Incomplete Election or a Vacancy ?

[jstackpo]

Suppose...

 

Bylaws have the proper "or until..." phrase (p. 574) related to the term in office;

 

Association cannot find a candidate for a particular non-presidential office at election time;

 

The Board is authorized to fill vacancies.

 

For the time being, of course, after the (partially) fruitless election meeting, the incumbent continues in office in an extension of his term, while the Nominating Committee tries harder to find a candidate to nominate and thus complete the election.  And they fail. Repeatedly. For many meetings of the association.

 

After a while, the lame duck incumbent announces that he has had quite enough thank you, and resigns (or better, leaves town so there is no question that he is unable to perform his duties).   What does he leave behind?  An empty office that still has to be filled by "completing the election" (p. 444) or a true "vacancy" that the Board can fill (presuming they can find somebody)?

 

If an incomplete election persists for "enough" time, does the unfilled position somehow get transmogrified into a vacancy and can be filled by alternate means?  How much is "enough"?

 

 

[J. J.]

As a practical matter, if the assembly cannot find a candidate to elect, why would the Board suddenly be able to do so?

 

I would say that if the assembly can complete the election, i.e. will meet withing the quarterly time interval, no vacancy has occurred. 

[Sean Hunt]

I'm inclined to take the opposite position: the Board can elect a President to fill the vacancy until the term of office is completed, that is, until the assembly completes the election. That the assembly is considering the election is, I think, immaterial. Because the assembly has not actually made a decision on the matter, the Board making such a selection does not conflict in any way with a decision of the assembly.

Consider instead if the assembly had chosen instead to postpone the election deliberately, perhaps to seek better candidates. Would that stop the Board from acting to fill a sudden vacancy?

[Timothy]

One way to look at is that the vacancy is in the previous term while the election will select someone for the new term. If the officer had resigned before his year was up, the board would find someone to complete his term, then the assembly would hold an election as usual. In this case, the term has been extended due to indecision, so the person the board selects is serving out the remainder of the extended term.Once the assembly elects someone, the new term begins.

[Dan Honemann]

I agree with Messrs. Hunt and Fish. (A nice combination.)

 

In the situation described (perhaps it wasn't necessary to make it quite so unrealistic), the board may accept the resignation and then elect someone to fill the vacancy thus created.

[jstackpo]

OK, that all makes sense.

 

Now suppose the association does not have the "or until..." phrase in place.

 

At the end of the incumbent's term, he is out of office and (with the same assumptions as before)  nobody is elected to go into the office. And there is no election at the next meeting either, &c, &c.

 

Is that empty office the result of an incomplete election, or is it a "vacancy" that the Board can fill?

 

Does the empty office ever become a "vacancy"?  If so, how?

[Dan Honemann]

OK, that all makes sense.

 

Now suppose the association does not have the "or until..." phrase in place.

 

At the end of the incumbent's term, he is out of office and (with the same assumptions as before)  nobody is elected to go into the office. And there is no election at the next meeting either, &c, &c.

 

Is that empty office the result of an incomplete election, or is it a "vacancy" that the Board can fill?

 

Does the empty office ever become a "vacancy"?  If so, how?

 

Well, there certainly is a vacancy in that office, which vacancy has occurred as a result of the failure of the membership's assembly to elect a successor.

 

In such an instance, I think the question as to whether or not the board can elect someone to fill the vacancy, and for how long, will depend upon facts that we do not have, such as exactly what the bylaws provide concerning the board's powers, what action was taken at the membership's meeting, and whether or not the membership's assembly has given the board any instructions in this regard.

[jstackpo]

An ancillary question arises from the assertion in RONR on p. 444, line 14-15:  "the election is completed at the next regular meeting".

 

OK ...  yeah.... but suppose it isn't?

 

There seems to be an implicit suggestion (line 14) that if a quarter goes by with no completion of the election the rules might change.  And it is certainly reasonable (although unstated) that the Board could step in an make an appointment to fill the vacancy at that point, but not before the quarter has passed. 

 

(I have been trying to be careful and refer to an "empty position" as one that only a general membership election can fill by completion, and a true "vacancy" that the Board is explicitly authorized to fill.)

 

All this is not (entirely) hypothetical  --  I'm treasurer of a chapter (with the "or until..." clause in place) and I am trying to get out of the job in a responsible manner:  for the last few regular meetings there has not been a quorum present, so no scheduled elections have taken place. Clearly incomplete.  There is a potential treasurer in the wings, so it seems my next step is to formally resign from my holdover "or until" position, thus clearing the way for the Board to appoint the new treasurer  in the (now extant, since I resigned) true vacancy. 

[Dan Honemann]

There seems to be an implicit suggestion (line 14) that if a quarter goes by with no completion of the election the rules might change.  And it is certainly reasonable (although unstated) that the Board could step in an make an appointment to fill the vacancy at that point, but not before the quarter has passed. 

 

 

I don't agree that there is any such suggestion implicit in what is said on page 444.

 

 

 

(I have been trying to be careful and refer to an "empty position" as one that only a general membership election can fill by completion, and a true "vacancy" that the Board is explicitly authorized to fill.)

 

 

A vacancy is a vacancy.

 

 

All this is not (entirely) hypothetical  --  I'm treasurer of a chapter (with the "or until..." clause in place) and I am trying to get out of the job in a responsible manner:  for the last few regular meetings there has not been a quorum present, so no scheduled elections have taken place. Clearly incomplete.  There is a potential treasurer in the wings, so it seems my next step is to formally resign from my holdover "or until" position, thus clearing the way for the Board to appoint the new treasurer  in the (now extant, since I resigned) true vacancy. 

 

This circumstance was addressed (and I thought resolved to your satisfaction) in the first few responses. Then you changed the facts in post #6 to remove the "or until..." clause from the bylaws, which I don't think helped to shed any light on what to do in your situation.

[jstackpo]

Perhaps I should have started a new thread for the no "or until..." case.  But its over the dam now.

 

Continuing with the NO "or until..." clause case...

 

If a Vacancy is a Vacancy, and the Board is authorized to fill vacancies, what is to prevent them (it)  from jumping in immediately after an incomplete election happens and appointing someone to the now empty position?  What does "completing the election" mean in this case?

 

And I am rapturously happy with the solution to the problem (mine, in particular) in the case where the "or until..." phrase IS in place in the bylaws.

[Dan Honemann]

Perhaps I should have started a new thread for the no "or until..." case.  But its over the dam now.

 

Continuing with the NO "or until..." clause case...

 

If a Vacancy is a Vacancy, and the Board is authorized to fill vacancies, what is to prevent them (it)  from jumping in immediately after an incomplete election happens and appointing someone to the now empty position?  What does "completing the election" mean in this case?

 

And I am rapturously happy with the solution to the problem (mine, in particular) in the case where the "or until..." phrase IS in place in the bylaws.

 

I refer you again to the second paragraph of my response in post #7.

[Gary Novosielski]

If a Vacancy is a Vacancy, and the Board is authorized to fill vacancies, what is to prevent them (it)  from jumping in immediately after an incomplete election happens and appointing someone to the now empty position?  What does "completing the election" mean in this case?

 

I think nothing prevents them from filling it, but the new appointee would hold office only until the election is completed--which it should be, as soon as practicable. 

 

Completing the election would have the same meaning it has in any other case.