Drafting Bylaws: Conditional Articles: Is this a legitimate?

[Guest J. Wellington]

Our Association is drafting Bylaws. Can you have a bylaw article that covers an entity that won't exist at founding, and isn't required to exist?

The Article 5 (covering the Board of Directors) says:

Section 11 | Committees

The Board may establish an Executive Committee[footnote 8], and other committees as it deems necessary and appropriate. All committees shall have the authority delegated to them by the Board and shall report to the Board on their activities.

The footnote related to the Executive committee says:

[8] Should an Executive Committee be created, it is subject to Article 6. When there is no Executive Committee, the Board of Directors fulfills all executive duties not otherwise committed.

Article 6  is otherwise normal and covers the Executive Committee. 

[Josh Martin]

On 7/1/2024 at 9:15 PM, Guest J. Wellington said:

Can you have a bylaw article that covers an entity that won't exist at founding, and isn't required to exist?

Yes. Your organization is free to put whatever it wishes in its bylaws, so long as it does not conflict with an even higher level rule, such as applicable law.

In addition, I would add that a provision in the bylaws permitting (but not requiring) the Board of Directors to establish an Executive Committee is not unusual. A provision permitting (but not requiring) the board to establish committees is even more common.

The one issue I take with this language is not with the hypothetical status of the Executive Committee, but that the Executive Committee is, strictly speaking, a "board within a board," not a committee, so I don't know that the "other committees" language is strictly accurate. However, I don't know that this error causes any harm.

Edited July 2, 2024 at 01:55 PM by Josh Martin

[Guest J. Wellington]

On 7/2/2024 at 9:53 AM, Josh Martin said:

A provision permitting (but not requiring) the board to establish committees is even more common.

So we could have bylaws pertaining to any number of potential committees/departments (finance, outreach, disciplinary, etc.), and committees in general, that just aren't relevant unless they exist?

On 7/2/2024 at 9:53 AM, Josh Martin said:

The one issue I take with this language is not with the hypothetical status of the Executive Committee, but that the Executive Committee is, strictly speaking, a "board within a board," not a committee, so I don't know that the "other committees" language is strictly accurate.

Could you explain this a little more? I'm not understanding.

[Richard Brown]

On 7/2/2024 at 8:53 AM, Josh Martin said:

The one issue I take with this language is not with the hypothetical status of the Executive Committee, but that the Executive Committee is, strictly speaking, a "board within a board," not a committee, so I don't know that the "other committees" language is strictly accurate. However, I don't know that this error causes any harm.

I had the same concern and came to the same conclusion. The executive committee technically is not a committee, but rather is a board within a board, but I do not see that that terminology causes any harm.

To Guest J Wellington, an executive committee is not really a committee. It is actually in the nature of a board. We refer to it as a “board within a board “because it is usually subservient to the board of directors. It has the same relationship to the board of directors as the board of directors has to the society.  It usually has the authority to act on certain matters between meetings of the board.

Edited July 2, 2024 at 06:51 PM by Richard Brown
Added last paragraph. Edited again to add the last sentence

[Guest J. Wellington]

On 7/2/2024 at 2:44 PM, Richard Brown said:

To Guest J Wellington, an executive committee is not really a committee. It is actually in the nature of a board. We refer to it as a “board within a board “because it is usually subservient to the board of directors. It has the same relationship to the board of directors as the board of directors has to the society.  It usually has the authority to act on certain matters between meetings of the board.

So both the EC and a Committee are creatures of the Board of Directors. The EC is different in that it has the board's authority between meetings in a way committees don't?

How would I change the language to reflect a proper understanding?

(Not sure if this is useful, but the current structure is board controlled. General Meetings would be advisory unless something is referred to it)

[Gary Novosielski]

Change what language?  RONR already says this.

[Richard Brown]

On 7/2/2024 at 2:33 PM, Guest J. Wellington said:

How would I change the language to reflect a proper understanding?

I agree with Mr. Novosielski that you probably don’t need to change anything, because that is already the rule in RONR. However, for the sake of clarity, I would suggest you consider changing just one word. Instead of saying, “The board may establish an executive committee and other committees as it deems necessary.. . . .”, I would say “the board may establish an executive committee and such committees as it deems necessary”.  Change the words “other committees” to “such committees”.