Recalling a Board Member and Rescinding that decision

[LizBirch]

I've seen no evidence of such a "procedure" (or "process"). The bylaws you cited merely allow the board to make a recommendation.

 

How did this recommendation snowball into a seemingly irreversible procedure with ballots mailed? Did the membership vote to act on the recommendation?

 

Who authorized the mailing of the ballots?

 

President was elected by the membership (overwhelmingly) and take seat 6/1/15

6 members of the board voted to "Recall" the incoming President.  Even though voted in by the membership

2 abstained and 1 No vote 

 

An email blast was sent out to members stating a Recall was voted on and ballots will be coming mid June with votes to be received by July 30. Ballots have not been mailed yet but are scheduled to be send in about two weeks.

 

Newly elected board members begin 6/1/15 and want to rescind this action.   (old board had an axe to grind)

This is unnecessary, drastic and not in the associations best interest.

 

Upon receiving the email notification of this upcoming Recall members are very upset.  The incoming board wants to stop this, save the aggravation and expense. 

Basically the incoming board wants to undo what the outgoing board members did. 

[Edgar Guest]

6 members of the board voted to "Recall" the incoming President.

There appears to be no such thing as a "recall". 

An email blast was sent out to members stating a Recall was voted on and ballots will be coming mid June with votes to be received by July 30.

Since there's no such thing as a "recall", there's no way to vote on a "recall". It seems your board is making things up.

[Richard Brown]

There appears to be no such thing as a "recall". 

Since there's no such thing as a "recall", there's no way to vote on a "recall". It seems your board is making things up.

Not only that, but it seems that only six directors voted to recommend this "recall" whereas the bylaws require that eight board members vote to remove an officer. 

 

I agree that the bylaw provision we have been shown makes no provision for recall.  But, even if recall and removal  are considered as being  synonymous, the vote was two votes short of what was needed.

 

And the bylaw provision quoted seems to have conflicting provisions regarding removing someone without cause vs removal with cause.  Perhaps that provision was meant to provide for different requirements for removing an officer vs a board member, but it is not nearly as clear as it should be.

 

And I have see no evidence that the person subject to this "recall" action was afforded the opportunity to appear before the board as the bylaws provide.

 

There is also the fact that this person is not yet president, raising the question whether this whole recall business is premature.  We don't know if he is currently on the board.

 

And there is the issue of whether the "email blast" notification constitutes proper notice of anything.

 

In short, this is a real mess.

 

I agree that the motion to recommend recalling this officer can be rescinded, but I question whether it has any validity to start with.  This presents an interesting situation since many on this forum are of the opinion that an invalid action cannot be rescinded because it has no validity to start with.   Those with that view take the position, as I recall, that an invalid action cannot be rescinded but should instead be ruled invalid by means of a ruling on a point of order and possibly an appeal.

 

Perhaps I'm in the minority, but I take the position that it could be handled either way.

[Guest calbear77]

Guest, you seem to be missing this part of the bylaws: "The Board of Directors ... shall have the authority to recommend, for approval by the membership, removal from office". The board's recommendation for removal sets in motion the process by which the approval of the membership is sought. Strictly this should require a special meeting of the membership, unless the bylaws authorize the membership to take action on the recommendation by mail ballot. It seems like the organization by default is assuming that a mail ballot is allowed, but this might be stopped by a point of order.

 

The bylaw should be rewritten to specify that the recommendation causes a mail ballot automatically.

 

The world "recall" seems to mean in their custom the membership voting to approve the BOD's recommendation for removal.

 

If we assume that the BOD's recommendation does automatically cause a mail ballot to occur, it seems like they should be able to "rescind, repeal, or annul" that recommendation until the ballots have been mailed out. 

 

LizBirch, note that you will want to use the motion to "rescind, repeal, or annul" and not "reconsider". Reconsider can only be moved on the same day or next day of a session. 

[LizBirch]

Thank you to all. This is clearly a mess.  In response to how did this pass with only 6 board members recommending this action vs eight.  That question was asked directly to the legal team of this organization.  Here is their response: 

 

5. Why did the vote pass if only 6 people voted in favor? I thought the bylaws require 8 votes for such an action.

• Association Bylaws Article VI, Section E provides that a vote of not less than 8 Board members is required to recommend, for approval by the membership, removal from office for cause. In this case, the Board voted to recommend, for approval by the membership, removal from office without cause.  

• Article VI, Section A(7) provides that every act of decision done by a majority of the Directors present is an act of the Board, unless a greater or lesser number is required by applicable law, bylaws or Articles of Incorporation.

• In this case, a majority vote was required and achieved.

[Richard Brown]

 

Thank you to all. This is clearly a mess.  In response to how did this pass with only 6 board members recommending this action vs eight.  That question was asked directly to the legal team of this organization.  Here is their response: 

 

5. Why did the vote pass if only 6 people voted in favor? I thought the bylaws require 8 votes for such an action.

• Association Bylaws Article VI, Section E provides that a vote of not less than 8 Board members is required to recommend, for approval by the membership, removal from office for cause. In this case, the Board voted to recommend, for approval by the membership, removal from office without cause.  

• Article VI, Section A(7) provides that every act of decision done by a majority of the Directors present is an act of the Board, unless a greater or lesser number is required by applicable law, bylaws or Articles of Incorporation.

• In this case, a majority vote was required and achieved.

 

It is easier to remove someone without cause than with cause??  That's rather backwards and I question whether that's the right interpretation.  That provision is filled with ambiguities, but to interpret to make it easier to remove someone without cause than with cause defies logic.   Did you include the entire provision in your copy and paste?  

 

Here is what you posted:

 

 

I apologize... this is what our bylaws states; 

 

Section E REMOVAL OF OFFICERS AND BOARD MEMBERS

The Board of Directors, by a vote of not less then eight (8) of its members, shall have the authority to recommend, for approval by the membership, removal from office for cause any one of its members after having given that member an opportunity to appear before and be heard by the Board of Directors. Any member of the Board of Directors may be removed from the Board without cause when such removal is approved by the membership. 

 

That is a horribly worded bylaw provision.  The heading indicates that the provision is for removal of officers and board members.  The first sentence, which contains the eight votes provision, refers to "removal from office" for cause.  But, the second sentence refers to removing a director from the board.

 

It is up to your organization itself (not us on this forum and not the attorney) to determine what that bylaw provision means, but I personally read it to be mean that an officer can be removed from office only for cause and only after a vote by at least eight board members recommending the removal.  I read the second sentence to mean that regular board members can be removed from  the board with or without cause by a vote of the membership.  I don't see any requirement that the board recommend removal of a board member.

 

It makes no sense to say that eight board members must recommend removing an officer for cause but that he can be removed without cause by only a majority vote of the board or even by no vote by the board at all.

 

It is a horribly worded provision and needs to be amended.  It doesn't even say what vote of the membership is required for removal in either case.  Majority vote?  Two-thirds? 

[Gary Novosielski]

The board could not have voted to "recall" the new president because they do not have that authority.  If that is what they did, the vote would be null and void as it violates the bylaws and RONR.

 

The board does appear to have the authority, based on the small section you quoted, to recommend removal, but that is quite another thing.

 

So it matters exactly what the motion was that the board passed.   

 

One thing you have going for you is that no officer can be removed without the consent of the membership, and if this new president was elected overwhelmingly, it is unlikely that the membership would vote to remove him.

 

In my view the new board should be able to rescind the recommendation, if that's what happened, but if a majority of the reshuffled board believes that the action violated the bylaws, an easier path is to raise a point of order to that effect, declaring the action null and void.

[SaintCad]

Maybe I'm lost but ...

Has the new President taken office while the old board was still in office?  I suspect not and if not, then how can he be removed from office until he actually, you know, takes office.  Original motion is out of order and a Point of Order should be raised to end the process.

 

So let's assume he was in office when the old BoD voted.  They clearly have recommended that he be removed and that cannot be rescinded.  However, they could rescind any motions taken to put the vote into process.  In fact, I don't think the BoD would have the right to force the membership to vote on the removal unless they do so as a member at a regular meeting or special meeting called for that purpose.  Not knowing exactly how the old BoD is made the motion for the whole membership, I think it would be fairly easy to dispense of the old motion.

[Dan Honemann]

Maybe I'm lost but ...

Has the new President taken office while the old board was still in office?  I suspect not and if not, then how can he be removed from office until he actually, you know, takes office.  Original motion is out of order and a Point of Order should be raised to end the process.

 

So let's assume he was in office when the old BoD voted.  They clearly have recommended that he be removed and that cannot be rescinded.  However, they could rescind any motions taken to put the vote into process.  In fact, I don't think the BoD would have the right to force the membership to vote on the removal unless they do so as a member at a regular meeting or special meeting called for that purpose.  Not knowing exactly how the old BoD is made the motion for the whole membership, I think it would be fairly easy to dispense of the old motion.

 

This thread has been messed up enough without this additional nonsense confusion.

[Edgar Guest]

Guest, you seem to be missing this part of the bylaws: "The Board of Directors ... shall have the authority to recommend, for approval by the membership, removal from office". The board's recommendation for removal sets in motion the process by which the approval of the membership is sought.

 

It sets nothing in motion. It's just a recommendation (and one that's, presumably, not required).

[LizBirch]

It is easier to remove someone without cause than with cause??  That's rather backwards and I question whether that's the right interpretation.  That provision is filled with ambiguities, but to interpret to make it easier to remove someone without cause than with cause defies logic.   Did you include the entire provision in your copy and paste?  

 

Here is what you posted:

 

That is a horribly worded bylaw provision.  The heading indicates that the provision is for removal of officers and board members.  The first sentence, which contains the eight votes provision, refers to "removal from office" for cause.  But, the second sentence refers to removing a director from the board.

 

It is up to your organization itself (not us on this forum and not the attorney) to determine what that bylaw provision means, but I personally read it to be mean that an officer can be removed from office only for cause and only after a vote by at least eight board members recommending the removal.  I read the second sentence to mean that regular board members can be removed from  the board with or without cause by a vote of the membership.  I don't see any requirement that the board recommend removal of a board member.

 

It makes no sense to say that eight board members must recommend removing an officer for cause but that he can be removed without cause by only a majority vote of the board or even by no vote by the board at all.

 

It is a horribly worded provision and needs to be amended.  It doesn't even say what vote of the membership is required for removal in either case.  Majority vote?  Two-thirds? 

 

Thank you to all..   Yes, this bylaw is horribly written, I agree.  

 

I will use all the points that I've learned here and use, if needed, at our Special Meeting which has been called.   I appreciate everyone's time and input.  I'm grateful for this Forum so that us "non experts" can get guidance.   

[SaintCad]

I'm still confused.  What the newly elected president ever in office at the same time as the old Board or does he take office at the same time as the new Board.  If the latter, then how can the old Board remove him?

[Josh Martin]

I'm still confused.  What the newly elected president ever in office at the same time as the old Board or does he take office at the same time as the new Board.  If the latter, then how can the old Board remove him?

 

The board can't remove anyone. It just adopted a recommendation.