All seats confirmed vacant, but holders still conducting business

[Humane Society member]

All Directors' and Officers' seats in our society are vacant.  The By Laws call for elections each year, but the last was held in 2009 and since that time, all terms have expired - one in 2010, one in 2012 and all others in 2011.  Those members holding the seats have carried on as though they still have authority.  You advice was to call a point of order, but i thought that would cause divisive actions.  Instead, they were notified of the vacancies and have called for an election in November (as per the By Laws).  They still sit at a table in front of membership (most of whom have no idea they are not valid officers, etc.) and make decisions/committments as usual.  This will go on until January 1, 2014 when the newly elected officers are seated.  Is this in any way legal?  What can we do?  The complications are that we are a 501c3 charitable organization under contract with our county in a law enforcement position and taking accused violators to court. How vulnerable are we?

[Josh Martin]

You advice was to call a point of order, but i thought that would cause divisive actions.

 

In circumstances like this, I'm not sure how it's possible to avoid divisive action.

 

They still sit at a table in front of membership (most of whom have no idea they are not valid officers, etc.) and make decisions/committments as usual.  This will go on until January 1, 2014 when the newly elected officers are seated.  Is this in any way legal?

 

It may be valid for some of them to continue serving until elections are completed. Do your bylaws provide that they shall serve "until their successors are elected," and is anyone still in the same position as when they were last elected by the membership?

 

What can we do?

 

If there are officers who are not validly serving, raise a Point of Order, followed by an Appeal if necessary.

 

The complications are that we are a 501c3 charitable organization under contract with our county in a law enforcement position and taking accused violators to court. How vulnerable are we?

 

That is a question for a lawyer.

[Humane Society member]

Only one is occupying a seat to which she was elected - expired in 2012. All others were appointed to the positions, some of which expired in 2011.  The By Laws do not state "until their successors are elected."   I understand the need for an attorney, we're just trying to do this as quietly as possible and with the least amount of damage.

[Humane Society member]

The question is, I suppose, can they continue to perform the duties of those offices at this time?

[Josh Martin]

Only one is occupying a seat to which she was elected - expired in 2012. All others were appointed to the positions, some of which expired in 2011.  The By Laws do not state "until their successors are elected." 

 

Okay. Based on these additional facts, I agree with your conclusion that all of the positions are vacant.

 

The question is, I suppose, can they continue to perform the duties of those offices at this time?

 

No, since they are not actually in those offices.

[sMargaret]

They still sit at a table in front of membership (most of whom have no idea they are not valid officers, etc.) and make decisions/committments as usual.  

 

Do they do this at Board meetings, or General member meetings?

 

If they are doing this at General meetings, then there is another problem - the Board is not present, as a Board, and a general member meeting. The Chairperson should preside, in most circumstances, but the Board does not typically have a role (according to RONR; your own bylaws may vary).

 

If they are doing this at Board meetings, that would be perfectly valid (except for the part where they're not on the Board), but then I'm a bit confused about what all the membership is doing there.