Different interpretation of Ruling

[Guest Wahooneb]

Previously I have read on the RONR that there is a difference between an unfilled position and a vacancy.

As I read the answers to the question about an “unfilled position” versus a “vacancy” I understood the difference to be:

An “unfilled position” is one where there was an election held and no one was elected to fill the position that existed because the term of office ended for the previous office holder.

And

A “vacancy” exists when the person who is serving in the office leaves the office (for any reason) before the term has expired.

When this information was presented to our organization the president took it upon himself to retain the services of a Professional Registered Parliamentarian who stated that "There is no distinction between a “vacancy” and an “unfilled position”".

The same person said that there was no incomplete election when one of the national offices did not have a candidate and the office that was listed on the ballot did not have anyone receive any votes, therefore the position was not filled.

It is not my intention to put you in the middle of this situation, but the answers from the members of RONR are so different from the "retained Professional Registered Parliamentarian" that I would like more clarification if it is available.

[Kim Goldsworthy]

Previously I have read on the RONR that there is a difference between an unfilled position and a vacancy.

As I read the answers to the question about an “unfilled position” versus a “vacancy” I understood the difference to be:

An “unfilled position” is one where there was an election held and no one was elected to fill the position that existed because the term of office ended for the previous office holder.

And

A “vacancy” exists when the person who is serving in the office leaves the office (for any reason) before the term has expired.

When this information was presented to our organization the president took it upon himself to retain the services of a Professional Registered Parliamentarian who stated that "There is no distinction between a “vacancy” and an “unfilled position”".

The same person said that there was no incomplete election when one of the national offices did not have a candidate and the office that was listed on the ballot did not have anyone receive any votes, therefore the position was not filled.

It is not my intention to put you in the middle of this situation, but the answers from the members of RONR are so different from the "retained Professional Registered Parliamentarian" that I would like more clarification if it is available.

There is a difference in terminology.

An "unfilled position" is a generic phrase, not taken from Robert's Rules of Order directly, but from a dictionary of the English language.

RONR does use the phrase "... if any office remains unfilled ...", (see page 426) but never uses the phrase "unfilled office." Thus, the term is not technical term, and has no fixed meaning beyond common usage.

A "vacancy" is a term which RONR (10th ed. 2000) does use, with specific rules.

An unfilled position can be anything. -- Example: A committee which used to have 10 people now has 9 people, due to a death.

Q. Is this a vacancy?

No. There is no vacancy to fill, per se. The committee need not have 10 people. (It need not have 9 people, either).

Short hand sound bite:

A vacancy implies an unfilled position.

An unfilled position may or may not be a vacancy.

A vacancy needs to be filled, typically.

An unfilled position need not be filled, typically.

Non-officer positions, typically, are postions which may be left unfilled, and thus would be "unfilled positions". -- e.g., cook, butler, janitor, etc., are positions which may be unfilled. But I seriously doubt that are that many organizations who have vacancies to be filled titled, "cook, butler, janitor".

So, it is possible that the incomplete election you are describing need not be filled. Or just the opposite. I don't know, since I have not read your bylaws, and I don't know the specific office/position, like whether it is an officer position, or just a nice title (e.g., "Grand Poo-Bah"? "Chief Cook And Bottle Washer"? "Emeritus Fearless Leader"?)

[Josh Martin]

Previously I have read on the RONR that there is a difference between an unfilled position and a vacancy.

As I read the answers to the question about an “unfilled position” versus a “vacancy” I understood the difference to be:

An “unfilled position” is one where there was an election held and no one was elected to fill the position that existed because the term of office ended for the previous office holder.

And

A “vacancy” exists when the person who is serving in the office leaves the office (for any reason) before the term has expired.

The position of many on this forum (myself included) is that as a general rule, a procedure in the Bylaws which refers to filling a "vacancy" may not be used to complete an incomplete election.

When this information was presented to our organization the president took it upon himself to retain the services of a Professional Registered Parliamentarian who stated that "There is no distinction between a “vacancy” and an “unfilled position”".

The same person said that there was no incomplete election when one of the national offices did not have a candidate and the office that was listed on the ballot did not have anyone receive any votes, therefore the position was not filled.

It is not my intention to put you in the middle of this situation, but the answers from the members of RONR are so different from the "retained Professional Registered Parliamentarian" that I would like more clarification if it is available.

I do not know enough about the facts of the particular situation to know if I agree with the PRP's ruling. There are many circumstances which would modify the general rule. For instance, I think it would be reasonable to conclude that if a convention of delegates adjourns sine die without electing an officer, it could reasonably be interpreted as a vacancy, since there is no possibility of completing the election as the assembly no longer exists. Additionally, the provisions of the organization's Bylaws may be written in such a way as to suggest that the vacancy filling procedure may be applied to incomplete elections.

So, it is possible that the incomplete election you are describing need not be filled. Or just the opposite. I don't know, since I have not read your bylaws, and I don't know the specific office/position, like whether it is an officer position, or just a nice title (e.g., "Grand Poo-Bah"? "Chief Cook And Bottle Washer"? "Emeritus Fearless Leader"?)

I think the focus of the question is less about whether the position must be filled and more about how it may be filled. For instance, if the Bylaws provide that the Board may fill a vacancy in a board position, does this procedure apply to an incomplete election?

[hmtcastle]

For instance, if the Bylaws provide that the Board may fill a vacancy in a board position, does this procedure apply to an incomplete election?

That's precisely the point.

The original poster (OP) should not focus on any nuances between a vacancy and an unfilled position (lets assume there is no difference) but, rather, on which body has the authority (and responsibility) to fill it.

If, as is usually the case, the general membership has the responsibility of electing officers when their terms expire, that authority can't be delegated to, or assumed by, the board. The general membership must complete the election.

[Rob Elsman]

That's precisely the point.

The original poster (OP) should not focus on any nuances between a vacancy and an unfilled position (lets assume there is no difference) but, rather, on which body has the authority (and responsibility) to fill it.

If, as is usually the case, the general membership has the responsibility of electing officers when their terms expire, that authority can't be delegated to, or assumed by, the board. The general membership must complete the election.

I agree. The electing body is obligated not to adjourn sine die until it has fulfilled its responsibility under the bylaws to complete the scheduled election.

[Josh Martin]

I agree. The electing body is obligated not to adjourn sine die until it has fulfilled its responsibility under the bylaws to complete the scheduled election.

Well, our jobs would certainly be much easier if everyone did what they were obligated to do. If assemblies always completed incomplete elections, this question wouldn't arise to begin with.

[Guest Wahooneb]

I have included the Bylaws that our organization has to elect officers and to fill a vacant position in the case that there is a "remainder of a term".

Maybe that will make your position easier to state.

I believe that the Bylaws state that there will be an officer in each position and that the officer will be elected by the membership using a mail-in ballot.

Applicable Bylaws:

3.30 An Executive Committee (EC) consisting of the President, Vice President, Secretary and Treasurer may meet as necessary to conduct organization business. Conference telephone calls may constitute an EC meeting.

3.31 The EC shall prepare mail ballots for the Board on any issue necessitating Board action between Board Meetings.

4.10 The BOD consists of the EC, two elected Zone Directors from each Zone, Chief Judge, Swap Meet Chairman, Legal Advisor and Immediate Past President of the organization. The term of the Past President shall be limited to two years. Duties, direction, and composition of positions are AEPM.

4.11 The BOD, exclusive of the Chief Judge, Swap Meet Chairman, and Legal Advisor shall be elected by mail ballot every four (4) years by a majority of the membership voting. Zone Directors must reside in the Zone they represent. AEPM

Approved 02/19/2006

4.60 Any Board member or Appointee who wishes to resign shall give the President written notice.

4.61 In the event of a vacancy on the BOD or of an Appointee, the President shall appoint a replacement for the remainder of the term, except for the Presidency which shall be filled by the Vice President. A Vice President shall then be appointed by the new President. All appointments are subject to ratification by the BOD.

4.62 No Board Member shall hold more than one elected position at one time. He may however hold appointed position.

In Bylaw 4.61 the term “vacancy” apparently is specific to the statement "appoint a replacement for the remainder of the term" however the president and the PRP have chosen to read it as since there was no candidate for the position and the position is “unfilled” that the "remainder of the term" is until the next election.

[Guest Wahooneb]

Our Bylaws state that the members of the Executive Committee will be elected By the Membership in a mail-in vote.

They also state that a replacement for a vacancy on the Board will be filled by an appointment by the president, with the appointment being ratified by the Board.

I provided the specific Bylaws verbatim in the previous reply

[Gary Novosielski]

When this information was presented to our organization the president took it upon himself to retain the services of a Professional Registered Parliamentarian who stated that "There is no distinction between a “vacancy” and an “unfilled position”".

The same person said that there was no incomplete election when one of the national offices did not have a candidate and the office that was listed on the ballot did not have anyone receive any votes, therefore the position was not filled.

It is not my intention to put you in the middle of this situation, but the answers from the members of RONR are so different from the "retained Professional Registered Parliamentarian" that I would like more clarification if it is available.

Others have responded well to this question. And bylaws interpretation is something that is beyond the scope of this forum, even if we had seen the bylaws in their entirety, which we have not, and which we need not, since we still wouldn't undertake to interpret them. If you have a PRP looking them over, he will probably advise you well on how they affect the situation.

But one thing troubles me from your question. Even if we assume that an "unfilled position" (whatever that is) is the same thing as a vacancy, which is certainly a defensible position, even if one disagrees with it, there is still a problem that your PRP should be questioned about, and that is the language bolded above. I cannot imagine how that situation can be called anything other than an incomplete election. None of the criteria for a complete election is present. There were no candidates, there were no write-ins, nobody received a majority, nobody was elected, nobody was notified of his election, and nobody accepted the office.

You just can't get more incomplete than that. And so, the election must be completed. Vacancy-filling provisions in the bylaws, although they may exist, are not applicable to incomplete elections. If they were, no elections would ever be needed.

[Josh Martin]

Maybe that will make your position easier to state.

Not really, because we don't interpret Bylaws here. I still can't do any better than my "general rule" statement. It's up to your organization to interpret its own Bylaws, and the advice on RONR, 10th ed., pgs. 570-573 (and of the professional parliamentarian your association has hired) can be used as guidance.

[hmtcastle]

. . . the president and the PRP have chosen to read it as since there was no candidate for the position and the position is unfilled” that the "remainder of the term" is until the next election.

It matters little how they choose to read it; the ultimate authority to determine the meaning of your bylaws rest with the general membership.

And a few letters after one's name is no guarantee of correctness.

[jstackpo]

And if things get really dicey you might ask your PRP to show you his/her corresponding NAP membership card.

People have been known to misrepresent themselves...

[Guest ahooneb]

The organization did not hire the PRP, the president provided this statement so he is the only one, to date, to whom the PRP has provided any information.

President's statements:

"After receiving comments from various members of the Board about procedures and points of order, I retained the services of a Professional Registered Parliamentarian to review the situation and help me establish an appropriate course based on the OCA Bylaws, OCA Policy Manual, and Robert’s Rules of Order, Newly Revised 10th Edition.

In addition, the parliamentarian and I reviewed the election process in the context of OCA Bylaws and determined that:"

Below are three Bylaws that state the out-of-meeting requirements for doing the business of the organization.

The name of the organization has been removed and replaced with "ORGANIZATION"

3.20 The voting members of the ORGANIZATION Board of Directors, elected and appointed, shall direct ORGANIZATION activities.

Approved 02/19/2006

3.30 An Executive Committee (EC) consisting of the President, Vice President, Secretary and Treasurer may meet as necessary to conduct ORGANIZATION business. Conference telephone calls may constitute an EC meeting.

3.31 The EC shall prepare mail ballots for the Board on any issue necessitating Board action between Board Meetings.

I am on the EC and have not been contacted by the president by teleconference regarding this matter. He has communicated with me only through the statements in his email releases to the entire Board as he knows that I take the position that the incomplete election process requires us to complete the election to fill this position on the EC.

[Gary Novosielski]

The organization did not hire the PRP, the president provided this statement so he is the only one, to date, to whom the PRP has provided any information.

President's statements:

"After receiving comments from various members of the Board about procedures and points of order, I retained the services of a Professional Registered Parliamentarian to review the situation and help me establish an appropriate course based on the OCA Bylaws, OCA Policy Manual, and Robert’s Rules of Order, Newly Revised 10th Edition.

In addition, the parliamentarian and I reviewed the election process in the context of OCA Bylaws and determined that:"

Below are three Bylaws that state the out-of-meeting requirements for doing the business of the organization.

The name of the organization has been removed and replaced with "ORGANIZATION"

3.20 The voting members of the ORGANIZATION Board of Directors, elected and appointed, shall direct ORGANIZATION activities.

Approved 02/19/2006

3.30 An Executive Committee (EC) consisting of the President, Vice President, Secretary and Treasurer may meet as necessary to conduct ORGANIZATION business. Conference telephone calls may constitute an EC meeting.

3.31 The EC shall prepare mail ballots for the Board on any issue necessitating Board action between Board Meetings.

I am on the EC and have not been contacted by the president by teleconference regarding this matter. He has communicated with me only through the statements in his email releases to the entire Board as he knows that I take the position that the incomplete election process requires us to complete the election to fill this position on the EC.

It is entirely possible that the president has given incorrect information to the PRP, and has therefore received the answer he was looking for.

But the parliamentarian does not rule on parliamentary matters. He only advises the chair, who then rules And whatever his ruling is will be subject to Appeal, so ultimately you have the power to force a vote on the matter, if you get someone to second your appeal.

[Guest Wahooneb]

Does RRoO address a situation where the president makes a decision when there is no meeting in session, then moves forward on his decision again, when there is no meeting in session?

Our next Board meeting will be In July 2011 and if I understand your last comment the Appeal to his announced has to wait until that time. Meanwhile the president has announced the appointment of someone to fill the position that was not filled in the membership election and that person will apparently begin performing the duties of that office, including representing that position on the Executive Committee.

[Dan Honemann]

Does RRoO address a situation where the president makes a decision when there is no meeting in session, then moves forward on his decision again, when there is no meeting in session?

Our next Board meeting will be In July 2011 and if I understand your last comment the Appeal to his announced has to wait until that time. Meanwhile the president has announced the appointment of someone to fill the position that was not filled in the membership election and that person will apparently begin performing the duties of that office, including representing that position on the Executive Committee.

If this is a matter of serious concern, talk to a lawyer. The usefulness of this forum has been exhausted.

[Josh Martin]

Does RRoO address a situation where the president makes a decision when there is no meeting in session, then moves forward on his decision again, when there is no meeting in session?

There's no method under RONR for the board to do anything about it between meetings, if that's what you're asking. You can look at FAQ #20 if you want to punish him afterward.

Our next Board meeting will be In July 2011 and if I understand your last comment the Appeal to his announced has to wait until that time.

Yes, unless there is a method to call a special meeting which doesn't involve the President.