Improper Subsequent Election - p. 445, lines 23-25.

[jstackpo]

In the new material on p. 445 of the 11th, we are reminded (lines 23-25) that a subsequent "overlapping" election (my word - not RONR's - go read the text) sets up a continuing breach because it is "the adoption of a main motion conflicting with one still in force."

However, on p. 251 that same rule is followed by: "unless..." the second motion was adopted by a large enough vote. The previous motion is thus rescinded and the new one takes over.

Question: Does that "unless..." exception apply in the case of an (improper) election as described on p. 445, lines 23-25? (With a tabulated election there should be no problem in seeing if the vote was "large enough".) The book doesn't say, but perhaps it should to avoid possible conflicts in the future. If the vote was "large enough" does that mean the "new" election is valid and the prior office holder is replaced? Seems unlikely, but who knows?

Or perhaps the (implicit) "unless..." exception does apply if the bylaws have the dreaded "or until..." clause in the description of the term of office.

Or what?

Do others see this as a bit of a loose end? (Dan can say "No", if he wants to -- I hope he says more than that, however.)

[Josh Martin]

Or perhaps the (implicit) "unless..." exception does apply if the bylaws have the dreaded "or until..." clause in the description of the term of office.

Yes. The exception on pg. 251 applies to an election, but only if the Bylaws permit the election to be rescinded (such as by the "or until" clause).

Do others see this as a bit of a loose end?

I don't think it's a loose end. The change in the disciplinary procedures for an election which may be rescinded (which now omits the language about "for cause") seems to clarify that when an election may be rescinded, it is treated the same as any other motion for that purpose. The same would logically apply to what is said on pg. 251.

[Burke Balch]

A small point, perhaps, but the 11th edition, unlike previous ones, does not use the terminology "rescind" an election. Instead it refers to a motion "to remove an officer from office." RONR (11th ed.), pp. 653-54.

[Josh Martin]

A small point, perhaps, but the 11th edition, unlike previous ones, does not use the terminology "rescind" an election. Instead it refers to a motion "to remove an officer from office." RONR (11th ed.), pp. 653-54.

Interesting. Is the purpose of this change in language to avoid conflicts with what is said in RONR, 11th ed., pg. 308, lines 13-15, 24-27?

[Burke Balch]

The language on page 308 is unchanged (except for updating the cross-references) from the 10th edition. Both the 10th and the 11th editions, explicitly state "For the case of an election, see pp. . . . regarding removal of a person from office." So in both editions the reader is referred to Chapter 20, rather than to lines 13-15 and 24-27 (line numbers from the 11th edition), for the rules governing removal. Thus, I don't think there was a conflict that needed to be avoided.

What using a sui generis motion to remove from office, rather than applying the motion Rescind to certain removals from office, does appear to do is help resolve the query posted by Dr. Stackpole. The general rule, as he points out, is that a later conflicting motion adopted by the vote necessary to rescind or amend something previously adopted supersedes the conflicting previously adopted motion. However, as the lines Mr. Martin cites from page 308 provide, the assembly cannot rescind or amend an election if the one elected "was present or has been officially notified of the election." Instead, the procedure for removal found on pages 653-54 must be followed. That procedure -- which in the 11th edition does not provide for rescinding an election -- either a) authorizes a vote to remove requiring for adoption a 2/3 vote, a majority vote with previous notice, or a majority of the entire membership if the term of office contains the equivalent of "or until their successors are elected" or b ) otherwise allows removal only through disciplinary proceedings (investigating committee, trial, etc.).

Principle of Interpretation 3 states, "A general statement or rule is always of less authority than a specific statement or rule and yields to it." RONR (11th ed.), p. 589, ll. 17-18 (emphasis in original). Assuming the incumbent was present or has been notified, it seems obvious that, when the term of office does not contain the equivalent of "or until their successors are elected," a subsequent election for the same term of office is invalid even if the vote was 2/3, a majority with previous notice, or a majority of the entire membership-- the incumbent may be replaced only after removal through disciplinary proceedings. In addition, however -- based on the two preceding paragraphs of this post-- I also conclude that even when the term of office does contain those words, a subsequent election for the same term of office is invalid, even in the case of such a vote -- unless the assembly first removes the officer by such a vote and thereafter conducts the election for the replacement.