Guest Eileen R Posted January 12, 2015 at 09:24 PM Report Share Posted January 12, 2015 at 09:24 PM If the By-Laws state the Board "may fill" a vacancy, can it be assumed that the Board does not have to fill the vacancy? The resignation was received mid December, the monthly Board Meeting is tomorrow (Jan) and the Association's general elections are in March. The Board consists of 5 Directors. The opening did not have an officer responsibility (Pres, V. Pres.,Sec, or Treas.) At the present moment it appears there will be a deadlock vote if the two names are presented. Link to comment Share on other sites More sharing options...
jstackpo Posted January 12, 2015 at 09:39 PM Report Share Posted January 12, 2015 at 09:39 PM Well.... principle of interpretation #4, p. 589, suggests that the permissive "may fill" applies only to the Board. No other group could fill the vacancy. So you may just have to scout around for a third candidate who would be acceptable to a majority of the current four directors. Or (less desirably since the 5th person does have a vote on the board) just leave the slot vacant until the March elections. Link to comment Share on other sites More sharing options...
Bruce Lages Posted January 13, 2015 at 03:28 AM Report Share Posted January 13, 2015 at 03:28 AM In addition to Dr. Stackpole's answer, I would say that this depends in part on what position is vacant. You say that the vacancy was in a position that did not have an officer responsibility, but the real question is whether this is a position that is defined in your bylaws. When the bylaws state that the association shall have certain named officers or other named positions, then the association is obligated to fill those positions. In those cases, the board should make every effort to fill the vacancy.On the other hand, if the position is something such as a committee member, then I think the board can choose whether or not to fill the vacancy. Link to comment Share on other sites More sharing options...
Gary Novosielski Posted January 13, 2015 at 03:56 PM Report Share Posted January 13, 2015 at 03:56 PM Well.... principle of interpretation #4, p. 589, suggests that the permissive "may fill" applies only to the Board. No other group could fill the vacancy. Are you saying that the language "the board may fill vacancies" would preclude the general membership from filling vacancies--especially if the board failed to act? Link to comment Share on other sites More sharing options...
Richard Brown Posted January 13, 2015 at 06:11 PM Report Share Posted January 13, 2015 at 06:11 PM Well.... principle of interpretation #4, p. 589, suggests that the permissive "may fill" applies only to the Board. No other group could fill the vacancy. Are you saying that the language "the board may fill vacancies" would preclude the general membership from filling vacancies--especially if the board failed to act?Like Gary, I question whether the permissive "may" precludes the general membership from being able to fill vacancies. I would not have a problem with Dr. Stackpole's interpretation if the bylaws said the board "shall" fill vacancies. But, the permissive "may" makes me think that the general membership may also act to fill vacancies absent clear language that the membership does not have that power. Link to comment Share on other sites More sharing options...
jstackpo Posted January 13, 2015 at 08:59 PM Report Share Posted January 13, 2015 at 08:59 PM I took the "may fill" as giving the Board the choice (not a good one to be sure) of just not filling a slot. The board still has the power, stated in the bylaws, to fill vacancies -- how does the option to not fill get around p.589 para 4)'s prohibition of other groups from doing something in the same class - i.e., filling vacancies? Link to comment Share on other sites More sharing options...
Edgar Guest Posted January 13, 2015 at 09:10 PM Report Share Posted January 13, 2015 at 09:10 PM The board still has the power, stated in the bylaws, to fill vacancies -- how does the option to not fill get around p.589 para 4)'s prohibition of other groups from doing something in the same class - i.e., filling vacancies? The question is whether the board has the exclusive power to do so. I agree that the board has the option of filling (or not filling) the vacancy. But that's not the same as saying that only the board can fill the vacancy. As for the vaunted Principles of Interpretation, they're just guidelines, not rules. The smaller the board the more power each board member has. So it could be in the remaining board members interest to not fill any vacancies. Does the general membership have to put up with this simply because the bylaws say that the board may fill vacancies but don't say that the general membership may not? Link to comment Share on other sites More sharing options...
jstackpo Posted January 13, 2015 at 09:36 PM Report Share Posted January 13, 2015 at 09:36 PM Yet if RONR laid out all the possible "Thou shalt not"s the book would grow to proportions considerably larger than the book containing the original 10 "Thou shalt not" set. p. 598, para 4 deserves a close reading. Link to comment Share on other sites More sharing options...
Richard Brown Posted January 13, 2015 at 10:00 PM Report Share Posted January 13, 2015 at 10:00 PM p. 598, para 4 deserves a close reading.John, I think you are misinterpreting that particular principle of interpretation, at least as applied to the provision at issue that the board may fill vacancies. I don't think the cited bylaw provision, based on what we have been provided, gives the board the exclusive power to fill vacancies. Link to comment Share on other sites More sharing options...
jstackpo Posted January 14, 2015 at 03:53 AM Report Share Posted January 14, 2015 at 03:53 AM The bylaw doesn't, but the RONR rule, as cited,does. Link to comment Share on other sites More sharing options...
Dan Honemann Posted January 14, 2015 at 11:03 AM Report Share Posted January 14, 2015 at 11:03 AM The bylaw doesn't, but the RONR rule, as cited,does. No, it doesn't. Nothing in RONR suggests that a provision in the bylaws which merely states that the board "may fill" a vacancy vests exclusive authority in the board to do so, and divests the membership of all of its authority with respect thereto. Principal of interpretation 4 on pages 589-90 has no application whatsoever in this regard. It states that: "There is a presumption that nothing has been placed in the bylaws without some reason for it. There can be no valid reason for authorizing certain things to be done that can clearly be done without the authorization of the bylaws, unless the intent is to specify the things of the same class that may be done, all others being prohibited. Thus, where Article IV, Section I of the Sample Bylaws (p. 585) lists certain officers, the election of other officers not named, such as a sergeant-at-arms, is prohibited." The filing of vacancies by an organization's executive board is obviously not something "that can clearly be done without the authorization of the bylaws". In fact, just the opposite is true. Link to comment Share on other sites More sharing options...
jstackpo Posted January 14, 2015 at 11:28 AM Report Share Posted January 14, 2015 at 11:28 AM OK, I stand corrected. Thank you. Link to comment Share on other sites More sharing options...
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