Resignation leads to inadequate number of board members

[Guest Larie]

Our board bylaws indicate that no fewer than 7 members must comprise our board. We were operating with 7 members but one submitted their resignation effective immediately. Now another member is claiming that we are unable to conduct business because we are fewer than 7. But there must be some provision or how can we even nominate and elect replacement board members to achieve our minimum?

[Trina]

Unless your board's quorum (minimum number of members that must be present to conduct business) is defined as 7, there shouldn't be a problem just because someone resigned. Having an unfilled postion is, after all, a pretty common occurrence in various organizations, and doesn't bring business to a standstill.

Do your bylaws contain any instructions on how to fill a vacancy on the board?

[Josh Martin]

Our board bylaws indicate that no fewer than 7 members must comprise our board. We were operating with 7 members but one submitted their resignation effective immediately. Now another member is claiming that we are unable to conduct business because we are fewer than 7. But there must be some provision or how can we even nominate and elect replacement board members to achieve our minimum?

The member is mistaken. The board may continue to conduct business so long as it can meet its quorum requirement.

It is also worth noting that, despite that the resignation states it is "effective immediately," the resignation is not final until it is accepted by the board.* It seems there is no reason for the resignation not to be accepted, but you technically still have seven members until that time.

* I am assuming here that your board is authorized by the Bylaws to fill vacancies, which seems implied by your post.

[Guest Larie]

Do you have any resources you can direct me to that support your comments. I believe what you say as it makes common sense but she will require some sort of proof or documentation. Perhaps sections or page numbers? She is our secretary and holds our copy of Roberts Rules so I am trying to gather the necessary info without access to much. She's also claiming that because we are in the state of NM, that we must follow our Articles or Incorporation over Roberts Rules. I would agree but our Articles don't address this. Thank you for your input, it has been most helpful.

[Gary c Tesser]

1. Guest Larie, please answer Trina's question about filling vacancies. That may very well point you to the solution. (A citation for the authority of the bylaws is the passage about bylaws in RONR, 11th Ed, p. 12, and pp. 13 and 14, which follow p. 12 immediately, at least in my generously-donated copy here. Oh yes: this is in Section 2, "Rules ...")

2. Yes, articles of Incorporation are, indeed, higher than Robert's Rules. Fortunately, your Articles don't bother with this kind of detail, which is good, because the articles should not (See p. 11, which is also in Section 2, and in fact right there in front of p. 12, doubtless for convenience.) So, it is a red herring to bring up the articles of incorporation at all.

(This somewhat resembles what is described in the footnote on p. 403, which deals with a vote of a majority of the entire fixed membership of a board. Paralysis occurs only when these peculiar, thankfully rare, procrustean requirements are in place. And your bylaws don't seem to have them. They don't, do they?)

3. Guest Larie, I actually can't find a specific citation saying that a board is paralyzed any and every time there happens to be a vacancy. But we can cite Section 40, "Quorum," as saying that a quorum is the minimum "number of members who must be present in order that business can be validly transacted [p. 345]." See, no mention of a full roster.

4. See p. 291 for what Parliamentarian Martin said about the resignation's not being effective immediately, however much the resignation may want to be.

5. Guest Larie, you and three or four of your fellow members should pool your money and buy yourselves your own copy of RONR (the new, Eleventh Edition), and RONR - In Brief (the new, Second Edition, which matches RONR's Eleventh Edition because the current editing team is all old and they think "II" means eleven). (It's not as if the secretary has sole custody of the club's printing press!) Be sure to read RONR - IB then and there (while you stand. Yes. Do not sit down until you have finished it -- the first time -- unless you can't stand up for an hour and a half. But then only for a little bit).

(May this discussion thread please be moved to the General Discussion area, O Wizard of Digital Wonderment and Boss Lady? (And perhaps French-Canadian fur trapper and part-time film critic in her copious spare time?) Neophyte aspiring parliamentarians like Trina answered handily; Professional Registered Parliamentarian Martin napped through his whole post; I worked up a sweat, but that was probably because I ran out of diaphoresis earlier in the week so have to make do.)

[BryanSullo]

I don't see how the quorum requirement answers the original question. Assuming the quorum requirement is a percentage of the number of members on the board (and not a specific number), a board with one member could conduct business. This seems to go against the purpose behind specifying that the board must consist of "no fewer than 7 members".

[Dan Honemann]

(May this discussion thread please be moved to the General Discussion area, O Wizard of Digital Wonderment and Boss Lady? (And perhaps French-Canadian fur trapper and part-time film critic in her copious spare time?) Neophyte aspiring parliamentarians like Trina answered handily; Professional Registered Parliamentarian Martin napped through his whole post; I worked up a sweat, but that was probably because I ran out of diaphoresis earlier in the week so have to make do.)

Please be advised that the Boss Lady does not concern herself with such mundane matters as moving topics from one place to another. Such menial tasks are left to be performed by your humble Moderator.

[Gary Novosielski]

Our board bylaws indicate that no fewer than 7 members must comprise our board. We were operating with 7 members but one submitted their resignation effective immediately. Now another member is claiming that we are unable to conduct business because we are fewer than 7. But there must be some provision or how can we even nominate and elect replacement board members to achieve our minimum?

The member who claims that has the burden of proof for that ridiculous claim. Since she apparently has the only copy of RONR, you should ask HER for the exact page and line number (and make sure she's reading from the 11th edition while you're at it).

When the bylaws say you must have 7 members that implies that if and when you find yourself with a vacancy, you (your board or your membership) have the responsibility to fill that vacancy. It does not mean you have to dissolve the organization, or any other nonsense like that.

As long as you have a quorum you can continue to meet.

Refer to your bylaws to find out who has the power to fill vacancies on the board, and what your quorum requirement is.

If nothing is listed, then whoever elects the board in the first place will need to hold a special election to fill the vacancy.

If nothing is listed regarding a quorum requirement, then it is a majority (more than half) of the (remaining) members of the board.

Apparently your secretary owns--but does not read--that copy of RONR.

[Trina]

I don't see how the quorum requirement answers the original question. Assuming the quorum requirement is a percentage of the number of members on the board (and not a specific number), a board with one member could conduct business. This seems to go against the purpose behind specifying that the board must consist of "no fewer than 7 members".

The 'no fewer than 7' language suggests that this is an organization the size of whose board is not exactly fixed -- perhaps they elect 9 or 10 board members in some years (we don't know). The bylaws apparently say they should select at least 7 members, which also implies that if the number drops below 7 (as by resignation, or death, or whatever), then the vacancy should be filled. None of this affects the ability to conduct business, unless the quorum requirement is not met. We have not been told how quorum is defined in this organization.

The default definition of quorum in RONR is a majority of the membership -- and that means the actual members (not the number of positions). By that definition, an assembly with 7 members would have a quorum of 4. An assembly of 6 members would still have a quorum of 4. The quorum would drop to 3 in an assembly with 5 members. So, yes, the quorum number shrinks with the number of members... if the organization is following the quorum definition from RONR.

[Gary Novosielski]

I don't see how the quorum requirement answers the original question. Assuming the quorum requirement is a percentage of the number of members on the board (and not a specific number), a board with one member could conduct business. This seems to go against the purpose behind specifying that the board must consist of "no fewer than 7 members".

It answers the question because the question was whether business could be conducted, and the presence of a quorum is the condition that's required to conduct business.

Your assumption (that the quorum is a percentage of the members) may or not be valid, depending on what the bylaws say. But if true, it would not "go against" the purpose behind specifying a minimum size for the board. That requirement is independent and should be met by filling the vacancy, but it has no bearing on whether business can be conducted.

The two questions: Must we replace the departed member? and May we conduct business? must be answered independently.

[BryanSullo]

Thanks for the explanations. I guess I'm looking at it too much like a contract. If a contract says you must have at least seven people, and you only have six, you're in breach of contract. I don't do well with ambiguous situations.

[Guest Edgar]

I guess I'm looking at it too much like a contract. If a contract says you must have at least seven people, and you only have six, you're in breach of contract.

It's no different than bylaws which state that "the board shall consist of seven members". If one member dies the board doesn't cease to function.

[Guest Larie]

Our bylaws state:

Quorum: "A majority of the members of the Board of Directors, not including proxies given in accordance with Section 9 of this Article, shall constitute a quorum at any meeting of the Board of Directors. A majority, including proxies, may transact the business of the Corporation, unless specified otherwise in the Articles of Incorporation or these Bylaws."

Regarding Vacancies: "Any vacancy occurring in the Board of Directors and any Directorship to be filled by reason of an increase in the number of Directors may be filled by the affirmative vote of a majority of the remaining Directors, though less than a quorum of the Board of Directors. A Director elected to fill a vacancy shall be elected for the unexpired term of his/her predecessor in office."

We have the option of leaving a vacancy or filling it unless leaving it vacant takes us below the minimum number of 7.

I will be purchasing a copy of RONR, but this all just happened last night and I was seeking online resources. I apologize if I placed this question in the wrong forum. I am not familiar with your site, rather I stumbled upon it in my search. Thank you for your information and patience with the elementary nature of my question. Clearly, you are all MUCH more familiar with parlimentary procedure than I can ever hope to be! I will certainly bookmark your page for future reference....

[Gary Novosielski]

Thanks for the explanations. I guess I'm looking at it too much like a contract. If a contract says you must have at least seven people, and you only have six, you're in breach of contract. I don't do well with ambiguous situations.

Well, okay, but just because you're in breach off contract doesn't mean you cease to exist. You would probably be required to heal the breach, however.

Same applies here.

[BryanSullo]

Well, okay, but just because you're in breach off contract doesn't mean you cease to exist.

That depends on who the contract is with.

[Gary Novosielski]

That depends on who the contract is with.

If the person disappears, then the contract was not with them, but on them.

[Burke Balch]

Any vacancy occurring in the Board of Directors and any Directorship to be filled by reason of an increase in the number of Directors may be filled by the affirmative vote of a majority of the remaining Directors, though less than a quorum of the Board of Directors.

Could anything be clearer? A majority of the "remaining Directors" could meet and fill the vacancies, even if a quorum was not present.

One might well ask, since the quorum is defined the same way as in RONR, how such a fact situation might arise. However, the quorum provision quoted states:

A majority of the members of the Board of Directors, not including proxies given in accordance with Section 9 of this Article, shall constitute a quorum at any meeting of the Board of Directors.

Evidently, directors may give proxies, but those who are absent but who have given proxies are not counted in determining whether a quorum is present. Presumably, therefore, there could be a board meeting at which a quorum was not present, but those directors present held proxies so that, when voting those proxies, the vote in favor of filling a vacancy could total or exceed a "majority of the remaining Directors". In such a situation, under the bylaws action could be taken to fill a vacancy even though a quorum was not present at the board meeting.

In short, one needn't resort to RONR to demonstrate that the board vacancy can be filled. The answer is right there in the bylaws.

[Gary c Tesser]

Could anything be clearer?

In short, one needn't resort to RONR to demonstrate that the board vacancy can be filled. The answer is right there in the bylaws.

And yet Original Poster Guest Larie is still under the impression that "We have the option of leaving a vacancy or filling it unless leaving it vacant takes us below the minimum number of 7 [Post 13]."

[Shmuel Gerber]

Could anything be clearer? A majority of the "remaining Directors" could meet and fill the vacancies, even if a quorum was not present.

...

Presumably, therefore, there could be a board meeting at which a quorum was not present, but those directors present held proxies so that, when voting those proxies, the vote in favor of filling a vacancy could total or exceed a "majority of the remaining Directors". In such a situation, under the bylaws action could be taken to fill a vacancy even though a quorum was not present at the board meeting. ...

But this assumes (incorrectly, in my opinion) that the existing provision

"...may be filled by the affirmative vote of a majority of the remaining Directors, though less than a quorum of the Board of Directors."

is equivalent to a provision that said

"...may be filled by the affirmative vote of a majority of the remaining Directors, though less than a quorum of the Board of Directors is present."

However, the relevant point is that I'm sure we agree that, according to RONR, a quorum requirement of "A majority of the members of the Board of Directors" means a majority of the members then on the board, not a majority of the number there would be if all vacancies were filled. I'm not convinced that the drafters of these bylaws provisions understood that fact.