Tomm

On 8/2/2021 at 5:06 PM, Guest Zev said:

However, if you then decide to take this matter to the membership, which is what we think you should do to begin with, then no, no point of order in that meeting but a regular main motion declaring the board's action null. Nothing else. Just a terse "your dismissal of director so-and-so is null and void and hereby countermanded." No attempt to justify the action or getting involved in the interpretation of this, that, or the other.

Would that be a simple majority or 2/3rds?

On 8/18/2021 at 9:56 AM, Josh Martin said:

As a matter of parliamentary law, if a statute provides that the bylaws can provide otherwise, then inclusion of RONR as the parliamentary authority in the bylaws is sufficient to provide otherwise. See RONR, 12th ed., 45:71, 56:49n1.

That's an excellent answer and one I was hoping for but I'm up against a very tough board!

It's not my intention to look a gift horse in the mouth, but would you happen to know of any case law that would support your statement?

Extremely grateful for this forum! 

In regards to a state statute "Removal of directors elected by members or directors" that says, B. If the articles of incorporation or bylaws do not provide a procedure for removal of a director from office: then 1, 2, 3.... apply

If there are no specific procedures listed in the Article of Incorporation or Bylaws to remove a director but the Bylaws do specify RONR as their parliamentary authority, would the procedures as stated in RONR be applicable or must one use the state statute?  

Could you better explain 49:7 please?

"...no action of the board can alter or conflict with any decision made by the assembly of the society, and any such action of the board is null and void."

If I remember correctly, isn't there something about certain decisions made by a board must be approved by the members/membership? Where can I find that in RONR?

2 hours ago, Richard Brown said:

Now, on the off-chance (very off chance!!!) that there is a provision somewhere else in the bylaws that says a member can be represented for attendance and purposes by his or her spouse, then I agree the situation would be different.  But, I'll make my usual bet of a steak dinner at Ruth's Chris Steak House (or a steak house of your choosing) that the bylaws do not contain such a provision.

For the sake of keeping you guys honest, NO, there are no provisions for a spouse to represent a member!!!

Medium rare would be nice!

Article of Incorporation states the following:
Article XIII
The Members of the Corporation shall be provided with the opportunity to vote by proxy in:

a. Amending the Articles of Incorporation

b. Members amending the Bylaws of the Corporation

c. The election of Directors*

d. Any other matter requiring an act of the members

*If the Bylaws provide for voting by mail in the election of Directors, the above-stated Proxy vote will not apply to the election of Directors.

6 minutes ago, Richard Brown said:

I agree with Mr. Merritt and Mr. Lages and will go a step further. Although the use of proxies, if they are permitted, must be based on your own rules or state law, most bylaws which permit the use of proxies do contain a provision that in order to constitute a quorum, the required number of members must be present either in person or represented by proxy.

The current bylaws state:

SECTION 3: MEMBERSHIP QUORUM
A quorum for any Membership meeting shall consist of not less than one thousand two hundred fifty (1,250) Members in good standing. If, however, such quorum shall not be present or represented at any meeting of the Members, the Members entitled to vote at such meeting shall have the power to adjourn the meeting without notice other than announcement at the meeting. (emphases added)

Would I be correct that the verbiage "or represented" would mean that representation by a proxy would count towards the quorum? 

I don't suspect you'll answer this because RONR doesn't support proxy voting, but as an opinion; If a meeting can't get enough members to physically attend to acquire a quorum, would members who do show-up with enough proxies to constitute a quorum satisfy the quorum requirement?   

9:13 says, "Notice of time, place, and purpose of the meeting, clearly and specifically describing the subject matter of the motions or items of business to be brought up must be sent to all members..."

So, in your opinion, if a special meeting is called with the intent of the probable dismissal of a board member, does a general call stating to "Deal with problems on the board" suffice or should it actually say, "To consider the dismissal of Director So and So." ?

Scenario:  You are a board member in an executive session for the purpose of being reprimanded. The time comes for a vote on what to do. 

Question: Is it appropriate to be asked to leave the room while the remaining directors vote or do you, as a member, have a right to stay as well as cast a vote?

On 8/1/2021 at 12:06 PM, Gary Novosielski said:

The rule that the call of a special meeting must describe the business to be considered is a rule that protects absentees,

One last question please on how it protects the absentees!

Is it because, if they don't know what the meeting was to be about they have no way of knowing or determining whether or not they should attend? 

9 minutes ago, Gary Novosielski said:

I suggest you go back and read all of the replies in this thread a lot more carefully than you apparently have up to now, and then if you insist on taking the weaker course of action, I wish you luck.

I got it. Just attempting to use belts and suspenders. If the null and void meeting argument fails perhaps the protection of the absentee will be a second bite for a call of a point of order call?

Thanks again. 

51 minutes ago, Gary Novosielski said:

Merely being absent doesn't violate his rights,

I thought you previously said being absent didn't violate his rights?

The two absentees were the director who was dismissed and another director who was friendly to the dismissed director. I'm going to try to convince him to raise a point of order at the next meeting of the board.

Sorry for dragging this out. Thanks for your help. You guys are a God send and I REALLY appreciate all your help.

How about 23:6-c Any action has been taken in violation of applicable procedural rules prescribed by federal, state, or local law,?

Can the violation be that the call of the meeting didn't specify the business? I'm trying to convince one of the directors who did not attend the special meeting (a friendly) to raise a point of order at the upcoming meeting in September. Just trying to find some actual justification within 23:6 that can be used! 

Would it also be fair to say that according to 23:6-d Any action has been taken in violation of a fundamental principle of parliamentary law (25:9), the director's rights were violated because of being absent from the meeting?  

2 hours ago, Richard Brown said:

First, please give us more details as to the purported reason for the removal from office and when that information became available to the board. For example, had there been ongoing issues  with the Director

Many of your questions have been addressed in a previous post under a different issue of concern. My current concern is can the general membership vote to have the director reinstated at a general membership meeting?

The terminated director was not a "go-along to get-along" director. Often times opposing points of view were use to challenge the boards motions/decisions and the good ole boys of the board didn't like that! Ironically, that director was only board member who had a career of actually serving on real corporate boards. That director's knowledge was head and shoulders above any other board member and they didn't like that (IMO).

2 hours ago, Richard Brown said:

Second, please give us the timeline as to the date and time of the regular board meeting, the date and time that the notice of special board meeting was issued, and the date and time of the actual special meeting.

The last regular meeting before a 2 month hiatus was held at 9 a.m. on Thursday, June 24th. At that meeting the director was verbally accused of a conflict of interest but nothing in the bylaws allows for termination because of a conflict of interest. (The bylaw only requires that it must be reported if one may possibly exist.) Nothing was said about calling a special meeting at that regular meeting. The board president then sent out an email between 3 and 4 o'clock on that Thursday, June 24th calling for an special meeting to be held in executive session on Friday, June 25th at 2 p.m. and the director was terminated for failure or unwilling to perform his/her duties. 

5 minutes ago, Richard Brown said:

What was the actual vote to remove the Director? In particular, how many directors voted yes to remove?

Edited to add: In addition, what do your bylaws or articles of incorporation say about the amount of notice necessary for a special meeting of the Board of Directors?

The actual vote was 7-0. The director that was terminated and one other board member were not in attendance.

The Bylaws state:

"Special Sessions of the Board may be called by the President or upon the written request of three (3) or more Board of Directors. The purpose of the meeting shall be stated in the call and posted on the website. Except in case of emergency, at least seventy-two (72) hours' shall be given."

They used the "emergency" excuse because many board members were leaving shortly for vacation!

7 minutes ago, Gary Novosielski said:

Were any of the directors absent from that board meeting?  Did the director who was allegedly removed attend? 

Yes, there were 2 directors who did not attend, in fact the director that was removed was not in attendance because that director did not see the email notice until after the meeting was held. Only 7 of the 9 directors were in attendance. 

3 hours ago, Richard Brown said:

Just for openers, we need to know EXACTLY what your bylaws say about several things, including specifically how the directors are elected in the first place, what exactly your bylaws say about removing directors from office, what exactly your bylaws say about filling vacancies, and what powers the bylaws give to your board, etc. we need exact verbatim quotes from the bylaws, not paraphrases.

Also, the way I read your post you seem to say this removal took place a day after a board meeting. Since actions of this type can only take place in meetings, exactly how, when and by whom (what person or group) was this director removed?

An executive session was called via email sometime AFTER the end of the Thursday board meeting. The meeting notice did not mention what the meeting was being called for.

Directors are elected by the general membership:

ARTICLE VIII – ELECTION OF BOARD OF DIRECTORS

SECTION 1:  POLLING PLACES, TIMES AND DATES

Election of the Board shall be held on the second Tuesday in December each year.

The Board may schedule earlier voting dates.

The Board shall select the number of polling places, their locations and times of operation for voting within Sun City, Maricopa County, Arizona.

The Board shall select the number of days for online voting through the Web Portal.

SECTION 2:  VOTES

The Board candidate or candidates receiving the highest number of votes shall be elected to the vacancy or vacancies for which the election is held.

Removing directors from office. (From Articles of Incorporation)

Article IX

Removal of any elected or appointed Director may be done in either of the following ways:

A.                  By a vote of two-thirds (2/3) of the members of the Board of Directors after a member of the Board is absent from three (3) or more consecutive regular meetings of the Board or who, in the opinion of such two-thirds (2/3) of the Board members, is unwilling or incapable of performing his or her share of the duties and responsibilities of a Director.

B. The Members may remove any elected or appointed Director in the following manner, and any vacancy so created may be filled in the following manner:

1. A petition for a removal election of one or more Directors, specifying by name or names the occupants of the seats whose removal is desired, signed by not less than ten percent (10%) of the voting Members of the Corporation as of the preceding July 1st, may be filed with the Secretary of the Corporation not less than ten (10) days preceding a regularly scheduled meeting of the Board of Directors. At such meeting, the Board shall then schedule an election for the purpose of voting on the removal and replacement of any Directors whose removal is sought, said election to be held not later than forty-five (45) days and not less than thirty-five (35) days after such aforesaid meeting, and said election shall be conducted in accordance with the Bylaws of the Corporation regarding election of Directors. Appropriate announcement thereof shall be made by the Board of Directors on the bulletin boards of the Corporation.

2. Balloting at such removal elections shall proceed in the same manner as specified in Article X of the Bylaws, except that at least fifty percent (50%) of the members of the Balloting Committee shall be selected from those signing the removal petition.

3. Any member of the Corporation in good standing and who is qualified under Article IV, Section 2, of the Bylaws may become a candidate for election to the Board to fill the position of a specified Director whose removal is being sought, by filing a petition signed by not less than one hundred (100) of the voting Members in good standing, and such petition and other material, as required by Article IX of the Corporate Bylaws, shall be filed with the Chairman of the Elections Committee not later than fifteen (15) days preceding the date set for the election. 

FILLING VACANCIES:

SECTION 4:  LENGTH OF TERMS AND VACANCIES

The term of office for an elected Board of Director shall be three (3) years. At the annual election, three (3) Board of Directors shall be elected for three (3) year terms. One, two or three-year elected terms enter into the six (6) year limit set forth in the Articles. In the event more than three (3) vacancies exist as of the deadline for turning in the petitions, those vacancies shall also be filled at the annual election as follows:

 1.       A candidate receiving less than one hundred (100) votes shall not be eligible to fill any vacancies.

2.       The candidate receiving the highest number of votes, after the three (3) three-year terms are filled, shall fill the next longest vacant term. 

3.       If a candidate is elected to the Board and prior to the beginning date of the term for which he/she has been elected, declines or is unable to assume the office, then the term of the declining candidate shall be filled with the unsuccessful candidate receiving the next highest number of votes, based on the vote totals of the candidates in the last annual Board election. 

4.       The Election Committee (also known as the Balloting Committee) will determine the order of placement in the event of a tie vote. The method shall be a simple drawing of the names of the candidates involved in the tie vote. 

5.       Vacancies occurring on the Board during the year (January 1 through December 31) may be filled by appointment by the Board. A majority vote of the Board (5) is required for said appointment. An appointment ends on December 31 of the year appointed.  An appointed term does not enter in the six (6) year limit set forth in the Articles.

Board of Directors: (From Articles of Incorporation)

 Article VIII

1. The affairs of the Corporation shall be conducted by a Board of Directors and such Officers as the Board may elect or appoint. The Board shall select from its own members a president, one or more vice-presidents, a secretary, and a treasurer. It may select an assistant treasurer who is not required to be a member of the Board. All Officers shall be elected at the first meeting of the Board of Directors in January of each year and shall hold office for a period of one (1) year and until their successors are elected and installed. The number of Directors shall be nine (9). Directors shall be elected by the Members at an annual election in the manner prescribed in the Bylaws.

2. Three (3) Directors in a manner set forth in the Corporate Bylaws, shall be elected each year to serve for a term of three (3) years and shall serve until their successors are installed. A Member/Director may be elected to a maximum of two (2) three-year terms, six (6) years total, on the Board of Directors.(Approved by the membership on Nov. 20, 2003)

3. The Directors shall have the power to adopt Bylaws not in conflict with the Articles of Incorporation.

4. The Bylaws may be amended, modified, revised, or revoked by the Directors or by the Members. In the event of conflict concerning the Bylaws as amended, modified, revised, or revoked by the Directors, the action of the Members shall prevail.

5. The Bylaws of the Corporation shall prescribe the qualifications of Members and the terms of admission to membership, provided that the voting rights of all Members shall be equal and all Members shall have equal rights and privileges, and be subject to equal responsibilities. Such Bylaws shall also provide the method for determining assessments to be paid by the Members.

6. The Board of Directors shall have power to fill vacancies occurring on the Board or in any Office. Any Director or Officer so chosen shall hold such position until the next election when a successor is elected, qualified, and assumes such position.

7. The Corporation shall not convey any substantial part of its assets, or any real property of assessed value for tax purposes exceeding $50,000, without affirmative vote of a majority of its membership entitled to vote thereon.

Our board of directors are elected by the general membership. The board recently removed one of the directors for reasons that most of the general membership firmly disagree with.

Question: Is there anything other than a bylaw that would prevent the general membership from making a motion at the next general membership meeting (October) and vote to reinstate that director? So far there has not been a replacement for that director mentioned or appointed. The termination happened less than 24 hours after the last board meeting (which is suspicious). The board is currently on a two month hiatus.

2 minutes ago, Richard Brown said:

Which particular requirements?

That the entire board must decide who or how many members can make such a decision. And I assume by the virtue of a meeting with all the board members? The president can't simply make those types of decisions, he/she can only call for a committee with a certain number of members but that call must be in the form of a motion and the entire board gets to vote and decide?

Do I have that about right? 

Where might I find such requirements as stated in RONR? Please!

Does RONR address what's required when a board only allows certain board members to take part in a decision?

A recent incident (retirement) required the board to interview and hire a new general manager. The board only allowed certain board members, (those with so called "more experience") to participate in the interview and hiring process.

Question: Can that just be arbitrarily decided by the board president or does there need to be some sort of ad-hoc committee formally established where the entire board made the decision of who, and how many board members will participate? 

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