Voting when asked to leave the board for medical reason

[Guest Daisy]

You are asked to leave the board for medical reasons that are not valid, and you thank them for their concerns but you just received a good bill of health, and decline. Then they ask for a meeting vote to remove me from office. I believe he realize they will not have a legal non -profit if the other officer chooses to leave out of principle, asks us to vote immediately to add a new member. Then tells you the meeting to vote you out is cancelled, but has not told the other officer the same thing... they believe the meeting is going forth. Can I attend according to the information I was sent in the agenda inviting me to respond? Can I vote, as I am still a member on the board, not to leave? The by-laws state a "minimum of 5 board members and no more than 11", and we have only 4. So is all of this void?

[Guest Daisy]

I challenged the president regarding his change of our mission to possible sponsors without consulting the other officers, not wanting an LLC to obtain property to build on, not having any meetings for the last 6 months while he is verbally stating this is our new direction, though we have not discussed it as a board. This was his response.

[Hieu H. Huynh]

3 hours ago, Guest Daisy said:

Can I attend according to the information I was sent in the agenda inviting me to respond? Can I vote, as I am still a member on the board, not to leave?

You are still a member and have all the rights of membership, including the right to vote, unless disciplinary procedures are followed (see FAQ #20).

[Josh Martin]

11 hours ago, Guest Daisy said:

Can I attend according to the information I was sent in the agenda inviting me to respond?

Yes.

11 hours ago, Guest Daisy said:

Can I vote, as I am still a member on the board, not to leave?

Yes.

11 hours ago, Guest Daisy said:

The by-laws state a "minimum of 5 board members and no more than 11", and we have only 4. So is all of this void?

No. The board should act to fill the vacancies as soon as possible, but the fact that the board has vacancies does not mean the board loses the ability to act. So long as the quorum requirement is met, the board may continue to conduct business.

Additionally, what do your bylaws say about removal from office? If they are silent on that subject, how is the term of office defined?

Edited February 15, 2018 at 07:33 PM by Josh Martin

[Guest daisy]

I was told that only two vote were required to vote me out, He and his wife will vote no, so it doesn't matter what the other person votes. The bylaws state:

4.06 Removal of Directors

A director may be removed by two-thirds vote of the board of directors then in office, if:

(a) The director is absent and unexcused from two or more meetings of the board of directors in a twelve month period.  The board president is empowered to excuse directors from attendance for a reason deemed adequate by the board president. The president shall not have the power to excuse him/herself from the board meeting attendance and in that case, the board vice president shall excuse the president. Or:

(b) for cause or no cause, if before any meeting of the board at which a vote on removal will be made the director in question is given electronic or written notification of the board’s intention to discuss her/his case and is given the opportunity to be heard at a meeting of the board.

[Bruce Lages]

Based on your  quoted bylaw statement and your statement that your board currently has four members, then two votes will not be sufficient to remove you from your position. Two is clearly not 2/3 of four; a "two-thirds vote of the board of directors then in office" would require three of the four directors to vote to remove.

[Richard Brown]

1 hour ago, Bruce Lages said:

Based on your  quoted bylaw statement and your statement that your board currently has four members, then two votes will not be sufficient to remove you from your position. Two is clearly not 2/3 of four; a "two-thirds vote of the board of directors then in office" would require three of the four directors to vote to remove.

Bruce, I disagree.  I don't read the quoted bylaw provision as requiring a "vote of two thirds of the members of the board".  I read it as requiring a simple two thirds vote.  I think the reference to "of the board" is simply to designate that it is the board, as opposed to the general membership, that must vote on the issue.  Ultimately, perhaps this is a matter of bylaws interpretation as to whether the requirement is "a two thirds vote of the board" or "the vote of two thirds of the members of the board".    I think a vote of 2 to 0 is sufficient for removal, provided a quorum is present.

Edited to add:  I do see how that provision can be interpreted either way.

Edited February 15, 2018 at 09:43 PM by Richard Brown

[Bruce Lages]

Richard - you may well be right, but I wonder why the vote should be 2-0. Granted, if the 3rd board member votes not to remove that would still constitute a 2/3 vote with 3 members voting, but it was made clear above that Guest Daisy still has the right to vote, and I would think she would not vote to approve her own removal. IF all four members vote, then 2 votes will not be sufficient for removal.

[Josh Martin]

1 hour ago, Bruce Lages said:

Richard - you may well be right, but I wonder why the vote should be 2-0. Granted, if the 3rd board member votes not to remove that would still constitute a 2/3 vote with 3 members voting, but it was made clear above that Guest Daisy still has the right to vote, and I would think she would not vote to approve her own removal. IF all four members vote, then 2 votes will not be sufficient for removal.

The member certainly has the right to vote on her own removal in this case, unless the bylaws provide otherwise, however, RONR suggests that the member should not do so, as she has a personal interest not in common with other members.

2 hours ago, Richard Brown said:

Bruce, I disagree.  I don't read the quoted bylaw provision as requiring a "vote of two thirds of the members of the board".  I read it as requiring a simple two thirds vote.  I think the reference to "of the board" is simply to designate that it is the board, as opposed to the general membership, that must vote on the issue.  Ultimately, perhaps this is a matter of bylaws interpretation as to whether the requirement is "a two thirds vote of the board" or "the vote of two thirds of the members of the board".    I think a vote of 2 to 0 is sufficient for removal, provided a quorum is present.

Well, the full quote in the bylaws is “A director may be removed by two-thirds vote of the board of directors then in office.” I think the words “then in office” may lend some weight to the argument that this means two-thirds of the entire board, because if the intent is simply to clarify that it is the board (rather than the membership) that votes on the issue, there is no need for these words. I concur that it is ultimately a matter of bylaws interpretation.

Edited February 16, 2018 at 12:08 AM by Josh Martin

[Gary Novosielski]

I too think it is a matter of bylaws interpretation, but I think that the interpretation that it takes a vote of two thirds of the members then in office is the correct one.   

The phrase "then in  office" implies that the  total number of board members somehow makes a difference, which would only be true if the vote was 2/3 of the entire membership.

Edited February 16, 2018 at 03:06 AM by Gary Novosielski