Nominee discovered ineligible after the elections

[Guest Dean]

Hello

 

At a recent AGM we held an election with 6 candidates for 5 positions.  The bylaws state that there is a majority vote process with those receiving the highest number of votes to fill all the vacant positions are elected.

 

After the election results were announced and the AGM adjourned it was discovered that one of the candidates did not meet all the requirements in the bylaws to run, and hence were ineligible.  They have agreed to not serve due to this.  With a wierd distibution of votes, the sixth place candidate also selected on more the 50% of the ballots.

 

Reading through RONR it appears to me that the votes for the ineligible candidate should not have counted. 

 

What I don’t see anywhere is what is the outcome?

Is the other candidate put into the position?

Would the above outcome have been the same if the ineligibility had been discovered during the AGM or during the counting of the ballots?

 

Using the “what if it happened six months before/after” thought process, I would think that had this been discovered after the officer had been active on the Board when this was discovered then it would lead to a Board vacancy.  This leads me to think there may be outcome might change depending on where this was discovered.

 

Thanks

 

Dean

[Hieu H. Huynh]

"In such a case, if more than the prescribed number receive a majority vote, the places are filled by the proper number receiving the largest number of votes." (RONR 11th ed., p. 441, ll. 16-18)

 

I think in this case, the five eligible candidates who received a majority vote are elected.

[Dan Honemann]

I think there may be something wrong with the facts. I'm not at all sure that all five eligible candidates each received a majority of the votes cast. It would help if we had the teller's report.

 

Furthermore, I don't know what this means: "The bylaws state that there is a majority vote process with those receiving the highest number of votes to fill all the vacant positions are elected." It could mean that a majority vote is required to elect, or it could mean that a plurality will suffice. The exact wording would be helpful.

[Guest Dean]

Thanks

 

There were six names on the ballet and the deligates had to select five.  I don't have the tellers report with me but from the numbers reported, all six candidates had recieved over 50% of the votes cast.

 

Below is the actual bylaw wording

 

"Decision

–

Elections will be decided by majority vote by ballot voting of the Members in accordance with the following:

a) Valid Nominations (as applicable) – Winners declared by Ordinary Resolution of the voting Members OR Winners are the nominees receiving the greatest number of votes and filling all vacancies open for election

Run-off Vote – In the case of a tie, the nominees receiving the same number of votes for the final position(s) will participate in a run-off vote. The nominee(s) receiving the most votes will be determined the winner. (For example: five nominees receiving the same number of votes for the final two positions will require a run-off vote including the five nominees from which votingdelegates will select two winners who received the greatest number of votes.)"

 

 

 

[Dan Honemann]

I'll ask Dr. Stackpole to answer this question for us.

 

If there are six candidates running for five positions on a board, can all six receive more than half of the votes casts under the rules on page 441?

[Dan Honemann]

 

Thanks

 

There were six names on the ballet and the deligates had to select five.  I don't have the tellers report with me but from the numbers reported, all six candidates had recieved over 50% of the votes cast.

 

Below is the actual bylaw wording

 

"Decision

–

Elections will be decided by majority vote by ballot voting of the Members in accordance with the following:

a) Valid Nominations (as applicable) – Winners declared by Ordinary Resolution of the voting Members OR Winners are the nominees receiving the greatest number of votes and filling all vacancies open for election

Run-off Vote – In the case of a tie, the nominees receiving the same number of votes for the final position(s) will participate in a run-off vote. The nominee(s) receiving the most votes will be determined the winner. (For example: five nominees receiving the same number of votes for the final two positions will require a run-off vote including the five nominees from which votingdelegates will select two winners who received the greatest number of votes.)"

 

 

 

 

It is, of course, up to you all to decide what your bylaws mean, but what you have quoted seems to me to be saying that a plurality vote will suffice.

[J. J.]

I'll ask Dr. Stackpole to answer this question for us.

 

If there are six candidates running for five positions on a board, can all six receive more than half of the votes casts under the rules on page 441?

 

 

Yes. 

[jstackpo]

I'll work on it  --  too late at night for us geezers now.

[Dan Honemann]

If there are six candidates running for five positions on a board, can all six receive more than half of the votes casts under the rules on page 441?

 

 

Yes. 

 

Yep, it is certainly possible so long as there are three or more members voting.  

[Guest Dean]

The approach we ended up taking (right or wrong) at our Board meeting was as following.

 

We deemed the election results to be be official as of the reading of the tellers report.

We considered the ineligible candidate to have effectively resigned immediately after the election was official due to their ineligibility to hold the position, creating a Board vacancy.

We felt the sixth place candidate could not assume the now vacant position though as they were not officially elected.

 

Internally we are now weighing the option of appointing the unsuccessful candidate to fill the position until the next election (allowed under the bylaws) or recognizing the membership did not support this person at the election and finding an alternative person to fill the position until the next AGM.

[Gary Novosielski]

Wrong, if it matters.

[Josh Martin]

The approach we ended up taking (right or wrong) at our Board meeting was as following.

We deemed the election results to be be official as of the reading of the tellers report.

We considered the ineligible candidate to have effectively resigned immediately after the election was official due to their ineligibility to hold the position, creating a Board vacancy.

We felt the sixth place candidate could not assume the now vacant position though as they were not officially elected.

Internally we are now weighing the option of appointing the unsuccessful candidate to fill the position until the next election (allowed under the bylaws) or recognizing the membership did not support this person at the election and finding an alternative person to fill the position until the next AGM.

I think this is all correct, except that you can't "effectively resign." You resign or you don't. Since we are told in the original post that the ineligible member agreed not to serve, it seems to me that he resigned. He also resigned when he actually resigned, not "immediately after the election was official."

Wrong, if it matters.

I don't think so. If the membership was able to rule the election invalid, it could have determined that the sixth place candidate was elected, since he was the fifth place eligible candidate. The membership, however, appears to only meet annually. As a result, the board is stuck with the results. The member was elected, but he agreed to resign, which opens up a vacancy that we are told the bylaws authorize the board to fill. Since this is now a vacancy and not an incomplete election, the sixth place candidate can't automatically take the seat - although the board could certainly appoint him to it.

[Gary Novosielski]

I don't think so. If the membership was able to rule the election invalid, it could have determined that the sixth place candidate was elected, since he was the fifth place eligible candidate. The membership, however, appears to only meet annually. As a result, the board is stuck with the results. The member was elected, but he agreed to resign, which opens up a vacancy that we are told the bylaws authorize the board to fill. Since this is now a vacancy and not an incomplete election, the sixth place candidate can't automatically take the seat - although the board could certainly appoint him to it.

 

I'd agree, but I didn't see where the member actually resigned.  The reason I think it's wrong is that the board doesn't have the power to "deem" that someone "effectively" resigned at all, much less instantaneously and retroactively.

 

I also question whether they can "deem" a membership election to be correct or not.  But if they're going to deem anything, I'm more comfortable with their deeming the election presumably correct than I would if they had tried to deem it invalid.

[Josh Martin]

I'd agree, but I didn't see where the member actually resigned. 

 

From the original post:

 

After the election results were announced and the AGM adjourned it was discovered that one of the candidates did not meet all the requirements in the bylaws to run, and hence were ineligible.  They have agreed to not serve due to this. 

 

The reason I think it's wrong is that the board doesn't have the power to "deem" that someone "effectively" resigned at all, much less instantaneously and retroactively.

 

I also question whether they can "deem" a membership election to be correct or not.  But if they're going to deem anything, I'm more comfortable with their deeming the election presumably correct than I would if they had tried to deem it invalid.

 

I am in complete agreement that the board has no authority to "deem" that someone "effectively" resigned, nor does it have any authority to "deem" the membership election to be correct or not.

[Gary Novosielski]

`Well, it may be splitting hairs, but I saw a difference between someone agreeing to do something, and actually following through as agreed.    

 

If the candidate agreed to and did actually resign, then I agree that all is well.

 

Of course in that case the board should have accepted the actual resignation, not deemed something different, as you have noted.