Richard Brown Posted February 7, 2015 at 06:22 PM Report Share Posted February 7, 2015 at 06:22 PM Is an election to an office which is not vacant always void and a continuing breach? A member is elected in a special election to an office that the members erroneously believed to be vacant. Is such an election always void or does it depend on the circumstances? Assume, for the purposes of this discussion, that the position is already filled and is not vacant and that the error comes to light after the special election to fill the alleged “vacancy”. Consider the following two scenarios. Case A: The bylaws provide that officers serve a fixed term, such as for two years, and the term has not expired. Someone else is elected to the position in a special election to fill the “vacancy” under the mistaken belief that the office is vacant. Is there any scenario under which such an election would be valid? Case B: The bylaws provide that officers serve a term of two years or until their successors are elected. Someone else is elected to the position by more than a two-thirds vote in a special election under the mistaken belief that the office is vacant. Is the election valid? Why or why not? I know that normally if someone is elected to a position which is not vacant, the election is void and constitutes a continuing breach because it conflicts with something previously adopted (the prior election to a term which has not yet expired). (page 445) However, I’m also mindful of the provisions in RONR that say that the adoption of a motion which conflicts with a motion previously adopted is valid if adopted by the vote necessary to rescind the previously adopted motion. (page 251) The following provisions seem relevant: Page 445 lines 23-25Page 251 lines 9-10 and 11-15Pages 653-654 re Removal from Office I’m assuming that the provisions on page 445, lines 23-25, being specific to elections, would be controlling over the more general provisions of page 251 lines 11-15, but I’m anxious to hear what others think. Link to comment Share on other sites More sharing options...
Josh Martin Posted February 8, 2015 at 12:01 AM Report Share Posted February 8, 2015 at 12:01 AM Is an election to an office which is not vacant always void and a continuing breach? Yes. A member is elected in a special election to an office that the members erroneously believed to be vacant. Is such an election always void or does it depend on the circumstances? Assume, for the purposes of this discussion, that the position is already filled and is not vacant and that the error comes to light after the special election to fill the alleged “vacancy”. Such an election is always void. Case A: The bylaws provide that officers serve a fixed term, such as for two years, and the term has not expired. Someone else is elected to the position in a special election to fill the “vacancy” under the mistaken belief that the office is vacant. Is there any scenario under which such an election would be valid? No. Case B: The bylaws provide that officers serve a term of two years or until their successors are elected. Someone else is elected to the position by more than a two-thirds vote in a special election under the mistaken belief that the office is vacant. Is the election valid? Why or why not? No. The election conflicts with a main motion previously adopted and still in force. I know that normally if someone is elected to a position which is not vacant, the election is void and constitutes a continuing breach because it conflicts with something previously adopted (the prior election to a term which has not yet expired). (page 445) However, I’m also mindful of the provisions in RONR that say that the adoption of a motion which conflicts with a motion previously adopted is valid if adopted by the vote necessary to rescind the previously adopted motion. (page 251) The following provisions seem relevant: Page 445 lines 23-25Page 251 lines 9-10 and 11-15Pages 653-654 re Removal from Office I’m assuming that the provisions on page 445, lines 23-25, being specific to elections, would be controlling over the more general provisions of page 251 lines 11-15, but I’m anxious to hear what others think. I agree that what is said on pg. 445 would be controlling since a specific rule takes precedence over a general rule, but there is no conflict anyway. As you note, pg. 251 provides that a main motion is null and void if it conflicts with a main motion previously adopted and still in force, unless the motion is adopted by the vote required to rescind or amend the previously adopted motion. An election to office, however, cannot be rescinded or amended, so this exception does not apply. While the voting requirements for removing an officer may be the same as for rescinding or amending a motion, this still does not mean that the election can be rescinded or amended. See RONR, 11th ed., pg. 308. Link to comment Share on other sites More sharing options...
Richard Brown Posted February 8, 2015 at 12:05 AM Author Report Share Posted February 8, 2015 at 12:05 AM Thanks, Josh. You confirmed what I thought the case to be, but I wanted confirmation. I welcome more comments if anyone has a different take on it. Link to comment Share on other sites More sharing options...
Bruce Lages Posted February 8, 2015 at 05:52 PM Report Share Posted February 8, 2015 at 05:52 PM Given what is said on p. 574, ll. 8-33, with particular emphasis on ll. 12-16, why wouldn't case B represent a valid election, or if really not valid, what would be needed to make it valid? Link to comment Share on other sites More sharing options...
Dan Honemann Posted February 8, 2015 at 06:07 PM Report Share Posted February 8, 2015 at 06:07 PM Given what is said on p. 574, ll. 8-33, with particular emphasis on ll. 12-16, why wouldn't case B represent a valid election, or if really not valid, what would be needed to make it valid? Unless the bylaws provide otherwise, an officer can be removed from office only by the adoption of a motion to do so (when permitted) or through the process of disciplinary proceedings (RONR, pp. 653-54). Link to comment Share on other sites More sharing options...
Bruce Lages Posted February 8, 2015 at 06:22 PM Report Share Posted February 8, 2015 at 06:22 PM Got it - thanks, Dan. Link to comment Share on other sites More sharing options...
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