Bylaws enforcement - "But, we have always done it this way..."

[MusicLover]

Another question for you all - How do you deal with being a new President, and leading a board+ enforcing the bylaws in place... when there are long term board members who reply with statements like -  "but thats not how we actually do things here" or "we always have done it this way"?

We are in a major rebuilding phase and most members and board members are excited to see things change a little to fit what we do today and where we want to go forward.

Examples: having an ex-officio member not vote/count for quorum, but the bylaws don't state anywhere that they do not vote, they only say ex officio. Or requiring the board review, vote, and approve submitted bylaw amendments before the members get to vote on it when it never says the board must formally vote and approve first? (membership based org).

I am in the process of helping the group though some major bylaw edits and updates to try and better match what we do today, who we include today, and incorporating sound nonprofit operating practices. We are incredibly stuck in the amendment process because after presenting to the membership - one board member says the board always has approved them first before the membership. (well, the one other time 14 years ago that amendments were made that is I guess they mean). When you read below - do you interpret it as the Executive Board *must* approve formally first?

A. Proposed amendments to these bylaws are to be submitted in writing by an active member to a member of the Executive Board. Following the next Board meeting, the proposed amendment(s) shall be presented to the Membership at each of the next two (2) consecutive meetings. They shall be voted upon by the active membership immediately after the second reading.

B. Amendments will become part of these bylaws upon the affirmative vote of two-thirds of the active membership present

We are due to meet again, for the 3rd time now since I was told the board must approve first, and we need to get some things done and approved for our upcoming election cycle so out members and board feel confident and clear with the expectations going into it. The first meeting the person who was upset with us regarding "not doing it how its always been done" no call no showed to the meeting. The second meeting, the one member who was most upset actually hung up on us on the call - so again we rescheduled. Now this week we will meet for a third time, but i am unsure we will technically have quorum due to a member having a medical emergency, the one member resigning after hanging up on us, and another with a pre-planned absence.  That being said i wonder thoughts on this too...if the above statement doesn't read as the board must approve first...then do we even need to have formal board votes on each and every change? Or is it simply a conversation situation like it would be between any other org members who would be reading and approving these changes and may choose to converse with one another about them?

Thanks for your input and ideas as always!

[Drake Savory]

On 4/7/2024 at 12:15 PM, MusicLover said:

We are due to meet again, for the 3rd time now since I was told the board must approve first

Have them point to the rule that specifically states the Board votes on the amendment.

On 4/7/2024 at 12:15 PM, MusicLover said:

The first meeting the person who was upset with us regarding "not doing it how its always been done" no call no showed to the meeting. The second meeting, the one member who was most upset actually hung up on us on the call - so again we rescheduled.

As long as there was still quorum, why not say, "Bye Felicia." and keep going?

On 4/7/2024 at 12:15 PM, MusicLover said:

but i am unsure we will technically have quorum due to a member having a medical emergency, the one member resigning after hanging up on us, and another with a pre-planned absence. 

What exactly is your quorum threshold? Pls quote it and what are your current number of members (see below)?

On 4/7/2024 at 12:15 PM, MusicLover said:

the one member resigning after hanging up on us,

Under RONR, this resignation needs to be approved.  Do your rules state that a member can resign unilaterally?

 

On 4/7/2024 at 12:15 PM, MusicLover said:

That being said i wonder thoughts on this too...if the above statement doesn't read as the board must approve first...then do we even need to have formal board votes on each and every change? Or is it simply a conversation situation like it would be between any other org members who would be reading and approving these changes and may choose to converse with one another about them?

My personal thoughts on this. 

One, it could be so that the Board gives its recommendation to the membership, however they do not have the power to block it.  I'm in an organization where the Board used to do everything.  Once the membership got its power back, old habits die hard, so while the Board recognizes they do not have the authority to make decisions out of their power they still want to recommend to the members what decision they should make.

Two, our bylaws were so messed up because after decades of amendments there were major inconsistencies.  Therefore after the bylaws were completely rewritten, all amendments now go through our bylaws committee that report out if the suggested amendment needs to be amended to avoid inconsistencies or if it violates fundamental parliamentary rights.  They offer no editorials or recommendations on the amendment.  They are just a second set of eyes to make sure it is a proper amendment before sending it to the members.   Maybe that is the purpose of having a Board member look at it or maybe it is a simple as they can help with the writing if there are issues about it.

[MusicLover]

On 4/7/2024 at 2:35 PM, Drake Savory said:

Have them point to the rule that specifically states the Board votes on the amendment.

When i asked this i was told "well no one ever would interpret it that way, that the members get to vote and the board doesn't have a say first! see - it says after the next board meeting!" Me: but....it doesnt say must be approved or voted on. 

On 4/7/2024 at 2:35 PM, Drake Savory said:

As long as there was still quorum, why not say, "Bye Felicia." and keep going?

Honestly - it was so aggressive in nature towards me that i lost control of my emotions and cried on the call after that and with the others still there supporting me. After i got myself put back together we did stay on the call and have a great and productive 1.5 hrs after that. But we did not make any "final" decisions besides a new meeting time, and another member proposed we focus solely on this topic next meeting first. 

On 4/7/2024 at 2:35 PM, Drake Savory said:

What exactly is your quorum threshold? Pls quote it and what are your current number of members (see below)?

A quorum shall consist of 50% plus one (1) of the full Executive Board. The only business which may be conducted in the absence of a quorum is adjournment.

and heres where else it gets confusing - in the bylaws as they read today, There are 8 executive board members (Although we have been operating with 9)... and 1 Ex Officio position (who has no exclusions or anything listed, and they are an employee, so my understanding is they do count for quorum despite the fact we have been operating without them voting or counting for quorum...).

On 4/7/2024 at 2:35 PM, Drake Savory said:

Under RONR, this resignation needs to be approved.  Do your rules state that a member can resign unilaterally?

"Any Executive Board member may resign effective upon given written notice to the President or other Executive Board member, unless the notice specifies a later time for the effectiveness of the resignation."

in the resignation they stated:  I will continue to fulfill this role until close of the fiscal year in June and do the annual filing for the Organization to assist with the transition.

On 4/7/2024 at 2:35 PM, Drake Savory said:

One, it could be so that the Board gives its recommendation to the membership, however they do not have the power to block it.  I'm in an organization where the Board used to do everything.  Once the membership got its power back, old habits die hard, so while the Board recognizes they do not have the authority to make decisions out of their power they still want to recommend to the members what decision they should make.

Maybe that is the purpose of having a Board member look at it or maybe it is a simple as they can help with the writing if there are issues about it.

I am sure that is part of why it was being pushed so hard to have the board review and vote first. I understand wanting to all participate and help assure there are no large issues/contradictions - but should i really hold it up for going on 3 months now due to this? There's been many reminders and mentions the last 8 months that this was being worked on, the first "real draft" came out and was given to the board 3 months ago.

[Drake Savory]

On 4/7/2024 at 1:02 PM, MusicLover said:

When i asked this i was told "well no one ever would interpret it that way, that the members get to vote and the board doesn't have a say first! see - it says after the next board meeting!" Me: but....it doesnt say must be approved or voted on. 

That's why I said "specific" not "interpret the rule the way you (the member, not you) want to".  Ask them to point the the words "The Board votes on the amendment" because if the words aren't there then it's not a rule.  Then as Chair rule accordingly and see if they use the nuclear option i.e. appeal and overrule you.

 

 

[Joshua Katz]

On 4/7/2024 at 11:15 AM, MusicLover said:

Examples: having an ex-officio member not vote/count for quorum, but the bylaws don't state anywhere that they do not vote, they only say ex officio. Or requiring the board review, vote, and approve submitted bylaw amendments before the members get to vote on it when it never says the board must formally vote and approve first? (membership based org).

 

It's worth noting that, if not supported by your bylaws, these are serious denials of rights, not some small matter to be ignored for a while. 

I, like others, fail to understand why people are dropping off of calls in protest against others having and exercising rights, and the meetings are being rescheduled instead of continued. (By the way, do your bylaws allow for meetings other than in person?)

On 4/7/2024 at 11:35 AM, Drake Savory said:

One, it could be so that the Board gives its recommendation to the membership, however they do not have the power to block it.

That would be my personal interpretation of the language provided, too.

On 4/7/2024 at 12:02 PM, MusicLover said:

A quorum shall consist of 50% plus one (1) of the full Executive Board. The only business which may be conducted in the absence of a quorum is adjournment.

 

This looks like one of those occasions where someone tries to duplicate what is in RONR for some reason, instead of just relying on it, and gets it wrong. Nonetheless, that's what it says. And because it says that, resignations can have odd effects on quorum.

 

On 4/7/2024 at 12:02 PM, MusicLover said:

I am sure that is part of why it was being pushed so hard to have the board review and vote first. I understand wanting to all participate and help assure there are no large issues/contradictions - but should i really hold it up for going on 3 months now due to this? There's been many reminders and mentions the last 8 months that this was being worked on, the first "real draft" came out and was given to the board 3 months ago.

No, you may not deny the membership their right to amend the bylaws based on this desire.

[MusicLover]

On 4/7/2024 at 4:27 PM, Joshua Katz said:

It's worth noting that, if not supported by your bylaws, these are serious denials of rights, not some small matter to be ignored for a while. 

I, like others, fail to understand why people are dropping off of calls in protest against others having and exercising rights, and the meetings are being rescheduled instead of continued. (By the way, do your bylaws allow for meetings other than in person?)

I totally agree and one of the many reasons there's a desire and move to update the bylaws and assure the board actually has them, reads them, and understands them. When i was first on the board, before i knew as much about all of this, i never saw the bylaws. I never did till i asked for them, actually. We are permitted to have meetings other than in person per the existing bylaws. 

For soooo long they operated off the "this is just how we do things here" mindset and when bringing on a new president every year - those who had been on the board for 15 years+ just basically tell you what and how to do it - till i stepped into the position and challenged some of what i was seeing. I hated to be the one to shake things up, but the org has had major issues in the past due to being disorganized and not having clear guidelines to follow or someone who enforces them. its been quite the journey the last year

[Atul Kapur]

On 4/7/2024 at 2:15 PM, MusicLover said:

Proposed amendments to these bylaws are to be submitted in writing by an active member to a member of the Executive Board. Following the next Board meeting, the proposed amendment(s) shall be presented to the Membership at each of the next two (2) consecutive meetings. They shall be voted upon by the active membership immediately after the second reading.

It sounds like you are reading this to say that there needs to be 2 (or 3) meetings of the board, because you appear to be describing multiple board meetings.

However, I read it to say that you need to present the amendments at a meeting of the membership and then again, at the next membership meeting, where you will vote on the amendment.

You may be already doing it that way, but the description wasn't clear.

[MusicLover]

On 4/7/2024 at 8:49 PM, Atul Kapur said:

It sounds like you are reading this to say that there needs to be 2 (or 3) meetings of the board, because you appear to be describing multiple board meetings.

However, I read it to say that you need to present the amendments at a meeting of the membership and then again, at the next membership meeting, where you will vote on the amendment.

You may be already doing it that way, but the description wasn't clear.

I agree it isnt clear as it is today. I interpreted it the same way you did - that the membership reads it and the membership votes. It says nothing in my interpretation about the Executive Board voting on it or approving it first. But the couple long time board members disagreed with me aggressively, and thats how we ended up where we are now in a bind. 

[Joshua Katz]

Thinking on this some more, it occurs to me that this is only presenting an issue because you're discussing it at board meetings. But your own position (which I happen to agree with) is that the board has no authority in this matter. So why do that? You've informed the board of it. No action need be taken by the board. So the next step is to place it on the notice and proposed agenda for the next membership meeting. If the other board members wish to fight it at the membership meeting, they can seek to amend it off the proposed agenda. Or they can raise a point of order. You can then make your ruling, and on appeal, make your case to the membership that amending the bylaws is their right, and the board has no right to strip them of it absent bylaw authorization. Why let the board keep delaying things?

Edited April 8, 2024 at 01:37 AM by Joshua Katz
skipped a step in my thinking

[Gary Novosielski]

 

24:1
By electing a presiding officer, the assembly delegates to him the authority and duty to make necessary rulings on questions of parliamentary law. But any two members have the right to Appeal from his decision on such a question. By one member making (or “taking”) the appeal and another seconding it, the question is taken from the chair and vested in the assembly for final decision.

24:2
Members have no right to criticize a ruling of the chair unless they appeal from his decision.

Edited April 8, 2024 at 02:00 AM by Gary Novosielski

[Josh Martin]

On 4/7/2024 at 1:15 PM, MusicLover said:

Another question for you all - How do you deal with being a new President, and leading a board+ enforcing the bylaws in place... when there are long term board members who reply with statements like -  "but thats not how we actually do things here" or "we always have done it this way"?

I think something like this is a good response, and I think encapsulates the general approach you want to take - be understanding, but firm. Also, inform members of their options.

"The chair acknowledges that, historically, the board has failed to follow this portion of the bylaws. Notwithstanding this, the bylaws are binding upon the organization, no matter how long they have been inadvertently neglected. The chair fully appreciates that members have become used to doing things a certain way, however, the chair is obliged to enforce the bylaws as they are written.

If members wish to amend the bylaws so that they comply with the board's past practices in this matter, so that the organization may continue to follow the past practice, the chair is happy to assist members in drafting language for such rules, or to assist in crafting a motion to appoint a committee to review these matters. The chair further notes that the assembly is the ultimate judge in interpreting its bylaws, and the chair's rulings on such matters are subject to appeal, but the chair reminds members that the question before the assembly in such cases is what members believe is the honest and correct interpretation of the bylaws, and the fact that "we have always done it this way" yields to the written rule in the bylaws."

If needed, helpful citations for backup would be RONR (12th ed.) 2:25, 25:7.

I think reminding members of the option to amend the rules is a very important aspect of reminding the members that these are their rules. Quite often, the chair and/or parliamentarian are blamed as if they are making up rules for the society to follow. But in fact, the chair and parliamentarian are simply servants of the assembly in this regard, and are enforcing the rules the organization has adopted. If the organization doesn't like its rules, the organization is free to change them.

On 4/7/2024 at 1:15 PM, MusicLover said:

having an ex-officio member not vote/count for quorum, but the bylaws don't state anywhere that they do not vote, they only say ex officio.

This is one of the most widespread and enduring misconceptions in many societies (it's #2 in the FAQ for a reason). I imagine this got into people's heads because many societies do provide for "ex-officio non-voting members," and this practice became widespread enough that people incorrectly assumed that all ex-officio members are non-voting.

As I'm sure you know, however, an "ex-officio" member actually has all rights of membership, including the right to vote, unless the bylaws provide otherwise, and (except in a few rare cases) counts toward the quorum. See FAQ #2 for more information.

On 4/7/2024 at 1:15 PM, MusicLover said:

Or requiring the board review, vote, and approve submitted bylaw amendments before the members get to vote on it when it never says the board must formally vote and approve first? (membership based org).

I am in the process of helping the group though some major bylaw edits and updates to try and better match what we do today, who we include today, and incorporating sound nonprofit operating practices. We are incredibly stuck in the amendment process because after presenting to the membership - one board member says the board always has approved them first before the membership. (well, the one other time 14 years ago that amendments were made that is I guess they mean). When you read below - do you interpret it as the Executive Board *must* approve formally first?

A. Proposed amendments to these bylaws are to be submitted in writing by an active member to a member of the Executive Board. Following the next Board meeting, the proposed amendment(s) shall be presented to the Membership at each of the next two (2) consecutive meetings. They shall be voted upon by the active membership immediately after the second reading.

B. Amendments will become part of these bylaws upon the affirmative vote of two-thirds of the active membership present

Based upon the facts presented, it would appear to me that there is no requirement that the board must approve the amendments.

Certainly, the board may take a position on the amendment if it wishes to do so, but as I read the rule, the amendments are presented to the membership whether the board supports the amendment or not.

On 4/7/2024 at 1:15 PM, MusicLover said:

That being said i wonder thoughts on this too...if the above statement doesn't read as the board must approve first...then do we even need to have formal board votes on each and every change?

No. The board may take a position on these amendments if it wishes, but there is no requirement that the board do so.

On 4/7/2024 at 1:15 PM, MusicLover said:

Or is it simply a conversation situation like it would be between any other org members who would be reading and approving these changes and may choose to converse with one another about them?

As I understand the rule in question, the board is required to be notified of amendments, presumably so that the board may facilitate presenting the amendments to the membership, and so that the board may discuss the amendments and take a position if the board wishes.

On 4/7/2024 at 2:02 PM, MusicLover said:

When i asked this i was told "well no one ever would interpret it that way, that the members get to vote and the board doesn't have a say first! see - it says after the next board meeting!" Me: but....it doesnt say must be approved or voted on. 

I would interpret the bylaws as they are written as including no requirement that the board must approve an amendment in order for it to be considered by the membership, or even that the amendment must be considered by the board at all.

If a member disagrees with your interpretation on this, instead of just arguing with you fruitlessly, a board member should move to Appeal from the decision of the chair, so that the board may reach an interpretation on this matter. (Ultimately, however, it is the membership which will have the final say on this question.)

On 4/7/2024 at 2:02 PM, MusicLover said:

A quorum shall consist of 50% plus one (1) of the full Executive Board. The only business which may be conducted in the absence of a quorum is adjournment.

and heres where else it gets confusing - in the bylaws as they read today, There are 8 executive board members (Although we have been operating with 9)... and 1 Ex Officio position (who has no exclusions or anything listed, and they are an employee, so my understanding is they do count for quorum despite the fact we have been operating without them voting or counting for quorum...).

First, do your bylaws actually say that "The only business which may be conducted in the absence of a quorum is adjournment"? If so, I advise removing that provision. RONR permits a somewhat broader category of procedural motions in the absence of a quorum. I don't think limiting the assembly to only adjournment is advisable.

"Even in the absence of a quorum, the assembly may fix the time to which to adjourn (22), adjourn (21), recess (20), or take measures to obtain a quorum. Subsidiary and incidental motions, questions of privilege, motions to Raise a Question of Privilege or Call for the Orders of the Day, and other motions may also be considered if they are related to these motions or to the conduct of the meeting while it remains without a quorum." RONR (12th ed.) 40:7

In any event, I'm a bit confused. You say that "in the bylaws as they read today, There are 8 executive board members (Although we have been operating with 9)" Are you saying your board currently has more board members than are permitted by the bylaws? If so, that will need to be rectified as soon as possible.

But it would appear that, at the present time, the board has ten board members, including the ex officio member. "50% plus 1" of this is six members. (I'd also advise replacing "50% plus 1" with "majority." It doesn't make a difference with an even number, but it does make a difference with an odd number.)

In the long run, I would advise removing the bylaw provision that makes the employee an ex-officio member, and instead inviting the employee to attend and participate as needed. But the board is obliged to follow the bylaws as they currently exist, unless and until they are changed.

I think there's also an interesting question of the meaning of the phrase "full Executive Board" and what exactly that means - if there are resignations, is it 50% plus one of the current number of members of the board, or the total possible number of members? But since the board is currently "full" (or even more than full), it doesn't seem to make a difference in the present situation.

On 4/7/2024 at 2:02 PM, MusicLover said:

"Any Executive Board member may resign effective upon given written notice to the President or other Executive Board member, unless the notice specifies a later time for the effectiveness of the resignation."

in the resignation they stated:  I will continue to fulfill this role until close of the fiscal year in June and do the annual filing for the Organization to assist with the transition.

Thank you. It would appear that your bylaws (which take precedence over RONR) provide that a resignation is effective immediately upon giving written notice, unless the notice specifies a later time for the effectiveness of the resignation. As I understand it, this resignation provides that it is not effective "until close of the fiscal year in June."

Edited April 8, 2024 at 01:25 PM by Josh Martin

[MusicLover]

Thanks everyone for your feedback and ideas, its been SO helpful!!