Board Removal of a Board member

[Guest Ditto]

Our Board has made the decision to remove a member from our Board for cause - failure of duty. Our Bylaws state:

  "ARTICLE V  OFFICERS  Section 2. Removal.  Any officer may be removed either with or without cause by vote of a majority of the members of the Board & such officer's successor shall be elected at any regular meeting of the Board or any special meeting called for such purpose."  

"ARTICLE IV. BOARD OF DIRECTORS.  Section 2. Election & Term. Board members shall hold office for a period not to exceed 3 years & until their respective successors have been elected, subject to removal as herein provided."

Section 5. Removal of Directors.  At any regular or special meeting of the Association of Apartment Owners duly called, any one or of the directors may be removed either with or without cause by vote of the majority of apt owners present at any meeting and a successor  may be elected to fill the vacancy thus created provided however that any individual director shall not be removed (unless the entire board is removed) if owners having sufficient votes to elect one director by cumulative voting present at such meeting shall vote against his removal......"

The first ARTICLE speaks for the Board's powers. The 2nd & 3rd Sections speak of the members of the Association's powers.

Our Board is of the belief that our Bylaws have clearly stated that WE have the power to remove a Board member by the majority of OUR vote; not the Association's vote.  Our Property Manager has advised us that we need to hold a trial exactly as the Association must do to remove a Board member. We disagree strongly. We are willing to be transparent to the apt owners & hold a regularly called meeting with 72 hours notice announcing the removal of a Board member. We will allow the homeowners to witness their board remove a board member for cause - due to fiduciary failure over 16 years. Our Association is governed by Roberts Rules of Order. In reading ROBERTS RULES there appears to be no distinction between the process of removal by Association members & the Board members removing a board member - removal by trial. Our Board feels our Bylaws do not state any specifics for member removal by the Board but does for the Association members.

We could use your advice.

Thank you.

 

 

[jstackpo]

Hmmm...  since your bylaws appear to indicate two (independent) mechanisms for removal of a board member, it will be up to you, collectively, to figure out which one takes priority in a particular situation.  RONR doesn't speak to your particular arrangement.   This decision would be one for the general membership to make.  See p 588. 

Things are a bit clouded by the appearance of the "and until..." phrase in your bylaws (see p. 574) the RONR-based implications of which contrasts with your other "with or without cause" phrases.  Another matter for interpretation as to which takes priority.

After the battle is over, amend your bylaws for consistency, please, to be ready for next time.

[Dan Honemann]

It's up to your organization to determine what your bylaws say, but it appears to me that your board has the power to remove and replace officers from office (I'll bet these officers are elected by your board), and that only your full membership has the power to remove and replace directors (which I bet are elected by the general membership).

[jstackpo]

I guess the question that Ditto's group will have to decide is whether their "officers" include the  members of the Board of Directors (or "directors").     RONR, p. 572, states that "Directors should be classed as officers" but I presume such a classification is something for the bylaws to take care of in order to change "should" to "shall".  (Maybe RONR should do so in the 12th Ed.)

[Dan Honemann]

Oh, I'll bet Article V makes it rather clear that it is referring to officers elected by the board, but I'm just guessing too.

Maybe Guest Ditto can provide us with a bit more information in this connection. Without more information, I cannot imagine why this Board is of the belief that their Bylaws have clearly stated that it has the power to remove a Board member, or why the Property Manager has advised them that we (whoever that is) need to "hold a trial exactly as the Association must do to remove a Board member."

[Guest Ditto]

We are an AOAO or HOA so you understand type of organization we are. Our Board members are elected by the homeowners or Association members. We then choose among ourselves, the 5 Board members, which office to be assigned to.

The Board thought there were 2 very clear & different ways to remove a Board member in our bylaws.  

For the Association, there were clear step by step instructions that led to a trial to remove a Board member.

But for the Board to remove one of their own board members that had been elected by the Association/homeowner members the language in that Bylaws section was brief & to the point, giving the Board full power to remove one of their own board members upon the majority vote of the Board members only - the Association would not have a say in the Board's decision to remove that board member.

In our particular case this one board member has not fulfilled his fiduciary obligations for 16 years. He is the Vice President. Our President was finally not voted back on the board at our Annual meeting or the Board would have voted him off the Board as well. We finally have a board that has the courage to stand up for what is honest & right. These 2 board members did not allow the other board members in the past for 16 years to make major repairs to our building. They intimidated & harassed board members each year until resignations were common. However nothing got done to upkeep our building. Now we are beginning to see the financial impact of these 2 officers fiduciary failures.

If our understanding is not correct, then our Bylaws are not clear enough for the typical layman to understand. Should we turn to our attorney for advice & future amendment to our bylaws?

Our current Board members are considering a lawsuit against these 2 men for fiduciary failure. Our Property Manager advises we won't be able to tell the Association why we want to remove one member now. All we can say is there be legal issues arising from this member at we aren't at liberty to speak of right now. So how could we ask the homeowners to vote him off the board when they can't know why. If left to the homeowners vote we predict he won't be removed. That's why the board wants to remove him with their majority vote.

[Dan Honemann]

Nothing you have yet quoted from your bylaws gives your board the right to remove a board member from the board. Based upon what you have quoted, all that the board can do is remove any officer from an office to which he was elected by the board.

[Kim Goldsworthy]

8 hours ago, Guest Ditto said:

  "ARTICLE V  OFFICERS  Section 2. Removal.  Any officer may be removed either with or without cause by vote of a majority of the members of the Board & such officer's successor shall be elected at any regular meeting of the Board or any special meeting called for such purpose."  

"ARTICLE IV. BOARD OF DIRECTORS.  Section 2. Election & Term. Board members shall hold office for a period not to exceed 3 years & until their respective successors have been elected, subject to removal as herein provided."

Section 5. Removal of Directors.  At any regular or special meeting of the Association of Apartment Owners duly called, any one or of the directors may be removed either with or without cause by vote of the majority of apt owners present at any meeting and a successor  may be elected to fill the vacancy thus created provided however that any individual director shall not be removed (unless the entire board is removed) if owners having sufficient votes to elect one director by cumulative voting present at such meeting shall vote against his removal......"

Article V = "... any officer may be removed ..."

Article V.5 = "... any ... director may be removed ..."

>> Our Board is of the belief that our Bylaws have clearly stated that WE have the power to remove a Board member by the majority of OUR vote; not the Association's vote.  

***

So, your board is confused.

***

Your board is a  mix of:

   (a.) board members who are only directors, and nothing more. (No second "hat" to wear.)

   (b.) board members who wear a second "hat" called "officer".

Thus, your Rule V refers to "officers" and their removal (the taking of the second "hat").

Thus, your rule V.5 refers to "board members" (irrespective whether they wear a second "hat") and their removal.

***

Thus your board may remove the secondary "hat" of officership.

Thus your general membership may remove the primary hat of "directorship".

***

>> Our Property Manager has advised us that we need to hold a trial exactly as the Association must do to remove a Board member.

Thus, your Property Manager is confused.

***

 

[jstackpo]

And, chances are (have to say "chances" since I haven't read your bylaws in full - and don't plan to!) if the Association removes someone from the Board that will also remove him/her from any officer position he holds.

[Gary Novosielski]

Reading those excerpted bylaws, there is nothing there that gives the board the power to remove a board member from the board.  It says the board can remove officers, which means remove them from the office that they were elected to by the board, from among their own number.  But to remove them as a board member would take an act of the assembly, presumably with a trial or other procedures as outlined in the bylaws.

The assembly can remove someone from an office that was filled by the assembly.

The board can only remove someone from an office that was filled to by the board.

Removal from an officer position leaves that member on the board.  But removal from the board would presumably mean removal from an officer position if, as appears likely, being on the board is a prerequisite for being an officer.

Edited April 14, 2016 at 07:35 AM by Gary Novosielski
Strike "to"

[Guest Ditto]

All of your distinctions now make it clear what "removal" means. Your advise is VERY helpful & we understand the differences. We will be better able to communicate to the Assembly with this clarity of hats in mind. You've been an invaluable forum to reach out to. Thank you. Ditto

[jstackpo]

2 hours ago, Guest Ditto said:

You've been an invaluable forum to reach out to. Thank you. Ditto

Come back any time!

[Richard Brown]

Guest Ditto, I  agree with the comments by our regular posters above, but will throw what could be a monkey wrench into some of the answers.

If the bylaws do not specify that only board members can be officers or that the officers must be elected from among the board members, then it is possible for the membership to remove a board member from  the board but for him retain his status as an officer.   I imagine, as one or two others opined, that your bylaws require the officers to be elected from among the board members, but you might check that out.  If the bylaws are unclear on that point, it is up to your organization to interpret them. 

[Guest Peri1224]

That doesn't seem to be logical. If someone can be an officer without being a board member, he is just an officer, with a class 2 hat, without the class 1 hat of a board member. So, how can the membership assembly remove a hat that is not there? And even if it were there, only the class 1 hat would be removed, because, according to the by-laws, only the board can remove officers. Actions of the membership against the officer would just amount to noise that doesn't affect the officer.
As a remedy, the assembly could tell the board, at their meeting, vote to remove this officer now, or we will remove, now, any board member who refuses to remove that officer.
After the board has fired the officer, or some board members were removed and replaced with new ones that did fire him, the meeting could go on, with peace returned to the village, as it should be. My two cents. 

[Dan Honemann]

18 minutes ago, Guest Peri1224 said:

That doesn't seem to be logical. If someone can be an officer without being a board member, he is just an officer, with a class 2 hat, without the class 1 hat of a board member. So, how can the membership assembly remove a hat that is not there? And even if it were there, only the class 1 hat would be removed, because, according to the by-laws, only the board can remove officers. Actions of the membership against the officer would just amount to noise that doesn't affect the officer.
As a remedy, the assembly could tell the board, at their meeting, vote to remove this officer now, or we will remove, now, any board member who refuses to remove that officer.
After the board has fired the officer, or some board members were removed and replaced with new ones that did fire him, the meeting could go on, with peace returned to the village, as it should be. My two cents. 

Not even worth two cents when it comes over 5 years late.

[Guest Peri1224]

Thanks for your kind words. Just saw this thread now and commented on it on principle, not for action 5 years ago. It's good to have clarity on things, even if it comes late. Better late than never.