contract-law corporate-law
When should a constitution or bylaws have separate articles versus sections within an article?
<p>My church is in the process of re-organizing our constitution and bylaws. Currently, we have individual articles for some elected positions. Others get defined only in context of the board that they lead.</p>

<p>I've proposed having one article covering all elected officers (with sections for each officer). A second article would exist for all standing boards and committees (with a section for each).</p>

<p>One member of the committee raised the issue of definitions applying throughout an article and suggested that each officer and each board ought to have their own article.</p>

<p>My question boils down to this: What is the significance of having several closely-related topics under one article versus each of those topics having their own article?</p>

<h2>When it makes more sense to do so</h2>

<p>Remember, the primary purpose of the document is to communicate; concisely and unambiguously - the drafting should be structured to best support that purpose.</p>

<h2>For your problem</h2>

<p>You're both wrong. The constitution needs to deal with elected officials - it shouldn't concern itself with particular standing boards and subcommittees. </p>

<p>Set up the rules for committees and allow <em>the</em> management committee (or whatever its called) to establish and dissolve subcommittees at its discretion. A "annual fete" committee might make sense now but in 15 years time when you no longer hold them its just silly to still have it in the constitution. Similarly, just because you have a committee of 8 now doesn't mean that that will always be the best number.</p>

<p>Basically, don't lock in current practices - just because they work now doesn't mean they will always work and its way easier to change a practice by a committee resolution than by having to redraft the constitution ... <em>again</em>! As a foundational document it should only need to deal with high level issues like elections, dispute resolution, membership and management structure (rather than management practice).</p>

<h2>A few points to remember</h2>

<p><strong>Status of the constitution</strong></p>

<p>Your constitution is a (quasi-)contract, not a constitution.</p>

<p>This means:</p>

<ol>
<li>That your church is subject to whatever state or national laws allow for your church to exist as an organisation. For example, in NSW, Australia the relevant law is the <a href="http://www.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/consol_act/aia2009307/" rel="nofollow noreferrer">ASSOCIATIONS INCORPORATION ACT 2009</a>. You should start with whatever legislation applies to you to make sure your constitution is in compliance with it. If it isn't then it isn't a valid constitution.</li>
<li>Unlike a national constitution it can be externally enforced. That is, if the office bearers are breaking the rules someone can go to court to stop them. National constitutions must be internally enforced -  a sufficiently powerful national office bearer can simply "nope" the court.</li>
</ol>

<p><strong>Reference that law, don't copy it</strong></p>

<p>Laws change, if you have copied large swathes of it into your constitution then your constitution becomes invalid when they do.</p>

<p>Don't redefine things the law deals with - if the law defines "officers" and "committees" don't come up with your own definitions for these things: adopt those (by reference).</p>

<p><strong>Use a template</strong></p>

<p>Check the applicable legislation - it is not uncommon for it to incorporate a "model constitution", for <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_reg/air2016398/sch1.html" rel="nofollow noreferrer">example</a>. If you start with this you have the advantage of knowing that it starts complying with the law and will be relatively common and familiar across many organisations; lowering the learning curve for new members/executives.</p>

<p><strong>Write in <a href="https://www.victorialawfoundation.org.au/plain-language-resources" rel="nofollow noreferrer">plain English</a></strong></p>

<p>See above</p>

<p><strong>Keep it legal</strong></p>

<p>This doesn't just mean complying with legislation - it also means complying with common law principles like natural justice and procedural fairness. For example, if your constitution deals with disciplinary matters like expelling members, people are entitled to a fair hearing and an appeal.</p>

<p><strong>Have a dictionary</strong></p>

<p>For terms with a definite meaning define these (by reference if appropriate) in one place at the start of the document - don't make people flick to the back just to work out what "sub-committee" means. Even better, put the document online as web pages with hyperlinks.</p>

<p><strong>Don't prescribe</strong></p>

<p>Resist the temptation to be overly prescriptive or limiting on current or future office bearers/committees - trust them to act responsibly. You guys are reasonable people - why to you think your replacements won't be?</p>

<p>For example, don't set hard discretionary spending limits, set a rule which allows the management committee to set these at their discretion. After all the committee in 2047 is going to be in a better position to deal with the issues of 2047 than you are.</p>

<p>The constitution is a document that should <em>enable</em> the organisation to act, not prevent it from acting.</p>

<p>So if you look at the US Constitution, the articles are broken up based on leadership and authority topics.</p>

<p>The first three articles are used to detail the authority of the different branches and the rules of each branch and their role in government and checks and balances.</p>

<p>I would suggest that an article be for all boards, with each board netting a single section to define their authorities, roles, responsibilities, and any checks on them.  Leadership within each boards (the Chairman of the Board) should be described here, and the governance of Sub-Boards should be discussed in the most basic need (a sub-board would be governed by the board and thus should be their own problem to define the scope of.).</p>

<p>Individual elected offices should be separate IF AND ONLY IF the office has no superior beyond the voters.  If the office answers to another, it needs to be listed as a section of that office's authorities and let that office govern the role as it best sees fit within the frame work.  Consider in the U.S. constitution, there is no Article for the Vice President despite it technically being a separate elected office to the President (Electoral College stuff.  Basically the College casts two votes:  One for the President and one for the Vice President even though the popular vote for them as one ticket).  If the office answers to someone else for checks and balances only they don't count as the boss of the organization.</p>

<p>Articles should also cover things such as Amendments to the Constitution and how to ratify the constitution and establish the Constitution once created and how to deal with conflicts between rules created by the Constitution and rules created as laws by the boards and other elected offices.</p>

<p>Basically, Articles should be an entire office, while sections are everything following that office.</p>
