Can a Non-profit organization bylaws be made un-changable and un-mendable at the Founder/Co-Founders resignation or death

[DZMASJWD]

Our organization has a set of bylaws. At the ending there is a statement/clause, that the bylaws can not be amended or changed if Founder/Co-founder dies or resigns. Does that mean as it sounds? Is the only option to start from scratch and desolve?  
 

Thanks

[Rob Elsman]

I suspect this is more a legal question than a question about parliamentary law. You might want to seek the assistance of an attorney.

[J. J.]

On 8/1/2024 at 8:47 PM, DZMASJWD said:

Our organization has a set of bylaws. At the ending there is a statement/clause, that the bylaws can not be amended or changed if Founder/Co-founder dies or resigns. Does that mean as it sounds? Is the only option to start from scratch and desolve?  
 

Thanks

First, please quote the bylaw in question. 

[Richard Brown]

On 8/1/2024 at 7:47 PM, DZMASJWD said:

Our organization has a set of bylaws. At the ending there is a statement/clause, that the bylaws can not be amended or changed if Founder/Co-founder dies or resigns. Does that mean as it sounds? Is the only option to start from scratch and desolve?  
 

Thanks

From a parliamentary standpoint, based upon the rules in RONR, I think such a bylaw provision is valid and enforceable.  However, I agree with JJ that it would be helpful to see the exact language of that bylaw provision.

[Gary Novosielski]

On 8/1/2024 at 8:47 PM, DZMASJWD said:

Our organization has a set of bylaws. At the ending there is a statement/clause, that the bylaws can not be amended or changed if Founder/Co-founder dies or resigns. Does that mean as it sounds? Is the only option to start from scratch and desolve?  
 

Thanks

Well, if it's true that the bylaws can't be amended, then it's not even possible to dissolve the organization.  I reserve opinion for the moment on whether it's actually enforceable.

In any case, it is possible to remove this provision before the Founder dies, if there's still time.

[Weldon Merritt]

On 8/2/2024 at 9:06 AM, Gary Novosielski said:

Well, if it's true that the bylaws can't be amended, then it's not even possible to dissolve the organization.

That was my initial thought as well. But I'm not so sure. True, dissolution requires teh same notice and vote as an amendment, and dissolution is accomplished by rescinding the bylaws. But is that really the same as amending them? While not directly applicable, the motion to Amend or Rescind Something Previously Adopted seems to suggest that these are two different actions. But I'm not terribly confident in that position. Just wondering.

[Dan Honemann]

On 8/2/2024 at 10:27 AM, Weldon Merritt said:

While not directly applicable, the motion to Amend or Rescind Something Previously Adopted seems to suggest that these are two different actions. But I'm not terribly confident in that position. Just wondering.

They are two different motions.

"35:1    By means of the motions to Rescind and to Amend Something Previously Adopted—which are two forms of one incidental main motion governed by identical rules—the assembly can change an action previously taken or ordered. Rescind—also known as Repeal or Annul—is the motion by which a previous action or order can be canceled or countermanded. The effect of Rescind is to strike out an entire main motion, resolution, order, or rule that has been adopted at some previous time. Amend Something Previously Adopted is the motion that can be used if it is desired to change only a part of the text, or to substitute a different version."
 

[Rob Elsman]

On 8/2/2024 at 11:08 AM, Dan Honemann said:

They are two different motions.

Yes, indeed. The difficulty arises from the use of the conjunction, "and". The truth value of an "AND" operation is only true when both premises are TRUE. The use of "and", in this case, leaves the natural impression that Rescind is the same motion as Amend Something Previously Adopted. The truth value of an "exclusive OR" operation is TRUE only if one premise is TRUE and the other premise is FALSE. The use of "or" would have left the correct impression that the two premises are not the same thing. Had I to do it all over again, I would name the section, Rescind or Amend Something Previously Adopted.

Edited August 2, 2024 at 05:01 PM by Rob Elsman

[Richard Brown]

On 8/2/2024 at 11:42 AM, Rob Elsman said:

Had I to do it all over again, I would name the section, Rescind or Amend Something Previously Adopted.

As would I.

[Rob Elsman]

What makes this so fun is that the adoption of the subsidiary motion, Amend, can transform the one motion to the other. You just have to love it. Only in parliamentary law, huh!

[Rob Elsman]

While we are at it, the first sentence of the passage Mr. Honemann quoted makes no grammatical sense whatsoever. There is no point trying to reconcile "motions" with "one incidental main motion". There have to be boundaries to reality, even in parliamentary law.

[Weldon Merritt]

On 8/2/2024 at 11:08 AM, Dan Honemann said:

They are two different motions

Indeed they are. Which I think actually supports my view that rescinding the bylaws is not the sane as amending them.

Interestingly, while the text of 35:1 uses the conjunction "and," which logically should be "or," the title of Sec. 35 uses neither conjunction. The title is "RESCIND; AMEND SOMETHING PREVIOUSLY ADOPTED."

[Rob Elsman]

Interestingly, "or" is used in the ever-so-authoritative index.

[Gary Novosielski]

On 8/2/2024 at 12:42 PM, Rob Elsman said:

Had I to do it all over again, I would name the section, Rescind or Amend Something Previously Adopted.

To me that makes it sound like one motion with two possible purposes, especially when you italicize the or, making it seem like part of the name.  Note that in the section discussing Rescind and Amend Something Previously Adopted, the two motions are separated by an unitalicized and.

Edited August 2, 2024 at 11:44 PM by Gary Novosielski

[Rob Elsman]

One can readily see the source of the confusion that Mr. Honemann is trying to clear up.

[DZMASJWD]

On 8/2/2024 at 9:06 AM, Gary Novosielski said:

Well, if it's true that the bylaws can't be amended, then it's not even possible to dissolve the organization.  I reserve opinion for the moment on whether it's actually enforceable.

In any case, it is possible to remove this provision before the Founder dies, if there's still time.

The founder has already resigned. Here is how it’s written: These Bylaws may be altered, amended, or repealed and new Bylaws may be adopted
by a two-thirds majority vote of the Board of Directors at any regular or special meeting of the Board of Directors. In the event of the death or resignation of the Founder there shall be no change in the bylaws

[DZMASJWD]

On 8/2/2024 at 7:59 AM, J. J. said:

First, please quote the bylaw in question. 

The founder has already resigned. Here is how it’s written: These Bylaws may be altered, amended, or repealed and new Bylaws may be adopted
by a two-thirds majority vote of the Board of Directors at any regular or special meeting of the Board of Directors. In the event of the death or resignation of the Founder there shall be no change in the bylaws

[Joshua Katz]

I'm not sure I'd interpret that language the way your organization seems to be. But it's not mine to interpret. 

[J. J.]

On 8/6/2024 at 11:01 PM, DZMASJWD said:

The founder has already resigned. Here is how it’s written: These Bylaws may be altered, amended, or repealed and new Bylaws may be adopted
by a two-thirds majority vote of the Board of Directors at any regular or special meeting of the Board of Directors. In the event of the death or resignation of the Founder there shall be no change in the bylaws

Does the founder have specific roles under the bylaws?

I may be in agreement with Mr. Katz.

 

[DZMASJWD]

He is stated as the chief executive of the board.
 

“Except where otherwise provided by these bylaws, the temporal affairs of the Church shall be managed by the Board of Directors. Notwithstanding the foregoing, the powers of the Board of Directors, shall never interfere or supersede the authority of the Founder over the spiritual affairs of the Church. Once the Founder and Co-Founder positions have been abolished al powers are of the Church are governed by the Board of Directors through a majority of the vote of the Board of Directors.”

but then that clause at the end has always been a thorn. As if nothing could be done in any way shape or form. I have been told the church could never be sold, new bylaws instituted, or anything for that matter. Even if it was in the best interest. Once founder and co founder resigned it was locked up forever 

[J. J.]

The bylaw is ambiguous, IMO.  It could mean that the bylaws can never be changed.  It could mean that, when the Founder/Co-Founder is no more, the bylaws do not have to be modified to abolish the position.

RONR has a long section on bylaw interpretation (56:68).

[Josh Martin]

On 8/6/2024 at 10:01 PM, DZMASJWD said:

The founder has already resigned. Here is how it’s written: These Bylaws may be altered, amended, or repealed and new Bylaws may be adopted
by a two-thirds majority vote of the Board of Directors at any regular or special meeting of the Board of Directors. In the event of the death or resignation of the Founder there shall be no change in the bylaws

Oh dear. The organization should have thought about this before the founder resigned.

On 8/6/2024 at 11:37 PM, DZMASJWD said:

He is stated as the chief executive of the board.

“Except where otherwise provided by these bylaws, the temporal affairs of the Church shall be managed by the Board of Directors. Notwithstanding the foregoing, the powers of the Board of Directors, shall never interfere or supersede the authority of the Founder over the spiritual affairs of the Church. Once the Founder and Co-Founder positions have been abolished al powers are of the Church are governed by the Board of Directors through a majority of the vote of the Board of Directors.”

but then that clause at the end has always been a thorn. As if nothing could be done in any way shape or form. I have been told the church could never be sold, new bylaws instituted, or anything for that matter. Even if it was in the best interest. Once founder and co founder resigned it was locked up forever 

This may well be correct.

On 8/7/2024 at 7:32 AM, J. J. said:

The bylaw is ambiguous, IMO.  It could mean that the bylaws can never be changed.  It could mean that, when the Founder/Co-Founder is no more, the bylaws do not have to be modified to abolish the position.

RONR has a long section on bylaw interpretation (56:68).

I agree, although I would add that I would also strongly advise consulting an attorney on this matter, especially if the founder, co-founder, and/or their allies are known to be litigious.

Edited August 8, 2024 at 04:53 PM by Josh Martin

[Atul Kapur]

On 8/7/2024 at 12:37 AM, DZMASJWD said:

but then that clause at the end has always been a thorn. As if nothing could be done in any way shape or form. I have been told the church could never be sold, new bylaws instituted, or anything for that matter. Even if it was in the best interest. Once founder and co founder resigned it was locked up forever 

I agree with @Joshua Katz, @J. J., and @Josh Martin that this is not the only interpretation. For what it's worth, I lean to the interpretation that

On 8/7/2024 at 8:32 AM, J. J. said:

It could mean that, when the Founder/Co-Founder is no more, the bylaws do not have to be modified to abolish the position.