Newly elected officer dies before taking office

[smb]

This is related to John Stackpole's recent query about when an elected position is considered 'vacant'.  I am making this a new post because even though similar issues are involved, I have a different set of facts and don't want to complicate that other discussion.

 

FACTS: The organization has fixed terms of office -- September 1-August 31 -- so RONR's 'and'/'or' provisions do not apply.  The bylaws state that elections are to be held at a special meeting to be called by the Board of Directors between June 1-July 31.  Elections were held on June 2 for the coming term.   The bylaws provide for election by plurality; no runoff election to achieve a majority vote is needed. The elections were held and completed.  Frank was elected President with 47% of the vote; Barbara was second with 44%; and Shirley trailed with 9%.

 

President-elect Frank died on June 9.  

 

VP-elect Vincent contends that the position of President is now vacant and therefore when he becomes Vice-President on September 1 he will immediately succeed to the office of President.  (The bylaws provide for the VP to succeed if the President dies, resigns, or is otherwise unable to perform the duties of office.)

 

Barbara contends that since she came in second in the election -- and the election is determined by plurality vote -- the organization should now disregard the votes that Frank received and designate her as the president-elect.

 

Shirley, who thinks she can beat Barbara in a head-to-head race now that Frank is no longer in the picture, is trying to convince the board to schedule another special meeting before July 31 to conduct a new election.  There is sufficient time to meet the notice requirements.

 

My take on this:  RONR recognizes that the act of "taking office" is an event separate and distinct from an election becoming "final" and that it is a common practice for the term of office to begin at some later date.  Since this election was completed on June 2, the results became final notwithstanding the delay in the onset of the term of office. Frank's subsequent death does not  change the result of the completed election. Frank won; Barbara lost. End of story for Barbara. 

 

What about Shirley's argument that the board can schedule a new election?  While there is time to do so, RONR provides that if there is a valid election (as there was here), any subsequent election of another person for the same term is equivalent to adopting a main motion that conflicts with an earlier motion that is still in force.   Such an action is invalid unless adopted by the vote necessary to amend something previously adopted. But....1)  if Frank is no longer with us, is the prior motion (election) actually still "in force"?  And, 2) what is the required threshold for "amending something previously adopted" if applied to something that requires only a plurality vote?  On one hand, I see no authority for altering the normal requirements (majority with prior notice; otherwise majority of the members or 2/3 vote.)  On the other hand, following the usual rule here would mean requiring a majority vote (or better) for an election that the bylaws declare are decided by a plurality.

 

The easiest (and I think most reasonable) solution is to declare that Frank's untimely death created a vacancy and that Vincent will succeed to the office on September 1.  But someone is inevitably going to ask me upon what authority I base that conclusion -- other than my powers of deduction.  That brings me to MY two questions...

 

1) RONR does not address the situation of someone who dies, resigns, or is otherwise unable to take office, between the completion of the election and the start of his or her term. But, I seem to recall that one of the other parliamentary authorities does discuss it.  Or perhaps I read it in the Q&A portion of Parliamentary Law?  or ???  Unfortunately, I am on vacation outside the country at the moment and have none of my resources with me.  (Which explains why I have not given page references to RONR above -- sorry about that.)  Does anyone recall whether any the other parliamentary authorities expressly discuss this situation; if so, please provide the details.

 

2) If you do not agree that Frank's death created a vacancy, why not?  

 

Thanks .

 

[Burke Balch]

 

The organization has fixed terms of office -- September 1-August 31 -- so RONR's 'and'/'or' provisions do not apply.

 

 

What about Shirley's argument that the board can schedule a new election?  While there is time to do so, RONR provides that if there is a valid election (as there was here), any subsequent election of another person for the same term is equivalent to adopting a main motion that conflicts with an earlier motion that is still in force.   Such an action is invalid unless adopted by the vote necessary to amend something previously adopted.

 

The exact language is "[A]n election may be contested . . . by raising a point of order. The general rule is that such a point of order must be timely . . . . [E]xceptions to the general timeliness requirement are those that come within the five categories listed on page 251,lines 9-23, in which cases a point of order can be made at any time during the continuance in office of the individual declared elected.  For example: . . .   If there was a previously valid election for the same term, the subsequent election of another is the adoption of a main motion that conflicts with the bylaws."  RONR (11th ed.), p. 445, ll. 8-25.

 

Now, it is true that p. 241, ll. 11-15 refers to "a main motion has been adopted that conflicts with a main motion previously adopted and still in force, unless the subsequently adopted motion was adopted by the vote required to rescind or amend the previously adopted motion."  However, in the context of an election , this must be read together with the language on pp. 653 regarding "Removal from Office".  That language contrasts the situation in which "the bylaws provide that officers shall serve 'for __ years or until their successors are elected'," in which case an officer can be removed from office by the same vote as that required to rescind or amend the previously adopted motion, with a situation in which "the bylaws provide that officers shall serve only a fixed term" in which case "an officer can be removed from office only for cause  . . . in accordance with the procedures described in 63; that is, an investigating committee must be appointed, charges must be preferred, and a formal trial must be held."

 

If, instead of Frank having died, the organization acted to remove him from office by conducting a new election after a vote that was equivalent to that required to rescind or amend the previously adopted motion (the election of Frank), and proceeded to elect someone else, I think there is no doubt that a point of order that the later election was invalid would be well taken.  "A general statement of a rule is always of less authority than a specific statement or rule and yields to it." P. 589, ll. 17-18.

 

Here, of course, the proposal is not to remove Frank from office (since he cannot assume it, having died) but to conduct a new election.  Nevertheless, I do not see how conducting a new election can be justified now, any more than it could be justified if Frank had died in office.  It is significant here that the example given of when a point of order against an election need not be timely on p. 445, ll. 23-25-- "If there was a previously valid election for the same term" omits the qualification that the later election was adopted by the vote required to rescind or amend something previously adopted.

 

Thus, as the duly elected vice president, Vincent becomes president.

[Dan Honemann]

I agree that Vincent now holds the office to which Frank was elected. There is now a vacancy in the office to which Vincent was elected, which the organization should proceed to fill in accordance with whatever procedures are prescribed in its bylaws for the filling of vacancies in office. In this connection, the situation is to be treated the same as if Frank had died on September 2.

 

By the way, the fact that the organization elects its officers to fixed terms is irrelevant. Successors were elected on June 2.

[Gary Novosielski]

I agree that Frank's death did create a vacancy, and that Vincent automatically fills it, creating a VP vacancy which is not automatically filled, but is filled according to your rules.

 

The results of the elections showed that the membership wanted Frank as president, and that if he became unable to serve, they wanted Vincent to succeed him.  The self-serving arguments of the other two candidates are irrelevant.

[Guest Burke Balch]

I agree that Vincent now holds the office to which Frank was elected. There is now a vacancy in the office to which Vincent was elected, which the organization should proceed to fill in accordance with whatever procedures are prescribed in its bylaws for the filling of vacancies in office. In this connection, the situation is to be treated the same as if Frank had died on September 2.

 

By the way, the fact that the organization elects its officers to fixed terms is irrelevant. Successors were elected on June 2.

I certainly agree with the basic conclusion.  The fact that the organization elects its officers to fixed terms is relevant only in rebutting the validity of the proposal to conduct a new election.  If the term had been x years OR until a successor is elected, arguably there could have been a vote to remove from office the individual who filled the vacancy (the VP), and then (after appropriate notice) an election to fill the vacancies in P and VP. But since the president serves a fixed term, that is not an option.

[Dan Honemann]

I certainly agree with the basic conclusion.  The fact that the organization elects its officers to fixed terms is relevant only in rebutting the validity of the proposal to conduct a new election.  If the term had been x years OR until a successor is elected, arguably there could have been a vote to remove from office the individual who filled the vacancy (the VP), and then (after appropriate notice) an election to fill the vacancies in P and VP. But since the president serves a fixed term, that is not an option.

 

Okay, but I doubt that Shirley's proposal that the board should call another special meeting of the membership before July 31 to conduct a new election is based on the understanding that Vincent is now the President-elect and will have to be removed from that office before an election can be held to replace him. 

 

I suppose I should hasten to add that I am not using the term President-elect in the same way that RONR uses it on page 457.