Continuing Breach

[mmpullen]

At our Board meeting last week, the President appointed the Treasurer to chair a committee effective March 1. The Treasurer did not submit his resignation and so the Board did not have one to accept.  Our Bylaws expressly prohibit appointing an executive officer to chair a committee: “Except as otherwise provided in these bylaws, the President shall appoint committee chairs.  Only League members may serve as committee chairs; however, no executive officer shall be appointed as a committee chair.”

After this action, the incumbent Treasurer recommended member T. to fill the Treasurer position and without further adieu, the president asked the Board to approve and  the Board appointed member T. to fill the unexpired term of the Treasurer effective March 1. For whatever reason, no one consulted me beforehand, but I suspect it was to railroad this through as only the actors involved knew about this beforehand--Treasurer, member T and President.  The Board, for the most part, was completely blindsided as was I, but there are so many new people on the Board and most of them either aren't that interested in the rules or don't know them.

No one objected to the actions at the Board meeting.  However, after researching it, I believe that both actions constitute a continuing breach because the Bylaws prohibit n executive officer from being appointed as a committee chair and since that was a continuing breach, there was no vacancy in the Treasurer's office for the Board to fill.  Bylaws say "An executive office vacancy, except for that of the president, shall be filled by appointment by the Board of Directors, also referred to herein as the Board, for the remainder of the unexpired term."

The next Board meeting is not until the middle of April.

I have alerted the membership of my concerns and want to offer a solution. If you agree that both actions may constitute a continuing breach I have the following questions:

Since the Bylaws state that XO vacancies shall be filled by appointment of the BOD, can the Executive Committee (XC) have a special meeting and accept the resignation or do we have to wait for the Board to accept the resignation? The Board is expressly the only body that can appoint XO vacancies, so can the XC fill XO vacancies?

If we have to wait for the Board to accept the resignation at the next meeting in April, what happens to the actions taken last week?  Do they take affect on March 1? ,Are the appointments undone only when the Board meets and only if the Board agrees that there were continuing breaches?

Please help--this is a mess!

 

 

[Chris Harrison]

Do the bylaws require a resignation be put in writing?  If not I don't see the issue.  The President appointed the Treasurer to Chair the Committee EFFECTIVE March 1 and Member T will take over as Treasurer EFFECTIVE March 1.  So when he takes over the Committee on March 1 he would no longer be Treasurer.

[Gary c Tesser]

Chris, I see it a little differently:  given the bylaws' language, the current treasurer cannot become a committee chair, regardless of whether it happens now or New Year's or President Trump's Birthday (June 14 -- you could look it up).  He would first have to resign, be removed, or eaten by a crocodile (personally I'd vote for #3 for this guy; he is a cad).

But if it looks like everybody is on board with the change (the current treasurer -- oh, let's call him Ivanka -- ceases to be the treasurer and becomes the committee chair instead; while Mr T -- let's call him Donald Jr -- becomes the treasurer), except for mmpullen and I don't see why either,

Also, mmpullen, I don't think it can be a breach at all ... yet:  it's worrisome, I'll grant you, but right now, and until March 1, nothing has changed.

[George Mervosh]

So notice to the fill the vacant Treasurer's position was not required (p. 468, ll. 4-8)?  I'm not sure their rules "clearly provide otherwise". This might be a bylaw interpretation question, as it often is around here.

[Gary c Tesser]

6 minutes ago, George Mervosh said:

So notice to the fill the vacant Treasurer's position was not required (p. 468, ll. 4-8)?  I'm not sure their rules "clearly provide otherwise". This might be a bylaw interpretation question, as it often is around here.

Nuts, George, there was something else niggling at me, but I didn't catch it.

(How would this be a bylaws question?)

[George Mervosh]

7 minutes ago, Gary c Tesser said:

Nuts, George, there was something else niggling at me, but I didn't catch it.

(How would this be a bylaws question?)

Per the citation, their rules clearly need to provide otherwise or notice must be given (Let's call that a Wilma).  I don't think the copied rule clearly provides otherwise, but they might (let's call that Bam Bam).  

[Gary c Tesser]

35 minutes ago, George Mervosh said:

don't think the copied rule clearly provides otherwise, but they might (let's call that Bam Bam).  

But what can be construed (without, of course, interpreting bylaws) in the rule to let the requirement for notice go?  The fact that it provides for filling vacancies, so someone could say that the rule is complete by itself?

[George Mervosh]

39 minutes ago, Gary c Tesser said:

But what can be construed (without, of course, interpreting bylaws) in the rule to let the requirement for notice go?  The fact that it provides for filling vacancies, so someone could say that the rule is complete by itself?

I don't think their rule clearly provides otherwise at all.  In fact, unless the position is filled by an appointment by one person like the President, rather than an election, the rule really should say no notice is required, otherwise it must be given. so maybe this isn't a bylaw interpretation issue after all.

Edited February 3, 2017 at 08:20 PM by George Mervosh

[Joshua Katz]

Setting aside the 'new' treasurer, I think things are simple in regards to the old treasurer.  It could have easily been done by submitting a resignation, which was in effect accepted without objection when he was placed in a mutually exclusive position.  No rights were violated, and hence I see no reason to make a fuss in this instance.  Now, if the treasurer wants to also act as treasurer and insists "I never resigned," then it's worth making a fuss.

As General Robert said, a meeting is for deciding things, not for lessons in parliamentary procedure.

[Gary c Tesser]

On 2/3/2017 at 3:18 PM, George Mervosh said:

I don't think ... interpretation issue after all.

I see.  Thanks.

Edited February 6, 2017 at 03:29 PM by Gary c Tesser
I had left the "GM3 said" empty, because the time stamp was on it, but I just remembered that after a few days, the time stamps change.

[mmpullen]

After the Board meeting several people approached me very concerned about the manner in which the appointments were pushed through which is what prompted me to write to this forum.  After reading the RONR section provided by Mr. Mervosh (THANK YOU!) I think that that really got to the heart of the members' concerns.

So even if all the RONR gurus don't agree there's a continuing breach based on what I submitted, I think it's difficult to say that there is not one (or two? continuing breaches) based on the RONR section that Mr. Mervosh cited. So, where do we go from here?  Are the appointments effective March 1?  Does someone need to make a point of order at the next BOD meeting in April?

The Bylaws expressly say the BOD appoints XO's to fill unexpired terms., but they also provide for the XC to take action in emergencies.  Unfortunately, I think it is some of the XC folks who are being resistant here because it was their plan in the first place.

[Guest Nancy N.]

5 hours ago, mmpullen said:

no one consulted me beforehand, but I suspect it was to railroad this through

But mmpullen, whatever would they be getting out of it?  If they had followed the rules perfectly, they would still have gotten their way, and with barely any more effort: is there a flaw here?  Or do you think it's political, and that Ivanka, Don Jr, and the president noticed that their bloc temporarily had the sway, and that if notice had been sent, the opponents of Ivanka and Don would have put up a stink?

[Guest Nancy N.]

50 minutes ago, mmpullen said:

So, where do we go from here? 

mmp, if you could have everything in this kerfuffle go the way you want from now on, what would you like to see happen?

[mmpullen]

18 hours ago, Guest Nancy N. said:

But mmpullen, whatever would they be getting out of it?  If they had followed the rules perfectly, they would still have gotten their way, and with barely any more effort: is there a flaw here?  Or do you think it's political, and that Ivanka, Don Jr, and the president noticed that their bloc temporarily had the sway, and that if notice had been sent, the opponents of Ivanka and Don would have put up a stink?

I do think this smacks of Trumpian politics and that the orchestrators wanted to avoid any opposition.

[mmpullen]

18 hours ago, Guest Nancy N. said:

mmp, if you could have everything in this kerfuffle go the way you want from now on, what would you like to see happen?

I think at this point the options are for the Board to leave it like it is with the taint of continuing breach hanging over the appointments, OR if a Board member wants to make a point of order at the next Board meeting and it's upheld, then we go through the appointments again.  I think the persons appointed will have a good chance in keeping their appointments even if the second option is pursued.

I think the main opposition was to the process and that no one else was given the opportunity to put their name or someone else's forward to be considered.

My wish is that everyone understand there was a problem (real and perceived) about how the appointments were done and that they will pay more attention to following the rules in the future--oh, and WORLD PEACE. . .

 

[Guest Nancy N.]

44 minutes ago, mmpullen said:

My wish is that everyone understand there was a problem (real and perceived) about how the appointments were done and that they will pay more attention to following the rules in the future--oh, and WORLD PEACE. . .

So, what will you do after lunch?

[Richard Brown]

I see no problem with the appointment of the treasurer to chair the committee and with his relatively simultaneous verbal resignation from office as treasurer and with the board accepting / approving all of this at one time at that meeting.

It gets trickier when we talk about the appointment of someone to fill the vacancy in the office of treasurer. I agree that it appears notice should have been given to the full board before filling this vacancy. Perhaps that is waived if all board members were in attendance and no one objected or raised a point of order.

We haven't seen the bylaws, but I doubt that the executive committee has the authority to select a new Treasurer to fill the vacancy.  Since the board appears to meet only once every three months and the next meeting is in April, this does create a bit of a problem.

However, since the executive committee has the authority to take emergency action, perhaps it could appoint someone to serve unofficially as acting Treasurer or to  make deposits,   balance the checkbook  and write checks  until  such time as the board selects a Treasurer to fill the vacancy.

I realize there can't be an official acting Treasurer unless it's authorized in the by-laws, so perhaps rather than calling this interim person acting Treasurer he should be called acting Keeper of the books.  Or assistant to the non-existing treasurer. I don't know. The point is that somebody needs to keep up with paying the bills until the new Treasurer is selected.

If the person who was prematurely selected Treasurer at the board meeting is popular and is extremely likely to be selected again at the next board meeting, perhaps it is best for everyone to just assume that he is, for lack of a better term, the acting treasurer and then let the board confirm the appointment, with notice, at its next meeting.

However, this person has not been properly selected as treasurer and therefore, even though he might have the right to make deposits, keep the books, and write checks, he is not truly an officer with voting rights until his appointment is ratified or made again by the full board.

Edited February 4, 2017 at 06:12 PM by Richard Brown
Misc spelling corrections

[mmpullen]

On ‎2‎/‎4‎/‎2017 at 1:07 PM, Richard Brown said:

It gets trickier when we talk about the appointment of someone to fill the vacancy in the office of treasurer. I agree that it appears notice should have been given to the full board before filling this vacancy. Perhaps that is waived if all board members were in attendance and no one objected or raised a point of order.

Not all Board members were present. No one raised a point of order.

After reading your post Mr. Brown, IMO the action of appointing the new Treasurer without notice to the Board was a continuing breach based on RONR pg 25, 3-7, 20-24, because the action taken was in violation of a rule protecting absentees.

However, if no one raised a point of order, would it be appropriate to let the Treasurer's appointment stand?  Then, just so there's no taint of a continuing breach hanging over the new Treasurer's head, should I recommend that notice be given of reaffirming an appointment before the April Board meeting and let the Board reaffirm the new Treasurer's appointment at the April Board meeting? (I know that sounds kind of odd, but would that protect the appointment and the new Treasurer, etc?) 

I'm thinking that if no one made a point of order at the January Board meeting, then does a continuing breach exist?  Does it only exist when the Board agrees that it does? For some reason I'm reminded of the old question::"If a tree fall in the forest and no one is around to hear it, does it make a sound?" But we're talking RONR here, not philosophy.

 

[Gary c Tesser]

1 hour ago, mmpullen said:

 

44 minutes ago, mmpullen said:

a continuing breach based on RONR pg 25, 3-7, 20-24,

On 2/3/2017 at 3:18 PM, George Mervosh said:

 

[Never mind the "George Mervosh said"; of course always mind what Mr Mervosh says, it's just that I fixed the problem with an edit.]

mmp, if you fix that typo, please be sure to make a note of the edit, not just fix it.

 

53 minutes ago, mmpullen said:

IMO the action ...was a continuing breach

I'm incloined to agree with you, and it looks like Mr Mervosh and Mr Brown, and probably the holy elf, are too, which is always a relief.

58 minutes ago, mmpullen said:

Then, just so there's no taint of a continuing breach hanging over the new Treasurer's head, should I recommend that notice be given of reaffirming an appointment ...

I think not.   Either live with the taint (a particularly unpleasant form of "no harm - no foul"), or just plain give notice that you're electing Don Jr, the current pretender to the treasurership -- yes, for the first and only and only proper, valid time.   See middle of p. 104, although the situations are different: p. 104 addresses the idea of reaffirming what's already done; what you're proposing is papering over what has been improperly, invalidly done.  See p. 124 - 125 for what I think you have in mind, although, strictly speaking, it might not really work (or it might exemplarily work, I haven't thought it through.  O for the days when Argus-eyed Dan Honemann would prowl the pixels, gleefully pouncing on my every peccadillo and solecism).

 

1 hour ago, mmpullen said:

if no one made a point of order at the January Board meeting, then does a continuing breach exist?

You did read the top of p. 251 (you called it "25," in your traditionally laconic style I suppose), yes?  Isn't that what the top of 251 is for?

1 hour ago, mmpullen said:

Does it only exist when the Board agrees that it does?

Isn't that what 251, lines 25 - 26, says?  (Although, before the delayed, though timely, point of order is raised, the invalid action pretends to be alive, like a zombie.  So, in this instance, Don Jr to all appearances seems inarguably to be the pure, real, bona fide treasurer.  Until you pants him,)

[Dan Honemann]

If we assume that this organization has adopted RONR as its parliamentary authority, it appears that the rule (on p. 468, ll. 4-8) requiring previous notice of the election to fill the vacancy in the office of Treasurer was not complied with, and that a point of order concerning this breach of the rules may be raised at any time so long as the newly elected Treasurer (I'll call him Mr. X, not Don Jr.) remains in office.

However, my own view of this is that Mr. X is the Treasurer until such time as the Board determines that he was not validly elected, and that even if the board eventually determines (following the procedures outlined in Sections 23 & 24) that his election is null and void, any actions taken by him in his capacity as Treasurer before the board makes such a determination will remain as actions validly taken.

Unfortunately, I cannot point to anything in RONR which clearly supports this view. 

[George Mervosh]

14 minutes ago, Daniel H. Honemann said:

If we assume that this organization has adopted RONR as its parliamentary authority, it appears that the rule (on p. 468, ll. 4-8) requiring previous notice of the election to fill the vacancy in the office of Treasurer was not complied with, and that a point of order concerning this breach of the rules may be raised at any time so long as the newly elected Treasurer (I'll call him Mr. X, not Don Jr.) remains in office.

However, my own view of this is that Mr. X is the Treasurer until such time as the Board determines that he was not validly elected, and that even if the board eventually determines (following the procedures outlined in Sections 23 & 24) that his election is null and void, any actions taken by him in his capacity as Treasurer before the board makes such a determination will remain as actions validly taken.

Unfortunately, I cannot point to anything in RONR which clearly supports this view. 

So they can't un-pay the electric and gas bills and hold meetings by candlelight in front of a roaring fire until this mess gets straightened out?  

[Gary c Tesser]

34 minutes ago, George Mervosh said:

So they can't un-pay the electric and gas bills and hold meetings by candlelight in front of a roaring fire until this mess gets straightened out?  

And to think Pullen thought we could duck out on philosophy.