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

The Board of Directors and Advisory Boards, Leadership Teams, and Committee Chairs

If you’ve been paying attention to the rest of this site, you’ve got a good set of bylaws that out lines how your nonprofit organization works.  The Board of Directors knows what they’re responsible for both individually and collectively.

But what happens when you think a few more people would be helpful to have on board.

This kind of advisory board could include “famous people” whose names you want on your letter head.  Or it could be made up of former board members who have knowledge and experience in the organization. It could also be a group of people you want to test to see if they would be good future board members.  It could include committee chairs who are not otherwise on the board.

Some of these people might participate in regular Board meetings. They contribute to the discussions.  But these people do not share the fiduciary responsibility for the organization

So plan for this kind of involvement. Just as you outlined the responsibility if each board member, you need to do the same for these auxiliary participants.

According to the NonProfitLawBlog in the article Advisory Board v. Board of Directors – A Distinction with a Difference

..it easier for both parties to avoid inadvertent confusion when there is something tangible to refer to rather than relying on word of mouth or informal practices. Ideally, if the organization has an advisory board or is likely to have one, it should be written into the bylaws – not because this language is required to authorize such an advisory board to exist but because it provides clarification to everyone about what’s going on.


Alternatively, if it is foreseeable that members of an advisory board will someday become part of the governing board, there is likely a greater importance in having procedures in place to groom potential candidates for a director position during their service in only an advisory capacity.

So the bottom line is this:

Figure out what you want these people to actually do.  Write that all down.. for two main reasons:

  1. The advisers can be clear about what is expected of them and
  2. They can be clear about what you’ll do for them including the length of service and other tasks

BlueAvocado has some great guidelines for having advisory boards in the article: What is an Advisory Board and Should We Have One?

As usual, make a plan. And then use it.

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 freeconferencecall.com and qualityconferencecall.com 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 BlueAvocado.com by Gene Takagi a California nonprofit attorney who also publishes the Nonprofit Law Blog.

Taming the Bylaws Monster

Did you ever notice that no one seems to look at the bylaws of an organization when everything is running smoothly? Then one fine day a board member, who has missed four of the last six meetings, makes some embarrassing public pronouncement. Now what? This is only one of the areas where your agency’s bylaws can help. They will tell you what your organization can do or what it must do in this and many other situations.

Keeping your bylaws up to date is a critical, strategic task. But it often gets pushed down to Priority #93 and ignored totally in the press of daily business. Many people feel that they don’t understand their bylaws at all, so they avoid even looking at them. They may also believe that in order to make the bylaws “right,” a lawyer — and all that attendant cost — is required.

Simply put, the bylaws are a system for governing the internal affairs of an organization. They are a living document that grows with the organization and prescribes its functions and limits. While bylaws cover a pretty standard collection of topics, the specific rules are particular to each organization and reflect its mission and values.

For example: a quorum is the portion of a voting body that must be present to conduct the business of an organization. The definition of that portion is a standard part of all sets of bylaws. But did you know that the actual percentage is not standard?

The U.S. Constitution, the bylaws of the United States, sets out the legislature’s quorum in Article 1, Section 5 … “a majority of each [house] shall constitute a quorum to do business.” That means at least 51 senators, a simple majority out of 100.

But if your organization is new or small and you’re relying on the board’s input to make most of the decisions, then perhaps you might decide that 3/5 or even 75% of voting members must be present. All of these choices are legal. But the one that’s right for your group might not be right for mine.

When it’s time to review your bylaws, start by making a list of the changes that have been proposed or that are simply being talked about. For example, maybe term limits are being discussed as a way to get new blood onto your board. Write down why you think these changes are needed. What other systems or structures of the organization will be affected by this change?

In my experience bylaws are rarely light reading, but they are in English. Plan enough time to read and digest them. Look for the sections with which your new plans might intersect. Talk with other people about what is in the best interest of the organization. Finally, draft the changes and prepare for the voting process for their adoption.

About the author:
K. Kerchner McConlogue, CPCC, PCC is a Baltimore-based coach in private practice who also works to map the future of organizations. For more information about how to update your bylaws go to www.fixmybylaws.com.

(c) 2006 K. Kerchner McConlogue, CPCC, PCC

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.

Organized Nonprofits

Check out the article Volunteers Give 10 Times More Than Other Americans, Survey Findswritten for The Chronicle of Philanthropy by Caroline Preston. There are a lot of little tidbits extracted from full study by Harris Interactive for the Fidelity Charitable Gift Fund.   Two I find most interesting:

It’s probably obvious that volunteers give more money to the nonprofits they support than outsiders. And that’s also  likely an overlooked fact in the fund raising campaigns of (at least) new or small organizations.

But more interesting to me is this:

Nearly 60 percent of survey respondents said they think charities are too much like big businesses. Roughly one half said that charities are disorganized.

OK. I say, nonprofits have to run like business or else they’ll go out of business… and then who will carry on the mission?

However, that second part about charities being disorganized… that’s a problem on many levels.

Disorganized organizations waste resources, including not only time but also talents and treasures.

A current and effective set of bylaws and a policies and procedures manual (or heck, even just a notebook) will make the organization run more smoothly.  This will impress (and keep interested) your current board and volunteers and make it rewarding for new people to get involved.

When was the last time your organization looked at either of these documents?  Has any one not on the board ever asked to see them? How hard would it be for people in your office or on your board to access them in order to show them or to use them themselves?

The availability of your bylaws, at least, indicates some measure of organization. Post them on your website, then not only can your board use them easily, but your supporters can see how you spend your time and their money.  Make it easy enough to find them and to read them, and maybe some people will.

Write your bylaws in plain English. Check out my book, Fix My Bylaws, to find out how easy that can be.