When Was the Bylaw Adopted?

By Jonathan M. Jacobs, PRP, CPP

Have you ever encountered a provision in bylaws that left you puzzled and scratching your head?

Or maybe, after reading a section, you thought you knew what to do, but then, after reading a little further, you find a passage that seems to demand the opposite? Rest assured, you are not alone . Bylaws can be confusing and even contradictory, for several reasons . And this is why the rules for interpretation are included in Robert’s Rules of Order Newly Revised, (RONR, 12th edition) .

The Missing Detail of “When”

The section on interpretation of bylaws, 56:68, is divided into eight subparts and continues for three pages, possibly the longest numbered section in RONR, 12 ed . The language of the section has been around, in some form, for a century; it was included by General Robert in his magnum opus, Parliamentary Law (pp . 380-83) . It made it into the

9th edition of RONR (1990) for the first time (pp .581-4) .

This well-established section should tell everything about interpreting unclear and contradictory bylaws, but it does not . There is a very important detail that is not included in this section and could easily be missed by the parliamentarian (including the author) . That detail may determine which of two, or more, contradictory bylaw provisions is binding on the assembly . The missing detail is when each bylaw provision was adopted .

Where can we look, then, if we run into this problem? First, we can research other parliamentary situations that might be applicable . For example, there is a very important rule regarding when conflicting main motions exist . A main motion that conflicts with a previously adopted motion that is still in force is null and void; the motion that was adopted first remains in effect1 . However, there is an important exception . RONR notes that the first main motion is in effect “unless the subsequently adopted motion was adopted by the vote required to rescind or amend the previously adopted main motion . ” RONR (12th ed .) 23:6 b . A main motion, one that is adopted by the vote needed to rescind or adopt something previously adopted, will supersede a previously adopted main motion .

This has applicability to our case because bylaw amendments are main motions, specifically “incidental main motions that are classed with motions that bring the question before the assembly . RONR (12 ed .) t8 #16 . ” These amendments are adopted with a vote needed to rescind or adopt something previously adopted . RONR (12th ed .) 35:2, #7 . The most recently adopted bylaw provision, if properly adopted2, will always supersede a bylaw provision adopted earlier .

The Practicality of “When”

A slightly fictionalized set of bylaws for a state organization can be used as an example . In the section on meetings, the bylaws state that the society’s board shall “call a special convention within 45 days upon the call of the Board or when petitions are submitted by 10% of the current membership . ” Another section says to select delegates to all conventions, “the Board shall issue a call to each state convention of all local affiliates no later than 60 days prior to the scheduled date of the state convention . ” The two bylaw provisions provide that 60 days’ notice must be provided for a meeting that must happen in 45 days . On June 1st, for example, the secretary would have to send out notice for a special meeting that has not even been scheduled yet . Only if the secretary has access to a time machine could both rules be obeyed; he would have to send the notice on June 15th, hop into his time-traveling DeLorean, and go back to June 1st to send notice to the affiliates . So, how should these conflicting bylaw provisions be interpreted?

If the rules relating to interpretation are used, there are several possible interpretations . One interpretation is that the 45-day requirement for special meetings is a specific rule and that the general rule that 60 days’ notice be given to the local affiliate yields to it . RONR (12 ed .) 56:68, #3 . Another interpretation is that the intent of the framers of the bylaw provision giving 60 days’ notice was to give the local affiliates the ability to meet and elect delegates . RONR (12th ed .) 56:68, #1 . Failure to follow that rule would have the additional consequence of violating the rights of absentees and potentially disenfranchising entire local affiliates . Both are valid bylaw interpretations, using the principles of interpretation; both are also subjective interpretations . There can be an objective answer . The bylaw provision that was most recently adopted is the one that should be followed if it can be determined .

Assume that, upon checking old bylaws, the parliamentarian discovers that in 2015 the requirement that a special meeting must be held within 45 days of the call was adopted . The requirement for 60 days’ notice to the local affiliates was already in the bylaws (and had not been reincorporated after that point)3 . The 45-day requirement was the most recently adopted bylaw amendment, and it was adopted by the vote needed to amend the bylaws . It is binding and supersedes the 60-day notice requirement so far as special meetings are concerned . Likewise, if it were the 60-day notice requirement that had been adopted after the 45-day requirement to hold a special meeting, the 60-day notice requirement would have superseded the earlier 45-day requirement .

The Analysis of “When”

Since knowing which bylaw provision was most recently adopted can determine which should be followed objectively, why is this not more widely discussed? In more than twenty years of practice, the author has never heard of looking at when clauses were incorporated into a set of bylaws . One of the reasons is the availability of the evidence; often old sets of bylaws are not kept . Members, including the secretary, may not have the space to keep decades of documents that are superseded . Further, they may not want to run the legitimate risk of confusing old bylaws with current ones so the older set gets tossed out .

The motions adopting the bylaw provisions should be in the minutes, but unfortunately, minutes can be lost . Further, a parliamentarian may have to look through several decades of minutes until he finds when a specific provision was adopted, assuming that the minutes are complete . While it may be possible to accomplish this as research for a written opinion, it is impossible for a parliamentarian to determine when asked for immediate advice in a meeting . An outside parliamentarian may not even be granted access to old minutes, even if they do exist . These factors, the lack of documentation and the lack of speedy access to existing documents, create a problem for the parliamentarian .

Good News

Due to technology, this situation might be changing . Many societies have their minutes digitized, making them both searchable and easily sent . Some even have old bylaws digitized; the organization on which this is based actually has digitized copies of old bylaws online .

In cases where there are potentially conflicting provisions of a bylaw, the first question that should be asked

eND NoTes

is when each provision was adopted . It is a question that may now be less difficult to answer and one that might provide an objective answer to that bylaw interpretation question . NP

1 This is not a universal standard in parliamentary procedure. The American Institute of Parliamentarians Standard Code of Parliamentary Procedure, 2nd edition (AIPSC, 2nd ed.) provides that the most recently adopted main motion is binding where it conflicts a previously adopted motion. This is referred to as “repeal by implication” and would be accomplished by a majority vote without notice (9.33-34). However, AIPSC, 2nd ed. requires, in the absence of a bylaw provision, a two-thirds vote with previous notice. However, if that threshold was met, “repeal by implication” would apply (9:35).

2 Improper adoption would include, but not be limited to, things like failing to provide required notice or adopting the amendment at a meeting without a quorum. See RONR, 12th ed. 23:6.

3 It is possible that the clause could be effectively reincorporated in the bylaws, for example by striking the 45-day deadline at one place and reinserting it in another place. In such a case, that re-included clause would constitute the newer adoption. It is also possible that both could be adopted at the same instant. Both provisions could have been adopted at different times and included in a revised set of bylaws. The assembly did not catch the inconsistency and included the contradictory clauses in the revision, which was adopted as a whole new document. Neither clause would be the newer clause in that case.

Works CiTeD

American Institute of Parliamentarians. AIP Standard Code of Parliamentary Procedure, New York: McGraw-Hill, 2012.

Robert, Henry M., Parliamentary Law, 1923. New York: Irvington, 1991.

Robert’s Rules of Order Newly Revised. 9th ed. Eds. Henry M. Robert, III, et al. Scott, Foresman, 1990.

Robert’s Rules of Order Newly Revised, 12th Edition. Eds. Henry M. Robert, III, William J. Evans, Daniel H. Honemann, Thomas J. Balch, Daniel E. Seabold, Shmuel Gerber, New York: Public Affairs, 2020.

Jonathan M. Jacobs, PrP, CPP, came out of retirement to handle a case, that might eventually be mentioned elsewhere. He is a frequent contributor to the National Parliamentarian