Disciplinary action affecting future board member

[Laura Meade]

Scenario:  Organization holds its board of director elections electronically at the end of July, but the directors don't take office until the biennial membership meeting in November.  A current board member was reelected. After the election, he was upset about one of the other elected members and said very bad things about the other member on social media.  The rest of the board would like to remove him from the board, and the bylaws allow the board to do this.  "Any Director or Officer elected or appointed by the membership may be removed by the Board of Directors whenever, in their judgment, the best interests of the Association would be served thereby.  Removal of a Director requires a two thirds majority vote of the full Board of Directors."

Questions:   

1. I understand they can remove him for cause from the current board, but can they prevent him from taking office on the new board in November, by including in the disciplinary action that he has since been disqualified to serve, or that the breach of "conduct injuring the good name of the organization" applies to the future board as well? 

2.  If they prevent him from taking office, is the open position considered an incomplete election or a vacancy?

3.  If they cannot prevent him from taking office, would the new board have to go through the whole disciplinary process again after the November meeting?

Thanks for your help.

[Joshua Katz]

23 minutes ago, Libran said:

 1. I understand they can remove him for cause from the current board, but can they prevent him from taking office on the new board in November, by including in the disciplinary action that he has since been disqualified to serve, or that the breach of "conduct injuring the good name of the organization" applies to the future board as well? 

 

It doesn't seem your customized rule allows that. The disciplinary process in Chapter XX could possibly be used, unless your rule occupies the field, which is a question of bylaw interpretation. 

24 minutes ago, Libran said:

 2.  If they prevent him from taking office, is the open position considered an incomplete election or a vacancy?

 

If after the election has been completed, a vacancy.

 

24 minutes ago, Libran said:

 3.  If they cannot prevent him from taking office, would the new board have to go through the whole disciplinary process again after the November meeting?

 

I don't know your rules in context, but they do not appear, to me anyway, to require a disciplinary process to remove a board member. They seem to require only a "2/3 majority vote of the full Board of Directors" which, presumably, your organization has attached some meaning to, since you've used it before. So far as I can tell, a rule phrased the way yours is, i.e. "the best interests of the Association would be served thereby. . . ." cannot possibly require any sort of disciplinary finding, since it allows you to remove people who haven't done anything wrong. 

That said, if the Board removes a director, and the Association then elects that director back into office, the Board might want to take a hint, note that its judgment differs from that of the Association it serves, and act accordingly. That's not to say that Boards aren't sometimes right and the membership wrong; I'm an elitist (and a cosmopolitan globalist, too) after all. But when it comes to the composition of the Board itself, going to war with the membership is likely a mistake.

[Josh Martin]

45 minutes ago, Libran said:

1. I understand they can remove him for cause from the current board, but can they prevent him from taking office on the new board in November, by including in the disciplinary action that he has since been disqualified to serve, or that the breach of "conduct injuring the good name of the organization" applies to the future board as well? 

No, I don’t think so.

45 minutes ago, Libran said:

2.  If they prevent him from taking office, is the open position considered an incomplete election or a vacancy?

It would be considered a vacancy. An election becomes complete immediately if the member is present and does not decline, or if he has previously consented to his candidacy. If he is not present and has not previously consented, it becomes complete when he is informed of his election and does not promptly decline. The facts presented suggest that the election is already complete.

In my opinion, however, it is not in order to prevent him from taking office.

45 minutes ago, Libran said:

3.  If they cannot prevent him from taking office, would the new board have to go through the whole disciplinary process again after the November meeting?

Yes, that would appear to be the case (although the “disciplinary process” in your bylaws appears to be quite simple).

16 minutes ago, Joshua Katz said:

It doesn't seem your customized rule allows that. The disciplinary process in Chapter XX could possibly be used, unless your rule occupies the field, which is a question of bylaw interpretation. 

I think it is clear, however, that the board may not use the procedures in Ch. XX for this purpose, since such power is reserved for the membership except where the bylaws provide otherwise.

16 minutes ago, Joshua Katz said:

That said, if the Board removes a director, and the Association then elects that director back into office, the Board might want to take a hint, note that its judgment differs from that of the Association it serves, and act accordingly. That's not to say that Boards aren't sometimes right and the membership wrong; I'm an elitist (and a cosmopolitan globalist, too) after all. But when it comes to the composition of the Board itself, going to war with the membership is likely a mistake.

The facts presented suggest to me that the board member has already been re-elected, and that the conduct at issue occurred after his re-election. It appears that the organization’s bylaws have a delayed time for taking office. So the board member is currently in office and has also been elected to another term which will begin in November.

Edited August 9, 2018 at 05:41 PM by Josh Martin

[Joshua Katz]

4 minutes ago, Josh Martin said:

I think it is clear, however, that the board may not use the procedures in Ch. XX for this purpose, since such power is reserved for the membership except where the bylaws provide otherwise.

20 minutes ago, Joshua Katz said:

The dangers of the passive voice! I agree.

 

4 minutes ago, Josh Martin said:

The facts presented suggest to me that the board member has already been re-elected, and that the conduct at issue occurred after his re-election. It appears that the organization’s bylaws have a delayed time for taking office. So the board member is currently in office and has also been elected to another term which will begin in November.

In that case, wake me back up if the members re-elect the director and the Board removes him again, and I'll say this again.

[Laura Meade]

Thanks.  Very helpful!

[J. J.]

1 hour ago, Libran said:

1. I understand they can remove him for cause from the current board, but can they prevent him from taking office on the new board in November, by including in the disciplinary action that he has since been disqualified to serve, or that the breach of "conduct injuring the good name of the organization" applies to the future board as well? 

 

I agree with the other posters, but will note that there may be a clause in the bylaws stating that someone removed is disqualified from holding office in the future.  Absent that, the member may be re-election and serve until he is removed, dies, or resigns. 

[Guest Zev]

The Board is allowed the removal right this second. In November the same individual assumes office. The Board is allowed the removal at that time. I do not see any problem with any of this. So, if the Board can impeach someone either now or in the future it seems somewhat strange that some mysterious force prevents them from exercising their discretion at this very instant and impeaching someone now and in the future at the same time. If they cannot perform both of these acts right now, where did this mysterious force come from? As J.J. mentions, perhaps there is something else in the bylaws concerning this matter.

[Atul Kapur]

1 hour ago, Guest Zev said:

So, if the Board can impeach someone either now or in the future it seems somewhat strange that some mysterious force prevents them from exercising their discretion at this very instant and impeaching someone now and in the future at the same time. 

Not so mysterious. The future board is a different board than the present board. Each board can remove a member from itself, but not from the other.

[Joshua Katz]

2 hours ago, Guest Zev said:

So, if the Board can impeach someone either now or in the future it seems somewhat strange that some mysterious force prevents them from exercising their discretion at this very instant and impeaching someone now and in the future at the same time. If they cannot perform both of these acts right now, where did this mysterious force come from?

I'm not seeing the mystery. Is it any more mysterious than, for instance, the rule that a session cannot bind a future session?

[Guest Zev]

1 hour ago, Atul Kapur said:

Not so mysterious. The future board is a different board than the present board. Each board can remove a member from itself, but not from the other.

I must have missed the part that indicated that it was a completely new Board. The Board can remove a member from its own Board but not from a different future Board. Thank you, gentlemen.

[Atul Kapur]

Just to clarify: the future board is a different board because the terms of some or all of the members have ended. Even if every member of the present board is re-elected to the future board in the same roles, the present board still could not remove a member from the future board.