Not enough Board Members? [Bruce VIDA]

[Guest Guest]

Our bylaws state:

 

A minimum of 15 and a maximum of 20 members elected by a majority vote at the annual meeting of the Association, or at a special meeting called for the purpose of electing the Board of Directors on a ten day prior written or electronic notice to the membership.

 

At the last general election, the nominating committee was unable to come up with more than 10 nominees. Adding to that total was a total of 4 nominees from the floor.  The result was that the election resulted in only 14 directors.  In the three months’ time since the election, one board member has resigned, and the Board has not responded to requests to appoint additional members to bring the total up to the minimum of 15 indicated in the bylaws.

What are the ramifications of a Board of Directors continuing to transact business without attempting to appoint a full Board?  Is this appropriate?  Is it lawful?  If so, how can it be challenged?

 

Thanks!

[Edgar Guest]

Vacancies occur all the time so it's not uncommon for a board to find itself with fewer members than required. The obligation of the organization (or, in this case, the board) is to fill those vacancies as soon as possible.

 

As long as a quorum is present, a vacancy (or two or three) won't cause the business of the board to grind to a halt.

 

If you don't think the board members are doing their job you could try to start disciplinary proceedings against them. But the worst you could do is remove them from office (and/or expel them from the organization) and that might be counter-productive.

 

(Questions regarding lawfulness should be addressed to an attorney.)

[Richard Brown]

Since the bylaws require the board to consist of 15 to 20 members and only 14 were elected, isn't the resulting situation an incomplete election, rather than a vacancy, as to the 15th member?  I agree that the resignation of one member creates a vacancy as to his seat, which can be filled as other vacancies are filled, but it seems to me that the "15th member" needs to be elected the same way as the first 14 were elected.... by the membership at an election.

[Edgar Guest]

 . . . isn't the resulting situation an incomplete election, rather than a vacancy, as to the 15th member? 

 

If the board needs to have at least fifteen members and there are currently only thirteen members, I think it's safe to say that there are two vacancies.

 

But, yes, one of the vacancies needs to be should be filled by completing the election.

 

Edited @5:45 to add: Of course another option is to amend the bylaws to reduce the size of the board. And pick a specific number instead of a min/max range.

[Guest Guest]

All good points.  I'm curious though as to the validity of transacting business with a Board that doesn't meet the minimum requirement specified in the bylaws.  I can't seem to find any comment on this in RONR or the Illinois General Not-for-Profit Corporation Act which is the superseding authority when the bylaws and RONR do not cover a situation.

 

This organization has been dysfunctional for several years, didn't have any officers other than a treasurer in 2014, hasn't kept minutes in more than a year either for Board or Association meetings, and ignored the duty to hold elections at the annual meeting last November.  It was only new members pushing the issue that got an election in Feb, and it didn't yield a full Board.

 

I'm wondering if this is worth the effort.

[Gary Novosielski]

Well, we can't tell you if it is worth the effort.  But RONR is pretty clear that valid business can be transacted although the board may not be fully populated, so long as a quorum is present.  What do your bylaws say about the quorum requirements for meetings of the board, if anything? 

 

It's not unusual for bylaws to specify quorum requirements only for general memberhips meetings, and if that's the case, the default quorum for meetings of the board is a majority of board members.  Members means living breathing board members, not empty seats.  if you currently have 13 members, your default quorum would  be seven.

 

But the board should be trying to fill at least the midterm vacancy, if it has that power (and duty). 

 

I concur that the 17th  15th seat which was not filled at the election may not be considered a midterm vacancy, but rather an incomplete election, and that the election should be completed (and repeated) as long as necessary to fill that expired term.

[Edgar Guest]

I concur that the 17th seat which was not filled at the election may not be considered a midterm vacancy, but rather an incomplete election, and that the election should be completed (and repeated) as long as necessary to fill that expired term.

 

The 17th seat?

[Gary Novosielski]

The 17th seat?

 Oops, 15th.

[Edgar Guest]

 Oops, 15th.

 

Or maybe the 14th?

[Richard Brown]

Or maybe the 14th?

Nope.  The 15th.  They elected 14, but the bylaws call for a minimum of 15.

 

But, I guess if you want to say it's the 14th seat because they have a resignation, I guess it doesn't much matter.  But, one of them needs to be filled by completing the election and the other one in the manner specified for filling vacancies.

[BruceVIDA]

 What do your bylaws say about the quorum requirements for meetings of the board, if anything? 

 

 

 

But the board should be trying to fill at least the midterm vacancy, if it has that power (and duty). 

 

 

The bylaws do state a majority of the Board Members constitutes a quorum of the board.

 

Currently, the Board is doing NOTHING to fill the vacant seat, and I'm quite certain that they have no idea that there is an incomplete election at hand. I was unaware of that myself until I read it in this thread. 

 

I suppose a few aspirin might be of use now...and perhaps a weapon of some kind....   

 

Thanks!

[Josh Martin]

What are the ramifications of a Board of Directors continuing to transact business without attempting to appoint a full Board?  Is this appropriate?  Is it lawful?  If so, how can it be challenged?

 

There are no ramifications and it is perfectly appropriate for the board to conduct business, although the board certainly should attempt to fill the vacancies. It could be challenged via a Point of Order and Appeal or by a motion ordering the board to appoint more board members. Questions about legality should be referred to a lawyer.

 

Since the bylaws require the board to consist of 15 to 20 members and only 14 were elected, isn't the resulting situation an incomplete election, rather than a vacancy, as to the 15th member?  I agree that the resignation of one member creates a vacancy as to his seat, which can be filled as other vacancies are filled, but it seems to me that the "15th member" needs to be elected the same way as the first 14 were elected.... by the membership at an election.

 

When there is an incomplete election, such a position is vacant and may be filled by the vacancy procedures in the organization's bylaws, however, any such appointment is effective only until the society completes the election.

 

What's less clear to me is how the other five positions can be filled, which is one reason I don't like bylaw provisions which have a range of board members.

 

All good points.  I'm curious though as to the validity of transacting business with a Board that doesn't meet the minimum requirement specified in the bylaws.  I can't seem to find any comment on this in RONR or the Illinois General Not-for-Profit Corporation Act which is the superseding authority when the bylaws and RONR do not cover a situation.

 

This organization has been dysfunctional for several years, didn't have any officers other than a treasurer in 2014, hasn't kept minutes in more than a year either for Board or Association meetings, and ignored the duty to hold elections at the annual meeting last November.  It was only new members pushing the issue that got an election in Feb, and it didn't yield a full Board.

 

I'm wondering if this is worth the effort.

 

Well, for starters, are there people who actually want to serve on the board, and the board is turning them aside? If not, it's certainly not worth the effort. If there are, then it might be.

 

Currently, the Board is doing NOTHING to fill the vacant seat, and I'm quite certain that they have no idea that there is an incomplete election at hand. I was unaware of that myself until I read it in this thread. 

 

In the board's defense, considering that the society wasn't even able to fill the minimum number of board seats at the last election, the board may be under the impression that no one else wants to serve on the board. If there are, in fact, members of the society who are willing to serve on the board, they should tell the board as much. The board's response to that should tell you a lot about where to take this from here.