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  1. Adrien LaBombarde

    RONR sec. 63 . . . or That "Or"

    To what extent is RONR (11th ed.), §63., “Investigation and Trial,” binding on a homeowners association, the Board of which recently attempted to remove a Director without any apparent interest in applying §63 (or numerous other rules stipulated by RONR, for that matter)? RONR (11th ed.), p.653, ll. 26-34, in the first of two bullets, state – “If the bylaws provide that officers shall serve “for __ years or until their successors are elected,” the officer in question can be removed from office by adoption of a motion to do so. The vote required for adoption of such a motion is (a) a two-thirds vote, (b) a majority vote when previous notice (as defined on p. 121) has been given, or (c) a vote of a majority of the entire membership – any one of which will suffice.” As contrasted with the second bullet (further comment below), use of this bylaw wording, together with the appropriate choice of action, appears sufficient to remove an officer, without specification of cause and without recourse to §63. In our by laws, Article II (“Officers”), Section 2 (“Terms of Office”) uses the “or” framework described by this first RONR bullet – “The . . . Directors of . . . Operations . . . shall be elected in odd numbered years and shall serve for a term of two (2) years or until their successors are elected.” However, our by laws also include a specific provision directly addressing removal of an officer: Article II (“Officers”), Section 6 (“Removal from Office”) – “An Officer may be removed from office for misconduct or neglect of duty in office by a two-thirds (2/3) vote of the Officers, present and voting. The Officer being removed shall be given an opportunity to be heard by the Board of Directors prior to the vote.” Not only does our by law explicitly limit our options to the first option stated in the RONR bullet cited above, but our “misconduct or neglect of duty” phrase alluding to removal from office with cause doesn’t sound like the no-cause sense of that first bullet in the cited RONR text. So although we have the “or” construction in our statement of terms of office (i.e., thus technically do not fit into the phrase before the ellipsis in the quote I’m about to cite), our provisions that directly relate to removal from office sound a whole lot more along the lines of the second bullet, at RONR (11th ed.), p. 654, ll. 8-13.: “… an officer can be removed from office only for cause – that is, neglect of duty or misconduct – in accordance with the procedures described in 63; that is, an investigating committee must be appointed, charges must be preferred, and a formal trial must be held.” If I can give our by laws drafters the benefit of the doubt of knowing what they set up for us (but remember, ours is the set of by laws missing a crucial “not” in its statement of parliamentary authority), it would seem that they do wish to prevent removal of an officer for any reason other than neglect of duty or misconduct, and that they intend further restraint by restriction of method of removal solely to a two-thirds vote of the Board . . . but that perhaps they hope their use of “or” in their by laws setting terms of office give them freedom beyond that point to kick an unwanted officer off the board without advance notice to homeowners, without any advance notice to the targeted Director until the verbal statement of the motion, et cetera, . . . and showing no awareness of or responsibility under §63. Is the fig leaf of that “or” in our terms of office really as huge as they seem to be making it out to be? Or does that crucial "or" pretty much rip sec. 63 out of our HOA's version of RONR?