Adoption of Bylaws for Emergency Conditions; Emergency Powers of Board of Directors Generally

  1. Law
  2. Georgia Code
  3. Public Utilities and Public Transportation
  4. Electrical Service
  5. Electric Membership Corporations and Foreign Electric Cooperatives
  6. Organization of Electric Membership Corporations
  7. Adoption of Bylaws for Emergency Conditions; Emergency Powers of Board of Directors Generally

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  1. The board of directors may adopt emergency bylaws, subject to repeal or change by action of the members, which, notwithstanding any other provision to the contrary in this article or in the articles of incorporation or bylaws, shall be operative during any emergency in the conduct of the business of the electric membership corporation resulting from an attack on the United States or on a locality in which the electric membership corporation conducts its business or customarily holds meetings of its board of directors or its members, or during any nuclear or atomic disaster, or during the existence of any catastrophe or other similar emergency condition, as a result of which a quorum of the board of directors or a standing committee thereof cannot readily be convened for action. The emergency bylaws may make any provision that may be practical and necessary for the circumstances of the emergency, including, without limitation, provisions that:
    1. A meeting of the board of directors may be called by any officer or director in such manner and under such conditions as shall be prescribed in the emergency bylaws;
    2. The director or directors in attendance at the meeting, or any greater number fixed by the emergency bylaws, shall constitute a quorum;
    3. The officers or other persons designated on a list approved by the board of directors before the emergency, all in such order or priority and subject to such conditions and for such period of time (not longer than reasonably necessary after the termination of the emergency) as may be provided in the emergency bylaws or in the resolution approving the list, shall, to the extent required to provide a quorum at any meeting of the board of directors, be deemed directors for such meeting;
    4. Any officer of the electric membership corporation shall have such emergency powers as may be prescribed in the emergency bylaws; and
    5. The board of directors may delegate any of its powers to any officer or director.
  2. The board of directors, either before or during any such emergency, may provide and from time to time may modify lines of succession in the event that during such an emergency any or all officers or agents of the electric membership corporation shall for any reason be rendered incapable of discharging their duties.
  3. The board of directors, either before or during any such emergency, may, effective during the emergency, change the head office or designate several alternative head offices or regional offices or authorize the officers so to do.
  4. To the extent not inconsistent with any emergency bylaws so adopted, the bylaws of the electric membership corporation shall remain in effect during any such emergency; and upon the termination of the emergency, the emergency bylaws shall cease to be operative.
  5. Unless otherwise provided in the emergency bylaws, notice of any meeting of the board of directors during any such emergency may be given only to such of the directors as it may be feasible to reach at the time and by such means as may be feasible at the time, including publication, radio, or television.
  6. To the extent required to constitute a quorum at any meeting of the board of directors during any such emergency, the officers of the electric membership corporation who are present, unless otherwise provided in the emergency bylaws, shall be deemed, in order of rank and within the same rank in order of seniority, directors for such meeting.
  7. No officer, director, agent, or employee acting in accordance with any emergency bylaws shall be liable except for willful misconduct. No officer, director, agent, or employee shall be liable for any action taken by him in good faith in such an emergency in furtherance of the ordinary business affairs of the electric membership corporation, even though such action is not authorized by the bylaws then in effect.
  8. If emergency bylaws have not been adopted by an electric membership corporation, action by members, directors, officers, agents, or employees during any emergency described in subsection (a) of this Code section shall be valid if it is substantially in compliance with this Code section or if it is otherwise practical and necessary for the emergency operation and management of the business.

(Code 1933, § 34C-707, enacted by Ga. L. 1981, p. 1587, § 1.)

RESEARCH REFERENCES

C.J.S.

- 18 C.J.S., Corporations, §§ 110-121.

PART 8 OPERATION OF ELECTRIC MEMBERSHIP CORPORATIONS GENERALLY

46-3-340. Nonprofit operation of electric membership corporations required; rates and fees to cover costs of operation and interest payments and for maintaining reserves; bylaw provisions concerning revenues, assets, and member classification.

  1. Each electric membership corporation shall be operated without profit to its members; but the rates, fees, rents, or other charges for electric energy and any other facilities, supplies, equipment, or services furnished by the electric membership corporation shall be sufficient at all times:
    1. To cover all administrative and operating expenses and the costs of purchased capacity and energy as necessary or desirable for the prudent conduct of its business, and to cover the payments of the principal of and interest on the obligations issued or assumed by the electric membership corporation in the performance of the purposes for which it was organized; and
    2. To establish and maintain reasonable reserves.
  2. An electric membership corporation may also accumulate funds for future capital needs and for the purpose of establishing and maintaining a reasonable capital structure.
  3. The bylaws of an electric membership corporation shall contain provisions, consistent with subsection (a) of this Code section, for accounting for, allocating, assigning and disposing of its revenues and assets and may establish classes of members for such purposes.

(Ga. L. 1937, p. 644, §§ 12, 14; Ga. L. 1953, Nov.-Dec. Sess., p. 359, § 1; Code 1933, § 34C-801, enacted by Ga. L. 1981, p. 1587, § 1.)

Code Commission notes.

- Georgia Laws 1937, p. 644, contained two provisions which were designated as "Section 14," one such provision appearing on page 653 and the other appearing on page 654. The provision appearing on page 653 is codified at this section and the provision appearing on page 654 is codified at §§ 46-3-360,46-3-361.

JUDICIAL DECISIONS

Members disqualified from serving as jurors in action against corporation.

- The members of an electric membership corporation are in the same position as the stockholders of a corporation or the policy holders of a mutual insurance company as regards their right to share in the net earnings of the business; accordingly, the members of an electric membership corporation are disqualified from service as jurors in the trial of a case in which damages are sought from the corporation. Thompson v. Sawnee Elec. Membership Corp., 157 Ga. App. 561, 278 S.E.2d 143 (1981).

No private right of action to enforce.

- Suits by classes of former and current members of distribution electric membership corporations (EMCs) seeking to recover millions of dollars in patronage capital from two wholesale EMCs were dismissed because the members lacked privity with the wholesale EMCs and there was no legal duty under O.C.G.A. § 46-3-340(c) or the EMCs' bylaws requiring distribution of the patronage capital to the members. Walker v. Oglethorpe Power Corp., 341 Ga. App. 647, 802 S.E.2d 643 (2017), overruled on other grounds, Hanham v. Access Mgmt. Group L.P., 305 Ga. 414, 825 S.E.2d 217 (2019).

Cited in Flint Elec. Membership Corp. v. Posey, 78 Ga. App. 597, 51 S.E.2d 869 (1949); Lamar Elec. Membership Corp. v. Carroll, 89 Ga. App. 440, 79 S.E.2d 832 (1953); City of LaGrange v. Troup County Elec. Membership Corp., 200 Ga. App. 418, 408 S.E.2d 708 (1991).

RESEARCH REFERENCES

Am. Jur. 2d.

- 18 Am. Jur. 2d, Corporations, §§ 32, 33, 728. 27A Am. Jur. 2d, Energy and Power Sources, §§ 43, 45. 64 Am. Jur. 2d, Public Utilities, § 63.

C.J.S.

- 29 C.J.S., Electricity, §§ 10, 34.


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