Amendments to Bylaws and Constitution

[Guest Lunch Lady]

Our union is very divided over a few issues. Our current Bylaws require the VP to assume the duties of the President, if the President is terminated by the employer. The President has been terminated and is in the early stages of the grievance process. Some of us think that the VP should assume the Presidecy as the Bylaws clearly state. However, the executive committee has presented an Amendment to our Bylaws that will call for "a president to continue after termination of employment if the termination is being grieved." The Amendment is backdated to take effect at the beginning of the year. The result would be that the President can then continue in her position. Some of us contend that the amendment cannot be backdated and the president under the current bylaws, must be replaced by the VP. Can the Bylaws be backdated.....?

[Larry Cisar]

Our union is very divided over a few issues. Our current Bylaws require the VP to assume the duties of the President, if the President is terminated by the employer. The President has been terminated and is in the early stages of the grievance process. Some of us think that the VP should assume the Presidecy as the Bylaws clearly state. However, the executive committee has presented an Amendment to our Bylaws that will call for "a president to continue after termination of employment if the termination is being grieved." The Amendment is backdated to take effect at the beginning of the year. The result would be that the President can then continue in her position. Some of us contend that the amendment cannot be backdated and the president under the current bylaws, must be replaced by the VP. Can the Bylaws be backdated.....?

Until the amendment is passed, the current wording holds. So if the president has been terminated, follow your current bylaw. A proposed amendment does not affect anything as it could be voted down.

[Josh Martin]

Can the Bylaws be backdated.....?

The Bylaws could contain a proviso which would cause the former President to regain his position, however, this would not take effect until the Bylaws are adopted.

[J. J.]

The Bylaws could contain a proviso which would cause the former President to regain his position, however, this would not take effect until the Bylaws are adopted.

There is no prohibition in RONR about adopting a bylaw that would have an ex post facto effect.

I'm also entirely sure that, under your bylaws, an employee would be considered "terminated" who may not have, ultimately, still have his position.

[Trina]

Our union is very divided over a few issues. Our current Bylaws require the VP to assume the duties of the President, if the President is terminated by the employer. The President has been terminated and is in the early stages of the grievance process. Some of us think that the VP should assume the Presidecy as the Bylaws clearly state. However, the executive committee has presented an Amendment to our Bylaws that will call for "a president to continue after termination of employment if the termination is being grieved." The Amendment is backdated to take effect at the beginning of the year. The result would be that the President can then continue in her position. Some of us contend that the amendment cannot be backdated and the president under the current bylaws, must be replaced by the VP. Can the Bylaws be backdated.....?

There's simply no need to worry (or argue) about the backdating issue, and don't put any additional language into the amendment to try to make it effective before it is adopted. That makes no sense, since the proposed amendment has no power over what you do NOW. Comply with the current bylaws (VP assumes duties of President). Then adopt your bylaws amendment, which will take effect immediately.

If the VP has become President by the time the amendment is adopted, the amendment, as stated, will NOT put the former President back into office, however. If that is your goal, I think you could accomplish that by putting a one-time proviso into the amendment, along the lines of "upon adoption of this amendment Mary Smith will resume her former role as President, and John Jones will resume the office of VP." I have some qualms about this, as I'm not sure what happens if John Jones (former VP) does not want to give up the office of President. Kicking him out against his will by amending the bylaws seems problematic, especially if other parts of the bylaws specify some sort of due process for a person being removed from office. I think the specific proviso would prevail, however, over the more general rights to due process which may be described in other parts of the bylaws (RONR p. 571, principle of interpretation #3).

Perhaps John Jones is fine with going back to being VP, in which case it seems fairly straightforward.

[hmtcastle]

Some of us think that the VP should assume the Presidecy as the Bylaws clearly state.

Those people are correct

However, the executive committee has presented an Amendment to our Bylaws that will call for "a president to continue after termination of employment if the termination is being grieved." The Amendment is backdated to take effect at the beginning of the year. The result would be that the President can then continue in her position.

No, the former president might be re-instated but could not continue in office since she had already been removed, per your bylaws. In other words, once she's been removed, no amendment, proviso, or back-dating will change that fact, regardless of what happens next.

[Josh Martin]

There is no prohibition in RONR about adopting a bylaw that would have an ex post facto effect.

J. J., I agree. I'm just saying that until the amendment is adopted, the President would remain out of office (although the interpretation issue you raise is one the organization should also consider).