I just completed the first part of my new Bylaws Review website (still under construction).

Here are some excerpts:

Basics About Bylaws

Bylaws may contain any provision, not in conflict with law or the corporation's articles of incorporation, for the management of the activities and for the conduct of the affairs of the corporation. Bylaws should provide guidance to the corporation's board of directors and reassurance to government authorities, funders, and other interested stakeholders. In addition, they allow contractual parties to verify that corporate actions were properly taken.

Common Problems

Here are some common problems I find when reviewing bylaws of California nonprofit corporations:

  • Outdated mission statement. Organizations evolve over time. If your activities no longer fall within the scope of your mission, the mission statement in the bylaws must be amended. You may have other charitable trust issues as well. Talk to an attorney.
  • Board actions by email.  Not allowed.  See my post on the Nonprofit Law Blog: Board Actions by Email – California Nonprofits.
  • Directors voting by proxy.  Not allowed. 
  • Director election provisions that do not meet actual practice. 
  • No restriction on interested directors.  Not more than 49% of the board of a nonprofit public benefit corporation may be "interested persons." 
  • The period of notice for a special meeting of the board is far too long. The notice period should not be so long as to prevent a board from responding to an emergency.
  • The quorum requirement is too low.  While the law generally allows a quorum to be as low as one-fifth of the board, such a low quorum serves to discourage attendance and disempower the directors.  For example, if you have 20 directors, and a quorum of 25%, then you only need 5 directors to hold a valid meeting, and 3 votes out of the 5 to take a valid board action (i.e., as low as 3 out 20 directors can take an action).
  • Failure to distinguish between the "authorized number of directors" and the "directors then-in-office" when describing the requirements for a quorum and particular board actions.
  • No differentiation between board and non-board committees. 
  • Executive committees given more authority than is permissible under law. 
  • Volunteer board chair holding the title of CEO without consideration of whether the Executive Director would be in a more appropriate position to carry out the associated responsibilities. 
  • Officer election provisions that do not meet actual practice. 
  • Officer job descriptions that do not meet actual practice. 
  • Inclusion of provisions for "board officers" and "corporate officers" without clarify about their respective duties and responsibilities. 
  • No provision for electing or appointing subordinate officers.  What happens when an officer is on vacation or absent for an extended period?  A subordinate officer, like an assistant secretary,to hold office for a specific, short term may be a good solution.
  • Indemnification provisions that do not reflect the board's decision whether to maximize protection of the organization's directors, officers, and/or other agents.
  • Reporting requirements not required by law and not consistently observed. 
  • Lack of clarity whether the organization has or does not have voting members. 
  • Unclear membership qualification provisions. 
  • Membership termination provisions that do not provide the due process required by law. 
  • Members given management and/or governance responsibilities that create a greater exposure to liability than necessary.
  • The notice provisions for membership meetings do not comply with the law and/or are inconsistent with actual practice.
  • The quorum requirement is too high.  As a result, an organization may not be able to hold a valid membership meeting to take required actions like an election of directors.
  • Electronic communications between the organization and the members do not comply with the law.
  • Ballot voting provisions do not comply with the law and/or are inconsistent with actual practice.
  • Proxy voting provisions do not comply with the law and/or with actual practice.
  • Incorporation of Robert's Rules, adding over 600 pages of additional policies and procedures to know and follow.  See Disorder From Robert's Rules of Order, Charity Governance Blog.
  • Conflicting provisions that result in fights among directors and/or members and that can lead to litigation and harmful media coverage.
  • Modification of statutory provisions that changes their meaning and results in a failure to comply with applicable laws.

Why Using Another Organization's Bylaws Is A Bad Idea

Too many organizations use another organization's bylaws, often found on the web, as the template on which to build their own bylaws.  There are several reasons why this is not a good idea:
  • The other organization's bylaws are not in compliance with the law. 
  • The other organization's bylaws are designed to comply with the laws of another state or jurisdiction. 
  • The other organization's bylaws do not include important provisions that may apply to your organization by default under applicable law. 
  • The other organization's bylaws have not been customized to meet your needs. 
  • A change to the other organization's bylaws may be inconsistent with applicable law. 
  • Another organization's governance systems are often too easily adopted without careful thought.

Your bylaws, and any amendments to the bylaws, should be adopted only after careful and thoughtful consideration.  The bylaws are the instruction and operating manual of the nonprofit.  If the manual is faulty, you're building on a shaky foundation, and it will reflect on how others (including foundations and major donors) perceive the organization.  Ask yourself:  would you invest a meaningful amount in a company that ran its operations based on policies and plans it copied from an unrelated organization?

18 Responses to “Nonprofit Bylaws – Common Issues”

  1. Gene Takagi

    It may be legally permissible to define a quorum as the number of voting members who attend even though that may be highly problematic. What may be impermissible, however, is to simply provide that there is no quorum requirement (in which case the default rules may apply).

  2. Tim Cahn

    Thank you. I really appreciate your time and expertise. I think your advice is spot on. My trouble is I have just joined a Member-corporation Board that already included in its bylaws a provision that defines a quorum as being however many members show up. To revise these bylaws (which we want to do) requires a “majority of the members who cast a vote”, effectively sidestepping any quorum requirement. I am leaning to advising the Board that, until the bylaws can be amended, it should follow the California 1/3 default rule. Once again – many thanks.

  3. Gene Takagi

    I would not advise an organization to include such provision. A quorum should be defined. If it is defined by reference to the number of members present so a quorum always exists so long as one member shows up, there may be a risk of very significant actions being taken by one member.

  4. Tim Cahn

    Would it be permissible under California law for a Members corporation to include the following provision in its Bylaws:
    “There shall be no Quorum requirement for Members meetings at which a majority of Members who attend the meeting may take action.”

  5. Tim Cahn

    Thank you for this helpful piece. My question: Can a Public Benefit Corporation with Members provide in its bylaws for the elimination of a quorum requirement for Member meetings at which a specific action is authorized to be taken by the bylaws? In other words, can its bylaws provide that a particular action may be taken by the membership based on a majority vote of however many members show up to vote? (Assume that all notice requirements, etc., are met.)

    • Gene Takagi

      A quorum needs to be defined in the bylaws of a California nonprofit public benefit corporation or the statutory default is 1/3 of the voting power. It is possible, however, to define a quorum in different ways and to define it so that an action only requires the vote of a minimal number of members. I don’t believe there are specified restrictions on providing multiple definitions for a quorum depending on the action, but practically, that needs to be thought through because multiple actions can be taken at a meeting. Having a different quorum for each action in that case may not work.

  6. Anthony V

    Although this article may be based on bylaws of California nonprofit, I would like to know if there is a distinction between large or small boards on the frequency in which board minutes are recorded and distributed to its members; specifically other members of board of directors. I belong to a non-profit (C6) organization (Chamber of Commerce) where the full board meets every quarter and the executive board committee meets every month. As a member of the board of directors, we receive the board minutes of our quarterly meetings shortly after, but we DO NOT receive or have access to the meeting minutes when the executive board meets monthly. When this questions was asked during a quarterly full board meeting, the response received was “there is private information within the minutes recorded.” Right away I felt this was an issue concerning transparency. In closing, I guess Im asking this question because I’m not sure I should make a big stink about. I have researched the IRS rules regarding this topic and concluded that my concern is valid, but how far should I go as I feel my concern is being ignored and not brought up at full board meetings held after I voiced my concern. Any help on this would be appreciated. Yours truly, #NotHereJustToHoldaSeat

    • Gene Takagi

      Generally, the activities and affairs of a corporation shall be conducted and all corporate powers shall be exercised by or under the direction of the board. The board can delegate management of the activities of the corporation to an executive committee of the board, but such committee would remain under the ultimate direction of the board. Under the California Nonprofit Public Benefit Corporation Law, every director has the absolute right at any reasonable time to inspect and copy all books, records and documents of every kind (which would include minutes of a committee of the board). In some jurisdictions, however, the “executive board” may be the true board and a body simply referred to as the “board” may be a lower body. You’ll want to confer with a lawyer in the applicable jurisdiction and the organization’s governing documents regarding the rights you may have.

      • Josephine Lint

        Do members have the right to see board Minutes? Also past board minutes?

      • Gene Takagi

        This will be determined by each state’s laws. For California nonprofit public benefit corporations: “The accounting books and records and minutes of proceedings of the members and the board and committees of the board shall be open to inspection upon the written demand on the corporation of any member at any reasonable time, for a purpose reasonably related to such person’s interests as a member.” Corp. Code Sec. 6333. Note, however, that “member” is a term defined by state law and may not match up with how a particular nonprofit corporation defines the term for its own purposes. For example, a statutory member typically has voting rights (e.g., to elect directors, amend articles, approve major corporate changes) and standing to sue the board; this is generally not true for a member of a museum or YMCA. The inspection rights under law may apply only to statutory members and not these other nonvoting members.

  7. Michael Adams

    Boards of directors need to have specific parliamentary authority. The title of “Robert’s. Rules” is something of a misnomer. Robert never did use his name in the title in any of his works, and that tradition is carried on in the most recent editions. Robert’s “Rules of Order” is more proper..

    • Gene Takagi

      I and seemingly the overwhelming majority of attorneys that practice primarily or exclusively with nonprofits disagree with the need for specific parliamentary authority for small boards that look nothing like the type of legislative body for which Robert’s Rules of Order were intended. Consider from a legal perspective what may happen when there is a dissenting director and noncompliance with a procedural provision in Robert’s Rules of Order that is incorporated by the bylaws but unknown to the directors at the time of the approval of the transaction in question.

  8. ck d'agosta

    In a California nonprofit, can bylaws stipulate that an existing auxiliary volunteer organization board will sit on or overlap with the nonprofit governing board?

    • Gene Takagi

      It’s possible for bylaws of a California nonprofit public benefit corporation to provide for another organization to have rights to designate (appoint) directors of the corporation or to provide that the directors will include a certain number of board members of another organization. A complete overlap may create some conflict of interest and veil-piercing (liability) issues so it would be wise for the two entities to each seek legal counsel before structuring such relationship.

  9. Gene Takagi

    The Code does not explicitly prohibit proxy voting by directors. Rather, it states how a board action can be taken.
    For California nonprofit public benefit corporations,see Section 5211(a)(8):
    “The articles or bylaws may not provide that a lesser vote than a majority of the directors present at a meeting is the act of the board.”
    And see Section 5211(b) for board actions taken without a meeting:
    “An action required or permitted to be taken by the board may be taken without a meeting, if all members of the board shall individually or collectively consent in writing to that action. The written consent or consents shall be filed with the minutes of the proceedings of the board. The action by written consent shall have the same force and effect as a unanimous vote of the directors. For purposes of this subdivision only, “all members of the board” does not include an “interested director” as defined in Section 5233.”

  10. Cheryl M. McCormick, Ph.D.

    Thank you so very much for an informative piece! May I please inquire about the specific reference of CA Code that prohibits a director from voting by proxy? This would be extremely helpful to me as I guide my organization and board.
    Thank you! Cheryl

  11. Gene Takagi

    William, these questions are not related to the post “Nonprofit Bylaws – Common Issues.” So, I will remove them.
    But I did want to respond to your last post. If the boards are overlapping, the directors will owe a duty of loyalty to the c7 and to the c3. What happens when one organization has obligations to the other (e.g., reporting obligations)? How does the board handle a request from c7 members to have the c3 produce and run educational programs that would be of benefit to the c7 members? How about eligibility of scholarship recipients? Conflicts can arise, and independent directors can really help in identifying these conflicts.

  12. Gene Takagi

    There are likely no legal prohibitions against having completely overlapping boards. But attorneys in this area typically discourage this because of the potential for the organizations to fail to maintain legal separation and the inherent conflicts of interest of every director when the organizations interact.

Comments are closed.