9:14 PM, Rob Elsman said:

An ordinary main motion that conflicts with a bylaw is not in order, and the adoption of such a main motion is null and void.  I will leave it to the original poster to determine whether either of these cases apply to this particular situation.  To be frank, I do not know enough about the delegation of authority to the board to be able to ascertain whether the board exceeded the scope of its authority or not.

That's the problem.

If there isn't a constitutional rule that specifically prohibits the act, they'll claim that the "board policy" authorizing the act conflicts with nothing.

If there isn't a constitutional rule that specifically authorizes the act, they'll claim, the "board policy" prohibiting the act conflicts with nothing.

As to Board power and authority, the constitution (we have no separate bylaws) states:

The Board shall perform such duties as are prescribed in this Constitution.

As to individual members of the board, the constitution states:

The Officers of the Board shall perform such duties as are prescribed in this Constitution, by the Board or in the adopted parliamentary authority. [Current edition of RONR]

So, the officer's of the board must perform as the board directs, but the board invents rules outside their scope of authority to direct themselves. It's the classic "I was just following orders" routine.

The constitution doesn't state a mechanism for crafting, implementing, modifying, or rescinding "board policies". Establishing that the Board has no authority to its inventions (theoretically)  ends the problem... unless they invent a board policy that grants them authority to invent board policies. 🙄

[Dan Honemann]

As has been noted, your board has only such power as is delegated to it by your Constitution or by vote of the society's assembly referring individual matters to it.  RONR (12th ed.) 49:5

If your organization has a board that has gone rouge, your organization's membership certainly has the power to rein it in if it desires to do so.  23:9 tells us that (emphases supplied):

"If the executive board of a society takes action that exceeds the board's instructions or authority, that conflicts with a decision made by the assembly of the society, or that falls under any of the categories listed in 23:6, a point of order can be raised at a board meeting at any time during the continuance of the breach. If the point of order is sustained, the action must be declared null and void. Alternatively, the society's assembly can adopt an incidental main motion by majority vote declaring that the board's action is null and void; or, if it is affecting business at a meeting of the assembly, the board's action can be declared null and void by a ruling of the chair relating to the affected business or on a relevant point of order raised by a member. It is also possible for the assembly to bring disciplinary measures against the board members who voted for the improper action. If the assembly finds itself in sympathy with the board's action and the action is one that that assembly could have authorized in advance, the assembly can instead ratify the action as explained in 10:54–57."

 

[Josh Martin]

On 3/19/2024 at 5:21 PM, Richard Brown said:

I question whether you’re board has the authority to adopt “policies” of this sort. It really depends upon what authority and powers your bylaws grant to the board.

Can you provide an exact verbatim quote of what the bylaws say about the powers and authority of the board? But will be a big help to us.

Well, and even aside from that, there is no doubt that the board cannot adopt policies which conflict with the bylaws.

On 3/19/2024 at 11:21 PM, Dominator said:

The constitution doesn't state a mechanism for crafting, implementing, modifying, or rescinding "board policies", nor are "board policies" defined.

As to Board power and authority, the constitution (we have no separate bylaws) states:

The Board shall perform such duties as are prescribed in this Constitution.

There are bits and pieces of board and officer obligations scattered throughout. It's as organized as a kindergarten class toybox.

The organization's purpose statement to "[p]romote fraternal spirit among its members" is a far stretch from unconditional authority. What's to stop such circular reasoning that something is "a good idea" simply because "it's a good idea"?

So it looks like the organization will need to do a more thorough review of its rules to determine whether the board has the authority to adopt policies for the organization at all, but even to the extent that they do have such authority, there is no doubt that the board cannot adopt policies which conflict with the constitution and bylaws.

In the long run, it seems it would be desirable to clarify the organization's rules on this matter.

On 3/19/2024 at 11:21 PM, Dominator said:

Challenging the Board with, "What authorizes you to perform X" will land you a "the constitution doesn't specifically forbid us so we're free to do it" routine, knowing it won't be at least until the next annual meeting when the issue might be discussed. 

But this is a very incorrect argument by the board, for two reasons.

For starters, the board has it backwards. The board only has such authority as is granted by the organization's constitution and bylaws, or by a vote of the organization's membership. It is not correct that the board starts with unlimited authority, and is only restricted to the extent specified in the constitution. The board starts with zero authority, and only has the authority granted by the constitution or bylaws or by the membership.

But even to the extent the board's argument was correct, I would think it goes without saying for any reasonable person that the constitution does specifically forbid the board (or anyone) from adopting policies which conflict with the constitution. But for the unreasonable people, RONR has that spelled out in black and white.

"A society has no executive board, nor can its officers act as a board, except as the bylaws may provide; and when so established, the board has only such power as is delegated to it by the bylaws or by vote of the society's assembly referring individual matters to it." RONR (12th ed.) 49:5

"The executive board of an organized society operates under the society's bylaws, the society's parliamentary authority, and any special rules of order or standing rules of the society which may be applicable to it. Such a board may adopt its own special rules of order or standing rules only to the extent that such rules do not conflict with any of the rules of the society listed above." RONR (12th ed.) 49:15

"Except for the corporate charter in an incorporated society, the bylaws (as the single, combination-type instrument is called in this book) comprise the highest body of rules in societies as normally established today. Such an instrument supersedes all other rules of the society, except the corporate charter, if there is one. In organizations that have both a constitution and bylaws as separate documents, however, the constitution is the higher of the two bodies of rules and supersedes the bylaws." RONR (12th ed.) 2:12

"Rules contained in the bylaws (or constitution) cannot be suspended—no matter how large the vote in favor of doing so or how inconvenient the rule in question may be—unless the particular rule specifically provides for its own suspension, or unless the rule properly is in the nature of a rule of order as described in 2:14. However, a rule in the bylaws requiring that a vote—such as, for example, on the election of officers—be taken by (secret) ballot cannot be suspended so as to violate the secrecy of the members' votes unless the bylaws so provide (see also Voting by Ballot, 45:18–24). Nothing in a corporate charter can be suspended unless the charter or applicable law so provides." RONR (12th ed.) 25:7

If the organization's board members are unable to grasp these concepts, I suggest the organization replace them with people who can.

Edited March 22, 2024 at 03:30 PM by Josh Martin