Bylaws have 4 officers with a 3-person minimum for the board

[Nic Rosenau]

We are revising our Bylaws and are looking at two sections that seem to be in conflict: 

ARTICLE 2: OFFICERS. Section 1. Officers and Duties. The officers of the Society shall be a President, a Vice President, a Secretary, a Treasurer, and up to eight Directors. 

ARTICLE 3: THE EXECUTIVE BOARD. Section 1. Board Composition. The officers of the Society, including the Directors, shall constitute the Executive Board. The Board shall have up to twelve, but not fewer than three members. 

So we have four officers (who are also board members) but require only three board members. The intention is that the Vice President position would be dropped if the board ever fell below four members. 

How should we phrase it to rank the officers (RONR (12 ed.) §56:23) as President, Vice President, Secretary, and Treasurer, while still having a three-director minimum for the Board [President, Secretary, Treasurer]? Or perhaps it's just not possible to do this. 

Everything I've come up with seems quite clunky and is along the lines of "If there are fewer than four members on the Board, then the Vice President position is dropped." "There is a Vice President only if there are four or more members on the Board."

Thanks for your help. 

[Josh Martin]

On 6/10/2024 at 3:58 PM, Nic Rosenau said:

We are revising our Bylaws and are looking at two sections that seem to be in conflict: 

ARTICLE 2: OFFICERS. Section 1. Officers and Duties. The officers of the Society shall be a President, a Vice President, a Secretary, a Treasurer, and up to eight Directors. 

ARTICLE 3: THE EXECUTIVE BOARD. Section 1. Board Composition. The officers of the Society, including the Directors, shall constitute the Executive Board. The Board shall have up to twelve, but not fewer than three members. 

So we have four officers (who are also board members) but require only three board members. The intention is that the Vice President position would be dropped if the board ever fell below four members. 

How should we phrase it to rank the officers (RONR (12 ed.) §56:23) as President, Vice President, Secretary, and Treasurer, while still having a three-director minimum for the Board [President, Secretary, Treasurer]? Or perhaps it's just not possible to do this. 

Everything I've come up with seems quite clunky and is along the lines of "If there are fewer than four members on the Board, then the Vice President position is dropped." "There is a Vice President only if there are four or more members on the Board."

I don't see any need to revise this. Nothing in the rule as written seems to prevent the board from leaving the Vice President position vacant (or in the alternative, having one person serve as Vice President and another officer position), unless and until additional directors can be found. So I think you are already covered in the (hopefully unusual) situation that the board falls to 25% of its authorized membership.

Edited June 10, 2024 at 09:41 PM by Josh Martin

[Rob Elsman]

I have very little to add that would be directly helpful, but I would recommend that the focus be on the clarity and unambiguity of the text, rather than its "clunky" style. See RONR (12th ed.) 56:11.

[Richard Brown]

It seems to me that there IS a conflict in the bylaws as to the makeup of the executive board.  Onc section says: "The officers of the Society shall be a President, a Vice President, a Secretary, a Treasurer, and up to eight Directors". 

The next provision says that The officers of the Society, including the Directors, shall constitute the Executive Board. The Board shall have up to twelve, but not fewer than three members". 

I agree with the original poster that there is a conflict in the bylaws because one provision says that the four officers shall be on the executive board, but the next provision says the board may have as few as three members.  It is impossible for the board to be composed of only three people when another provision clearly says that the four officers shall be on the board.  That is an obvious conflict. 

I disagree that the society should try to "get around" the requirement that the four named officers shall be on the executive board by simply not electing a vice president or by having the vice president serve in two capacities.... something the bylaws might prohibit. 

The bylaws should be amended to correct this problem and in the meantime the membership should ensure that at least the four officers are on the board. The bylaws can be easily amended to provide that the board thall have at least four members rather than three.

[Joshua Katz]

On 6/10/2024 at 4:16 PM, Richard Brown said:

The next provision says that The officers of the Society, including the Directors, shall constitute the Executive Board. The Board shall have up to twelve, but not fewer than three members". 

I agree with the original poster that there is a conflict in the bylaws because one provision says that the four officers shall be on the executive board, but the next provision says the board may have as few as three members.  It is impossible for the board to be composed of only three people when another provision clearly says that the four officers shall be on the board.  That is an obvious conflict. 

 

I disagree. Four is "not fewer" than three. Even if the board will always have at least four members, what's the issue? Maybe some parts are superfluous, but there's no conflict.

That said, it's also possible to have a three person board. What if the assembly elected someone secretary and treasurer? If the bylaws said "no less than four," then in that circumstance they'd need to have additional directors, whereas now they don't. That's a substantive difference, and they should choose which outcome they want, not a contradiction.

[Josh Martin]

On 6/10/2024 at 6:16 PM, Richard Brown said:

It seems to me that there IS a conflict in the bylaws as to the makeup of the executive board.  Onc section says: "The officers of the Society shall be a President, a Vice President, a Secretary, a Treasurer, and up to eight Directors". 

The next provision says that The officers of the Society, including the Directors, shall constitute the Executive Board. The Board shall have up to twelve, but not fewer than three members". 

I agree with the original poster that there is a conflict in the bylaws because one provision says that the four officers shall be on the executive board, but the next provision says the board may have as few as three members.  It is impossible for the board to be composed of only three people when another provision clearly says that the four officers shall be on the board.  That is an obvious conflict. 

I disagree. If an office is temporarily vacant, this is not a violation of the bylaws.

Even to the extent it is believed none of the offices can ever be vacant, a single person may hold multiple officer positions, unless the bylaws provide otherwise.

Further, I would note that my experience is these "not fewer than..." provisions are generally added to account for vacancies, because people panic and believe that if a "range" is not provided for, then the board is unable to function if there are ever vacancies. (Which as you and I and the rest of the forum know, is incorrect.) I don't think it is actually intended for the board to function with only three members.

In any event, to the extent any "conflict" is perceived in this matter, the easiest solution is to simply provide "The board shall have twelve members."

Edited June 11, 2024 at 12:55 AM by Josh Martin

[Nic Rosenau]

Thank you all so much. This has been so helpful. I appreciate how generous you all are with your expertise.

My takeaway is that as it's not a violation of the Bylaws for an office to be temporarily vacant, so should the Board ever fall to three members, the Vice Presidency will be the vacant office until the low-membership problem is rectified (which one hopes would be relatively swift). (We don't need to state that the Vice Presidency is the vacant office in such a circumstance because state law requires a minimum of President, Secretary, and Treasurer). 

I will take the suggestion to simply state “The board shall have twelve members” to the Bylaws Revision Committee (although we've never gotten to 12 members — we are an extremely small nonprofit, so we thought we were rocking it when we reached 8 board members; fortunately, we also haven't been as low as 3 members since the initial start-up period). 

[Dan Honemann]

On 6/12/2024 at 8:50 AM, Nic Rosenau said:

I will take the suggestion to simply state “The board shall have twelve members” to the Bylaws Revision Committee (although we've never gotten to 12 members — we are an extremely small nonprofit, so we thought we were rocking it when we reached 8 board members; fortunately, we also haven't been as low as 3 members since the initial start-up period). 

Why in the world would you have the bylaws require 12 members?

[Nic Rosenau]

 

On 6/12/2024 at 8:09 AM, Dan Honemann said:

Why in the world would you have the bylaws require 12 members?

The Bylaws don't. The Bylaws require a minimum of 3 members. The 12-member maximum is a "stretch goal." (I don't know why 12 was the number selected for that goal.)

[Dan Honemann]

On 6/12/2024 at 9:52 AM, Nic Rosenau said:

 

The Bylaws don't. The Bylaws require a minimum of 3 members. The 12-member maximum is a "stretch goal." (I don't know why 12 was the number selected for that goal.)

But you said: "I will take the suggestion to simply state 'The board shall have twelve members' to the Bylaws Revision Committee."  Why not suggest maybe "seven" or "eight"?

[Nic Rosenau]

On 6/12/2024 at 9:22 AM, Dan Honemann said:

But you said: "I will take the suggestion to simply state 'The board shall have twelve members' to the Bylaws Revision Committee."  Why not suggest maybe "seven" or "eight"?

Ah, I understand now. When I bring this suggestion to the rest of the committee, I will suggest choosing a more attainable goal. 

[Luke Wegner]

Why even specify a number for the executive board? Why not just:

ARTICLE 3: THE EXECUTIVE BOARD. Section 1. Board Composition. The officers of the Society, including the Directors, shall constitute the Executive Board. The Board shall have up to twelve, but not fewer than three members.

Article 2 already limits the number of officers/directors to 12. If anything, you should set a number of directors in Article 2 instead of "up to eight."

Edited June 13, 2024 at 04:15 PM by Luke Wegner

[Nic Rosenau]

On 6/13/2024 at 11:13 AM, Luke Wegner said:

Article 2 already limits the number of officers/directors to 12. If anything, you should set a number of directors in Article 2 instead of "up to eight."

I will advocate for doing that. Thank you.