If a non-profit's bylaws give fiscal responsibilities to a committee that does not include board members, do those bylaws supersede the RCW (Revised Code of Washington)? If the committee makes fiscal decisions that are not in the best interests of the organization, does the board have the legal right to overturn those decisions and set sound fiscal policies?

–A Washington State Non-Profit

By Judy Andrews, Gottlieb, Fisher & Andrews

The Washington Nonprofit Corporations Act provides that there are certain powers of the board that cannot be delegated.  Other powers can be delegated to a committee as long as

• the authority is provided for in the bylaws or articles,
• the board adopts a resolution creating the committee and delegating it authority, and
• there are at least two board members on the committee. 

In addition, RCW 24.03.115 specifically provides that this delegation will not relieve the board of directors or any individual director of any of the responsibility imposed by law.

Here's how the Nonprofit Corporation Act works in this area.  Under RCW 24.03.115, if the articles or bylaws make provision for doing so, the board may create committees to which it may delegate the authority of the board.  Such a committee must have at least two board members appointed to it.  However, under no circumstances may the board delegate certain powers to a committee which are specifically enumerated in this statutory provision and include such things as

• amending the bylaws,
• adopting a plan of merger,
• selling all or substantially all of the corporation's property, etc. 

(I often see this list copied verbatim into bylaws and I think that it is a good idea as a reminder to boards of the limitations on their authority to delegate to committees)

In the specific question, it appears that the organizers confused the names of the administrative bodies they created in the by-laws. The "board" was more like a planning committee, and the "executive committee" was more like a board. No matter what the bylaws provided, though, such a committee cannot exercise any authority of the board without appropriate delegation and they need to amend the by-laws to use conventional names for the groups that lead their organization.

Finally, this kind of question often comes up in the midst of a conflict among an organization's leaders. In my experience, such conflicts are rarely settled by appeal to outside authorities, such as the statutory language about the powers of the board. However, clarity about what structures are permitted by the law and about the powers and obligations of various parties can alleviate confusion and help identify areas of conflict so they can be addressed. When an organization has deep differences among the people who lead and support it, the most important thing to do is to work through those differences and find way of proceeding that will allow everyone to commit full energy to achieving the mission.  Anything less is shortchanging the community.