ex-officio

[Contractor]

I have entertained this before and would like to be certain.  Section 22.  "The President shall be chief executive officer and in the recess of the Board of Directors shall have the general control and management of its business and affairs, subject, however, to the regulations of the Board of Directors.  He shall preside at all meetings of the shareholders and of the Board of Directors, and shall be a member ex-officio of all committees.  He shall make annual reports showing the condition of the affairs of the company, and make such recommendations as he thinks proper, and submit the same to the annual meeting of the shareholders; and he shall always present to the Board of Directors such information touching the business and property of the company as may be required."

Section 11.  The business and propety of the company shall be managed by a board of two (2) DIRECTORS.  (There are two directors elected by the shareholders)

Section 15.  The Board of Directors may MEET immediately after each annual meeting and so often in addition as necessary.  Special meetings of the Board of Directors may be called at any time by the President.  If the President shall neglect or refuse to call a special meeting when requested in writing by a director, then such a special meeting may be called by two directors.  At any meeting at which a majority of the directors are present, any business may be transacted if approved by a majority of all of the directors.

Question:  Can this President vote in a Board of Director meeting?

Question:  Without amending Section 11. the President would be a 3rd vote in violation of section 11. So another question would be can the President then vote if one elected director does not show up, making the board TWO?

Question: My last and final question is when  ex-officio is member ex-officio of all committees, and the by-laws do not state which committee, is he a member of the Board of Directors by virtue of his office and ex-officio status, or does he have to appointed by the directors?   

All other by-laws,  Articles of Incorporations, and State Statutes have been reviewed, and there are not any other restrictions against an ex-officio member to be found.

Thank you for your time it is greatly appreciated.

 

 

[Richard Brown]

17 minutes ago, Contractor said:

Question:  Can this President vote in a Board of Director meeting?

Not based on my interpretation of your bylaws.  The president is a member ex officio of all COMMITTEES.  The  Board of directors is not a committee.

17 minutes ago, Contractor said:

Question:  Without amending Section 11. the President would be a 3rd vote in violation of section 11. So another question would be can the President then vote if one elected director does not show up, making the board TWO?

No, for the same reason I gave for your first question.

17 minutes ago, Contractor said:

Question: My last and final question is when  ex-officio is member ex-officio of all committees, and the by-laws do not state which committee, is he a member of the Board of Directors by virtue of his office and ex-officio status, or does he have to appointed by the directors?   (Emphasis added)

He is not a member of the Board of Directors unless he is appropriately elected or appointed to it following whatever your procedures are for becoming a board member.  Apparently your directors are elected.

This might ultimately be a question of bylaws interpretation, but I do not see where your bylaws make the president a member of the board.  The president gets to vote only if he is a member of the body he is presiding over or has otherwise been granted voting rights.  It is up to your organization to determine whether that is the meaning of its bylaws.

Edited to add:  The following provision on page 53 is clear that the presiding officer must be a member of the assembly that is meeting in order to vote: "Chair's Vote As Part of the Announcement, Where It Affects the Result. If the presiding officer is a member of the assembly or voting body, he has the same voting right as any other member. "  (Emphasis added).

Also, see FAQ No. 1 regarding when the president votes:  http://www.robertsrules.com/faq.html#1

 

Edited April 10, 2018 at 06:57 PM by Richard Brown
Added last two paragraphs

[Contractor]

Thank you for your time.  I guess I am confused when I read the definition of ex-officio--legal definition-- Latin, From office.] By virtue of the characteristics inherent in the holding of a particular office without the need of specific authorization or appointment.

 

 
 

 

[

[Joshua Katz]

14 minutes ago, Contractor said:

Thank you for your time.  I guess I am confused when I read the definition of ex-officio--legal definition-- Latin, From office.] By virtue of the characteristics inherent in the holding of a particular office without the need of specific authorization or appointment.

 

Yes, by virtue of his office, the president is a member of all committees (since your bylaws say that), but not the board since the board is not a committee and (so far as we know at least) the bylaws do not say the president is a member of the board.  The question isn't what ex-officio means, but what the bylaws say happens by virtue of office.  It's possible I'm off point, though, so can I ask in what way the definition of ex-officio seems to make this confusing?

[jstackpo]

FWIMBW however, the president can still preside (as a non-member of the Board) provided that the bylaws say he does, or the Board members want him to.  Some outfits have bylaw provisions for a "Chairman of the Board" who presides, commonly as a member, over meetings of the Board.

The possibilities for confusion are endless.

[Contractor]

The way the definition makes it confusing is that if the bylaws are silent.

For example, if your Bylaws are silent on the rights of ex-officio members and prescribe Robert’s Rules of Order Newly Revised (RONR) as your Parliamentary Authority, then an ex-officio committee member has all the rights (attending, making motions, speaking in debate, and voting) but none of the duties of other members (such as the duty to attend meetings).

I understand the bylaws are lean, I just want to know how they stand up by definition.  Such as a board of directors is a committee and ex officio of all committees is what is stated.  I have no way to amend any bylaws and I am trying to work with what I have, since no committees were classified I read it as all committees.  I did not write it, it's what I have, lol

 Committees Classified. A Committee is a body of one or more persons appointed or elected by an assembly or society to consider, or investigate, or take action in regard to, certain matters or subjects, or to do all of these things. Committees may be divided into two distinct classes:

(1) Boards of Managers or Directors, Boards of Trustees, Executive Committees, etc.

(2) Ordinary Committees, Special or Standing, and Committee of the Whole and its substitutes.

These different kinds of committees are considered separately in the following five sections

[Joshua Katz]

I'd say the definition creates an ambiguity, but your bylaws make it pretty clear that they do not include the board (but, rather, only "ordinary committees") because the board is specifically defined to include only 2 people.

EDIT: I apologize for not checking this definition to see that it is out of date.

Edited April 11, 2018 at 10:22 PM by Joshua Katz

[Contractor]

Thank you, that's why I am asking if he is a member of the body, in which the only committee we have is a board of directors.  If the President is a director and one director does not show up the President would create a board of two.  I guess I am not asking what should be in the bylaws, but if ALL committees includes the board of directors that is an interpretation.

[Josh Martin]

37 minutes ago, Contractor said:

Committees Classified. A Committee is a body of one or more persons appointed or elected by an assembly or society to consider, or investigate, or take action in regard to, certain matters or subjects, or to do all of these things. Committees may be divided into two distinct classes:

(1) Boards of Managers or Directors, Boards of Trustees, Executive Committees, etc.

(2) Ordinary Committees, Special or Standing, and Committee of the Whole and its substitutes.

These different kinds of committees are considered separately in the following five sections

Your problem is that you are reading a very old edition of Robert’s Rules of Order - specifically, the 4th edition, which was published in 1915. The current edition clarifies that the Board of Directors is not a type of committee.

6 minutes ago, Contractor said:

Thank you, that's why I am asking if he is a member of the body, in which the only committee we have is a board of directors.  If the President is a director and one director does not show up the President would create a board of two.  I guess I am not asking what should be in the bylaws, but if ALL committees includes the board of directors that is an interpretation.

The Board of Directors is not a committee.

Edited April 11, 2018 at 10:01 PM by Josh Martin

[Richard Brown]

28 minutes ago, Josh Martin said:

The Board of Directors is not a committee.

This makes at least five times we have told Contractor that a board of directors is not a committee.  Reckon he gets it yet? 

Maybe part of the problem is that he was looking at the 100 year old 4th edition.  I'm hoping that explains why we are having such a hard time convincing him that a board is not a committee.

[Richard Brown]

On 4/10/2018 at 1:39 PM, Contractor said:

The president . . . shall be a member ex-officio of all committees.

Contractor, that language is pretty common language in bylaws.... even to the point of being "boiler plate".  I know you have said your organization has only a board and no committees, but in my opinion that language does not make the president a member ex officio of the board.  Perhaps when the organization was formed and the bylaws were drafted it was anticipated that there would likely be committees at some point.  I'm pretty confident that if the intent of the drafters of the bylaws was that the president be a member ex officio of the board they would have said so.  Or they would have said that the board shall have three members, including the president.  They said neither.  Instead, they inserted the rather common bylaw language that the president "shall be a member ex-officio of all committees".  

[Gary Novosielski]

The fact that you have no committees now does not preclude the possibility that someone will move to create one, and if that happens, the president will be, ex officio, a member of it.  

But even in that event, the board will not be a committee. 

[Contractor]

I don't see the need to be insulting "reckon he gets it yet".  So let's be clear, below are definitions that our US Supreme Court use to define what has been written, not what it should say, could say, or is presumed.  My company has not adopted RONR.  I have been asking for opinions from your organization and they have been provided.  The confusion is the Law vs. Roberts Rules interpretation. 

 

Black’s Law Dictionary Definition of a Board--A committee of persons organized under authority of law in order to exercise certain authorities, have oversight or control of certain matters, or discharge certain functions of a magisterial, representative, or fiduciary character. 

The Black's Law Dictionary defines committee as--An individual or body to whom others have delegated or committed a particular duty, or who have taken on themselves to perform it in the expectation of their act being confirmed by the body they profess to represent or act for

Blacks Law Dictionary-Definition Ex-officio

From office; by virtue or the office; without any other warrant or appointment than that resulting from the holding of a particular office. Powers may be exercised by an officer which are not specifically conferred upon him, but are necessarily implied in his office; these are ex o/Jicio

The shareholders elected the board of directors by cumulative voting.  If they did not want there to be another director then it wudda, shudda, said elected by plurality.  I am not presuming anything.  I am narrowing down the facts of unamended poorly written bylaws as they currently stand.

On 4/11/2018 at 4:47 PM, Richard Brown said:

Or they would have said that the board shall have three members, including the president.

 

[Guest Who's Coming to Dinner]

Indeed, let us be clear: this forum is limited to Robert's Rules of Order. Matters of public law are beyond its scope.

[Josh Martin]

14 minutes ago, Contractor said:

I don't see the need to be insulting "reckon he gets it yet".  So let's be clear, below are definitions that our US Supreme Court use to define what has been written, not what it should say, could say, or is presumed.  My company has not adopted RONR.  I have been asking for opinions from your organization and they have been provided.  The confusion is the Law vs. Roberts Rules interpretation. 

It may have been helpful if you had mentioned this earlier, since the purpose of this forum is to advise on questions regarding RONR. Nonetheless, RONR may still be of assistance as it is the leading authority on the common parliamentary law.

Just so that we are clear, there is absolutely no doubt that, in so far as RONR and the common parliamentary law are concerned, a board is not a committee and a provision in the bylaws which makes the President an ex officio member of all committees does not make him a member of the board.

There is also absolutely no doubt that, if your bylaws or applicable procedural rules in law provide otherwise on these points, those rules take precedence over RONR.

Whether your bylaws do, in fact, provide otherwise on these points is a question for your organization and whether applicable law does, in fact, provide otherwise on these points is a question for an attorney.

[Joshua Katz]

Well, things get a little tricky because it is a corporation, the board might not be answerable to the assembly, etc.  And, as mentioned just above me, we can't tell you anything about law, just parliamentary procedure.  Given that RONR is not the parliamentary authority, is there another parliamentary authority given, or is none adopted?  Has it been the custom of this organization to look to RONR?

That aside, as a general matter, I don't think legal definitions are the place to look for this particular question.  It is a parliamentary question, and my opinion (which is only that) is that such a question should be answered based on parliamentary sources.  I'm not aware of parliamentary sources which unambiguously say that "committees" includes the board, and I am aware of such sources saying it does not.  At best, as I said, it's ambiguous and a matter of bylaw interpretation.  

For the record, Black's is not definitive in parliamentary matters.  It also isn't particularly definitive in legal matters.  Yes, the Supreme Court has looked to it at times, but it has also looked at various editions of Oxford, Webster's, and so on - even Webster's Third *shudder*.  Even Scalia, who might be presumed to be the biggest fan of dictionaries in a long time, and in particular a fan of Black's given his collaboration with Bryan Garner, relied on other dictionaries much more often.  That said, I do not believe that Black's meant to suggest anything by the word "committee" other than "a group of people."  In addition to not being definitive in parliamentary matters, it also isn't written with an eye toward parliamentary matters.  So, agreeing with the posters who say that legal questions should be directed to an attorney, I'd only add that a definition in Black's is far from a law.

Remember that, when considering any legal matter, you'll need to talk to a lawyer in the corporation's place of incorporation, since this is a question of internal governance.  (But that is not legal advice.)  

I'm not sure I see what the method of election has to do with it.  Whether the SHs elect the board by cumulative or plurality voting (or anything else), why would that impact whether "ex-officio on all committees" means the board?  To your point, whether it uses cumulative or plurality voting, it still says the board consists of 2 directors (again, from what I've seen, there can well be other relevant parts of the bylaws).  Or, to put it another way, if the bylaws didn't want an extra director, they would say there are 2 directors - which is what they say.  I can, of course, be missing something.  (Although, and maybe this is your point, it is strange to elect two people by cumulative voting, but if that's what the bylaws call for, then so be it.  It is also exceedingly strange to refer to a majority of a 2 person board, which is, of course, the entirety of the board.  But again, if that's what they say, that's what they say.)  

[Contractor]

Thank you, everything you have mentioned has been looked into, and I did not wish to mention the law on this site.  No parliamentary authority has been adopted and there is no custom of looking into RONR.  Judges use whatever resources they think is the best fit, that is understood.  I have compensated several attorneys. and the bylaws are exactly that, a matter of interpretation.  The question to "why would cumulative voting impact whether ex-officio on all committes means the board, is ALL committees by definition?  The director must represent the shares of the company on the board.  An exofficio could not be a director if it was plurality, as it would only apply to the two elected by the shareholders .  Cumulative opens the door to an ex-officio with intent by definition "without appointment" by definition.   In the matter of 2 directors, there is no quorum, but voting is passed by majority of the directors.  If the ex-officio has been invited, "shall attend meetings of the board of directors" and that is know considered "may" by current law, and he is truly is a director of the body by exofficio with an invite to all committees as ex-officio then he would have a vote if a board is a committee by definition.  The fact that it was mentioned that in 1915 RONR did define a board as a committee means I am not far off base.  The fact that RONR has .49 Committees Classified into 2 distinct classes of committees which was posted above (1) board of directors.... which is from a RONR website is confusing since the internet was not around in 1915.  Hell the first sentence starts out "Committees of this class" which brings me back to "member of all committees"  and ex officio without an appointment, and I have an invite through the bylaws,....... I guess I still don't get it yet  

[Joshua Katz]

Well, the fact that there was no internet in 1915 didn't stop someone from putting the 1915 version onto a website (after Mr. Gore invented it, presumably).  It remains the case that it is not the current version.  But your organization doesn't follow the current version of RONR, or any manual.  As a result, it should look to the common parliamentary law which, as Mr. Martin said above, did not define a board as a type of committee.  As to the rest of what you've written, I can't tell what you are trying to say, so the best I can say to that is "do as you will."