BoD Election Process and Voliation of By-laws

[Guest zac]

I have a question regarding an election process and violation of the existing by-laws or our association during our past election.

I was running for the BoD of our Association. There were 5 people running for BoD, (3) incumbents and (2) non-incumbents which included myself.

The first problem was the ballot format and process for voting was changed prior to any member receiving any prior notice or the changes before the election.

Second, I discovered that (2) of the incumbents running for re-election were on the election committee which was a violation of our By-Laws.

I asked the BoD to void the election based on the new ballot changes, process and no notification were given to members ahead of time and the violation of the (2) incumbents running for re-election when they were on the election committee for the whole year.

The following text is what the BoD did to allow the election to be valid.

Do I have any rights to challenge what they did for something that happened 6 months ago, they temporary adopted changes to the voting process/By-laws, confirmed the (3) incumbents that they won the election then rescind the temporary adoption of the changes so that the election process was not in violation of the By-Laws.

It reminds me of the USSC decision regarding the 2000 Vote of Gore vs. Bush.

If you need more detail about this issue, please ask. I appreciate everyone’s input and help in this matter.

??? ASSOCIATION, INC.

Proposed Resolutions Ratifying 2010 Election of Directors

WHEREAS, prior to the January, 2010 election of directors of ??? Association,

Inc., the corporation took steps to correct errors in the composition of the Election Committee and to

revise the form of delegate ballot provided to club representatives; and

WHEREAS, the Board of Directors wishes to ratify the outcome of the January 2010 election, it

is hereby

??? Association®, Inc.

Board of Directors Meeting

Indianapolis, Indiana

Abridged Minutes

May 8, 2010

Abridged Minutes, 5/8/10 Page 28 of 28

RESOLVED, that effective immediately Sections 2 and 4 of Article IV, Section 2 of Article VII and

any other applicable provisions of the Bylaws of the corporation are hereby amended to provide that all

expiring and vacant positions on the Board of Directors shall be filled by resolution of the Board of

Directors;

FURTHER RESOLVED, that effective immediately (and to the extent not done previously) the

following persons are hereby elected of the Board of Directors of the corporations for terms ending in

2013:

Name#1,

Name#2,

Name#3

FURTHER RESOLVED, that all actions previously taken by the Board of Directors during 2010

are hereby ratified and confirmed; and

FURTHER RESOLVED, that effectively immediately after the adjournment of this meeting, the

amendments to the Bylaws of the corporation made in these resolutions are rescinded and that the

Bylaws shall be in the form they existed prior to the adoption of these resolutions.

Name#4 seconded the motion. Name#1, Name#2, & Name#3 abstained from any discussion or vote

regarding this issue.

In favor of the resolution: Name#5, Name#5, Name#7, Name#8 (by proxy), and Name#4.

Abstained: Name#1, Name#2, and Name#3. The motion passed.

[Gary c Tesser]

First. Provisions in bylaws that can be suspended are only (a) those that explicitly provide for their own suspension, or (b ) those that are in the nature of rules of order (not the way to bet).

Violations are null and void, and a point of order to vacate them can be raised at any time.

1 (a). If the board does not have the explicit, unambiguous authority to amend the bylaws, then any claim that the board did so is untrue. Look at FAQ #20, "How can we get rid of officers we don't like before their term is up? at http://robertsrules.com/faq.html#20 .

2. I can't be sure from this remove, but the odds are that the change in the ballot format does not rise to the level of questioning the validity of the election, unless, say, it was fraudulent; or otherwise downright disenfranchised the electorate; or violated bylaws-level rules about previous notice.

3. Candidates' being on the election committee is no violation of Robert's Rules. Violating your bylaws is a whole other kettle of squirmy things ... it might depend on exactly what the bylaws say.

[Kim Goldsworthy]

The first problem was the ballot format and process for voting was changed prior to any member receiving any prior notice or the changes before the election.

There is no rule in Robert's Rules which implies that an election is null and void JUST BECAUSE a "format" change occurred.

You need something more substantial to complain about than a format change.

Second, I discovered that two of the incumbents running for re-election were on the election committee which was a violation of our By-Laws.

This violation (having ineligible people sit on a committee) will not invalidate an election JUST BECAUSE a committee was comprised of some ineligible people.

...

RESOLVED, that effective immediately Sections [nn] Article [nn] of the Bylaws of the corporation are hereby amended to provide that all expiring and vacant positions on the Board of Directors shall be filled by resolution of the Board of

Directors;

...

(motion passed.)

You conveniently failed to cite the METHOD OF AMENDMENT for your bylaws.

No one can tell if the above resolution CONFORMS or DOES NOT CONFORM to the method of amendment.

If your bylaws' method of amendment was obeyed, then I do not see any violation.

[Trina]

This whole thing sounds so unsophisticated and heavy-handed that I can't help wondering if the board has the authority to do ANY of this stuff. What's with the board ratifying and confirming all actions taken by itself during the past year?? One wonders what that is supposed to accomplish... And 28 pages of minutes ???

Anyway, as others have already asked, does your board have the power to amend the bylaws? That would be unusual, but certainly not impossible.

[Guest zac]

Thanks everyone for your help in reviewing and your thoughts.

Even though the minutes are 28 pages, this Election Issue in the minutes is only 1 page long.

I asked one of the BoD members about the violation of the By-Laws a month after the election. The Executive Director did call me and put his spin on the whole issue. After the phone discussion I became more concerned about the violation.

The following text is what happened before they ratified the election of 2010.

16. Status of Bylaw review

Name#1 moved that the Board enter executive session. Name#6 seconded. 9:23 pm

The Board entered Executive Session at 9:23 p.m.

The Board exited Executive Session at 10:54 p.m.

Name #6 moved to ratify the results of the 2010 election by adoption of the following resolution:

The BoD has or will not answer my questions as to what the exact language was used to admend the By-Laws. It is being kept a secret at this time. Do I have any rights to force the BoD to tell all the members what they did, how they did it and why they did it?

And here are some of our By-Laws:

(d) Bylaws Committee. - The Secretary and other appointees will serve on the

Bylaws Committee. The Bylaws Committee will serve as a conduit for and generate

proposed changes to these Bylaws. Changes to the Bylaws must be approved by the board

of Directors pursuant to Article IX herein.

(h) Election Committee – The Election Committee shall consist of at least three

persons of which at least two shall be persons in good standing, holding no office within

the corporation and only one shall be a current Board member not up for election. The

Election Committee shall be appointed by the first Board member of the Corporation not up

for election from Chairman, Vice-Chairman, Secretary, Treasurer, followed by other board

members by tenure. The Election Committee shall receive completed ballots at or before

the beginning of the Annual General Meeting and shall be responsible for tallying the

results and reporting the results to the presiding officer of the Meeting. The Election

Committee shall ensure that all returned ballots are authentic and shall destroy the ballots,

after reporting the results, at the adjournment of the Annual General Meeting.

ARTICLE IX

AMENDMENTS TO BYLAWS

These Bylaws may be altered, changed, added to or amended at any regular or

special meeting of the Board of Directors. Said alterations, changes, additions or

amendments shall be passed upon by the vote of two-thirds (2/3) of the Board of Directors

present and eligible to vote at said meeting.

The foregoing constitutes the Bylaws of the Corporation as read and presented to

the Board of Directors and enacted by two-thirds (2/3) vote of the Directors of the Board

entitled to vote on the ____ day of _______________, 20__.

________________________________

Secretary

[Kim Goldsworthy]

(d) Bylaws Committee. - The Secretary and other appointees will serve on the Bylaws Committee. The Bylaws Committee will serve as a conduit for and generate proposed changes to these Bylaws. Changes to the Bylaws must be approved by the board of Directors pursuant to Article IX herein.

. . .

ARTICLE IX

AMENDMENTS TO BYLAWS

These Bylaws may be altered, changed, added to or amended at any regular or special meeting of the Board of Directors. Said alterations, changes, additions or amendments shall be passed upon by the vote of two-thirds (2/3) of the Board of Directors present and eligible to vote at said meeting.

"Yeow!"

Game. Set. Match.

General membership is reduced to mere observers on the side line.

Elect your board of directors and then stand at your whipping post and say, "Thank you, sir. May I have another?"

[Guest zac]

"Yeow!"

Game. Set. Match.

General membership is reduced to mere observers on the side line.

Elect your board of directors and then stand at your whipping post and say, "Thank you, sir. May I have another?"

So....do that mean I don't have a leg to stand on? The BoD can do whatever they like when they like and totally ignore the membership. Are are By-Laws typically setup outside of this screwed up Association?

[Guest zac]

So....do that mean I don't have a leg to stand on? The BoD can do whatever they like when they like and totally ignore the membership. Are are By-Laws typically setup outside of this screwed up Association?

OK...I need a spell checker and grammar check on this thing before I post again....LOL

How are other Associations setup when it comes to changing By-Laws? Do they typically involve the membership?

[Trina]

OK...I need a spell checker and grammar check on this thing before I post again....LOL

How are other Associations setup when it comes to changing By-Laws? Do they typically involve the membership?

Most of the associations encountered on this forum (and the default situation according to RONR) is that the general membership starts out with all the power, and then may delegate some of this power to a board which is created and described by language in the bylaws. The power to amend the bylaws generally remains with the general membership.

Do your bylaws leave any power with the general membership, other than the power to elect the board members every few years? Any disciplinary provisions? From what you've quoted, it really does sound as though the board can do pretty much whatever it likes... and is taking advantage of that opportunity.

[Josh Martin]

So....do that mean I don't have a leg to stand on?

Well, you don't have any grounds to claim the election is null and void. I don't think there were any continuing breaches, and even if there were, the board "healed" the breaches by amending the Bylaws.

The BoD can do whatever they like when they like and totally ignore the membership.

Do to your screwed-up Bylaws, pretty much.

How are other Associations setup when it comes to changing By-Laws? Do they typically involve the membership?

In most organizations, the board is subordinate to the general membership. Even in organizations where the board is superior (such as stock corporations), two things are usually reserved for the general membership - amending the Bylaws and electing the board.

Do your bylaws leave any power with the general membership, other than the power to elect the board members every few years? Any disciplinary provisions?

If the board has the power to amend the Bylaws then any powers the Bylaws give to the general membership could be taken away at the board's whim, so they wouldn't really help much. It seems to me the only solution is for any members who are fed up to walk off and form their own organization. Perhaps the threat of such a substantial loss in dues would force the board to reach a compromise with the disgruntled members.

[Guest zac]

Thanks Trina,

There was a split from this non-profit back in 2005 and that group, who happened to be part of the BoD started their own for-profit organization from this non-profit organization. About 1/3 of people left the old organization. Some of us belong to both organizations and a few of us did not like how the power and ego's of some of the BoD were making the non-profit a self serving/promoting one. From what I understand, the non-profit organization has no members based on the By-Laws....just people that play in it. So it looks like this organization is under total control by this current BoD who can change the By-Laws at anytime for whatever reason.

[Guest zac]

Here is the text in the By-Laws about membership:

ARTICLE III

MEMBERSHIP

The Corporation will have no members. All pets racing in sanctioned

competition must be assigned a Number (N) and pay such fee

as shall be established by the Board of Directors from time to time. The N shall be good

for the life of the pet and shall be non-transferable to another pet.

[Trina]

....

The first problem was the ballot format and process for voting was changed prior to any member receiving any prior notice or the changes before the election.

....

Election Committee –

....

The Election Committee shall receive completed ballots at or before

the beginning of the Annual General Meeting and shall be responsible for tallying the

results and reporting the results to the presiding officer of the Meeting

....

Here is the text in the By-Laws about membership:

ARTICLE III

MEMBERSHIP

The Corporation will have no members. All pets racing in sanctioned

competition must be assigned a Number...

OK, I'll bite... In view of the text you've just quoted from the article on membership, who meets at your organization's 'Annual General Meeting', and who are the 'members' who didn't receive prior notice (as described in your original post)?

More to the point, perhaps, who is entitled to cast ballots during the election?

It does appear that your organization has departed considerably from the typical organization described in RONR; thus, since RONR deals primarily with rules for properly conducting business at meetings of a deliberative assembly, and with the rights and responsibilities of the members of such an assembly, the book is unlikely to offer much help in the situation you're describing.

[Ann Rempel]

OK, I'll bite...

Pun intended?

[Guest zac]

Voting is done by the delegates. Delegates are club owners who receive votes based on the number of events that the club will enter a team during the season. Each Delegate gets up to 8 votes max. The Delegates can then decide withing the club how to vote.

In 2009 there were over 352 sanctioned tournaments hosted in 41 states and provices, hosted by 137 US and Canadian clubs.

8,678 teams raced in the 352 tournaments from 371 different clubs.

from the By-Laws:

Section 2. Delegates. From time to time the Board of directors may submit rule

changes to delegates for consideration. Affiliate Clubs will be given a number of delegate

votes based on the number of tournaments each club competed in and/or hosted during a

fiscal year. Affiliate Clubs must compete in at least one event during the racing year to

qualify for Delegate Votes. Delegates will be calculated for a club based on competition in

or hosting tournaments on the following schedule: 1 delegate for 4-5 team entries; 2

delegates for 6-11 team entries; 3 delegates for 12-17 team entries; 4 delegates for 18-23

team entries; 5 delegates for 24-29 team entries; and 6 delegates for 30 team entries or

more. One delegate per club will be awarded for hosting each tournament. No Club shall

earn more than 8 delegate votes in total by team entries or tournament hosting. The Board

of Directors may designate delegates with special interest in flyball. Each Board member

will individually receive a delegate vote over and above any delegate votes otherwise

earned. Each Regional Director will individually receive a delegate vote over and above

any delegate votes otherwise earned. All approved judges and supervising judges will

individually receive a delegate vote in addition to any other delegate votes otherwise

earned. Clubs will be notified of the number of delegates earned during the preceding

fiscal year. Delegate votes will be determined once each year at the close of the NAFA®

Racing Year based on the activities of the club or individual during the year just completed.

Delegate votes exercisable in FY 2010 shall be determined by the number of delegate

votes a club earned by virtue of activities in either FY 2008 or FY 2009, whichever yields

the higher number of votes.

[Dan Honemann]

As stated on its Introductory Page, “this Forum is provided to allow an open exchange of views relevant to specific questions of parliamentary procedure under Robert's Rules of Order Newly Revised”, and it is also noted there that “the Robert's Rules Association and the authorship team reserve the right to remove … irrelevant … messages and any postings deemed by them to be sufficiently erroneous or misleading to warrant removal.”

This discussion is not one concerning what is or is not proper parliamentary procedure under the rules in RONR, but rather it is one concerning what is or is not proper procedure under a particular organization’s bylaws. To permit extensive discussion of this question here in this forum will not only tend to be unproductive (since responders, most likely, will not have sufficient information to provide a meaningful response), but will also tend to mislead our readers, who may think that what is being discussed is proper procedure under the rules in RONR.

As a consequence, we respectfully request that those interested in pursuing this question do so by private e-mail, or other means outside of this forum.