Good Counsel: When Members Behave Badly
Before expelling members over their personal conduct, check your bylaws first.
In the past few years, many associations have developed new policies addressing the personal conduct of their members and volunteer leaders. These policies typically focus on harassment, discrimination, or bullying. Some associations are also grappling with how to deal with members who publicly voice personal views contrary to the association’s values or are reconsidering their policies on bestowing honors or awards.
If your association is considering adopting such policies, be sure to review your governance authorities—your bylaws, articles of incorporation, and the relevant nonprofit corporation statute—to ensure that the new policies align with them, especially if a violation may result in loss of membership, a volunteer position, or an honor or award.
Membership revocation. If your bylaws allow membership to be revoked only if a member fails to pay dues or commits certain professional infractions, then a new personal conduct policy may not penalize a violation by revoking membership unless the bylaws are amended.
Nonprofit corporation statutes also may restrict how membership may be revoked. Wisconsin’s statute, for example, requires that suspension or expulsion be carried out consistent with the organization’s articles of incorporation or bylaws. If those documents provide no guidance, the statute allows a member to be expelled or suspended if that action is approved by two-thirds of voting members—or two-thirds of the directors if no members are entitled to vote. Other states have statutes with similar provisions.
Associations incorporated in those states, then, cannot adopt a policy empowering an ethics committee to revoke or suspend membership for violation of personal conduct rules unless the articles of incorporation and the bylaws permit that procedure.
Removal of directors. Many nonprofit corporation statutes require a membership vote to remove member-elected directors or limit the circumstances in which the board may remove a director. These provisions often permit the procedures to be set forth in an association’s articles of incorporation or bylaws.
Committees. The nonprofit corporation statutes in many states also limit committees to an advisory role, unless all committee members are board members. Generally, only those board committees may be delegated authority to make decisions on the association’s behalf, such as by imposing member discipline or removing a volunteer leader or director.
Don’t shy away from undertaking important discussions and policy development to define your expectations of your members and volunteer leaders. But be aware that sometimes that process must also entail review of and amendments to your governance documents.
Julia E. Judish is special counsel at Pillsbury Winthrop Shaw Pittman, LLP, in Washington, DC. Email: [email protected]