Sec Resigns and then nominates successor

[Edgar Guest]

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.

 

Here's what happened:

 

Your secretary submitted a request to be excused from his duties effective two weeks from now. The board accepted that request. It's a done deal. 

 

Knowing that, in two weeks, there would be a vacancy in the office of secretary, the board (including the current secretary) selected a successor.

 

The board had other options. It could have told the secretary that it would only accept his resignation if it was effective immediately. It could have rejected the resignation as submitted and taken steps to remove the secretary from office. It chose neither of those options.

[Kirk]

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?

I do not have a problem with the BoD looking for replacements or asking for nominations.  I would take issue if the BoD attempted to obligate a future BoD to monetary obligations outside of their fiscal authority.  So if the BoD signed a contract that exceeded the current budget terms, I would not think that would be allowed.

 

The board can take action on future events, unless they are limited by the by-laws or some other limiting factor.

[Kirk]

Here's what happened:

 

Your secretary submitted a request to be excused from his duties effective two weeks from now. The board accepted that request. It's a done deal. 

 

Knowing that, in two weeks, there would be a vacancy in the office of secretary, the board (including the current secretary) selected a successor.

 

The board had other options. It could have told the secretary that it would only accept his resignation if it was effective immediately. It could have rejected the resignation as submitted and taken steps to remove the secretary from office. It chose neither of those options.

I understand the process.  The issue I have is that our by-laws allow the board to replace officers who have resigned or been removed.  This officer will resign.  It has not happened yet.  So even with the best of intentions, any vote to replace the officer that is still sitting is out of order IAW the by-laws.  This would not stop the BoD from asking for nomination or any other action, but to vote on and in effect, replace a sitting officer seems to me to be premature.

[Edgar Guest]

I understand the process.  The issue I have is that our by-laws allow the board to replace officers who have resigned or been removed.  This officer will resign.  It has not happened yet.

 

But it has happened. He has submitted his request to be excused from duty. That's the resignation. And it's been accepted.

 

What hasn't occurred yet is the vacancy. And, thanks to the advance notice, there won't be a vacancy. 

 

In any case, I've already violated my personal rule about adding to threads with more than ten fifteen twenty twenty-five posts so I'm outta here.

[Richard Brown]

But it has happened. He has submitted his request to be excused from duty. That's the resignation. And it's been accepted.

 

What hasn't occurred yet is the vacancy. And, thanks to the advance notice, there won't be a vacancy. 

 

In any case, I've already violated my personal rule about adding to threads with more than ten fifteen twenty twenty-five posts so I'm outta here.

I'm outta here, too.

[Dan Honemann]

In any case, I've already violated my personal rule about adding to threads with more than ten fifteen twenty twenty-five posts so I'm outta here.

 

 

I'm outta here, too.

 

If I had been one of the responders in this thread, I would have been out long ago. You all seem to have the patience of Job.

[Gary Novosielski]

I understand the process.  The issue I have is that our by-laws allow the board to replace officers who have resigned or been removed.  This officer will resign.  It has not happened yet.  So even with the best of intentions, any vote to replace the officer that is still sitting is out of order IAW the by-laws.  This would not stop the BoD from asking for nomination or any other action, but to vote on and in effect, replace a sitting officer seems to me to be premature.

 

If you were right, I'd agree with you.

[Shmuel Gerber]

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.

 

 

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.

 

 

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.

 

Saying that RONR is clear on the subject doesn't make it so. My recollection is that when the question of future vacancies has come up on this message board before, there was a great variety of opinion on the subject because RONR does not address it directly.

One thing is clear, however: If the board has the power to fill a future vacancy, then every current member of the board -- including the one whose resignation or removal will cause (or has caused) the future vacancy -- may vote on the question of who the replacement will be.

[Dan Honemann]

 My recollection is that when the question of future vacancies has come up on this message board before, there was a great variety of opinion on the subject because RONR does not address it directly.

 

Yes, and some of those opinions were right.

[Gary Novosielski]

Yes, and some of those opinions were right.

 

 

Yes, and an infinite number of monkeys will eventually type the complete works of Shakespeare.  

 

Count me among those who think that the situation presented here is fairly straightforward, with a firm effective date of resignation, and a definite acceptance creating a future vacancy on a date certain.  If there's a rule preventing the naming of a person to fill that future vacancy, I can't find it.

 

As I remember, there was a variety of opinion on a question I once posed--whether it was in order to submit a resignation to be effective "upon the naming of my successor".  But that's admittedly a more dicey scenario, containing the seeds of a Catch-22 situation.

[jstackpo]

 

 

Yes, and an infinite number of monkeys will eventually type the complete works of Shakespeare.  

 

 

 

Or just one will if you wait long enough. 

 

But as for that monkey producing the complete RONR, that may take a little longer.

[Gary Novosielski]

Or just one will if you wait long enough. 

 

But as for that monkey producing the complete RONR, that may take a little longer.

 

Longer than enough?  Seems excessive.

[Kirk]

Saying that RONR is clear on the subject doesn't make it so. My recollection is that when the question of future vacancies has come up on this message board before, there was a great variety of opinion on the subject because RONR does not address it directly.

One thing is clear, however: If the board has the power to fill a future vacancy, then every current member of the board -- including the one whose resignation or removal will cause (or has caused) the future vacancy -- may vote on the question of who the replacement will be.

Thanks for the input on this and I apologize if anyone thought they were obligated to respond to my thread.  As I see this issue, RONR is not clear on the subject and the matter is up for determination based on the perspective of those involved.  The By-Laws do not give the board the authority to fill future vacant positions in my opinin.  That seems to be the crux of the issue.  Since the officer will not be granted relief of his duties until a future date, he has not resigned, he has stated his intentions. The BoD has also stated it's intention to provide the relief from duty.  Nothing is effective until the date of resignation.  Nothing is irrevocable.  Even the dead have been brought back to life.

[SaintCad]

I would vote with the "replacement is premature" crowd.  A resignation occurs when the person leaves, not when they give a date in the future that they will be excused from duty.  Second, section 7 seems to indicated that a resignation results in a vacancy.  I know it is up to the Board of Directors to interpret that section but I just cannot think that an office is vacant when the current Sec'y is still in that office for the next two weeks.

 

Lastly, I get the point that this is the BOD that will appoint the next Sec'y but it is not the same board.  Suppose it is split 3/2 right now in favor of the SAA to take over, if the current Sec'y is not a member of the BoD upon the resignation taking effect, then the vote would be 2/2.  Also, who knows what will happen in the next 2 weeks.  The chair or member of the BoD or the SAA may resign or get hit by a bus.  I don't think we can assume the BoD will be the same 2 weeks from now and in fact I don't think it will since the Sec'y will NOT be on the BoD hence the vacancy.

[Josh Martin]

Thanks for the input on this and I apologize if anyone thought they were obligated to respond to my thread. As I see this issue, RONR is not clear on the subject and the matter is up for determination based on the perspective of those involved. The By-Laws do not give the board the authority to fill future vacant positions in my opinin. That seems to be the crux of the issue. Since the officer will not be granted relief of his duties until a future date, he has not resigned, he has stated his intentions. The BoD has also stated it's intention to provide the relief from duty. Nothing is effective until the date of resignation. Nothing is irrevocable. Even the dead have been brought back to life.

It seems to me that the member has resigned, but the resignation is not yet effective. This may well be a distinction without a difference, but I don't think it is. If the member had simply stated his intention to resign two weeks later, then it would be up to the board two weeks later to decide whether to grant that request. In this case, however, the member actually submitted a letter of resignation, effective two weeks later, and the board has granted it.

Because of this, there will be no need for any further action by the board on this matter. When the effective date arrives, the member will no longer be the Secretary. Additionally, since the Secretary's resignation has already been accepted, it seems to me that the Secretary cannot withdraw his resignation unless the board permits him to do so, nor can the board revoke its acceptance of the resignation unless the Secretary permits it to do so. That is, the only way there will be a change is if the board and the Secretary agree to have him continue serving.

I would vote with the "replacement is premature" crowd. A resignation occurs when the person leaves, not when they give a date in the future that they will be excused from duty. Second, section 7 seems to indicated that a resignation results in a vacancy. I know it is up to the Board of Directors to interpret that section but I just cannot think that an office is vacant when the current Sec'y is still in that office for the next two weeks.

Lastly, I get the point that this is the BOD that will appoint the next Sec'y but it is not the same board. Suppose it is split 3/2 right now in favor of the SAA to take over, if the current Sec'y is not a member of the BoD upon the resignation taking effect, then the vote would be 2/2. Also, who knows what will happen in the next 2 weeks. The chair or member of the BoD or the SAA may resign or get hit by a bus. I don't think we can assume the BoD will be the same 2 weeks from now and in fact I don't think it will since the Sec'y will NOT be on the BoD hence the vacancy.

It is certainly correct that the office is not vacant when the Secretary is still in office, but based upon the resignation which has been submitted and accepted, the office will be vacant when the effective date of the resignation arrives, and it seems perfectly appropriate for the board to make an appointment to fill the vacancy with the same effective date.

It is undoubtedly correct that none of this is set in stone and no one can see the future, so it may well be possible that the position will not, in fact, be vacant at that time, because the Secretary and the board have changed their minds. This fact doesn't seem especially problematic to me. If the position is not, in fact, vacant at the time of the effective date of the appointment, then the appointment will not take place.

As for the other point, it is correct that the members of the board at this time will be different (in at least one respect) than the members of the board at the time the resignation becomes effective, but it is still the same board, and nothing about this fact suggest to me that the board is prohibited from determining who will fill the vacancy now.

Now, as has been noted, it will ultimately be up to the board to interpret the parliamentary rules in this situation, but based upon the rules of RONR and the facts which have been provided, it is my opinion that nothing in RONR prohibits the board from filling the vacancy now, if it wishes to do so.

[Dan Honemann]

Josh, you (and, as best I can determine, Messrs Stackpole, Guest, Brown, Novosielski, Mervosh, and perhaps others I may have missed) have got this right.

 

As previously noted, it's time to move on.

[SaintCad]

It is certainly correct that the office is not vacant when the Secretary is still in office, but based upon the resignation which has been submitted and accepted, the office will be vacant when the effective date of the resignation arrives, and it seems perfectly appropriate for the board to make an appointment to fill the vacancy with the same effective date.

 

Hypothetical:  Vote is taken now and SAA is appointed by a vote of 3 to 2.  Secretary's resignation would make the vote 2 to 2 as they now lost voting rights.  New BoD cannot rescind the motion previously adopted as it fails 2 to 2.  So did the Board in office at the time the vacancy really fill the position or was it a different Board?

 

But here is the big problem I have with this in theory.  What if other members of the Board change in the next 2 weeks.  That Board is held to a different standard when the vacancy actually occurs since they need 2/3 or majority with prior notice to Rescind.

[jstackpo]

Hypothetical:  Vote is taken now and SAA is appointed by a vote of 3 to 2.  Secretary's resignation would make the vote 2 to 2 as they now lost voting rights.  New BoD cannot rescind the motion previously adopted as it fails 2 to 2.  So did the Board in office at the time the vacancy really fill the position or was it a different Board?

 

But here is the big problem I have with this in theory.  What if other members of the Board change in the next 2 weeks.  That Board is held to a different standard when the vacancy actually occurs since they need 2/3 or majority with prior notice to Rescind.

 

A Majority of the entire board (with no notice) can rescind, too.  So if all (or most all) of the Board members routinely show up there is no "different standard".

[Josh Martin]

Hypothetical:  Vote is taken now and SAA is appointed by a vote of 3 to 2.  Secretary's resignation would make the vote 2 to 2 as they now lost voting rights.  New BoD cannot rescind the motion previously adopted as it fails 2 to 2.  So did the Board in office at the time the vacancy really fill the position or was it a different Board?

 

But here is the big problem I have with this in theory.  What if other members of the Board change in the next 2 weeks.  That Board is held to a different standard when the vacancy actually occurs since they need 2/3 or majority with prior notice to Rescind.

 

There is no "different board." It's the same board even if all of the board members change.

 

It is correct that it is generally more difficult to remove an officer than to elect one - and possibly even more difficult than you suggest. An election to office cannot be rescinded. Depending on how the bylaws are worded, it may be possible to remove the member from office by the same vote as for rescinding a motion (a 2/3 vote, a vote of a majority of the entire membership, or a majority vote with previous notice), or it may be necessary to use formal disciplinary proceedings, including a trial. See FAQ #20 for more information.