Nonprofit Bylaws
The operating manual to your organization
Information from California nonprofit attorney Gene Takagi

If your organization hasn't had its bylaws or its governance practices critically reviewed by a nonprofit attorney, now is the time.  More than ever before, the IRS, other governing authorities, foundations, donors, and the media are scrutinizing nonprofits, their governance policies, and their compliance with the law.  Are you meeting your legal duties in ensuring legal compliance?

California nonprofit organizations - Contact Gene Takagi to get your bylaws reviewed by an attorney who understands the rapidly changing landscape of nonprofit law and who focuses his practice on serving nonprofits.


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.

Bylaws typically contain specific provisions detailing:
  • The purposes or mission of the organization.
  • How directors are elected or otherwise selected.
  • How the board may take an action.
  • How board meetings are called and noticed.
  • How board meetings are conducted.
  • The officers the corporation will have.
  • The duties and responsibilities of each officer.
  • The authorization of board and non-board committees.
  • The level of indemnification provided by the corporation to protect its directors, officers and other agents.
  • The reports due to directors.

Bylaws of nonprofit corporations with voting members will contain additional provisions detailing:
  • The classes and qualifications of membership.
  • The rights of membership.
  • How a member may be suspended or terminated.
  • What actions the membership may take.
  • How the membership may take an action.
  • How membership meetings are called and noticed.
  • How membership meetings are conducted. 


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  • Outdated mission statement.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 vote.  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 in 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 clarity 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?


RESOURCES:

What Are Bylaws?  Why Does My Nonprofit Need Them?  Joanne Fritz, About.com

Form of Bylaws (Annotated), California Nonprofit Public Benefit Corporation (Public Counsel Law Center)

An excellent resource for California nonprofit public benefit corporations without voting members.  As stated above, I'm generally against the use of template bylaws.  But this resource comes with annotations that may be used to create dialogue about certain key provisions.  Yet, there are limitations of which you should be aware.  For example:

Re:  Article 7.  Directors.

  • Election of directors.  First, you should decide whether all of your directors will be elected.  You may desire to have directors who are designated or selected by other entities or ex officio directors (who are directors by virtue of their office).  Second, for elected directors, if any, you should decide whether a director's term will end at the annual meeting or on the anniversary of the month in which the director was elected.  Generally, holding elections at annual meetings will be more manageable.
  • Staggered board terms.  New organizations may not want to split their initial directors into groups at the outset they plan to add additional directors in subsequent years.  For example, if you start with 5 authorized directors with 3 year terms, you may not want to stagger their terms, if you plan to add 5 more directors in your second year, and 5 more in your third year. The terms will naturally be staggered as a result of the gradual growth of the board.
  • Consecutive term limits.  Such limitation may be helpful for organizations to prevent board stagnancy, as stated.  But if the initial term of a director is a partial one because he filled a vacancy created by the resignation or removal of a previous director, does that partial term count for purposes of this limitation?
  • Removal of a director for missing a certain number of meetings.  An automatic removal provision can serve to eliminate absentee directors without a difficult, emotional, and politically charged vote on removal.  But the permissive wording in the draft ("The Board may ... declare vacant ...") can create problems if not evenly enforced.  See my post on the Nonprofit Law Blog:  Board Attendance: Expect More and Strengthen Your Organization.
  • Action Without Meeting.  Such actions, commonly referred to as unanimous written consents, must be filed with the board minutes.
Bylaws Checklist and Checkup, Bunnie Riedel, Nonprofit Conversation