Directors

[LSCHelper]

Small non-profit corporation chartered in Texas. Nine member board.

Our By-Laws state: "A Board member missing two consecutive regular board meetings is

considered to have resigned, unless absence is for emergency medical

reasons for the Board member or Board member's family. The Board of

Directors must be notified of any absence by the Board member by letter or

by a phone call to the CO-OP office.  In case of emergency medical reasons,

a member of the Board members' family can do the notification".

The issue that we face is a Board member provided notification of an absence for at least two consecutive regular board meeting but not for emergency medical reasons. The Board must consider this as a resignation due to our By-Laws. Can the Board          re-instate this member upon return to the corporation headquarters as an appointee.

Please don't beat me up for the conflicting statements in the quoted By-Law above. i.e. The conflict between sentence one and sentence two. I read (interpret) that the member is OK based on compliance with sentence two. Several board members do not agree.

Thanks,

Jerry L.

)

[Richard Brown]

I think it is up to this organization to interpret the meaning, effect and proper implementation of the quoted bylaw provisions.  It does not seem to me that "resignation" is automatic upon missing two meetings as the rule says "unless the absence is for emergency medical reasons".  There has to be a way of determining if this is the case when a particular board member has two absences.

[Greg Goodwiller, PRP]

There is a good deal to interpret in those few lines of your bylaws. One is what is meant by "considered to have resigned . . ." Does that mean the absences equal the submission of a letter of resignation? Because if so, such a submission does not, under RONR, automatically end the matter. There still has to be a motion to accept the resignation, and a majority vote is required to adopt the motion. Boards do not always accept resignations.

Alternatively, that phrase could be interpreted to mean that after two absences (except as noted), the member is no longer a member of the board. But since that isn't exactly what it says, I think the board must decide which way to read it.

As for reinstatement, you haven't given us any language from your bylaws about reinstatement. RONR, however, states that one of the actions that "cannot be rescinded or amended" is "when a resignation has been acted upon, or a person has been elected to or expelled from membership or office and the person was present or has been officially notified of the action" (RONR pg. 308, ll. 24-27). 

[Guest Who's Coming to Dinner]

1 hour ago, LSCHelper said:

Can the Board re-instate this member upon return to the corporation headquarters as an appointee.

You may be able to reappoint this person to the board if your board has the power to fill vacancies and (s)he is otherwise qualified.

[Joshua Katz]

This is hard language, but it's at least plausible that the person could just rescind his 'constructive resignation' before the board acts on it ( if the the board can accept resignations).

[Josh Martin]

1 hour ago, Joshua Katz said:

This is hard language, but it's at least plausible that the person could just rescind his 'constructive resignation' before the board acts on it ( if the the board can accept resignations).

I don’t think so. You can’t “rescind” missing two meetings, and this interpretation would render the rule meaningless.

[Joshua Katz]

6 hours ago, LSCHelper said:

A Board member missing two consecutive regular board meetings is

 

considered to have resigned,

 

Just now, Josh Martin said:

I don’t think so. You can’t “rescind” missing two meetings, and this interpretation would render the rule meaningless.

I agree you can't rescind missing the meetings, but the bylaws just say missing two meetings means you resigned.  Fair point on the principle of going with the meaning that makes the rule meaningful, but I have trouble interpreting it as meaning anything other than missing two meetings is like putting in a resignation letter.  In other words, I have trouble seeing the ambiguity, or the interpretation under which this means you're out.  I could probably see not being able to rescind, but would you agree, at least, that the board has to accept the resignation before it becomes effective?

[Richard Brown]

I'm not so sure I agree that the board even has to accept the resignation before it is effective.  The bylaw says that a board member who misses "two consecutive meetings is considered to have resigned".  Note that it doesn't say he is considered to have "tendered his resignation".  it says he is "considered to have resigned".  A fate accompli.  A done deal.  No acceptance necessary.

I believe it is up to this organization to interpret that bylaw provision and to determine whether acceptance of the resignation is necessary.

I concede, however, based on the full bylaw statement on the subject, that it can be interpreted as needing board approval.  I believe it's just not as clear as Joshua believes it to be.  It is clear, though, that the board has at least some degree of involvement because the board must be notified of absences. It also seems clear that an absence can be "excused". 

So, who knows exactly what that bylaw provision means.  I don't.  But, I would hazard a guess that unless the board excuses the second absence, the resignation is effective.

Edited October 27, 2017 at 03:01 AM by Richard Brown
Miscellaneous corrections

[Josh Martin]

12 hours ago, Joshua Katz said:

I agree you can't rescind missing the meetings, but the bylaws just say missing two meetings means you resigned.  Fair point on the principle of going with the meaning that makes the rule meaningful, but I have trouble interpreting it as meaning anything other than missing two meetings is like putting in a resignation letter.  In other words, I have trouble seeing the ambiguity, or the interpretation under which this means you're out.  I could probably see not being able to rescind, but would you agree, at least, that the board has to accept the resignation before it becomes effective?

I think it is a reasonable interpretation that the board has to accept it before it becomes effective. This interpretation, at least, does not render the rule meaningless. It will, however, ultimately be up to the organization to interpret its bylaws.

The rule uses “resignation” in a way which departs from its ordinary meaning of a voluntary request to leave office. So I’m not certain such a “resignation” follows the same rules as a resignation in RONR.

If the board has the power to fill vacancies, this argument may be moot, as it is certainly in order to fill a vacancy with the person who just vacated the position.

11 hours ago, Richard Brown said:

I'm not so sure I agree that the board even has to accept the resignation before it is effective.  The bylaw says that a board member who misses "two consecutive meetings is considered to have resigned".  Note that it doesn't say he is considered to have "tendered his resignation".  it says he is "considered to have resigned".  A fate accompli.  A done deal.  No acceptance necessary.

I believe it is up to this organization to interpret that bylaw provision and to determine whether acceptance of the resignation is necessary.

I concede, however, based on the full bylaw statement on the subject, that it can be interpreted as needing board approval.  I believe it's just not as clear as Joshua believes it to be.  It is clear, though, that the board has at least some degree of involvement because the board must be notified of absences. It also seems clear that an absence can be "excused". 

So, who knows exactly what that bylaw provision means.  I don't.  But, I would hazard a guess that unless the board excuses the second absence, the resignation is effective.

The bylaws quite clearly state that the only basis for excusing an absence is emergency medical reasons for the board member or his family, which is not the case here.

Edited October 27, 2017 at 02:17 PM by Josh Martin