Below are some of the arguments that have been made in support of either the contention that the 30-day clause is not a voting right or in support of this current proposal and the accompanying counter-point. These posts are written with references to areas of the Bylaws, and thus may contain lingo like, "Article XI Section 2 says... and Article V Section 6(a) says...".
For references:
- Article V Section 6 is the Rights of Membership section and sub-section (a) is the Voting Rights Section. Article V Section 6(a) reads:
Voting. All members who have been members for at least 30 days prior to the date of a membership meeting or action by written ballot shall be entitled to cast one vote on any issue brought before the membership. Members shall vote to elect the Board, remove a Director, amend the Articles of Incorporation as provided in the Oregon Nonprofit Corporation Act (the “Act”), and on all other matters for which a membership vote is required by the Act and by these Bylaws. In addition, members shall have the right to vote on advisory resolutions concerning any other matter to come before the membership. (highlighting added) - Article XI is the last article of the Bylaws entitled Amendment and describes how the Bylaws can be amended. Article XI Section 2 spells out the special protection for the Voting Rights Section and reads:
Notwithstanding Section 1 of this Article, no amendment to Article V, Section 6(a) of these Bylaws pertaining to the voting rights of the membership may be enacted unless such amendment is ratified by the affirmative vote of a majority of the membership at a membership meeting held pursuant to Article VI of these Bylaws.
(Click on any of the arguments below to see the counter-point)
Argument 1: The 30-Day clause was never intended to be a protected voting right.
First off, it does not really matter. Whether it was intended or not, the plain language is quite clear. It is a voting right because we made it one, and if we want to remove it as a voting right, it is not hard to do that while remaining in complaince with our own rules.
In any case, it has been argued that the obvious meaning of Article XI Section 2 excluded the 30-day time frame and it was asserted that everyone involved in adopting Article XI Section 2 ‘never conceived’ of the ‘unintended consequence’ that making a change to the 30-day time period require membership approval. It was further stated that, had such a consequence been perceived, it would have never been adopted in its current form. I suggest to you that this is not what the record shows. Below is an excerpt of the minutes from the meeting where Article XI Section 2 was adopted (6/28/2015 Meeting Minutes). At best, this is the record that mere members such as myself have to refer to when the plain meaning of the language is called into question. I have added the highlighting to the minutes and the citations below. The brief discussion of the motion seems to defy these claims about the Article’s intent.
June 28, 2015 OCF Board of Directors Meeting Minutes Excerpt on the Adoption of Article XI Section 2 regarding Voting Rights Protection:
LT: By way of explanation, currently the board may amend any section of the bylaws at any time. All we have to do is give you a month’s notice. This provides that in the event that we were attempting to change your right to vote, in any way, the membership will get to vote on that change.
And
Jen-Lin: Are there any possible changes to membership?
LT: This amendment does not change anything, but limiting the board’s power to amend this section: “…all members who have been members for at least thirty days, prior to the date of the membership meeting, shall be entitled to cast one vote on any issue brought before the membership. Members shall vote to elect board of directors, recall a director, amend the Articles of Incorporation, and on all other matter for which a membership vote is required by the Oregon Revised Statutes and by these bylaws. In addition members shall have the right to vote on advisory resolutions concerning any other matter to come before the membership.”
This is the only part of the bylaws that this amendment affects, and it only affects it in the sense it preserves absent a vote of the membership. The OCF is different from most non-profits in that we do not spend all our time thinking about fund raising. Thus, we do not have a board that is “selected” for their fund raising [sic] skills. Our board is a political body of this community.
Paxton: We discussed this in the Bylaws Committee and it is to protect the membership’s voting rights.
Kirk: This makes clear sense.
Jon: I support the motion, but in order to expand the rights of voting it would also require the vote of the
membership.
Argument 2: No Board Would Use the Waiting Period to Disenfranchise Voters.
The argument was made that it is OK to just treat the 30-day clause as "not a voting right" because it doesn't need to be protected since no Board would ever abuse that provision to manipulate an election.
That is very faulty logic. The same argument could be made for every protected voting right in the Bylaws. One could say, "No Board would ever prevent the membership from voting for Directors, so that doesn't need to b a right either." Where does it stop and who decides? If the entire organization could operate on, "No Board would ever...", we would not need any Bylaws at all.
In addition, it is not impossible to use the rule about when new members obtain voting rights to manipulate an election. Having some delay between when one becomes a member and when one obtains voting rights has some protective value. It prevents, for example, a last minute registration of a couple hundred people to sway an election. In any case, changes to how voting rights, including when they start, should simply be approved by the members. It is not that hard to follow our own rules.
Argument 3: The attorney advised us to define voting rights.
Not True...
What exactly the Fair attorney was told, what questions were asked, and what her response actually was or actually means has been a major source of contention during this entire process. Initially I was told the attorney absolutely confirmed that the 30-day clause was not a protected voting right, and could be changed without membership approval. That opinion was completely reversed. It is quite possible that the attorney was not fully aware of the provisions of Article XI Section 2 requiring member approval.
Below is an excerpt from the last opinion offered by the Fair attorney. It is provided from phone conversations with the Membership Secretary. I cannot say if it is verbatim [emphasis added]:
However, what trips me up here is the specific language in Article XI, Section2 requiring membership approval of an “amendment to Article V, Section 6(a)…pertaining to the voting rights of the membership.” The proposed amendment is an amendment to Article V, Section 6(a). Therefore, although I don’t believe the amendment changes members’ voting rights, per se, it is literally anamendment to Article V, Section 6(a) establishing who may participate in membership votes and so could be interpreted as pertaining to voting rights.
Because I believe one can make a good-faith argument either way andunderstanding this is likely a contentious issue, I recommend that the Board submit the motion to the members for approval. I realize this advice is contrary to the opinion I sent you on May 27th regarding the minimum age for Fair membership. The factor that has caused me to change my opinion in this case is the specific article and section the committee is proposing to amend. Going forward, you could address this issue by defining the term “voting rights” in Article XI, Section 2 to make clear the difference between voting rights and voting eligibility and/or the difference between substantive changes to rights versus administrative rules that implement voting or membership processes.? [sic]”
Clearly the attorney's first and foremost advice is to, "submit the motion to the members for approval." The attorney then says, one could [not should] address the issue by adding a definition, but what issue does adding this definition address? Only whether or not the Board should be able to change this or other provisions of the Voting Rights section without member approval. If the only provision of the voting rights section in dispute is the 30-day clause, why not address that directly with the membership? The only thing that adding this definition would do is make the protected status of the Bylaws' Member Voting Rights section less clear and more subject to future manipulation.
It should also be quite clear that the attorney would also agree that sending the issue to the membership, as she recommends, is also a good way to resolve the issue going forward. If we hold that everything in the Voting Rights section is a voting right, and address the status of the 30-day clause as a voting right by asking the membership to make that determination, then the matter is resolved.
Click Here for the Membership Secretary's recounting of his phone conversations with the attorney
(Note: the first call was on April 27th, 2024. The latter part of the document relates a call on July 16th, 2024 where she reverses her opinion on this matter.)
Click Here for the legal opinion from the non-profit attorney I have worked with. I obtained this opinion when the Fair attorney's opinion was still considered confidential.
Argument 4: We should let the membership decide.
The motion coming before the Board purports to offer the members an opportunity to vote on a "clarification" of member voting rights. An argument being made in support of the motion is that it is simply to let the membership decide the matter.
This is also a false argument. The membership is not deciding what question they will get to vote on. The Board decides, and, as explained elsewhere, choosing to put this "clarification" of voting rights before the members is wrong on many levels.
If the Board decides to put any question - especially one related to Bylaws and Voting Rights before the membership - the Board has an ethical obligation to ensure the question they put before the membership is:
- In the best interests of the membership and the organization,
- Has a transparent, and legitimate purpose, and
- That the question, the issues involved, and all of the consequences of the choice a member makes when they cast their vote are clear and readily understood by the membership.
This proposal fails on every point. It may be that the Board should ask the members to vote on something related to voting rights, but the current motion is not it.
The purpose of this motion to "clarify" voting rights is not to clarify anything nor is it to expand or strengthen voting rights. Instead, its sole purpose is to make the voting rights section of the Bylaws less secure and subject to interpretation so that the 30-day clause can be altered or eliminated without member approval, as required by the by the Bylaws.
This is actually a case where one can say there is a right and wrong course of action. First, accept the plain meaning of the language. It clearly says that everything in the Voting Rights section of the Bylaws is a voting right and requires member approval to change. If the Board wants to make any change to the 30-day clause, DON'T create a new definition to hide what the objective is; INSTEAD, simply ask the membership to make the desired change to the Voting Rights section. If the members say no, perhaps the change should not be made...