Author Archives: Kerch McConlogue

Ex officio does not mean “not quite official”

While your bylaws may stipulate something else, in fact, according to Roberts Rules of Order, ex officio members of the board have the full collection of rights and privileges as do any other member of the board. Ex officio does not mean “not quite official.” It translates from Latin as “from the office.” What makes ex officio members different than regularly elected or appointed members is that they serve as a result of some office they hold.

For example, you might want the editor of your newsletter to be an ex officio member of your board. That person would be able to fully participate in board meetings and then appropriately report on the proceedings in the newsletter. Being part of the board allows that person to build different relationships and have different access than s/he might if not part of the group. But if the board decides that that editor needs to be replaced, then that person would also no longer be a member of the board of directors.

It is also common to include, or exchange, ex officio members between related but distinct organizations. For example, two chapters of a national organization that are geographically connected might benefit from access to information about what plans are each group is making.

Sometimes the president of an organization is an ex officio member of all committees of the board (with the exception of the nominating committee).

Can the president vote?

president's gavelYou’ve probably heard that the president can only vote if it is to break a tie. That’s not exactly true.

I don’t like to use Robert’s Rules to run my meetings. But they do seem to be the de facto authority on how they should go. Here’s what Robert says:

If the president is a member of the voting body, he or she has exactly the same rights and privileges as all other members have, including the right to make motions, to speak in debate, and to vote on all questions.

However, impartiality may be more appropriate in large meetings, so having too much to say or voting by voice might appear to unduly influence the group.  (And isn’t it at least part of the president’s job to keep any one person from throwing too much weight around?)

Interestingly, Roberts Rules say that the president can only break a tie with an affirmative vote.

Also if the yea’s have it by only one vote, the president can vote to CAUSE a tie “to cause the motion to fail.”

Check it all out in Roberts Rules here.

See why I like consensus? Half your members won’t ever go away angry!

More on email voting

For me the two issues around email voting are these:

  • Did the actual director send the email? Or was it his wife? or somebody else with access to the  account?
  • And this thing I’ve done myself:  “Yes I agree but what about” this situation? or “I agree and do we know for sure that” X is really the situation?

Check out this article over at BlueAvacodo ( a great resource about not-for-profits) on just this topic: Can Nonprofit Boards Vote By Email? by Gene Takagi and Emily Nicole Chan

With an email without a signature, the consent could have been sent by anyone with access to the board member’s email account. Should we accept an email that simply states “Yes” in response to a complicated proposal without further verification? If the director later claims not to have sent the email, the action may be nullified and could result in all kinds of problems, including lawsuits against the nonprofit and individual directors. And what if the email says “Yes, as long as we . . . ” Is that an effective consent? Probably not.

Read more about voting by mail here

Voting a board member out

I’ve both served on and worked with several boards of directors that have some of the same members who started the organization—30 years later! I have heard them say, “We tried that ten years ago and it didn’t work.” And I wanted to slap them!

I’m not casting any personal aspersions on any of those people, but you gotta imagine that at least some board members (and maybe most) want that member, we’ll call him (or her) Jean, to be gone! Maybe Jean wants things to stay the way they were imagined in the very beginning. Maybe Jean just like being the “Father (or Mother) of the Organization.” What if Jean also carries the most of the institutional knowledge? That means whenever there is a question about how to do something, Jean gets to answer.

Here’s a short list of possible problems with the scenario:

  1. Nobody really wants to work with Jean, the know-it-all, but they’re stuck. Few people want to stand up to Jean because of the power s/he controls.
  2. Jean, by virtue of seniority, gets to control much of the conversation, the decisions and general direction of the organization. S/he might even have undue influence on who else might be elected to the board.
  3. It’s hard to get new board members when they hear about or witness Jean’s control; they run away!
  4. The organization can never really grow past its initial invention and can be in a real danger of stagnation at the least and collapse at worst.

If your bylaws make provisions for specific infractions of conduct that you can use to remove Jean—like missed meetings or an incomplete financial commitment—you might be able to get rid of him. But you might have to go through a pretty public process to do it.

One five-year-old organization I have worked with set up their election process to deal with a general “I-can’t-work-with-Jean” situation.

Here’s how it works

Half the board positions are re elected every other year to ensure continuity and to prevent a full change in the organization all at once. This method also eliminates the continuing conversation, “When is your term up?” President and Vice President as well as Secretary and Treasurer, for example, are elected in alternate years.

A simple majority of board members elects new/returning members. It means, essentially, that each person running is running against “NoBody.” And NoBody might win!

The nominations committee is responsible to find one person per position to be elected. While I have not been privy to the conversations of this nominating committee,   I’m thinking if they have a sense that Jean might not make the cut, they’ve probably been considering others to take her role. That person might run against Jean, or be appointed after the election to take Jean’s position.

This organization, after just five years, has a full new board of directors, free to move the organization on to the next stage of its growth. The old members are happy to offer advice when asked, but they’re not there to control the conversation and direction of the group.

Not many organizations have this system of elections. It would, no doubt, require a revision to your bylaws. But if you’re starting out, consider the possibility that you might have a Jean and prepare for it!

Voting by email: more on the topic

One of the obvious problems about electronic voting or votes by email in a nonprofit organization is the easy access to accounts by family members or other people.

How is the organization to know if the board member voted or her husband did? We like to think email is at least partly private. But way too many times I find myself sending what I imagine is just a personal note to a friend and find out later that her husband, with whom she shares the address, read it first.

Another problem seems to be that state laws don’t specifically authorize the practice. So while it may not exactly be illegal, it also might be later found to be so. In addition, the paperwork that is prudent to record these kinds of votes is much more complicated than would be necessary for a voice vote at a regular, or even special, meeting.

I tried a rather cursory look thru the National Association of State Charity Officials (NASCO)   and really couldn’t find any states that even made it easy to figure out if they allowed it or not. You may have to call someone in your Secretary of State or Attorney General’s office to get a definitive answer to this.

Then comes the issues about discussion on a motion put to the vote. Some questions are pretty obviously fine for an email vote: moving a meeting place or date, for example. Yes or no is easy. But if the issue is more complicated, what do you do with a “Yes, but… “ kind of reply. Is that a yes or a no?

If the electronic voting is in place to easily agree or disagree to simple questions, fine. But it could be pretty easy to use it to avoid discussion.

And, who gets to approve the call to vote action in the first place? I’d like to think that the executive committee or some other responsible group has already considered the question and made a reasonable recommendation for the rest of the board to consider.

Telephone meetings are so easy to set up (well, aside from scheduling a time for a big group of people). But you can call into a conference call line pretty easily from just about anywhere in the world. And if the meeting is just to vote, it doesn’t even have to be very long.

By the way, conference calls do not need to be set up by somebody on their phone which is capable of conferencing each time. Get a free account with one of several conference call companies. Keep your login and pin numbers handy and use it when you need it. I’ve used both and with great success.

If you must vote by email be sure to think out and write down your policy on the practice. First of all, it could be pretty confusing so you want to write it all out. And second, you don’t want to have to figure this out more than once.  Answer at least these questions:

  • What kind of written and usual documentation do you want to have to prove that the vote is valid? Something signed and stored in your board book is prudent. Keep a copy of the consents with the minutes of the meeting.
  • Send your votes to more than one person, secretary and chairman, for example. It’s a good CYA sort of activity.
  • Determine who reviews a motion first before it’s even put to the full board for approval. It should definitely be more than one person!

Check out this other article I’ve written about electronic voting.

And read this really useful, and more comprehensive article over at by Gene Takagi a California nonprofit attorney who also publishes the Nonprofit Law Blog.

About bylaws

Bylaws are not a static document.

Sometimes the rules need to be revised. Things change. Opportunities and threats present and must be addressed. It’s like adjusting the family rules to make them appropriate for your good-kid who just got his driver’s license. Those old rules about not crossing the street without holding a grown-up’s hand just don’t make sense any more.

Asking the what-if questions

When you’re writing the bylaws you have to ask all kinds of what-if questions. No one expects anything bad to happen. You don’t, pre birth, plan for what to do when bad kids encourage your baby to take drugs or steal a car. But in the early days of an organization, somebody has to ask, “What will you do if you have a board member who never comes to meetings?” or “What will you do if the organization fails?” You surely can’t plan for everything, but you should plan for some things.

In new groups, a dedicated group of people, who were committed to the ideals, vision, and purpose of the organization, get together to really think ahead about how they want things to work. It is like participating in the birthing of a baby – decorating the nursery, naming the child, thinking about what rules they’d like to have when the kid goes to school or wants to quit. It’s all about the grand vision for the future. Everything is possible.

Reread and rewrite

Then every couple of years you have to reread the document and consider it in the current state of the organization. Here again you have to ask questions about how your rules are working for you and find where they might be improved.

Conflict of Interest as part of the bylaws?

I had a note from a reader:

Kerch – I just bought your book and look forward to working through it. I have a question. Are you aware of new rules that require nonprofits to have a privacy promise and/or a conflict of interest agreement incorporated in the bylaws?

Thanks for buying the book..and thanks for the question.

I am not aware of any new rules about conflict of interest policy on the federal level. However, your state may have them. You should check with a local attorney.

Or you could write the policy and include in your bylaws that the policy must be signed by board members annually or at the start of their term.. or what ever you choose.

According to the fed website this morning, the “policy” itself is not required to be part of the bylaws.

Line 5a.     A “conflict of interest”   arises when a person in a position of authority over an organization, such as a director, officer, or manager, may benefit personally from a decision he or she could make. A Sample Conflict of Interest Policy   is included as Appendix A.

Adoption of a conflict of interest policy is not required to obtain tax-exempt status. However, by adopting the sample policy or a similar policy, you will be choosing to put in place procedures that will help you avoid the possibility that those in positions of authority over you may receive an inappropriate benefit.

Good luck with your project. And if you have any other questions, please holler.

Get help to write your bylaws

Building bylaws from scratch or revising an existing set is a tedious but critical task.

It’s easy to get tired of the job and just rush through some spots.

It’s all too tempting to imagine that whoever does the job the next time can address those details. However, there is no point in skipping over the easy parts (or the hard parts) and, what’s more, the more complicated parts will be the ones you’ll need in a crisis. Besides as you will learn, finding people to do the job isn’t easy.

What to do?
Here are a couple of tips for getting through your adventure

  1. One person should not do all the work of writing your bylaws. It’s a real burden. And worse, it could be a real problem for the organization when only one person has their hands in that pot. Oh, the mistakes she could make and the liberties she could take.
  2. Particularly because (this is what we call an “elephant in the corner,” the thing no one talks about) when only one person knows what’s in the bylaws, that person has tremendous power in the organization. It’s like playing Monopoly with a bunch of people but only one person knows the rules. And generally, that guy doesn’t share them well. (Four years after I did the work for that organization, and after I’d left the organization, I still get calls from people asking, “What do the bylaws say about…?” That, my friends, is very scary!)
  3. Depending on your organization, that power can be underutilized or wielded like a very big stick. If no one knows the rules, the board spends time every time deciding how to decide. What a waste of time! If one person THINKS he knows the rules, then sometimes you make bad decisions based on in accurate information. Also a recipe for problems.
  4. And finally, get help! Someone who sees the whole process, knows how far along your team really is, and how far there is to go, is key in keeping the project moving forward. Building bylaws from scratch or revising an existing set are tedious tasks – critical, but often tedious. It’s easy to get tired of the job and just rush through some spots. You think they’ll look at those spots the next time, but finding people to do the job is never easy and that project will keep getting put off.

If you commit to the task, then do it. Finish it.

Need help? Contact me.

I love this stuff!


Electronic voting and proxy votes

I love getting questions from readers.  Helps me to know what problems you’re facing. AND gives me something to poke around more about.  Here’s a question I got today:

I was looking for an example on how one includes in bylaws a ‘vote by proxy’ or ‘voting by email outside of meetings.’ Is it OK for boards to vote by e-mail on issues that can’t wait until the next meeting? How would that be included in bylaws?

Proxy and electronic voting are different things.

In voting by proxy one board member gives a written document awarding the first person’s vote to the second. The first person trusts that the second will vote as he wishes. The problem is that the director voting by proxy doesn’t get to hear or participate in the conversation around the idea being voted on. He may not even know the full wording of a motion. Directors have fiduciary responsibility for the organization. Proxy voting might just yield an unwanted outcome for the director personally.

There are laws in many states covering voting by electronic means, by email or other online process. Check with Attorney General’s office in the home state of your corporation. Some states say electronic voting must be unanimous in order to carry.

If it’s illegal in your state, you should mention that in the bylaws to keep other people from thinking they can do it when it’s not specifically disallowed.

It is likely that electronic voting requirements are different for board votes and membership votes. You should ask the AG about that. Or in any case, check with your group’s lawyer or accountant who manages these documents.

If it’s not illegal in your state then you should include in your bylaws under what circumstances electronic voting is allowed and what percentage is required to carry the motion. It might be a higher percentage that would normally carry.

Here’s a great resource from Pennsylvania Association of NonProfit Oranizations on proxy voting in  nonprofits.

Good luck to all!