Sec Resigns and then nominates successor

[Kirk]

We are a National Non-Profit with elected Officers that serve as the Board of Directors.  The Secretary submitted a resignation with an effective date two weeks in the future.  The board accepted the resignation and then the resigning Sec made a motion for the SAA to fill his position until the next election which will be six weeks after his resignation effective date.

 

Our By-Laws provide for the BoD to fill vacancies on the BoD and that the interim officer would serve until the next member meeting/election.

 

My question is, can the BoD fill the vacancy prior to the position being vacant.  In effect, the resigning officer and the person who would fill his position both voted in support of the motion

 

Here is the election Article from our By-Laws:

ARTICLE 5 : ELECTIONS
Section 1
All nominees for any office must be active and in good standing in the association with a minimum of one
(1) full year of membership. All nominees for the National BOD must be a member in good
standing and have held a Chapter, State or Regional leadership position for a period of one (1) year.
Retired members cannot hold a CVMA officer position. Chapter officers in newly formed chapters are
excluded from the one year requirement.
Section 2
All elected and or appointed officers and Board of Directors must remain active members in good
standing for the duration of the term while in office.
Section 3
All officers are to be nominated and elected at the National Meeting and will assume office within 60 days
of the election and hold that office for 36 months or until their successors are duly qualified. Consecutive
terms are permitted.
Section 4
Nominations and elections to the BOD must be made at the Nationaleeting. The President will vote only
in the event of a tie.
Section 5
Members nominated for office are qualified if he or she is a paid member in good standing for a minimum of 1 year.
Section 6
BOD members will be considered for re-election in the following order, President / Secretary, VP /
Treasurer, SGT at Arms / PR. Should any Officer resign or be removed for any reason the BOD has the
authority to replace the officer and the new officer will be put up for approval by the members
and nominations for the newly filled position will also be taken at this time.
Section 7
Should an elected officer resign from office for any reason the BOD will appoint a replacement to serve
until the next National Meeting.

 

Our association is governed under Robert's Rules.

[Hieu H. Huynh]

The board can fill the vacancy when the position is vacant. Prior to the position being vacant, there is no vacancy to fill.

[jstackpo]

However, it seems perfectly proper to decide who to fill the future vacancy with, since the resignation has been accepted for the future date.  Obviously the SSA (what's that?) will not become the Secretary until the resignation effective date.

[Hieu H. Huynh]

Also, if the board didn't want the SAA (sergeant at arms) to be secretary when the position will become vacant, the board could have decided on someone else.

[Guest Kirk]

My concern is that the current Sec is voting on business that he would not be eligible to to vote for when his resignation is effective and the position becomes vacant.

[Hieu H. Huynh]

The secretary, as a member, has the rights of membership including voting on business until the secretary is no longer a member.

[Richard Brown]

I agree with Dr. Stackpole in part and with Mr. Huynh in part.  I agree with Dr. Stackpole in that I believe it is appropriate for the board to take action to fill the vacancy once the resignation has been accepted.  I agree with Mr. Huynh that the outgoing secretary retains full voting rights and may vote on his replacement as long as he is still a member of the board.   Also, just because the secretary nominated the sergeant at arms to be his replacement does not mean that the rest of the board has to agree with it.  They can nominate and vote for someone else.

[Guest Kirk]

As I see it, the BoD can fill vacant positions. Since the position will not become vacant until the effective date of the resignation, any action before that date would be premature and out of order.

The BoD is split on this issue and with the resigning officer's vote and his replacement's vote, the motion carries.

I do not see where the by-laws give the BoD the authority to fill soon to be vacant positions, which would allow the yet to be resigned officer voting rights on his replacement.

Either he is resigned or he isn't. If he isn't, there is no need for action. If he is, he can't vote.

Am I missing something here?

[Gary Novosielski]

As I see it, the BoD can fill vacant positions. Since the position will not become vacant until the effective date of the resignation, any action before that date would be premature and out of order.

The BoD is split on this issue and with the resigning officer's vote and his replacement's vote, the motion carries.

I do not see where the by-laws give the BoD the authority to fill soon to be vacant positions, which would allow the yet to be resigned officer voting rights on his replacement.

Either he is resigned or he isn't. If he isn't, there is no need for action. If he is, he can't vote.

Am I missing something here?

 

Well, he has resigned, and his resignation has been accepted, creating a vacancy--in the future, i.e., upon the effective date of the resignation, which is presumably the effective date of the acceptance. (Could it be different?)

 

I see no reason why the board, which has the power to fill vacancies, and with full knowledge that a vacancy will occur on a date certain, should not have the power to fill that vacancy, with the same effective date.

 

If the board can accept the resignation prospectively, why can't they fill the resulting vacancy prospectively?  I don't think anyone would argue that they must wait until the effective date before they move to accept the resignation.  Then why argue that they must wait until the vacancy occurs to fill it?

[Richard Brown]

Well, he has resigned, and his resignation has been accepted, creating a vacancy--in the future, i.e., upon the effective date of the resignation, which is presumably the effective date of the acceptance. (Could it be different?)

 

I see no reason why the board, which has the power to fill vacancies, and with full knowledge that a vacancy will occur on a date certain, should not have the power to fill that vacancy, with the same effective date.

 

If the board can accept the resignation prospectively, why can't they fill the resulting vacancy prospectively?  I don't think anyone would argue that they must wait until the effective date before they move to accept the resignation.  Then why argue that they must wait until the vacancy occurs to fill it?

I agree and I think this language from page 291 supports the theory that the vacancy is created by the acceptance of the resignation:

 

"A request to be excused from a duty essential to the functioning of a society or assembly is a question of privilege affecting the organization of the assembly; and so also is the filling of a vacancy created by the acceptance of a resignation. In such cases, the assembly can proceed immediately to fill the vacancy, unless notice is required or other provision for filling vacancies is made in the bylaws."

 

Edited to add:  As a practical matter, in the world of organizations, business, politics and government, it is quite common for a resignation to have a future effective date so as to give the appointing power the ability to select a replacement for the sake of continuity before the position truly becomes vacant.

[Guest Kirk]

The by-laws state that the BoD has the authority to replace officers due to a resignation or removal. Resignation is defined as quiting or leaving a position. How could a position be filled when it is not vacant? If the acceptance of the resignation constitutes vacating the position, how does that square with the resigning officer retaining voting rights?

[Guest Guest]

I do not question the ability to resign at a future date, just that the business is not yet in order. The BoD could get their ducks lined up so that at the next meeting, the business could be dispensed with in short & orderly fashion.

[Gary Novosielski]

The by-laws state that the BoD has the authority to replace officers due to a resignation or removal. Resignation is defined as quiting or leaving a position. How could a position be filled when it is not vacant? If the acceptance of the resignation constitutes vacating the position, how does that square with the resigning officer retaining voting rights?

 

Because the acceptance of the resignation creates a vacancy with a future effective date.  The filling of the vacancy would name a replacement with the same effective date.  What's the problem?

[Edgar Guest]

Resignation is defined as quitting or leaving a position.

 

No. In RONR-Land a resignation is a request to be excused from a duty. The board can either grant the request (including its effective date) or it can reject the request (perhaps because it doesn't like the effective date).

 

The president could just as easily wait two weeks and submit his resignation then.

[Kirk]

Because the acceptance of the resignation creates a vacancy with a future effective date.  The filling of the vacancy would name a replacement with the same effective date.  What's the problem?

The problem is that the by-laws give the board the authority to replace members due to a resignation or removal.  The resignation is effective on 1 May, the action to replace the resigning officer was taken on 14 April.  There is no vacancy until 1 May.  By allowing the resigning officer to participate in business that is a result of his resignation seems counter to the purpose.  I really do not have a problem with the BoD being proactive, but the BoD is split on this and this issue certainly creates a conflict of interest.

[George Mervosh]

The problem is that the by-laws give the board the authority to replace members due to a resignation or removal.  The resignation is effective on 1 May, the action to replace the resigning officer was taken on 14 April.  There is no vacancy until 1 May.  By allowing the resigning officer to participate in business that is a result of his resignation seems counter to the purpose.  I really do not have a problem with the BoD being proactive, but the BoD is split on this and this issue certainly creates a conflict of interest.

 

But it's not against any rule in RONR.  So what more can we tell you?

[Gary Novosielski]

I don't see any conflict.  If anything it would create a congruence of interest.

 

The BoD may be split, but RONR is pretty clear.  And since the replacement does not take effect until the vacancy is real, everything works out fine.  At no time are there two secretaries, and at no time are there zero secretaries.

[Edgar Guest]

By allowing the resigning officer to participate in business that is a result of his resignation seems counter to the purpose.

In November, 2016, I assume President Obama will vote for someone who will occupy his office in January, 2017. Just because a member is leaving in the future doesn't mean he can't vote in the present. If that were the case, no one could vote.

[Kirk]

No. In RONR-Land a resignation is a request to be excused from a duty. The board can either grant the request (including its effective date) or it can reject the request (perhaps because it doesn't like the effective date).

 

The president could just as easily wait two weeks and submit his resignation then.

We are saying the same thing Edgar, quiting or leaving and being excused from a duty are the same.  The difference is your charictorization of it being a request.  In this case that is not relevent.  If the resignation were still a request, the rest of it would not be an issue.

 

On to the question, if the request to be releived from a duty were granted and part of that duty was the right to vote, would not that right to vote be relieved at the time of acceptance?  If the vacancy is to be assumed, then the loss of rights would then need to be assumed too (as of the date of acceptance).  It does not seem logical to me that a resigning officer could tender a resignation for a future date and then be a swing vote to fill his vacancy with his chosen replacement.

[Edgar Guest]

if the request to be relieved from a duty were granted and part of that duty was the right to vote, would not that right to vote be relieved at the time of acceptance?

 

Duties and rights are apples and oranges.

 

In any case, in this instance the date of acceptance and the effective date of the resignation are not the same.

[Kirk]

In November, 2016, I assume President Obama will vote for someone who will occupy his office in January, 2017. Just because a member is leaving in the future doesn't mean he can't vote in the present. If that were the case, no one could vote.

POTUS will not loose any voting privleges when he is no longer POTUS.  The resigning BoD member looses his voting rights, in this regard, when he is relieved from his duty.  Apples & oranges.

[Edgar Guest]

The resigning BoD member loses his voting rights, in this regard, when he is relieved from his duty.

 

Yes. And your board has apparently agreed to his request not to be relieved of his duties for two more weeks.

[Richard Brown]

Kirk, we have answered the question over and over.  We are all (except you) of the opinion that RONR is quite clear that the vacancy is created by the acceptance of the resignation, not by the act of the secretary walking out the door on the effective date of his resignation.  Filling vacancies created by resignations prior to the effective date of the resignation is quite common.  The resignation has been accepted and is irrevocable.  The vacancy may be filled now to be effective on the same date as the resignation.

[Gary Novosielski]

On to the question, if the request to be releived from a duty were granted and part of that duty was the right to vote, would not that right to vote be relieved at the time of acceptance?  If the vacancy is to be assumed, then the loss of rights would then need to be assumed too (as of the date of acceptance).  It does not seem logical to me that a resigning officer could tender a resignation for a future date and then be a swing vote to fill his vacancy with his chosen replacement.

 

Would it seem logical to you that if the board received notice that the rent on the meeting room was going up next year, that it might consider a fund-raising effort beginning now, or would it be required to wait until next year before trying to raise money to cover this cost?

 

Is the board not permitted to act based on something that might happen?  And if they are, why would the board not be permitted to act on something that is definitely going to happen?

[Kirk]

 

 

"A request to be excused from a duty essential to the functioning of a society or assembly is a question of privilege affecting the organization of the assembly; and so also is the filling of a vacancy created by the acceptance of a resignation. In such cases, the assembly can proceed immediately to fill the vacancy, unless notice is required or other provision for filling vacancies is made in the bylaws."

Does this not assume that the resignation is accepted and then the vacancy is filled?  If this is the case then in this example, the resigning officer would be excused from his duties at the time of the filling of his vacancy and that officer would not have the privileges of that office during the business of appointing his replacement.  I do not see that this text considers resignations tendered for a future date.    If the effective date of the acceptance of resignation is the same as the effective date of the resignation, then would the effective date of the following action need to be after the effective date of the acceptance.  If so, then the resigning officer would not then have voting privileges on this matter.

I can see why Parliamentarians are so popular.  :-)

:-)