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| Re: Bylaw Question
Posted by carl   on 3/5/2009, 10:24 pm, in reply to "Bylaw Question"
VIP Poster
Hi,
Your brief posts speaks to many, many concerns that are more important than whether "interim board members," can change your by-laws.
1. There is no such thing as "interim board members" unless there is a specific provision for this class of membership in your by-laws. And, I'll bet dollars to doughnuts that no such provision exists.
a. If the by-laws say that board members must be voted in and the people sitting in the board meeting have not yet been voted in, then those people who have not been installed according to the written policies of the organization are NOT board members. No one on the board has the power to recruit, invite, install, or otherwise institute board members through a process that is NOT described in the by-laws. Just can't be done; at least not politically legally. Your board is not a legal board until you install board members according to the current provisions of the by-laws.
b. Look in your by-laws for provisions of "Special Session" meetings of the membership. You should have provisions for "Special Session" meetings of the board membership and "Special Session" meetings of the membership. Your organization should have called a "Special Session" of the membership in November when the board abdicated its role. At a Special Session meeting in or shortly after November, the membership should have voted the new board members in. At which point, those people would be board members and would have full rights and roles and responsibilities as proscribed by the by-laws.
c. If your board chair is indeed an "Interim board chair"; i.e. not voted in by the membership of the organization at either a regular or special session, then, that person does not have the authority to recruit new board members. Your board chair should have called a Special Session of the membership, explained the situation, and "nominated" a slate of new members, and requested a vote by the membership. Waiting until the annual meeting in April simply isn't good enough.
2. Your board chair is attempting to push through changes to the organization that some of the new board members do not agree with. This statement is very troubling because it may be that neither your board chair nor your board are legally instated.
a. You have to ask yourself whether the membership would care and would press a different agenda. Sounds like at least some of the new board members would like to see a different agenda. I can only surmise at this point that possibly your board members do care. If your board chair presses on, he or she runs the risk of legal action. Read the section on "indemnification of board members," and sections on "conflict of interest" and/or "appearance of conflict of interest." Most of these are boilerplate that basically say that a member of the board cannot controvert the desires of the members (voiced by vote in a legal meeting.) With or without the threat of suit, the chair is foolhardy to press the issue changing something so venerable, delicate, and enduring as your organization's by-laws. I suggest you stall him.
b. If my understanding of your situation is wrong and your board is a duly constituted board seeking changes to your organization's policies (i.e. by-laws) and these changes have been agreed upon by resolution (i.e. vote of the board sitting in legal session.), then there is no reason not to institute the changes. I think, however, that I am not wrong. Your board and your board chair have not been voted in and possibly the changes have not been agreed upon by board resolution. In the latter case, your board does not have the authority to change the by-laws.
c. Very likely, your board chair is not Darth Vader and is not seeking to overthrow Mom, apple pie and the American way. He or she is simply a well-intentioned person who would like either to make things more efficient, consolidate a little power that he or she grabbed during the dramatic transition, or in some other way further an agenda that he or she beleive to be in the best interest of the organization. This person may or may not understand that changes to the by-laws if these changes are acted upon will dramatically change the nature and complexion of the organization. Most of the time, changes to make things more efficient can be accomplished by enacting policies by resolution (formal vote of the board at a legally constituted board meeting.) I suggest you get the new board chair to seek short-term changes in that way.
You can double check my thoughts by reading the state statutes for nonprofit organizations. Most state statutes are available online although some take a little digging to find.
I am not an attorney and the information offered in this post is not intended to offer legal advice. I have written, re-written, filed, revised, and otherwise changed the by-laws of many organizations. I have also developed nonprofit organizations from less than scratch. I consult with nonprofit organizations in the areas of organizational structure, written policy, strategic planning, board development, grantwriting, and fundraising.
Hope some of this helps,
Carl
Richardson Development
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