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Definition of MAY vs SHALL

I was wondering if you could give me a little help/insight on the use of the word “may” as used in legal documents?

According to Google, the legal definition of “may” is “a choice to act or not, or a promise of a possibility” and they clarify “the word ‘may’ must be read in context to determine if it means an act is optional or mandatory, for it may be an imperative”.

The line in our Bylaws that is in question is this one regarding nominations at the Annual meeting: “Nomination may also be made from the floor at the annual meeting of the Members”.

I argue that that means it is an option, a promise to the people, that, if they want to, they can make nominations from the floor of the Annual meeting. And the Board cannot stop them from doing so, should they choose to do so. Members could nominate through other means, but one bylaw-guaranteed route is via nomination from the floor of the Annual meeting.

A fellow Board member disagrees and says that he thinks it means that the Board does not have to allow for nominations from the floor, and that if the Board had to allow for nominations from the floor, then it would have used the word “shall” instead of “may”.

Who’s right?

John

1 Response

  1. dennisl

    John,
    In all cases the use of “May” and “Shall” is always the same. “Shall” is always used to define a requirement that is not optional, while “May” allows an act to occur if defined by other conditions. Relative to the specific act you mentioned nomination from the floor must be conditioned by a presence of a quorum of the association physically at the meeting. Arizona law requires that any issue to be voted on by the members be accomplished via both in person and absentee ballots. Absentee ballots can be used to satisfy quorum requirements for the meeting. if absentee ballots are needed to satisfy the quorum than those at the meeting cannot do anything that was not identified on the absentee ballots. So a nomination from the floor without a quorum present at the meeting is invalid and inappropriate. The bylaws may also allow the association to establish additional conditions relative to board candidate nomination from the floor.

    For your specific example if a quorum is present and the bylaws do not allow the association to place additional restrictions on any nominations from the floor, than the association must allow the floor nominations to take place even if the word “may” is used.

    The governing documents are the defining rules for the association and absent any other restriction the association must allow nominations from the floor if the governing documents allow those nominations to take place.

    Dennis

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