can bylaws be waived?
In United States parliamentary procedure, a suspension of the rules allows a deliberative assembly to set aside its normal rules to do something that it could not do otherwise. However, there are rules that cannot be suspended.
Rules are essential to the regularity of the proceedings. They protect the principles of parliamentary procedure—order, the right of individual members and of minorities to be heard, and the right of a majority to carry out its will. For these reasons, members have a right to insist on the observance of the rules. Yet, the assembly may dispense with certain rules.
Special rules of order, rules contained in the parliamentary authority, the standing rules of the assembly, and rules of order contained in the bylaws or constitution may be suspended. In addition, the bylaws may provide for a specific rule to be suspended.
Depending on the type of rule being suspended, a motion to suspend the rules could be adopted with a two-thirds vote. In many cases, suspension of the rules may take place with unanimous consent. Typically, a member will make a request to consider particular business or take a special action not permitted by the rules. The chair will ask if there is any objection; if there is no objection, the rules are suspended.
Rules which embody fundamental principles of parliamentary law or require a ballot vote and rules protecting absentees or a basic right of the individual cannot be suspended, even by unanimous vote. Thus, the rules cannot be suspended to allow non-members to vote; to authorize absentee or cumulative voting; to waive the requirement of a quorum; or to waive the requirement for previous notice for a bylaws amendment. Moreover, the rules cannot be suspended to take away a particular member's right to attend meetings, make motions, speak in debate, and vote; these can only be curtailed through disciplinary procedures.
Three of the major parliamentary authorities: Robert's Rules of Order Newly Revised, The Standard Code of Parliamentary Procedure, and Demeter's Manual – all agree that provisions in the bylaws that do not relate to parliamentary procedure may not be suspended. Demeter notes how this plays into the reality of parliamentary situations:
Similarly, Mason states:
The action is still illegal if it violates a mandatory constitutional provision, since a legislature cannot suspend the constitution.
One application of the motion to suspend the rules is called the "Gordian knot" motion. If confusion has caused the assembly to get so tangled up in a parliamentary snarl that neither the chairman nor the members can unravel it, a member can move to suspend the rules to start fresh. The use of the "Gordian knot" motion is illustrated in The Standard Code with this example: "Madam President, in view of the confusion about the parliamentary situation, I believe it would be best if we were to cancel out everything that has been done on this motion and start over from the beginning, permitting the motion to be resubmitted in whatever form the maker wishes. I move that the rules be suspended to permit this." The "Gordian knot" version of suspension of the rules was introduced by Floyd Riddick, Parliamentarian Emeritus of the United States Senate, at a meeting of the board of directors of the American Institute of Parliamentarians.
Robert's Rules of Order Newly Revised does not have such a motion. However, the same effect could be done by having the maker of a main motion request to withdraw it. If the assembly approves this request, all adhering motions to the main motion cease to be before the assembly as well.
In the House of Representatives of the US Congress, motions to suspend the rules are in order on Mondays, Tuesdays, Wednesdays, and during the last six days of a session. The Committee on Rules normally releases a list of bills and resolutions to be suspended for the week as were requested by the various committee chairmen. The motion is made on the House floor, which is debatable for 20 minutes each by the proponent and an opponent of the measure. Two-thirds of the Members present and voting must vote in the affirmative for the rules to be suspended and pass, adopt, or agree to the measure. Most measures that are passed in this manner are noncontroversial and are often bipartisan.
In the United States Senate, the motion to suspend the rules is allowed only with notice or by unanimous consent.
Bylaws cannot be suspended even by unanimous vote. But sometimes circumstances, expediency or strong assembly determination in behalf of a cause or proposition make violations necessary.
Certain types of meetings, such as public agency meetings or annual meetings, always require a waiver of notice. When a waiver of notice is required, it’s important that the wording is clear and specific. One board member should be designated to ensure all other board members receive the waiver of notice.
Large corporate meetings, public body meetings, and certain other types of meetings often have a provision in their bylaws that requires the organization to send out a formal notice of the meeting within a specified number of days before the meeting date. Certain situations may arise that make it impossible for the board to notify all attendees before the meeting. In such circumstances, most bylaws outline the provisions whereby a board can send out a waiver of notice.
A waiver of notice is a legal document that states a board member agrees to waive the formal notice, and it must be signed by the board member.
Organizations will have different rules based on the type of meeting, such as the first meeting, special meetings, emergency meetings, and executive sessions. The bylaws will state which types of meetings require either formal notice or no notice at all and which meetings permit the board to offer a waiver of notice.
There is a lot of work involved in starting up a nonprofit organization, and much of it needs to be done before a board can hold its first meeting.
The board needs to register the organization with the proper authorities. Part of that process requires submitting the Articles of Incorporation, bylaws, and statement of purpose. In many cases, the board of directors has already been chosen, and they’re eager to process all the legal requirements so that they can have their first formal board meeting. The newly formed board may utilize the waiver of notice for the early meetings, so they can complete all tasks without losing time because of waiting for formal notices to go out.
Even though the full board may agree to schedule several early meetings, it’s still important for all of them to sign waivers of notice. As time goes by and questions about the Articles of Incorporation or the bylaws arise, board directors may be able to state that they disagreed with the wording of the documents. They may justify it by saying that they didn’t have the proper time to review the documents, or that they were rushed into signing them.
Boards typically meet regularly– either monthly, bimonthly, or quarterly. In rare circumstances, certain boards may only meet annually. The bylaws for most boards state that board directors should get regular notice of all board meetings. There may be a stipulation in the bylaws that says if the meetings occur at a fixed location at fixed intervals, such as the third Monday of the month, a formal notice isn’t necessary.
Sometimes circumstances require that boards meet before the next regular meeting will be held. A waiver of notice should be used in this situation for all board meetings that require prior notice.
Emergency Meetings
Boards that need to address a situation that can’t wait may schedule an emergency meeting. Unless the bylaws indicate otherwise, boards can hold emergency meetings without requiring a waiver of notice for a meeting. In such cases, dealing with the crisis is more important than finding a convenient time for all board members to attend.
Executive Sessions
An executive session is where the board meets privately. These meetings are usually held when the board needs to discuss sensitive matters about board members, compensation, or other personal matters that aren’t necessary for public disclosure. When boards schedule executive sessions before the regular meeting, the bylaws may or may not require a waiver of notice. Boards can also usually go into executive session during a regular meeting without requiring a waiver of notice.
Open Meetings
Open meetings are open to everyone including the general public. Because of their public nature, most bylaws usually require that the board posts a public notice of the meeting at physical locations, in the media, or both, in addition to notifying board directors. Board directors may opt to sign a waiver of notice for open meetings.
Special Meetings
Boards sometimes schedule special meetings outside of regular meetings to discuss something special, such as making plans for a fundraiser. The bylaws will specify how many days’ notice the board must give and the mode of contact, which may include fax, phone, email, postal mail, or voice message. The bylaws will also state whether the board may use a waiver of notice for special meetings.
Most boards will utilize the waiver of notice document at some point or another. It’s wise to have a template ready for use. The wording can be simple and succinct. It should include the date, time, and location of the meeting and the name of the organization. The main paragraph should state something along the following lines:
I further agree and consent that any and all lawful business may be transacted at such meeting, or at any adjournment that the other Directors deem advisable. Any business transacted at the meeting or adjournment shall be valid and legal and of the same force and effect as if the meeting or adjournment were held after notice.
Waiver of notice templates are available at the following links:
Creating a Paper or Electronic Trail for the Waiver of Notice
Once board directors have signed the waiver of notice forms, the forms should be attached to the official minutes and preserved as evidence, and that is very easy to do on your BoardEffect board management system.
Usually, the board secretary is the one who sends out and collects the waivers of notice, but any board member can fulfill the task. The waiver of notice isn’t typically used very often, but when it is, a signed waiver can be of great value.
Yesterday’s post concerned waivers of notice of shareholders’ meetings under Section 602 of the California Corporations Code. Although not required to do so, corporate bylaws often parrot the statute. One popular guidebook, for example, includes the following sample language concerning waivers of notice:
This form of bylaw closely, but not exactly, follows the statute. In particular, the bylaw requires that waivers of notice be signed while Section 601(e) requires that the absent person provide a written waiver of notice or consent.
A bylaw provision requiring a signed waiver can give rise to additional issues regarding the validity of shareholder action at a meeting. A shareholder might, for example, send an email waiving notice of a meeting. The shareholder has provided a written waiver, but has the shareholder signed the waiver? Section 17 of the Corporations Code, defining a “signature” to include a mark when the signer cannot write, doesn’t tackle email signatures.
Some might question whether an email satisfies the writing requirement of the statute. However, there should be little room for doubt on this question. The Corporations Code defines “writing” to include “any form of recorded message capable of comprehension by ordinary visual means”. Cal. Corp. Code § 8. Corporations Code Section 195 defines “written” to include facsimile, telegraphic, and other electronic communication when authorized by the Corporations Code. In enacting Section 195, the Legislature adopted an uncodified statement of intent to meet the requirements of the federal Electronic Signatures in Global and National Commerce Act (aka the “E-Sign Act”), Cal. Stats. ch. 254 (SB 1306) § 1.
If You Think Your Family Is Dysfunctional . . .
Leo Tolstoy opens Anna Karenina with the famous observation “All happy families are alike; each unhappy family is unhappy in its own way.” The family of the ancient Spartan queen Leda must rank as one of the most uniquely unhappy. The misery began when Zeus, transformed into a swan, rapes Leda. She then lays an egg (possibly two). The result is that she has four children – Helen, Clytemnestra, Castor and Pollux. Helen marries Menelaus and Clytemnestra marries Menelaus’ brother, Agamemnon. Menelaus and Helen parent a daughter Hermione. Agamemnon and Clytemnestra produce daughters, Iphigenia and Electra, and a son, Orestes. Helen cuckolds Menelaus and absconds with Paris for Troy. Agamemnon and Menelaus take off with the Greeks to recover the errant Helen. Along the way, Agamemnon sacrifices (or possibly not) Iphigenia to get the fleet moving. Meanwhile, Clytemnestra keeps the home fires burning by bedding Aegisthus, who happens to be Agamemnon’s cousin. When Agamemnon returns, Clytemnestra kills him in his bath (prefiguring Charlotte Corday and Murat). Her children, Orestes and Electra, then kill their mother. Orestes then kills Hermione’s affianced, Neoptolemus, who just happens to be the son of Achilles. Orestes then marries his first cousin, Hermione. So here’s the tally of this unhappy family’s crimes:
Rape – Zeus
Filicide or attempted filicide - Agamemnon
Conjugicide – Clytemnestra
Adultery – Helen, Clytemnestra and Aegisthus
Matricide – Orestes and Electra
Murder – Orestes
Incest – Orestes and Hermione
