Authority to Un-appoint?

[Guest Jimm]

Considering the organization's Constitution/By-Laws say the following:

ARTICLE XXII

Vacancies in Office

In the event any vacancy is created by the resignation or removal of an official of the Union, the Executive Board shall be empowered to appoint a successor to fill the balance of the unexpired term, and such appointee shall hold office until the next regular election for that office.

 

 

Suppose the EB has appointed someone to a vacancy.   Does the EB have the authority after such appointment to remove that individual before the next election?

 

Also, what if an election occurs, and the appointed incumbent is not reelected, but the individual elected fails to take office at the traditional inauguration meeting..   Is the term ended automatically?   Can the new EB un-appoint the individual at their first meeting? 

 

 I seem to think yes, the EB can remove that individual as their first act upon taking their seats.

 

Thanks in advance

 

Jimm

[Hieu H. Huynh]

FAQ #20 may be of use.

[J. J.]

Generally, no.  Once someone is named to an office, he can only be removed by the use of disciplinary action (Chapter XX) or in manner described in the bylaws. 

[Richard Brown]

I would say no, the board cannot remove the appointee at will the way it might be able to remove a committee member who serves st the pleasure of the board. The member selected to fill the vacancy is not serving at the pleasure of the board. 

I agree that he could probably be removed through disciplinary action or, depending on the wording in the bylaws, through the removal process described in FAQ 20 pointed out by Mr. Huynh. That would likely have to b done by the membship, not the board. It depends on the powers of the board.

Edited to add: in a case like this, the board cannot"unappoint" an officer selected to fill a vacancy.

Edited December 9, 2017 at 08:07 PM by Richard Brown
Added last paragraph

[Guest Jimm]

Thanks for your replies so far.

 

I was under the impression that if you have the authority to appoint, you have the authority to un-appoint.   Discipline procedure does not seem to be appropriate since it is not of a discipline issue, other than the new EB no longer wishes his service since they didn't appoint themselves.

I was hoping the specific wording in the article cited above held the answer to the question since it seems to have put a term limit on the appointee, even though his elected replacement has not yet replaced him officially.   The election occurred, but there is a period where the current EB sits a lame ducks until the next meeting, where the new board is suppose to take over.   But, the one elected to take the seat of the appointed member will be delayed.   Thus, it was hopeful the new Board could simply un-appoint the individual, since the individual was appointed by the Board (having power to appoint, conversely having power to un-appoint/remove, particularly when the term is technically over).

 

regards,

 

Jimm

 

 

 

[J. J.]

8 minutes ago, Guest Jimm said:

Thanks for your replies so far.

 

I was under the impression that if you have the authority to appoint, you have the authority to un-appoint.   Discipline procedure does not seem to be appropriate since it is not of a discipline issue, other than the new EB no longer wishes his service since they didn't appoint themselves.

 

Note that I used the term "office" and "officer."  Being a member of a committee is different than holding an office.  See pp. 653-4, in Chapter XX.

[Joshua Katz]

1 hour ago, Guest Jimm said:

I was under the impression that if you have the authority to appoint, you have the authority to un-appoint.   Discipline procedure does not seem to be appropriate since it is not of a discipline issue, other than the new EB no longer wishes his service since they didn't appoint themselves.

 

I don't think the facts here are clear.  The original question said the EB appointed the individual to a vacancy (which, I think, most of us are presuming means a vacancy on the EB), but this post says "they didn't appoint [him] themselves."  So who did?  The original question asked about removal before an election, this one says the election occurred.  This post also refers to his "service," as if he served the board, rather than being on the board.  Can you please clarify some of these factual questions?

Even with these assumptions, it's not clear to me whether this individual is rightly in office.  The bylaw may contradict itself, making an issue of bylaw interpretation for the organization, at least as applied in this case, or it may not.  What are the provisions regarding terms of office in the bylaws?

[Guest Jimm]

I'll see if I can clear it up:

 

Member was elected to EB position in Oct.  Took office in Jan.  Term was for 3 years.

Member vacated seat after a year

EB appointed another Member to fill the rest of his term.

Next election occurred in OCT 3 years later, members voted out everyone and elected all new.  Appointed Incumbent lost election.

In Jan, the new EB will take their seats, but the one who was elected to succeed the appointed incumbent will be delayed taking office.

New EB doesn't want appointed incumbent to remain after the rest of the old EB steps down.

 

New EB is faced having old appointed incumbent sit on EB with them unless they have ability to "un-appoint" the incumbent at their first EB meeting.

 

Organization's By-Laws say's a vacancy on the EB is filled by appointment by the EB and the term is until the next election (see above).   Election occurred, but sitting EB is in a lame duck status until Jan, keeping the appointed incumbent (its a paid position and they don't want to pay him any longer then necessary)

 

That's the story as best I can tell it.  Hopefully that explains it better.

 

Jimm

[J. J.]

How will he be delayed in taking office? 

[Guest Who's Coming to Dinner]

2 hours ago, Guest Jimm said:

Next election occurred in OCT 3 years later, members voted out everyone and elected all new.  Appointed Incumbent lost election.

In Jan, the new EB will take their seats, but the one who was elected to succeed the appointed incumbent will be delayed taking office.

New EB doesn't want appointed incumbent to remain after the rest of the old EB steps down.

The appointee's term ended with the election, per your bylaw quoted above. He or she will not be part of the new board. Even if the seat at the table is vacant for some time, the office is filled.

[Joshua Katz]

4 hours ago, Guest Jimm said:

In Jan, the new EB will take their seats, but the one who was elected to succeed the appointed incumbent will be delayed taking office.

 

This might be a question of bylaw interpretation - the quoted bylaw, which will be more specific than any other on this question, says both that the appointee serves the remainder of the term, and that they serve only until the election.  Now, under the rules in RONR, this wouldn't be a problem, since RONR says that, unless your rules say otherwise, the new terms begin immediately (unless a person is absent).  Your bylaws, though, seem to provide that new officers do not take their positions until January, which means your bylaw says two different things.  My opinion would be that the final clause would govern, and the term ended at the election.

However, I'm not sure about this "delayed taking office."  What, precisely, do your bylaws say about when the newly elected people take office?  It strikes me as more likely that, whether he likes it or not, he'll be in office in January, just like everyone else, and doesn't have the right to just delay his taking office, but your bylaws may provide otherwise.

[Guest Jimm]

13 hours ago, J. J. said:

How will he be delayed in taking office? 

He won't be able to attend the EB meeting where those officers are sworn in, and may be unavailable for several weeks following.   It may be weeks or months before a  Special EB meeting is called, since the board members are not local to each other.  Which brings up the question if the elected individual ever can be sworn in.   Does the new EB have to accept the old EB's appointee until the next election in 3 years (since vacancies are appointed, not filled with special elections)?

 

10 hours ago, Joshua Katz said:

This might be a question of bylaw interpretation - the quoted bylaw, which will be more specific than any other on this question, says both that the appointee serves the remainder of the term, and that they serve only until the election.  Now, under the rules in RONR, this wouldn't be a problem, since RONR says that, unless your rules say otherwise, the new terms begin immediately (unless a person is absent).  Your bylaws, though, seem to provide that new officers do not take their positions until January, which means your bylaw says two different things.  My opinion would be that the final clause would govern, and the term ended at the election.

However, I'm not sure about this "delayed taking office."  What, precisely, do your bylaws say about when the newly elected people take office?  It strikes me as more likely that, whether he likes it or not, he'll be in office in January, just like everyone else, and doesn't have the right to just delay his taking office, but your bylaws may provide otherwise.

 

Actually, the by-laws say that the new EB will take their seats at the next EB meeting after the election.  The election was in October.   The by-laws call for the EB to hold regular meetings every 6 months.   So, the sitting EB is not calling a special EB meeting until January, which was 3 years after they were sworn-in themselves.   The by-laws do not specify a date to take office, only an election month, with the new EB to take office at the next EB meeting, whenever the sitting EB decides it wants to call it.  (our by-laws could stand some serious amendments, which the new EB is already preparing for, after they take office).

Thus, the delay is a loophole in the by-laws allowing the sitting EB to hang onto their seats (and paychecks) longer after the October election.   They should have called for a special meeting already, in many's opinion, but they choose not to.   That delay will cause the one individual to not be available for that special meeting, missing the opportunity to be "sworn in" until a later date.

Thus, the dilemma as to the appointed incumbent keeping his officer long after the election was intended to replace him, potentially made even longer if his successor is not sworn in until yet another subsequent EB meeting.

Thanks for all you comments so far

 

 

Jimm

 

 

 

[Richard Brown]

An installation ceremony and taking an oath if office are strictly optional and ceremonial in nature unless your bylaws specifically provide that an officer (or board member) does not take office until participating in such a ceremony and taking the specific oath.

I suspect this ceremony and oath is just custom and not at all required in order to take office. 

Edited to add: I agree with Joshua Katz that this is probably a matter of bylaws interpretation, something only your organization can do.

Edited December 10, 2017 at 03:10 PM by Richard Brown
Added last paragraph

[jstackpo]

I'm not sure this applies, but...

RONR does not require any "swearing in" or other ceremony to take office.  It just says he/she is in office immediately upon the conclusion of the election process (RONR, page 444).   Your rules may supersede that, but only you (and your association) can tell.

[Guest Jimm]

24 minutes ago, Richard Brown said:

An installation ceremony and taking an oath if office are strictly optional and ceremonial in nature unless your bylaws specifically provide that an officer (or board member) does not take office until participating in such a ceremony and taking the specific oath.

I suspect this ceremony and oath is just custom and not at all required in order to take office. 

Edited to add: I agree with Joshua Katz that this is probably a matter of bylaws interpretation, something only your organization can do.

Yes, the by-laws have a strict requirement for taking an "oath", which is a mandatory scripted oath.

Because the recently elected individual will not be present to take that oath, he will not be officially seated until he does at some later date.   Thus, the question as to whether the incumbent, who was appointed by the previous board, gets to retain his seat indefinitely pending the newly elected taking his oath, or if the new EB has the authority to "un-appoint" the incumbent?   What if, for argument sake, the newly elected cannot ever take the seat (god forbid, for some injury, illness, resigns, etc) after he won the election?   The election occured and there was a winner, and the by-laws don't call for elections for another 3 years, where the EB has the ability to appoint.   Would the new EB be obligated to keep the appointed incumbent if such individual didn't want to vacate the seat, and there are not grounds for "discipline" procedures except for him not volunteering to step down on his own?

 

There are no provisions in the by-laws for special elections.   Only appointments by the EB to the vacant seat once it becomes vacant (after the fact).

 

I guess the new President can interpret the by-laws once he takes his seat regarding when the incumbents term is to end, and whether his new EB has the authority in the by-laws to "un-appoint" such incumbent, leaving that position vacant until the newly elected individual can take the oath himself.   

 

thanks again

 

Jimm

 

 

 

   

[Joshua Katz]

1 hour ago, Guest Jimm said:

Actually, the by-laws say that the new EB will take their seats at the next EB meeting after the election.  The election was in October.   The by-laws call for the EB to hold regular meetings every 6 months.   So, the sitting EB is not calling a special EB meeting until January, which was 3 years after they were sworn-in themselves.   The by-laws do not specify a date to take office, only an election month, with the new EB to take office at the next EB meeting, whenever the sitting EB decides it wants to call it.  (our by-laws could stand some serious amendments, which the new EB is already preparing for, after they take office).

 

Well, I'm not going to get into understanding your bylaws, especially since you haven't quoted them, but I'll just say that I don't think a provision that the newly-elected board takes office at the "next meeting" means that a newly-elected board member (who was present at the election, or notified after the election and did not decline) who does not attend that meeting doesn't take office.

[Guest Who's Coming to Dinner]

On 12/9/2017 at 9:34 AM, Guest Jimm said:

Considering the organization's Constitution/By-Laws say the following:

ARTICLE XXII

Vacancies in Office

In the event any vacancy is created by the resignation or removal of an official of the Union, the Executive Board shall be empowered to appoint a successor to fill the balance of the unexpired term, and such appointee shall hold office until the next regular election for that office.

Why are you ignoring this very specific and clear provision? The election has been held and the appointee lost. He or she is gone. Stop paying. The office is now filled by the person you elected, even if he or she cannot exercise powers or be seated until taking the oath.

[Richard Brown]

Three comments here.

First, I still believe this is largely a matter of bylaws interpretation.

Second , although the president may make an initial ruling on a point of order (which he himself can raise), it is the assembly, not, the president, that has the final say on a bylaws interpretation issue.

Third, and we have said this repeatedly, in a situation like this, YOU CANNOT JUST UNAPPOINT a member from an office to which he has been appointed. Period. I am at a loss as to why you keep bringing this up.

[Joshua Katz]

And, for the future, the organization can consider amending the bylaws, in one direction or another, to avoid such complications.  

[Joshua Katz]

56 minutes ago, Guest Who's Coming to Dinner said:

Why are you ignoring this very specific and clear provision? The election has been held and the appointee lost. He or she is gone. Stop paying. The office is now filled by the person you elected, even if he or she cannot exercise powers or be seated until taking the oath.

I agree that the new person is "in office" whether seated or not, at least provisionally, since we haven't seen the relevant bylaw provisions.  I'm somewhat less sure than you are, though, that the quoted language is clear and unambiguous.  It seems to me to say two things: "the balance of the unexpired term" and "until the next regular election."  We've been told, although without the precise language, that the term in office extends beyond the election, until the next meeting, so which of these two should govern?  My opinion (which doesn't matter, and is similarly provisional since I haven't seen the language of other bylaws) would be that "until the next regular election" governs, but I don't think it's entirely clear.  

[Josh Martin]

On 12/9/2017 at 11:34 AM, Guest Jimm said:

Suppose the EB has appointed someone to a vacancy.   Does the EB have the authority after such appointment to remove that individual before the next election?

Yes, but that might require formal disciplinary procedures, depending on the wording for the term of office. See FAQ #20.

On 12/9/2017 at 11:34 AM, Guest Jimm said:

Also, what if an election occurs, and the appointed incumbent is not reelected, but the individual elected fails to take office at the traditional inauguration meeting..   Is the term ended automatically?   Can the new EB un-appoint the individual at their first meeting? 

It is not yet clear to me that failure to attend the inauguration meeting means that the individual has failed to take office, but even if so, I do not believe this would mean that the term would be “ended automatically” or that the individual could be “un-appointed.” The individual could still be removed, as noted above.

On 12/9/2017 at 2:04 PM, Richard Brown said:

I agree that he could probably be removed through disciplinary action or, depending on the wording in the bylaws, through the removal process described in FAQ 20 pointed out by Mr. Huynh. That would likely have to b done by the membship, not the board. It depends on the powers of the board.

I disagree that the board member would have to be removed by the membership. The board elected this person, so the board can remove him. I agree, however, that the rules for removing officers still apply.

On 12/9/2017 at 3:02 PM, Guest Jimm said:

Discipline procedure does not seem to be appropriate since it is not of a discipline issue, other than the new EB no longer wishes his service since they didn't appoint themselves.

This is not necessarily an option. Depending on the wording for the term of office, it may be that officers (including board members) may only be removed for cause.

On 12/9/2017 at 3:02 PM, Guest Jimm said:

I was hoping the specific wording in the article cited above held the answer to the question since it seems to have put a term limit on the appointee, even though his elected replacement has not yet replaced him officially.   The election occurred, but there is a period where the current EB sits a lame ducks until the next meeting, where the new board is suppose to take over.   But, the one elected to take the seat of the appointed member will be delayed.   Thus, it was hopeful the new Board could simply un-appoint the individual, since the individual was appointed by the Board (having power to appoint, conversely having power to un-appoint/remove, particularly when the term is technically over).

If it is in fact correct that the term is over, there is no need to remove him.

Whether it is in fact correct that the term is over will be a question of bylaws interpretation for the society to decide. (I think that, regardless of whether it is over now, it will certainly be over at the next board meeting.)

On 12/10/2017 at 8:56 AM, Guest Jimm said:

Actually, the by-laws say that the new EB will take their seats at the next EB meeting after the election.

Then that is when the newly elected person will take office. Whether he is sworn in is immaterial.

On 12/10/2017 at 10:01 AM, Guest Jimm said:

Yes, the by-laws have a strict requirement for taking an "oath", which is a mandatory scripted oath.

Because the recently elected individual will not be present to take that oath, he will not be officially seated until he does at some later date.

Even if the bylaws require an oath of office, this is not the same thing as the bylaws providing that a newly elected officer shall not take office until the oath can be completed. There is no “swearing in” or “seating” required by RONR in order to take office, and I am not yet convinced that your bylaws require this either. You previously stated that the bylaws provide “that the new EB will take their seats at the next EB meeting after the election.” This doesn’t seem to say anything about an oath of office, although the exact wording would certainly help.

On 12/10/2017 at 10:01 AM, Guest Jimm said:

Thus, the question as to whether the incumbent, who was appointed by the previous board, gets to retain his seat indefinitely pending the newly elected taking his oath, or if the new EB has the authority to "un-appoint" the incumbent?   What if, for argument sake, the newly elected cannot ever take the seat (god forbid, for some injury, illness, resigns, etc) after he won the election?   The election occured and there was a winner, and the by-laws don't call for elections for another 3 years, where the EB has the ability to appoint.   Would the new EB be obligated to keep the appointed incumbent if such individual didn't want to vacate the seat, and there are not grounds for "discipline" procedures except for him not volunteering to step down on his own?

In my view, based on the facts provided, the incumbent is out of office, and the newly elected officer takes office, when the first board meeting is called to order, making all of these questions moot.

If the organization disagrees, we have already cited the appropriate link for information on removal.

21 hours ago, Joshua Katz said:

I agree that the new person is "in office" whether seated or not, at least provisionally, since we haven't seen the relevant bylaw provisions.  I'm somewhat less sure than you are, though, that the quoted language is clear and unambiguous.  It seems to me to say two things: "the balance of the unexpired term" and "until the next regular election."  We've been told, although without the precise language, that the term in office extends beyond the election, until the next meeting, so which of these two should govern?  My opinion (which doesn't matter, and is similarly provisional since I haven't seen the language of other bylaws) would be that "until the next regular election" governs, but I don't think it's entirely clear.  

I would think that “the balance of the unexpired term” governs. It would seem unlikely that the drafters intended for the office to be vacant between the time the election occurs and the time the newly elected officer takes office.

I agree that the rule is ambiguous and this is ultimately a question of interpretation for this particular issue, although I don’t think this issue is relevant to this particular problem. It seems to me that the person appointed to fill the vacancy will certainly be out of office when the new term begins, and based on the facts posted so far, it seems to me that the new term begins at the next board meeting, regardless of whether the swearing in occurs at that time or at a later time,

[Joshua Katz]

1 hour ago, Josh Martin said:

I would think that “the balance of the unexpired term” governs. It would seem unlikely that the drafters intended for the office to be vacant between the time the election occurs and the time the newly elected officer takes office.

 

I agree that's unlikely, but I think specificity enables us, here, to stop before considering intent.  (I also stand by my view that what matters is the intent of those ratifying, not the intent of those doing the drafting.)

1 hour ago, Josh Martin said:

I agree that the rule is ambiguous and this is ultimately a question of interpretation for this particular issue, although I don’t think this issue is relevant to this particular problem. It seems to me that the person appointed to fill the vacancy will certainly be out of office when the new term begins, and based on the facts posted so far, it seems to me that the new term begins at the next board meeting, regardless of whether the swearing in occurs at that time or at a later time,

Certainly I agree if, in fact (as I suspect) the new term begins at the next board meeting.  But, without the actual language, I'm not willing to commit to a position on that.  

[Richard Brown]

1 hour ago, Josh Martin said:

Yes, but that might require formal disciplinary procedures, depending on the wording for the term of office. See FAQ #20.

It is not yet clear to me that failure to attend the inauguration meeting means that the individual has failed to take office, but even if so, I do not believe this would mean that the term would be “ended automatically” or that the individual could be “un-appointed.” The individual could still be removed, as noted above.

I disagree that the board member would have to be removed by the membership. The board elected this person, so the board can remove him. I agree, however, that the rules for removing officers still apply.

This is not necessarily an option. Depending on the wording for the term of office, it may be that officers (including board members) may only be removed for cause.

If it is in fact correct that the term is over, there is no need to remove him.

Whether it is in fact correct that the term is over will be a question of bylaws interpretation for the society to decide. (I think that, regardless of whether it is over now, it will certainly be over at the next board meeting.)

. . . (Other sections of Mr. Martin's post omitted here) . . . .

I would think that “the balance of the unexpired term” governs. It would seem unlikely that the drafters intended for the office to be vacant between the time the election occurs and the time the newly elected officer takes office.

I agree that the rule is ambiguous and this is ultimately a question of interpretation for this particular issue, although I don’t think this issue is relevant to this particular problem. It seems to me that the person appointed to fill the vacancy will certainly be out of office when the new term begins, and based on the facts posted so far, it seems to me that the new term begins at the next board meeting, regardless of whether the swearing in occurs at that time or at a later time,

 

I  agree with Mr. Martin's post and particularly with the bolded paragraph, which seems to be the subject of some degree of disagreement among those who have responded in this thread.

[Guest Jimm]

Hi all,

Not to beat this too much, I am including all the relevant citations in the by-laws that apply to this matter.   I agree this is a circular dilemma in that the by-laws do not resolve themselves in a logical conclusion.   It just may be a matter of interpretation, but because the outgoing President and his associated EB currently hold the power, it is their interpretation that matters at the moment.    I agree with Josh and others that it appears the sitting EB's term already expired at the conclusion of the election in October, but the membership is at the moment powerless until the EB calls its next meeting, which they are doing in January.   Unfortunately, one of the newly elected EB members cannot be there, so that what the original question about.   I understand there is no "un-appoint" technically, but it seems the EB who appointed could also move to relieve such person (they appoint to position, they can relieve).   I also believe that the incumbent's term ended already, but for sure when the next EB meeting occurs.   I was looking for comments here to be used to advise the new President and EB members how to proceed once they "swear" their oath and take their seats minus the one who is delayed.

Thanks again all

 

Jimm

 

----------------------------   Relevant by-laws citations--------------------------------------------

Art. III SECTION 3. A majority of the members of the Executive Board shall constitute a quorum, and such quorum shall have power to transact all business of the Executive Board. Regular meetings of the Executive Board shall be held once every six months or at the call of the President upon the request of a majority of the members of the Board at a designated date, time and place. All members of the Board shall be given reasonable notification by the Secretary-Treasurer of any meeting of the Board. Meetings of the Executive Board may be conducted by telephone conference or other electronic means.

  

Art. IX SECTION 2. The officers and members of the Executive Board shall be elected by secret ballot vote of the membership and shall hold office for a term of three (3) year(s) and be elected for the above term at the election to be held in October, 2014 and every three (3) year(s) thereafter.

  

Art. IX SECTION 11. All officers and Executive Board members shall be inaugurated at the next Executive Board meeting of the organization to be held following election and shall assume office immediately after such inauguration. Before entering upon the duties of their respective offices, the newly elected officers shall subscribe to the following installation obligation:

 "I, ---------------------------------------------, do solemnly pledge my word and honor before these witnesses that I will, to the best of my abilities, perform the duties of my office. At the close of my official term, I will turn over to my successor all books, records, and all other properties, including funds, of this organization, that may be in my possession.….”

 

 ARTICLE XXII Vacancies in Office

In the event any vacancy is created by the resignation or removal of an official of the organization, the Executive Board shall be empowered to appoint a successor to fill the balance of the unexpired term, and such appointee shall hold office until the next regular election for that office.

[Guest Jimm]

Just to adding a comment for clarification:

 

Oct 2014 was the first election.  The EB was to take office after that election, naturally.  But, there was a run-off for one of the EB positions.   The newly elected EB waited until that run-off election was completed before they got around to holding their first EB meeting in January 2015, three months after the election was held.   They are basing their "term" on 3 years from when they held their first EB meeting officially.

Jimm