Frequently Asked Questions About Nonprofit Bylaws
By: Michael Jonas, JD, MBA (Owner/Attorney)
If you work with nonprofits long enough, you start hearing the same questions about bylaws.
Do they have to be signed? Are they public? Can we just use another nonprofit’s bylaws? What is the board actually supposed to do? And how much authority can the board give to an Executive Director?
At Narwhal Law & Business Strategy, we help nonprofits throughout Oregon and Washington, as well as 501(c)(3) organizations across the country, draft, review, and update their bylaws. Along the way, we hear many of the same questions about what bylaws are, what they should include, and how they actually work in practice.
Here are some of the questions we hear most often.
What are nonprofit bylaws?
Think of bylaws as the rules for how your nonprofit is governed.
They spell out how decisions are made, who has authority to make them, and how the board is supposed to operate. Good bylaws give current and future leaders a clear set of rules to follow.
Most bylaws address things like:
Who can serve on the board.
How directors are elected and how long they serve.
Officer roles and responsibilities.
When and how board meetings happen.
Voting and quorum requirements.
Membership rights, if the nonprofit has members.
Committees and what authority they have.
Conflicts of interest.
How the bylaws can be amended.
The details will look different from one nonprofit to another, but the basic purpose is the same: everyone should understand how the organization is governed.
Are bylaws legally required?
Yes.
Nonprofit corporations in both Oregon and Washington are expected to adopt bylaws. You generally do not file them with the Secretary of State when you form the corporation, but they are an important part of the nonprofit’s corporate records.
What is the difference between our Articles of Incorporation, bylaws, and board policies?
These documents work together, but they do different things.
Your Articles of Incorporation are the document that creates the corporation. They are filed with the state and contain some of the organization’s most basic legal information and provisions.
Your bylaws establish the rules for governing the organization. They address things like the board, officers, meetings, voting, committees, and how authority is divided within the organization.
Your board policies generally provide more detailed rules for specific areas. You might have a Conflict of Interest Policy, Financial Controls Policy, Whistleblower Policy, Document Retention Policy, or other policies addressing issues that do not need to be spelled out in the bylaws themselves.
Keeping these documents separate can make the organization easier to govern. Your foundational governance rules stay in the bylaws, while policies can address details that may need to change more frequently.
Are bylaws a contract?
Not in the same way as a typical contract, but bylaws can have binding legal effect.
Your bylaws are primarily the internal rules for governing the nonprofit. They establish things like how directors are elected, how meetings and voting work, what authority officers have, and what procedures the organization must follow.
Once properly adopted, the board and officers are generally expected to follow them. That is true even if individual directors never sign the bylaws. A director does not usually get to disregard the bylaws simply because they never personally signed the document.
So what happens if directors do sign them?
Usually, when directors sign bylaws, they are signing a Certification of Adoption or similar acknowledgment confirming that the bylaws were properly adopted. That signature is generally evidence of the board’s approval and adoption of the document. It does not automatically turn the bylaws into a separate contract between each director and the nonprofit.
That distinction matters. Directors are bound by their governance responsibilities because of their role with the corporation, applicable law, and the organization’s properly adopted governing documents, not simply because their signature appears at the bottom of the bylaws.
At the same time, bylaws can have contractual or contract-like significance in some circumstances. Courts may look to them when deciding disputes involving the rights and obligations of the corporation, directors, officers, or members. This is particularly important for nonprofits with legal members, because the bylaws may establish specific rights those members have within the organization.
This is also why we generally prefer a Certification of Adoption rather than having every director sign the bylaws as though they were signing a contract. The certification creates a clear record that the board adopted the bylaws without unnecessarily suggesting that the document is a separate agreement with each individual director.
The practical takeaway is simple: whether or not every director signs them, once bylaws are properly adopted, the board should treat them as rules it is required to follow.
Do our bylaws have to be signed?
Generally, no.
In Oregon and Washington, bylaws become effective when they are properly adopted, usually by the board of directors. There generally is not a separate requirement that every director sign the bylaws themselves.
That said, we usually recommend adding a Certification of Adoption signed by the Board Chair or President and Secretary.
The purpose of those signatures is primarily to document that the bylaws were properly adopted, not to create a separate contract with the people signing them.
A certification creates a clear record of which version of the bylaws was approved and when. That can be helpful years later when a new board is trying to figure out which version is actually in effect. It can also be useful when a bank, auditor, grantmaker, regulator, or someone else asks for documentation.
Are bylaws filed with the state?
This one causes a lot of confusion because the answer depends on what you mean by “the state.”
Bylaws generally are not filed with the Secretary of State as part of incorporating the nonprofit. That filing usually involves the Articles of Incorporation, followed by annual reports.
Charitable registration is a different issue.
In Oregon, charities generally submit their bylaws when registering with the Oregon Department of Justice’s Charitable Activities Section.
In Washington, charitable organizations register through the Secretary of State’s Charities Program, which may require governing documents depending on the organization and filing.
So your bylaws may not be part of your corporate filing, but that does not necessarily mean no government agency will ever receive a copy.
Are bylaws public documents?
Sometimes.
Your bylaws do not automatically become public just because you incorporated a nonprofit. They generally will not appear alongside your business registry information with the Secretary of State.
But if you submit them to a government agency as part of a charitable registration or another filing, they may be subject to public records laws.
That is also a different question from whether your nonprofit has to hand its bylaws to anyone who asks. Generally, nonprofits do not have to provide their bylaws to every member of the public, although members of membership organizations, regulators, courts, and others may have legal rights to inspect them in certain circumstances.
Why do fiduciary duties matter when we’re talking about bylaws?
Because the board’s fiduciary duties and the bylaws go hand in hand.
State law establishes the duties directors owe to the nonprofit. The bylaws provide many of the rules directors follow while carrying out those duties.
A simple way to think about it is this: fiduciary duties tell directors how they are expected to act, while bylaws help establish how the board actually operates.
For example, directors generally have duties to act with reasonable care, put the organization’s interests ahead of their own, and make decisions consistent with the nonprofit’s mission and legal obligations. The bylaws then create the framework for doing that work: who has authority to make decisions, how directors are elected and removed, how meetings are called, what constitutes a quorum, how votes happen, what officers are responsible for, and how conflicts or other governance issues are handled.
That is why bylaws should not simply be treated as paperwork that gets adopted when a nonprofit is formed and then forgotten. They are part of the organization’s governance infrastructure.
Good bylaws give the board a clear process for exercising its authority and fulfilling its responsibilities. And when the board actually follows those bylaws, it helps demonstrate that directors are taking their governance responsibilities seriously.
Do you need assistance with bylaws (ie. interpreting, revising, rewriting, or consulting)? Reach out via our contact form.
