Bylaw vote

[Gunnar]

I have a question.  Although we have about 80 members throughout the US, we only have 36 members in the area.  How do we pass bylaw changes with 2/3 when we can't reach that number? Are we allowed to have 2/3 of members that show up to vote?

[Dan Honemann]

On 6/17/2024 at 4:54 PM, Gunnar said:

I have a question.  Although we have about 80 members throughout the US, we only have 36 members in the area.  How do we pass bylaw changes with 2/3 when we can't reach that number? Are we allowed to have 2/3 of members that show up to vote?

What do your bylaws say concerning the number of members who must be present to constitute a quorum?

And while you're looking at your bylaws, tell us exactly what they say concerning the vote required for the adoption of a motion to amend them.

Edited June 17, 2024 at 09:16 PM by Dan Honemann
Added the last paragraph.

[Gunnar]

Article V states all meetings will be run on a parliamentary basis. There is no minimum number for quorum in our bylaws. In Article XIII, changes to bylaws state that changes require a 2/3 majority of members present for ratification.

 

 

[Dan Honemann]

On 6/17/2024 at 5:30 PM, Gunnar said:

Article V states all meetings will be run on a parliamentary basis. There is no minimum number for quorum in our bylaws.

If your bylaws are, in fact, completely silent concerning what constitutes a quorum, then a quorum is a majority (more than half) of your total membership.  If you have 80 members, 41 members need to be present in order to conduct business of any kind.

On 6/17/2024 at 5:30 PM, Gunnar said:

In Article XIII, changes to bylaws state that changes require a 2/3 majority of members present for ratification.

The exact wording of this provision is crucial.  It may provide that the vote required is a vote of two thirds of the members present (which appears to be the case), or it may only require a vote of two thirds of the total votes actually cast.  In either case, a quorum must be present at the time the vote is taken in order for it to have any validity.

[Gunnar]

Thank you.  It states, "changes to bylaws state that changes require a 2/3 majority of members present for ratification".  Based on the exact wording can we use present over quorum?

[Richard Brown]

On 6/17/2024 at 5:20 PM, Gunnar said:

Thank you.  It states, "changes to bylaws state that changes require a 2/3 majority of members present for ratification".  Based on the exact wording can we use present over quorum?

I don't understand the question. What do you mean by the highlighted words "present over quorum"?

[Josh Martin]

On 6/17/2024 at 5:20 PM, Gunnar said:

Thank you.  It states, "changes to bylaws state that changes require a 2/3 majority of members present for ratification".  Based on the exact wording can we use present over quorum?

I don't quite understand what you are asking, but I think the answer is no. The quorum requirement and the voting requirement are two different things, which must both be met. Neither of them is used "over" the other.

A quorum is the minimum number of members that must be present in order to conduct any business (except for a few procedural actions), including, but not limited to, amending the bylaws. If your bylaws are silent concerning the quorum, then a quorum is a majority of the entire membership. You say that your organization has 80 members, therefore, a quorum would be 41.

(It does sound like, in the long run, it would be advisable for your organization to amend its bylaws to provide for a lower quorum.)

Once it has been established that a quorum is present, then the question arises as to what voting threshold is required for adoption of an amendment to the bylaws. You say that your bylaws provide that "changes require a 2/3 majority of members present for ratification." In my view, this wording is somewhat ambiguous. It could potentially mean...

• 2/3 of the members present - for example, if 60 members are present, then 40 votes in the affirmative would be required for adoption
• 2/3 of the members present and voting - for example, if 60 members are present, but six members abstain (meaning 54 votes are cast), then 36 votes in the affirmative would be required for adoption

I am inclined to lean toward the former of these interpretations, based upon the facts provided.

So to answer your original question, yes, you are allowed to have 2/3 of members who show up vote in favor of the bylaw amendment in order to adopt an amendment - provided, however, that the number of members who show up constitutes a quorum.

[Richard Brown]

Since your bylaws don't specify the quorum and they appear to require the vote of two-thirds of the members present to amend the bylaws, it appears to me that to amend the bylaws you must have at least 41 members present and that two-thirds of those present must vote YES for an amendment to pass.

Can you get 41 members to come to a meeting in order to amend the bylaws?  BTW, if the rules in RONR are controlling, you need 41 members present in order to do anything. 

Do you have any other governing document, such as a corporate charter, that sets out the quorum requirement? 

[Joshua Katz]

I think the OP is just asking if the organization can amend the bylaws with a 2/3 vote of those present and voting, when a quorum is present, as opposed to 2/3 of the entire membership voting in the affirmative. And, hesitantly because I haven't seen the bylaws, I think the answer to that is yes, with the note that it's not a choice, it's just a question of what is required.

[Richard Brown]

On 6/17/2024 at 8:13 PM, Joshua Katz said:

I think the OP is just asking if the organization can amend the bylaws with a 2/3 vote of those present and voting, when a quorum is present, as opposed to 2/3 of the entire membership voting in the affirmative. And, hesitantly because I haven't seen the bylaws, I think the answer to that is yes, with the note that it's not a choice, it's just a question of what is required.

Nothing in the bylaws requires the vote of 2/3 of the entire membership. Rather, the bylaws seem to me (and I believe to Mr. Martin) to require the vote of 2/3 of the members present at a meeting.  However, it is ultimately up to the members of this organization to interpret that provision in its bylaws. 

[Gunnar]

Thank you all for your input.  We do not have any set number for a quorum.  We don't have any other documents to lower the quorum number.  The challenge is there is no way to get 41 members to a meeting for bylaw changes.  Here is the article in question: Does the area in bold override the quorum number needed for a bylaw change?

 

Article XIII: Changes to Bylaws

 

Proposed changes to the Bylaws of MRLV shall be presented in writing to MRLV Executive Board at any monthly scheduled meeting. A vote will be taken to determine if the proposed changes will be presented to the general membership. A simple majority of the members present and voting is required for passage. If approved, the proposed changes will be voted on by the general membership at the next regularly scheduled meeting. Changes require a 2/3 majority of members present for ratification.

[Gary Novosielski]

On 6/18/2024 at 4:49 PM, Gunnar said:

Thank you all for your input.  We do not have any set number for a quorum.  We don't have any other documents to lower the quorum number.  The challenge is there is no way to get 41 members to a meeting for bylaw changes.  Here is the article in question: Does the area in bold override the quorum number needed for a bylaw change?

 

Article XIII: Changes to Bylaws

 

Proposed changes to the Bylaws of MRLV shall be presented in writing to MRLV Executive Board at any monthly scheduled meeting. A vote will be taken to determine if the proposed changes will be presented to the general membership. A simple majority of the members present and voting is required for passage. If approved, the proposed changes will be voted on by the general membership at the next regularly scheduled meeting. Changes require a 2/3 majority of members present for ratification.

No. 

Before we even get to the vote suggested by the bolded language, a quorum must be present.  Without a quorum, the amendment can't be moved, the language can't be debated, and the vote referred to in bold cannot be held. 

Far from overriding the quorum requirement, the business of changing the bylaws relies on the presence of a quorum before anything relating to that change can be considered.  And if your bylaws do not mention quorum, then the quorum is 41 of your 60 members who must be present.  

[Dan Honemann]

On 6/18/2024 at 5:02 PM, Gary Novosielski said:

Far from overriding the quorum requirement, the business of changing the bylaws relies on the presence of a quorum before anything relating to that change can be considered.  And if your bylaws do not mention quorum, then the quorum is 41 of your 60 members who must be present.  

We know you meant 80 instead of 60.

[Dan Honemann]

On 6/18/2024 at 4:49 PM, Gunnar said:

We do not have any set number for a quorum. 

Here is what RONR, 12th ed., says in 40:2(2):

 "In organizations such as many churches or some societies in which there are no required or effective annual dues and the register of members is not generally reliable as a list of the bona-fide members, the quorum at any regular or properly called meeting consists of those who attend."

Any chance your organization falls within this category?

[Gunnar]

We pay dues. no we don't 

[Dan Honemann]

On 6/18/2024 at 5:36 PM, Gunnar said:

We pay dues. no we don't 

Is your organization incorporated?

[Gunnar]

Yes it is

 

[Dan Honemann]

On 6/18/2024 at 6:13 PM, Gunnar said:

Yes it is

 

Okay, many states have laws applicable to corporations that provide a process for setting, during a meeting at which no quorum is present, an adjourned meeting at which the members present will constitute a quorum.  This process ordinarily includes special notice requirements.

Do whatever you need to do to see if any such law is applicable in your situation.

[Gary Novosielski]

On 6/18/2024 at 5:10 PM, Dan Honemann said:

We know you meant 80 instead of 60.

And right you are!   (fixed, thanx)

[Josh Martin]

On 6/17/2024 at 8:13 PM, Joshua Katz said:

I think the OP is just asking if the organization can amend the bylaws with a 2/3 vote of those present and voting, when a quorum is present, as opposed to 2/3 of the entire membership voting in the affirmative. And, hesitantly because I haven't seen the bylaws, I think the answer to that is yes, with the note that it's not a choice, it's just a question of what is required.

I agree the answer to that question is yes.

But no, apparently, the OP was asking whether the organization can ignore the quorum requirement.

On 6/18/2024 at 3:49 PM, Gunnar said:

Thank you all for your input.  We do not have any set number for a quorum.  We don't have any other documents to lower the quorum number.  The challenge is there is no way to get 41 members to a meeting for bylaw changes.  Here is the article in question: Does the area in bold override the quorum number needed for a bylaw change?

No. The language does not "override" the quorum requirement.

My recommendation would be to encourage the large swath of members who never show up to meetings to quit (at least temporarily) so that the organization can amend the bylaws to establish a lower quorum requirement than the default.

(As Mr. Honemann suggests, it may also be there is an alternative in applicable law.)

[Gunnar]

Good Morning,

 

Thank you all for your input.  I have addressed the issue to the executive board and the general membership. Two questions arose.  1.  if there have been bylaw changes with only members in the room voting, are those changes void? 2.  What do we do to fix this?  Can we send a bylaw change notification to the whole membership, and if they state they can not get here for the vote and don't want to vote, can we move forward with the members that show up?  

[Josh Martin]

On 7/9/2024 at 10:37 AM, Gunnar said:

1.  if there have been bylaw changes with only members in the room voting, are those changes void?

Well, it's always the case that the bylaw changes will happen "with only members in the room voting." Absentee voting is not permitted unless your bylaws provide otherwise.

But what I understand you to be asking is "If amendments to the bylaws were adopted with less than a quorum present, are those changes void?"

Yes, provided that there is "clear and convincing proof" that a quorum is not present.

"Because of the difficulty likely to be encountered in determining exactly how long the meeting has been without a quorum in such cases, a point of order relating to the absence of a quorum is generally not permitted to affect prior action; but upon clear and convincing proof, such a point of order can be given effect retrospectively by a ruling of the presiding officer, subject to appeal (24)." RONR (12th ed.) 40:12

Additionally, once again, the quorum requirement applies to all business (except a few procedural actions), not just amendments to the bylaws. So it is not just bylaw amendments that are at risk, but any business adopted in the absence of a quorum.

"As indicated in 3:3, a quorum in an assembly is the number of members (see definition, 1:4) who must be present in order that business can be validly transacted. The quorum refers to the number of members present, not to the number actually voting on a particular question." RONR (12th ed.) 40:1

"In the absence of a quorum, any business transacted (except for the procedural actions noted in the next paragraph) is null and void. But if a quorum fails to appear at a regular or properly called meeting, the inability to transact business does not detract from the fact that the society's rules requiring the meeting to be held were complied with and the meeting was convened—even though it had to adjourn immediately." RONR (12th ed.) 40:6

On 7/9/2024 at 10:37 AM, Gunnar said:

2.  What do we do to fix this?

I can think of a few options:

Option 1: Get a majority of the members to show up so you have a quorum.

Option 2: Persuade the members who never show up to meetings to resign. Assure them this will only be temporary, and that they are welcome to return as soon as you fix your organization's quorum problems. Then, get a majority of the new, lower membership total to show up, so you have a quorum.

Option 3: The two above options are the end of the list so far as RONR is concerned. It may be, however, that there are also options available under applicable law. You may wish to consult an attorney to see if there are other options under state law.

Regardless of how you do it, when you manage to get a quorum (or find some workaround in state law), the first thing your organization should do is amend the bylaws to establish a quorum which is more reasonable for your organization.

"To accomplish their work, voluntary societies that have an enrolled membership generally need a provision in their bylaws establishing a relatively small quorum—considerably less than a majority of all the members. In most such organizations, it is rarely possible to obtain the attendance of a majority of the membership at a meeting. Sometimes the specification of a quorum is based on a percentage of the membership; but such a method has the disadvantage of requiring recomputation and may lead to confusion—for example, when the secretary, or other officer who is in a position to certify as to the current number of members for purposes of the percentage calculation, is absent. There is no single number or percentage of members that will be equally suitable as a quorum in all societies. The quorum should be as large a number of members as can reasonably be depended on to be present at any meeting, except in very bad weather or other exceptionally unfavorable conditions." RONR (12th ed.) 40:3

On 7/9/2024 at 10:37 AM, Gunnar said:

Can we send a bylaw change notification to the whole membership, and if they state they can not get here for the vote and don't want to vote, can we move forward with the members that show up?  

No. The fact that a member has stated they cannot attend the meeting does not change the quorum requirement. What you could do, as noted above, is to have those members resign, and then rejoin the organization after you have fixed your quorum problems.

The other thing which occurs to me is that you note in your initial post that "Although we have about 80 members throughout the US, we only have 36 members in the area," which I presume is the reason for your quorum problems. Another thing to look into would be whether your organization's bylaws or applicable law permit meetings to be held by electronic means. (Or in the alternative, some other form of absentee voting, such as voting by mail, proxy voting, etc.)

Edited July 10, 2024 at 02:57 PM by Josh Martin

[Joshua Katz]

On 7/10/2024 at 5:45 AM, Josh Martin said:

Yes, provided that there is "clear and convincing proof" that a quorum is present.

 

I would, suggest instead of the bolded words, "was not present."

[Dan Honemann]

On 7/9/2024 at 11:37 AM, Gunnar said:

Thank you all for your input.  I have addressed the issue to the executive board and the general membership. Two questions arose.  1.  if there have been bylaw changes with only members in the room voting, are those changes void?

 

On 7/10/2024 at 8:45 AM, Josh Martin said:

Well, it's always the case that the bylaw changes will happen "with only members in the room voting." Absentee voting is not permitted unless your bylaws provide otherwise.

But what I understand you to be asking is "If amendments to the bylaws were adopted with less than a quorum present, are those changes void?"

Yes, provided that there is "clear and convincing proof" that a quorum is present.

"Because of the difficulty likely to be encountered in determining exactly how long the meeting has been without a quorum in such cases, a point of order relating to the absence of a quorum is generally not permitted to affect prior action; but upon clear and convincing proof, such a point of order can be given effect retrospectively by a ruling of the presiding officer, subject to appeal (24)." RONR (12th ed.) 40:12

Additionally, once again, the quorum requirement applies to all business (except a few procedural actions), not just amendments to the bylaws. So it is not just bylaw amendments that are at risk, but any business adopted in the absence of a quorum.

"As indicated in 3:3, a quorum in an assembly is the number of members (see definition, 1:4) who must be present in order that business can be validly transacted. The quorum refers to the number of members present, not to the number actually voting on a particular question." RONR (12th ed.) 40:1

"In the absence of a quorum, any business transacted (except for the procedural actions noted in the next paragraph) is null and void. But if a quorum fails to appear at a regular or properly called meeting, the inability to transact business does not detract from the fact that the society's rules requiring the meeting to be held were complied with and the meeting was convened—even though it had to adjourn immediately." RONR (12th ed.) 40:6

Mr. Katz has fixed the "not hole".

As to the answer to Gunnar's first question, based upon what you have quoted in your second bolded paragraph, aren't these bylaw changes presumed to be valid unless and until they are determined to be invalid?

[Josh Martin]

On 7/10/2024 at 8:38 AM, Dan Honemann said:

As to the answer to Gunnar's first question, based upon what you have quoted in your second bolded paragraph, aren't these bylaw changes presumed to be valid unless and until they are determined to be invalid?

Yes, this is correct. A Point of Order would need to be raised regarding this matter.