Filling a newly created board position mid-year (not vacated)

[Guest boardnightmare]

Our board disagrees over next year's board make-up.  We just had an election, and the outgoing board has one month left in office.  One outgoing board member did not run for re-election.  She accepted nomination for one, but then withdrew her nomination at the election meeting.  Now a few board members feel she deserves another chance and should be on the board next year.  They would like to amend the bylaws to add a position for the purpose of then nominating and electing her at the last annual meeting.  

Our bylaws call for one election a year in May and a nominating process that involves presenting a slate of candidates at the prior meeting.  Nothing like this is addressed.  We have typically nominated and elected people long after elections when after repeated attempts a candidate could not be found before then, and the board members in question feel that justifies an immediate nomination and election of their candidate.  

As for the amendment of the bylaws to create the position, that is also in question.  Our bylaws say "These bylaws may be amended at any regular or special meeting, providing that previous notice was given at the prior meeting in writing and then sent to all members of the organization by the Secretary."  Regular and special meetings require 10 days notice.  Since there is little time before they leave office, they have called a special meeting of the board with only 3 days notice (not provided for in our bylaws), and a quorum of board members and regular members will probably attend.  It is not clear if this meets the notice requirement.  Some say it must be a membership meeting, not a board meeting, based on the apparent wording of the bylaws.  Others say the meeting is out of order and doesn't count.  

There are also those who claim the election was out of order to begin with and should not stand.  Our board is very small and has not typically adhered to any rules of order or even its bylaws, so they have been out of order for years.  The people who claim the election should be be voided due to it being out of order are also those who ran it.  It was not an invalid election in terms of votes, but rather in that Roberts Rules, in our bylaws, were simply not followed in general.  Some people say that it is invalid because nominations were not actively sought from the floor, but our bylaws state that a slate of candidates will be presented at a meeting one month before the election, and nominations from the floor may be taken at that meeting."  They do not mention nominations from the floor at the election meeting, although no one was told they could not make one.  

So what do we do now?  Does the election stand, and can this board member be re-elected to the new position on the same day the position it is created?  

[Joshua Katz]

Well, now your organization decides.  It sounds like you've identified most of the issues already, but to clarify a few things:

There's a lot of talk about feelings here.  They don't matter, except when a valid question is put before the assembly, and people can then consider their feelings in voting.

If you amend your bylaws to add a position, then it will be a vacancy and will need to be filled by whatever process you use to fill vacancies.  That process (hopefully) will require notice, so it's not clear this scheme will work in any event.  It is irrelevant that in the past, relying on feelings, the board has done whatever it felt like doing.

Only your organization can interpret its bylaws, but I think there is good reason to suspect that language means a membership meeting, not a board meeting.  Unless powers are specifically given to the board, the board doesn't have them, and the quoted language does no such thing.  There cannot be a "quorum of ... regular members" at a board meeting.  This might refer to the surprisingly common myth that you can act outside of a meeting if you manage to gather a quorum.  Nothing could be further from the truth.  The confusion, I suspect, originally arose from certain Sunshine Laws and spread from there.  Regardless, it is wrong.

Actions may only be taken at a properly-called meeting.  If your rules for calling a meeting have not been followed, then there is no properly-called meeting.

Failure to adhere to proper procedure at the election most likely does not void the result, since most procedural points, unless they impact the outcome, must be raised in a timely manner - that is, at that meeting.  We value finality and don't have free-floating invalidations.

Your organization, again, must interpret its own bylaws, and I'm not going to venture an opinion without seeing the language.  However, it is conceivable that a process where nominations are taken prior to the election, and where the bylaws specify that nominations from the floor are in order at that time, means that no floor nominations need be called for later.  A specific permission prohibits other things of the same type.

I have to say, I'm puzzled by a few things.  I'm not puzzled by the instinct of the board to perpetuate itself - see Lord Acton.  I'm confused about this board member who has done everything possible to stay on the board, except the obvious path of seeking a board position.  It sounds like an end-run around the membership, although that's just a gut feeling.  However, if the board wants to keep her on so desperately, I'm still not seeing the rush.  They could seek a bylaw amendment (properly) later, which will, whenever it is adopted, create a vacancy to be filled however you are supposed to fill vacancies (not necessarily the way you have felt like doing so in the past).  Why do they, specifically, want to make sure her reign (sorry, term) is uninterrupted?

On a side note, you can't withdraw a nomination, but you can tell people you won't serve if elected.

[Richard Brown]

43 minutes ago, Joshua Katz said:

On a side note, you can't withdraw a nomination, but you can tell people you won't serve if elected.

Aw, Joshua.... you were doing so well until that last sentence!!!   Based on this sentence on page 435 of RONR, I'm not so sure that a candidate who has been nominated by a nominating committee cannot withdraw.  RONR sure seems to say such a candidate can withdraw:  "A nominating committee is automatically discharged when its report is formally presented to the assembly, although if one of the nominees withdraws before the election, the committee is revived and should meet immediately to agree upon another nomination if there is time. "  (Emphasis added by me)

Guest Boardnightmare:  What happened when the board member withdrew her name from nomination (or declined to run...whichever)?   Was someone else elected in her place?  Is there currently a vacancy?   Do your bylaws require a specific number of board members?  When the new board takes office, will you have that number? 

If you have a vacancy (or will have one when the new board takes over), then you can simply follow whatever process your bylaws provide for filling vacancies.   If that spot (board position) was not filled at the election, you have an incomplete election which should be completed as soon as possible.  The lady in question can run for the position.

 

Edited May 22, 2018 at 03:39 PM by Richard Brown
Corrected typo

[Joshua Katz]

Honestly, I'm not so sure either, but that seems to be what most here say.

[Richard Brown]

The question of whether a candidate may "withdraw" his name from nomination is discussed at length in the following thread.  I'm afraid the answer still isn't very clear.  I go with the very clear language in two places in RONR that reference a candidate withdrawing as a candidate.    If the book doesn't say what the authorship team intends, then perhaps the language should be changed.  But for now, the language in the 11th edition seems perfectly clear.
https://robertsrules.forumflash.com/topic/31251-bod-elections/

 

Edited May 22, 2018 at 03:59 PM by Richard Brown
Added last sentence

[Guest boardnightmare]

Richard:  Someone else was immediately nominated and elected in her place.  There is no current vacancy.   We have a full board.  Our bylaws say nothing about vacancies.  

Joshua:  She withdrew her own name in the heat of the moment because she was unhappy with proceedings.  She apparently wanted to nominate herself at the last minute for a different position that another candidate had already been nominated for, or so we are told now.  However, she did not make a motion to nominate herself, but rather simply made statements (false) about the other candidate and appeared to want to withdraw his name from the slate (no motion of any kind was made, but we don't really use Rules), and this was followed by another board member strongly voicing support for the person in question and refusing to acquiesce, and she then declared she did not wish to serve.

The outgoing board is rushing to do this now because the incoming president has declared she will run meetings carefully according to Roberts Rules, and once that happens it is unlikely that most of this could happen.  Also, the board has become factious, and the incoming president is not part of this faction.  

[Richard Brown]

2 hours ago, Guest boardnightmare said:

Now a few board members feel she deserves another chance and should be on the board next year.  They would like to amend the bylaws to add a position for the purpose of then nominating and electing her at the last annual meeting.  

What do you mean by the highlighted phrase, "at the last annual  meeting"???   Do you mean the "next" annual meeting?  A  special meeting?   A motion of some kind declaring her retroactively elected as of the annual meeting you just had??

2 hours ago, Guest boardnightmare said:

Our bylaws call for one election a year in May and a nominating process that involves presenting a slate of candidates at the prior meeting.  Nothing like this is addressed.  We have typically nominated and elected people long after elections when after repeated attempts a candidate could not be found before then, and the board members in question feel that justifies an immediate nomination and election of their candidate.   

That does not justify violating the bylaws or setting aside the results of this election.  If you have a full board, you have a full  board and that is that. 

2 hours ago, Guest boardnightmare said:

As for the amendment of the bylaws to create the position, that is also in question.  Our bylaws say "These bylaws may be amended at any regular or special meeting, providing that previous notice was given at the prior meeting in writing and then sent to all members of the organization by the Secretary."  Regular and special meetings require 10 days notice.  Since there is little time before they leave office, they have called a special meeting of the board with only 3 days notice (not provided for in our bylaws), and a quorum of board members and regular members will probably attend.  It is not clear if this meets the notice requirement.  Some say it must be a membership meeting, not a board meeting, based on the apparent wording of the bylaws.  Others say the meeting is out of order and doesn't count.  

The requirement for giving notice of a proposed bylaw amendment at "the prior meeting" seems perfectly clear.  I don't see any wiggle room there.  You can have a special meeting, but since notice of the proposed bylaw amendment was not given at the prior meeting, a bylaw amendment adopted at such a special meeting would be null and void.  Also, as I read your quoted bylaw provision,  it is the membership, not the board, that must adopt bylaw amendments.   Any bylaw amendment adopted by the board, and not by the membership as required by the bylaws, would be null and void.

2 hours ago, Guest boardnightmare said:

So what do we do now?  Does the election stand, and can this board member be re-elected to the new position on the same day the position it is created?  

From what I understand, you have a full board which will be taking office in a few days.  I see nothing from what you have told us that would invalidate the election.   However, if the bylaws are amended at some point in the future to provide for an additional board member, the amendment would take effect immediately and an election to fill that position could be conducted at the same meeting, provided proper notice of the proposed election is given. 

My suggestion as to what to do now is "do nothing".  You had elections at the annual meeting and elected a full board.  It is up to the membership to decide whether to amend the bylaws to provide for an additional board member.  I will also mention that there is nothing wrong with the board treating this particular person as if she is a board member, but without the right to vote.   A special rule of order could be adopted or the rules suspended to permit her to attend and to participate in board meetings but without the right to vote.  She can be given the right to vote only by an amendment to the bylaws.

[Ray Harwood]

 

1 minute ago, Richard Brown said:

I will also mention that there is nothing wrong with the board treating this particular person as if she is a board member, but without the right to vote.   A special rule of order could be adopted or the rules suspended to permit her to attend and to participate in board meetings but without the right to vote.  She can be given the right to vote only by an amendment to the bylaws.

As an alternative process, if the bylaws permit, create an office – it could be another Vice President position, or some title for which this person's talents are particularly suited – and appoint her to that office. The special rule of order could then state that all officers are permitted to "participate in board meetings but without the right to vote".  (You might consider whether or not they should have the right to make motions, or should only be permitted to participate in debate.)

My approach makes the special rule less "about her" and more about non-director officers in general.

[Joshua Katz]

1 hour ago, Guest boardnightmare said:

Joshua:  She withdrew her own name in the heat of the moment because she was unhappy with proceedings.  She apparently wanted to nominate herself at the last minute for a different position that another candidate had already been nominated for, or so we are told now.  However, she did not make a motion to nominate herself, but rather simply made statements (false) about the other candidate and appeared to want to withdraw his name from the slate (no motion of any kind was made, but we don't really use Rules), and this was followed by another board member strongly voicing support for the person in question and refusing to acquiesce, and she then declared she did not wish to serve.

 

Well, it seems true enough that you have not been following any particular rules.  Your organization also appears to have rules about a "slate" which limit the voting rights of the members.  My opinion on that is irrelevant, but it does make it hard to analyze some of these questions without knowing your bylaws, so I won't attempt to.

 

1 hour ago, Guest boardnightmare said:

 The outgoing board is rushing to do this now because the incoming president has declared she will run meetings carefully according to Roberts Rules, and once that happens it is unlikely that most of this could happen.  Also, the board has become factious, and the incoming president is not part of this faction.  

Well, I guess that confirms my gut suspicion.  

[Guest boardnightmare]

Richard:  Sorry, I was not clear.  We have 9 meetings per year, and the final meeting is the last meeting that the outgoing board runs, and it is coming up in a few weeks.  That is what I was referring to.  It is both a membership and a board meeting, as the custom has been not to bother specifying which is which.  They are nearly all open meetings.

The issue with the meeting is that some people do not feel the meeting at which the announcement about amending bylaws is made needs to be a membership meeting.  Normally there would be no difference, but in this case the meeting which will be used to give notice has been called with only a few days notice as a "special board meeting" and no members have been notified.  However, our bylaws do not provide for such a board meeting.  They only provide for special membership meetings, which require 10 days notice and notice to all members.  Board meetings require 30.   But the language of the bylaws simply says notice must be given at "the prior meeting."  It doesn't say if it's a board or membership meeting.  

The biggest issue is not that the board can't find a way for this person to participate, but rather that her participation has become a point of contention in a faction war.  Therefore, she will not settle for anything less than full board membership.  

 

 

 

[Joshua Katz]

19 minutes ago, Guest boardnightmare said:

It is both a membership and a board meeting, as the custom has been not to bother specifying which is which.  They are nearly all open meetings.

You probably already know this, but that doesn't work.  A board meeting is distinct from a membership meeting primarily by who may vote, not who may attend.  If the membership is voting at your board meetings, then they are (de facto anyway) not board meetings.  But if they are membership meetings, the board should not be running them.  

 

21 minutes ago, Guest boardnightmare said:

But the language of the bylaws simply says notice must be given at "the prior meeting."  It doesn't say if it's a board or membership meeting.  

It would need to be a meeting of the body which can amend the bylaws.  While your organization needs to interpret its own bylaws, my personal opinion is that, since boards have only those powers they are given, this provision must mean a membership meeting.

[Josh Martin]

29 minutes ago, Guest boardnightmare said:

The issue with the meeting is that some people do not feel the meeting at which the announcement about amending bylaws is made needs to be a membership meeting.  Normally there would be no difference, but in this case the meeting which will be used to give notice has been called with only a few days notice as a "special board meeting" and no members have been notified.  However, our bylaws do not provide for such a board meeting.  They only provide for special membership meetings, which require 10 days notice and notice to all members.  Board meetings require 30.   But the language of the bylaws simply says notice must be given at "the prior meeting."  It doesn't say if it's a board or membership meeting.  

I concur with the previous responses that, unless the bylaws provide otherwise, the bylaws are to be amended by the membership, not by the board. Additionally, references to the “previous meeting” are generally understood to be references to meetings of the same assembly. It also seems pretty clear that 3 is less than 10, let alone 30. So even if notice could somehow be given at a board meeting, that is moot if the board meeting in question is not properly called.

Edited May 22, 2018 at 06:23 PM by Josh Martin