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leonard miller

policies and procedures

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Our constitution of a not for profit organizations states that to be eligable to run for office the candidate must not live out of state for two or more months each year.  In the policies and proceedures section a proposed policy states that if no candidates are found to run for office, the constitutional rule can be exempted to allow a canidate to run for office if he lives out of state for two or more months. Can this be a valid policy or proceedure?

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Any lower-ranking rule contradicting a higher-ranking rule is null and void. My question is: policies and procedures section of what? If it is a section of the Constitution, your Constitution will contain a contradiction, and you'd need to resolve that (more specific provision governs) or, better yet, fix it while you're amending. If, on the other hand, the policies and procedures refers to standing rules (more common), then, assuming the rule in the Constitution is as you paraphrase, that rule will govern, no matter what the lower-ranked rules say, and such a person will be ineligible to run. However, a full answer would require knowing more about the Constitution (does the rule allow for its own suspension, etc.) which would take us into interpretation, which only your organization can perform. Another interpretation question is presented, which is also left for your organization: does the restriction also apply to holding office? If  the restriction is truly only on running, such a person could win as a write-in, or be appointed to a vacancy, etc. 

Of course, if your organization is unhappy with the rule in the Constitution, it is, subject to the procedures for doing so, free to amend the Constitution to something it will be happier with. (There may be some legal restrictions on changes to the Constitution if it must be filed as part of your incorporation documents, but that is a legal question beyond the scope of this forum.)

If you see this before it happens, by the way, don't be surprised if this post is moved later to the basic forum. 

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I will be more specific as to the exact wording of the of the constitution. It is different than I paraphrased.  Under Article IV , section 3-- Any elected officer must be available twelve months of the year in their capacity.  Those who would be absent from the area for two or more months, except for health or family concerns, are not eligible to hold a seat on the Board of Officers.  This gives a different slant to the facts.

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Then the meaning seems clear, and a lower-ranking rule in conflict would be null and void, unless something else in the Constitution provides for suspension of this rule. (As an aside, there is some ambiguity in the rule, although it doesn't seem to impact your question: it first requires 12 month availability, and then sets the bar, seemingly, at 10 months, although there might be some difference between availability and physical presence.)

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