Where Articles filed more than 35 years ago say the membership shall consist of the incorporators but the Bylaws are silent about member voting rights and no member meetings (or vote) have ever occurred, do the members that still survive have the right to vote on a fundamental corporate change after Board approval?
This is a question of state law for your state, but the answer is probably No. The Pennsylvania nonprofit corporation law provides, for example, that where a nonprofit corporation has under its bylaws or in fact no members entitled to vote on a matter, the Board may act alone. If no one has acted as a member for 35 years, it would be hard to argue that such persons should be able to act now for the first time to control action.Nevertheless, if it would be possible, without stirring up a controversy, to get a waiver or approval from the surviving member(s) to a bylaw change that eliminates all members, in an abundance of caution you should consider whether it would be wise to obtain that approval and remove the possibility of a subsequent challenge to this or any other issue. Be careful to write the waiver so that it does not suggest that they have the right to approve. Check with a local lawyer to confirm that the “members” don’t have legal rights and whether the waiver is necessary.