amending bylaws

Our HOA bylaws state that amending the bylaws requires an affirmative vote of the BOD before putting the amendment to the members. Doesn't this mean that the members themselves CAN NEVER amend their bylaws unless the board goes along with the change? Our bylaws are, in this way, more restrictive than the laws governing non-profit corporations. It is my understanding that the more restrictive bylaws will rule. Thoughts?

Also, our state's Planned Communities Act says that the BOD only has to allow members to attend a portion of a board meeting, every so often. At our annual meeting an attempt to move a motion to require the board to have open meetings except in specified situations (legal, personnel, Open Meetings Act language), and to make the minutes reflect BOD votes, was ruled out of order. Our board does not allow members to be present for anything beyond committee reports (adhering to state law), and the minutes often do not reflect how individual members have voted on motions. The Board's attorney (we all know the Board's attorney is NOT the association's attorney, right?) was present and admitted that state law is only a floor, a minimum of what is required, and yet, he upheld the ruling of the Chair, that the motion was out of order that attempted to expand on the minimum. It appears to me that their thinking was that the motion was in the nature of an amendment to the bylaws. I believe this is in error. Nothing in our bylaws speaks to the conduct of a BOD meeting; by state law, meetings are to be conducted using Robert's Rules. Thoughts?

I realize there is an interesting discussion on this forum regarding the propriety of allowing any motion of substance at an annual meeting. Our bylaws only require notice of the annual meeting and indeed the agenda is not sent prior, but handed out at the meeting. New Business is a part of the agenda. Further, our bylaws state that when a quorum is present (20% of the membership in our case), a majority shall decide any question brought before the meeting. While the Board is charged with establishing "the order of business", I say having New Business on the agenda of an annual meeting means a member can move a motion -- it's new business. Initially, the board and its attorney tried to say "allowing motions" was not on the agenda, and so out of order. Have you ever seen "allow motions" on an agenda?

The membership may not raise any motion that requires a membership vote to approve (like amending the governing documents). This is due to the notice requirements. If you think about it, that is fair. You wouldn't want a few who attended the meeting to amend the Bylaws without you knowing that such a vote was taking place.

The membership may make advisory motions or motions for the Board to propose an amendment next year concerning xyz.

Question: Who controls the Association (the members or the Builder)?

The board and the general members both have to work to make the rule changes. The members have the right to vote to make changes. Board members are also "general members" too. They count as part of the majority vote of the membership to get the vote requirement of the entire HOA. However, in the end after the changes are agreed to and written, the board has to vote to pay for it. The board has to agree to use funds to hire the lawyer and pay the fees necessary to make those changes legal. General membership doesn't have that voting/control over the budget.

The board is elected from the general membership by the general membership to represent them on daily HOA business. You basically agree to vote for someone on the board to do the work of the HOA so you don't have to. The board is to then respect that and do what the majority of the membership wants them to do. In this case, it's to make changes to the rules. Making changes to the rules can entail some legal, filing, and distribution costs. A thing that has to come out of the HOA budget.

Board members do not get "double voting" rights. They have the same voting rights as the general membership. It's just they also are able to vote as a board representing the entire HOA. A right that you as general memberships gave them.

The membership may not raise any motion that requires a membership vote to approve (like amending the governing documents). This is due to the notice requirements. If you think about it, that is fair. You wouldn't want a few who attended the meeting to amend the Bylaws without you knowing that such a vote was taking place.

The membership may make advisory motions or motions for the Board to propose an amendment next year concerning xyz.

Question: Who controls the Association (the members or the Builder)?