Out, Damned Bylaw!


By: Joe Patti

A few years back Ellis Carter made two helpful posts on her Charity Lawyer Blog about what to Include and Exclude from Non-Profit organization bylaws.

The exclude list may be the more valuable of the two lists because it is applicable to groups who are just starting out as well as existing organizations who could use a revamp of their bylaws.

Having participated in rewriting bylaws for two organizations in the last five years or so I have a few practical suggestions to append to Ellis’ list of things to exclude:

  • Information that Will Change Frequently.  The easiest solution to this is to attach a Statement of Standing Policies document to the bylaws. This document can contain any long term policies the board has adopted. For example, the organization may decide a percentage of membership fees collected by a certain date will be used for a volunteer appreciation party or for travel fees to a conference. This obviously doesn’t have to be physically attached to the bylaws, but included in the same folder on the secretary’s computer.As a practical matter, it is good to maintain a running record any standing policies or recurring decisions in a separate document so you don’t have to wade through years of meeting minutes trying to remember what was decided.
  • Processes and Procedures that are Ignored in Practice. While practice often ends up not matching the ideals envisioned when the bylaws were written, in my experience the main reason bylaw processes are ignored in practice is that those who drafted them broke the cardinal rule of bylaws “Thou shalt not copy thy neighbor’s bylaws and insert thy own name!” If you have tried to adapt another organization’s bylaws as your own, it shouldn’t come as any surprise that you can’t adhere to their vision of how an organization should be run.
He copied bylaws
  • Detailed provisions Outlining the Nonprofit’s Purposes and Activities. This is essentially a combination of the previous two situations.  If you try to codify things too specifically (or have copied someone else’s bylaws) you will inevitably find the actual practice as you execute your activities has shifted over time. As Ellis Carter suggests, it is better to keep this broad.
  • Ambiguous Member Provisions.  As Ellis Carter states, “Voting members of a nonprofit corporation are analogous to shareholders….Once voting members have been created, their consent is usually required to reduce their rights so references to “members” should be made with extreme care.” My experience with this was a direct result of an attempt to copy and merge bylaws of a pre-existing organization.The result was two technically distinct membership categories. While the practice at the time of the bylaw revision was that all but one person was a member of both categories, unraveling this language and going through the proper procedures at board meetings to dissolve the extraneous category was the most time consuming part of the process.
  • Requirements to follow Roberts Rules of Order.  I echo Carter here. Unless you are the parliamentarian for a legislative body, you don’t realize how detailed and onerous complying with Roberts Rules of Order can be. If you use the rules, everyone who is not conversant in them is at a disadvantage and even if everyone on the board is conversant, it is easy for someone to deadlock the entire proceeding.  In both of the recent rewrites I have been involved with, the bylaws stipulated that the meetings would be “guided” by Roberts Rules.

There are two more points in Ellis Carter’s post which are not included here. She makes different observations about each of these in the context of non-profit law so it is worth reading her commentary.

Joe Patti
Joe Patti
In addition to writing for ArtHacker, I have been writing the blog, Butts in the Seats (buttsseats.com) since 2004. I am also an evangelist for the effort to Build Public Will For Arts and Culture being helmed by Arts Midwest and the Metropolitan Group. (https://www.creatingconnection.org/about/) I am currently the Theater Manager for the Rialto Theater in Loveland, CO. Across my career I have worked as the Executive Director at The Grand Opera House in Macon, GA, at University of Hawaii-Leeward Community College, University of Central Florida, Asolo Theater, Utah Shakespearean Festival, Appel Farm Arts and Music Center and numerous other places both defunct and funky.
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