Fix My Bylaws

I love getting emails from readers. They so often point me in a new direction for posts!

Here’s a clip of a note I received this morning:

Most of our all-volunteer board are content to move fairly casually through the business of operating this organization …

One of these board members, however, has a different view of how this or any all-volunteer board should behave. He tends to look to the current bylaws, modestly updated most recently about six years ago, for specific direction regarding roles and decision-making responsibilities. He is fond of quoting statements from the bylaws and then interpreting very rigidly the spaces between the statements as being controlling in their silence. If isn’t allowed or stated in the bylaws, it must not be allowed to exist.

The bylaws are where you should be looking for specific direction. And while there are a couple of issues in the clip of this note I’ll just focus this morning on that last part.

There is no way that any governing group can make a rule for every possible situation. That’s what you’d have when you put everything in the bylaws. The Constitution of the USA is, essentially, the bylaws of the country and it’s only got 27 amendments! If you print out the whole document from this online site, it’s only 19 pages long!

Ah, but the books explaining what they mean–can mean, or are supposed to mean–now THERE are some volumes!

So unless something is specifically disallowed in the bylaws, it means the issue is open for discussion. However, in cases where you don’t want to have to discuss whether or not you have a certain power, you make sure it’s in the bylaws. For example, the bylaws should specifically give the board the power to impose fees. That’s just not the sort of thing an organization would like to have to debate when they need some money!

In a recent set of bylaws I’ve worked on, the only standing committee listed is the finance committee and “such other committees as the President may request and a majority of the Board approves. ”

This organization regularly has committees for a conference, for programs and marketing. But while they are not required by the bylaws they are certainly not disallowed! One year, for a host of reasons, they might decide not to have a conference. That should not require amending the bylaws!

Good bylaws make the running of the organization easier because the big decisions that govern the rules of your game have already been decided.

Likewise, a good policies and procedures manual can be a giant help on stuff that just gets confusing every time you do it… like say elections. By what DATE should the nominating committee start work; by when should they announce a slate? etc. In that situation, each new committee could easily be mistaken about the amount of time the process might take, so outlining it someplace will help them not to have to reinvent the process every time.

Good luck my friends! This process is just about thinking!

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Organizations often have problems deciding on how to choose the right candidates when there are more than enough people for positions that require more than one person to fill them.

OIPB organization has to elect three members at large to the board. But they have five people on the slate. It doesn’t seem fair if every voter gets just one vote. So what are the other options?

Each voter could either get several votes or each voter could rank the candidates in order of preference–called cumulative or preference voting, respectively.

Cumulative Voting
In cumulative voting, voters get one vote for each position to be filled. That means that if there are three positions and five people running, each voter may give one or more of his votes to any collection of candidates.

This method can allow coalitions of voters to put the weight of more votes behind a given candidate.

However, it is possible that miscalculations will result in wasted votes and unanticipated out comes. It could happen that there would be plenty of votes for one candidate and a less desirable candidate might wind up in the next position.

Preference Voting
In Preference Voting, each voter ranks all the candidates according to his preference. For example, if the OIPB’s the five candidates are ranked from 5 at the top of the pile to 1 at the bottom, then a tally of those numbers will indicate which candidates are most favored.

A more detailed explanation is availabe in the article “Preference Voting vs. Cumulative Voting” by Rob Richie of The Center for Voting and Democracy. Click here to read it.

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Like many new groups, the imaginary nonprofit Organization for the Illustration of Bylaws Problems (OIPB) started out writing their original document in a hurry so they could incorporate. They figured that after the settling of the initial whirlwind of activity they “go back and change them later.” One member of the original team believed that just saying: “The board can do what ever it should to run the organization” would be good enough to get going.

But like most groups the board of the OIPB thought bylaws were complicated and boring and no one ever wanted to look at them again.

Then — (cue up scary music here) –
Two years later when there was a board member who had to be removed, there was no real guidance in the bylaws. One easy way should have been to remove the person for not paying dues. That would have made the whole thing a lot less messy.

But the bylaws didn’t say that board members had to be members in good standing (or up to date with dues).  They only said a board member could be removed by a vote after a fair hearing. So the OIPB board had to go thru the time consuming process of figuring out cause and documenting all that. They wasted so much time and energy and angst figuring out how to proceed.

How clear are your instructions for removing a board member? If you can’t understand what the rules say, you need to work on your bylaws.

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I thought I’d invent an organization to illustrate some problems I come across working with organizations and their bylaws. That way I’m not giving away any trade secrets or breaking any confidences. I also don’t have to explain anything about the organization.
So please understand, just like in fiction and the movies, the stories of the imaginary nonprofit Organization for the Illustration of Bylaws Problems (OIPB) are based on fact, but any resemblance to real organizations is purely coincidental.

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Fila, the sports apparel company, has been loosing market share for a long time. They had some trouble with their former CEO, Jonathan Epstein, back in 2004. Very old news, you say.

The company was bought in January 2007 by Fila Korea Ltd, the former Korean licensee. More old news, you say. (Check out this story in the Baltimore Sun, May 22, 2007)

So here’s the twist:
The president of the holding company created for the acquisition had a radical idea. He called back the old CEO to turn the company around — albeit not in the same position.

I don’t do financial evaluations or speculation. But what I find interesting in this story is that somebody new in an organization understood the value of somebody old, somebody who might in other circumstances be labeled the “difficult employee.”

Every board more than about 12 minutes old has some board member who’s left, perhaps even someone that many other people were glad to see go. But if that person had any redeeming qualities, any skills or talents or knowledge that might be useful to the organization, there is no shame in asking that person for advice or counsel.

Sometimes the “old farts” have incites and perspectives worth examining… especially if your in a real pickle and don’t know where the top of the jar is.

This isn’t advice… just a thought.

– Kerch

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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).

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The main thing about bylaws is that they’re like the rules of your game. If you make them up before you start playing, everyone knows what they are. But if you start changing them mid way into the season, a lot of players can get angry.

When an organization is new, you think that everyone who joins your board of directors will always be as wonderful and committed as that first group. But sometimes it just doesn’t happen. So it’s important to make decisions about what you think should happen BEFORE there are actual, real people involved. That way the actions can’t be construed as a personal decision.

I had this note from Sharon. And I think her problems are probably not uncommon.

Check it out.

Kerch,

Thanks for responding so quickly to my request for your Taming the Bylaws Monster. I couldn’t agree more with some of your statements.

Thanks for asking for it! {kerch}

I have worked several years in assisting local grassroots organizations develop bylaws and set up their organizational structures. I am by no means a parliamentarian; I do have lots of Community Development training and really enjoy working (in most cases fixing) with bylaws.

I belong to an organization that will present a total bylaws revision in a couple of months to our organization. In the mean time, we have a lady that was elected to a very important office in our organization. She has never attended a meeting; neither board or association. We really need to replace her.

Our bylaws give the officers a definite term of three years. (Our revision includes “until their successor is elected”). There is also no section for “removal” of officers.

I searched the RR of Order and can only find that we could rescind the motion that placed her in the position. I understand that notice must be given for this and a vote of 2/3 of members present and voting must happen.

My question: does the President have the authority to declare the office vacant for dereliction of duty? We could then fill the position and move forward.

Our President has been in office for one and a half years and has never met the lady. Our President sent her a letter explaining the importance of her position to the organization and the importance of her duties. There was never a response. Phone calls go unreturned.

We really need help; this lady is a pastor’s wife and we do not wish to create an uncomfortable situation; however, we need someone to do this work. Others in the organization cannot fullfill this lady’s duties, everyone is busy with their duties and it is a specialized position that takes some time.

This is a heck of a bind!

Without seeing the actual bylaws, I can’t really give you any specific advice about them. (And I’m not a lawyer anyway — so this is never legal advice!) But if you are in the process of revising them anyway, I’d really recommend you add a section on what has to happen in order for a board member or officer to be removed from office.

It’s important to make that very specific and in no way open to question. For example, You can’t say, “If they’re not nice, we can kick them off the board.”

Who is to say what “not nice” means?

But you can say: “If a board member misses more than three meetings in any calendar year, they may be asked to resign.”

Very specific — any kindergarten kid can count to three!

Your proposed change to say “until their successor is elected” doesn’t give you any way to gracefully tell the person that you want them out.

Does that also mean that if I’m on your board, and I want off, but you don’t find a replacement, then I’m stuck for life?

If you have only one board member out of 15 who isn’t pulling their weight, perhaps that’s not such a big problem. But what if your board only has 5 people. Then that’s 20% of your group. And how does this one person who never shows up affect your quorum if someone just happens to be on vacation or sick on the day of your meeting? Then what?

Roberts’ Rules is a great document for the managing of meetings. But the specifics about how you want YOUR organization to make decisions — and I don’t mean the “motion” process — must be something you decide and write down.

It also makes uneasy times like those you have now easier to manage because the decision would have already been made — and not in the heat of battle, so to speak.
You also said:

Others in the organization cannot fulfill this lady’s duties, everyone is busy with their duties and it is a specialized position that takes some time.

This problem is a separate one. Have you someone in mind to do her job? On the other hand, if it’s not getting done now, I wonder what would happen if the position were actually vacant for a while?

Non profits, in general, operate on a great deal of good will among its board, membership and sponsors. So you surely don’t want to piss anybody off needlessly.

You also don’t want to open yourself to the possibility of a lawsuit — frivolous or not.

I also suspect you, and the active board members, are expending more energy over what to do about her, than she is about you!

You also said:

I searched the RR of Order and can only find that we could rescind the motion that placed her in the position. I understand that notice must be given for this and a vote of 2/3 of members present and voting must happen.

Does this mean she was not actually elected to her position? Has anyone actually talked to her since she accepted the position?

I am not a parliamentarian. I build bylaws. (S)

But it would seem you are correct according to the information provided by Dr. John A. Cagle, Parliamentarian of the Academic Senate and Professor of Communication at California State University, Fresno. His site has some very useful information on lots of rules about running non profit organizations.
But perhaps you’ll get a more specific answer if you write to him directly. You can get to him thru his website.

Please let me know what happens.

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