Extending a questionable term indefinitely

[AFS1970]

I changed this from a TLDR post. When a rule says that someone serves a term or until their successor is elected, is that indefinitely or is there some sort of time limit when this has to be revisited? 

Also if someone is eligible when elected but then becomes ineligible does this become effective immediately or at the end of a term?

I ask these because our fire chief moved outside of the residency requirements in the middle of his term of office. Our president & vice president declared at the time that he could remain in office because the bylaws say he serves a two year term or until his successor is elected and since we had not elected a replacement he could stay. I am of the opinion that the position would have had to be declared vacant in order to nominate a successor so they effectively blocked that from happening. However now the two years is up and nominations are approaching. We can not nominate the chief for reelection because he is not eligible. The president has said this doesn't matter because he can continue to serve until we elect his successor. I can't imagine that we inadvertently elected a chief for life a couple of years ago. I also wonder what happens if an eligible candidate is nominated for chief and the current chief can't run against them?

[Tom Coronite]

If bylaws specify an officer holds an office for a term of ___ years OR until a successor is elected, the officer may be removed at the pleasure of the society by a 2/3 vote, majority vote with previous notice, or a vote of a majority of the entire membership. Maybe you should pursue that. It seems that would solve your dilemma, which appears to be more about qualifications to hold office (your point) than when a term ends (the current chief's point).

Much would likely depend on the wording of your bylaws regarding the qualification(s) to hold office. 

 

Edited April 2, 2019 at 05:56 PM by Tom Coronite

[Joshua Katz]

1 hour ago, AFS1970 said:

I ask these because our fire chief moved outside of the residency requirements in the middle of his term of office.

When you say residency requirements, do you mean qualifications for office as defined in the bylaws?

[Josh Martin]

4 hours ago, AFS1970 said:

I changed this from a TLDR post. When a rule says that someone serves a term or until their successor is elected, is that indefinitely or is there some sort of time limit when this has to be revisited? 

When a rule provides that a person serves a term or until until a successor is elected, this is theoretically indefinite, however, the expectation is that the election will be completed as soon as possible, however, I don’t think this rule is applicable to your situation.

4 hours ago, AFS1970 said:

Also if someone is eligible when elected but then becomes ineligible does this become effective immediately or at the end of a term?

In my opinion, it would generally become effective immediately (unless the rule in question suggests otherwise), although this will ultimately come down to the organization interpreting its own rules.

4 hours ago, AFS1970 said:

I ask these because our fire chief moved outside of the residency requirements in the middle of his term of office. Our president & vice president declared at the time that he could remain in office because the bylaws say he serves a two year term or until his successor is elected and since we had not elected a replacement he could stay.

The purpose of a rule which provides that a person shall serve until a successor is elected is to permit an officer to serve beyond the expiration of his term, until the election can be completed, in the event that the assembly fails to complete its regularly scheduled elections in a timely manner. The purpose of such a rule is not to permit an officer to continue serving in an office even although he is no longer eligible to serve. The section of RONR which suggests the use of this language begins as follows:

“To ensure the continued services of officers in the event, for example, of public emergency or of difficulty in obtaining a nominee for an office, the unqualified wording "for a term of . . . year(s)" should be avoided, because at the end of that time there would be no officers if new ones had not been elected.” (RONR, 11th ed., pgs. 573-574)

4 hours ago, AFS1970 said:

I am of the opinion that the position would have had to be declared vacant in order to nominate a successor so they effectively blocked that from happening. However now the two years is up and nominations are approaching. We can not nominate the chief for reelection because he is not eligible. The president has said this doesn't matter because he can continue to serve until we elect his successor. I can't imagine that we inadvertently elected a chief for life a couple of years ago. I also wonder what happens if an eligible candidate is nominated for chief and the current chief can't run against them?

In my view, the fire chief’s service should have already ended, and in any event, the society must now proceed to elect an eligible person to that office. The rule in question is intended for cases when the society inadvertently fails to complete its elections, not for the society to choose not to hold the elections required by its bylaws (especially when the current person in the position is ineligible).

4 hours ago, Tom Coronite said:

If bylaws specify an officer holds an office for a term of ___ years OR until a successor is elected, the officer may be removed at the pleasure of the society by a 2/3 vote, majority vote with previous notice, or a vote of a majority of the entire membership. Maybe you should pursue that. It seems that would solve your dilemma, which appears to be more about qualifications to hold office (your point) than when a term ends (the current chief's point).

Much would likely depend on the wording of your bylaws regarding the qualification(s) to hold office. 

It seems that at this point, the term of office will soon expire, so perhaps it is not worth the trouble of attempting to remove the fire chief at this time, and the OP should focus his efforts on ensuring that his term is not extended any further.

[Richard Brown]

I think much too much emphasis is being placed on the fact that the bylaws say that  officers,  presumably including fire chief, may continue to serve until his successor is elected. If being a resident of the district is a requirement and qualification for holding office, and the chief ceases to meet that requirement, in my opinion he is no longer qualified to be Chief and the position may be declared vacant by the chair based upon a point of order being raised by a member in a meeting. The chair himself may raise the point of order and make the ruling. That ruling is, of course, subject to appeal to the assembly. 

[George Mervosh]

4 hours ago, Richard Brown said:

I think much too much emphasis is being placed on the fact that the bylaws say that  officers,  presumably including fire chief, may continue to serve until his successor is elected. If being a resident of the district is a requirement and qualification for holding office, and the chief ceases to meet that requirement, in my opinion he is no longer qualified to be Chief and the position may be declared vacant by the chair based upon a point of order being raised by a member in a meeting. The chair himself may raise the point of order and make the ruling. That ruling is, of course, subject to appeal to the assembly. 

I thought the only way to remove an elected officer via a point of order which is well taken or not well taken but upheld on an appeal was in the case that the officer was not eligible to hold the position when he was elected, even if he became eligible after the election was completed, not vice versa.

[Josh Martin]

56 minutes ago, George Mervosh said:

I thought the only way to remove an elected officer via a point of order which is well taken or not well taken but upheld on an appeal was in the case that the officer was not eligible to hold the position when he was elected, even if he became eligible after the election was completed, not vice versa.

So if an officer becomes ineligible to serve subsequent to his election, and the officer does not submit his resignation, the only proper remedy is disciplinary procedures, unless the organization’s rules provide otherwise?

Edited April 3, 2019 at 01:56 PM by Josh Martin

[George Mervosh]

Just now, Josh Martin said:

So if an officer becomes ineligible to serve subsequent to his election, the only proper remedy is disciplinary procedures, unless the organization’s rules provide otherwise?

Or, by moving to rescind the election in this case,  yes, in my opinion.

""If the chair is not an appointed or elected chairman pro tem, a motion to declare the chair vacant is not in order. "  RONR (11th ed.), p. 652

"A permanent removal of the presiding officer, and removal of authority to exercise administrative duties conferred by the bylaws, requires the procedure described below."  p. 653 and the passages that follow that.

[J. J.]

6 minutes ago, George Mervosh said:

Or, by moving to rescind the election in this case,  yes, in my opinion.

""If the chair is not an appointed or elected chairman pro tem, a motion to declare the chair vacant is not in order. "  RONR (11th ed.), p. 652

"A permanent removal of the presiding officer, and removal of authority to exercise administrative duties conferred by the bylaws, requires the procedure described below."  p. 653 and the passages that follow that.

Would not the bylaws superseded this?  If the bylaws say, in effect, an officer shall cease to be an officer when this commission is met, why would rescission or disciplinary action be needed? 

[George Mervosh]

2 minutes ago, J. J. said:

Would not the bylaws superseded this?  If the bylaws say, in effect, an officer shall cease to be an officer when this commission is met, why would rescission or disciplinary action be needed? 

Because I don't see anything in RONR to support any other method given that the election to office was valid when it occurred.  

[J. J.]

Just now, George Mervosh said:

Because I don't see anything in RONR to support any other method given that the election to office was valid when it occurred.  

   The bylaws would create that other method.  Certainly they could, though whether or not do in this case is questionable. 

[George Mervosh]

1 minute ago, J. J. said:

   The bylaws would create that other method.  Certainly they could, though whether or not do in this case is questionable. 

Yes, of course, but I respectfully disagree with Mr. Brown that declaring the position vacant is a proper procedure under the rules in RONR.

[Joshua Katz]

We still don't know, I'd point out, where this disqualification is found.

Mr. Mervosh, would your opinion change if it is found in a statute?

Also, as a guide toward answering the question in controversy above: what happens if the bylaws are amended during the term of an officer, making that officer ineligible? If the answer is that the officer stays in office, doesn't that make nonsense of the statement that bylaw amendments take effect immediately? If the answer is that the officer does not stay in office, then why is it any different if something about the officer changes and leads to the disqualification?

In any event, it seems to me that bylaws outrank RONR, and if the bylaws discuss eligibility to serve (as opposed to eligibility to be elected) we don't need anything in RONR to tell us that the officer can no longer serve, since the bylaws say so.

[J. J.]

38 minutes ago, George Mervosh said:

Yes, of course, but I respectfully disagree with Mr. Brown that declaring the position vacant is a proper procedure under the rules in RONR.

That will largely depend on what the bylaws say, and very possibly will be a question of bylaw interpretation.

I can see a situation where the assembly may properly determine that someone is ineligible to hold office, by a point of order, and that there is no incumbent in that office.  It could then either complete the election or fill the vacancy, as appropriate.  Most bylaws do not include a clause that an incumbent who is dead is no longer in office, but there is no question that, absent a bylaw to the contrary, that the office is vacant.

The second footnote on page 654, does indicate that a member who is also an officer,being removed from membership (via disciplinary action) is "necessarily" removed from office if an officer is required to be a member as a condition of eligibility to hold that office.

It can be looked at, possibly, as a motion, "That X be elected chief," is now a motion that violates the bylaws.  If that motion is not in force, filling the vacancy, would not be the adoption of a main motion conflicting with one still in force (p. 445, ll. 19-25)."

There may be a lot of questions on if something violates the bylaws or not, or even if that would effect eligibility at this point in time. 

Perhaps another question that should be asked is what happens when a previously adopted main motion becomes one in violation of the bylaws?  It was clearly in order when adopted, but it now violates the bylaws.

Edited April 3, 2019 at 03:10 PM by J. J.

[Guest Who's Coming to Dinner]

1 hour ago, J. J. said:

That will largely depend on what the bylaws say, and very possibly will be a question of bylaw interpretation.

Here is the heart of the matter. "The candidate must be a resident to be elected" versus "The fire chief must be a resident to hold office" mean very different things.

[George Mervosh]

1 hour ago, Joshua Katz said:

Mr. Mervosh, would your opinion change if it is found in a statute?

Procedural rules in statute always prevail.

1 hour ago, Joshua Katz said:

Also, as a guide toward answering the question in controversy above: what happens if the bylaws are amended during the term of an officer, making that officer ineligible? If the answer is that the officer stays in office, doesn't that make nonsense of the statement that bylaw amendments take effect immediately? If the answer is that the officer does not stay in office, then why is it any different if something about the officer changes and leads to the disqualification?

I don't think anyone would argue that the adoption of a motion to amend the bylaws related to officers could eliminate or remove the current officers simply by its adoption. But I see a distinction between that act and an allegation the current bylaws are being violated in some way by a person who holds office to which he was properly elected to and leaving it up to a point of order to remove a sitting officer.

[Josh Martin]

30 minutes ago, George Mervosh said:

I don't think anyone would argue that the adoption of a motion to amend the bylaws related to officers could eliminate or remove the current officers simply by its adoption. But I see a distinction between that act and an allegation the current bylaws are being violated in some way by a person who holds office to which he was properly elected to and leaving it up to a point of order to remove a sitting officer.

Why, however, is a Point of Order not sufficient? A Point of Order is used to allege a violation of the organization’s rules. If the bylaws require that a person must meet certain requirements to be eligible for office, and that person no longer meets this requirement, this is a violation of the bylaws and may be addressed by a Point of Order. The issue seems to be with questioning whether this is a continuing breach, since the rules in RONR on that subject provide only that the adoption of a main motion constitutes such a breach, and there was no conflict at the time the person was elected.

It seems to me, however, that whether it is a continuing breach is irrelevant. If the person is currently ineligible to serve, then there is a current violation of the organization’s bylaws, and a Point of Order is timely for that reason.

As J.J. suggests, the issue could come up when a member makes a motion to fill the vacancy. The chairman might rule that the motion is out of order on the grounds that the position is not vacant, and a member could appeal on the grounds that the person in that position is not eligible to continue serving.

[Joshua Katz]

45 minutes ago, George Mervosh said:

Procedural rules in statute always prevail.

2 hours ago, Joshua Katz said:

Yes, but so what? Rules in the bylaws also prevail, too.

[George Mervosh]

3 minutes ago, Josh Martin said:

Why, however, is a Point of Order not sufficient? A Point of Order is used to allege a violation of the organization’s rules. If the bylaws require that a person must meet certain requirements to be eligible for office, and that person no longer meets this requirement, this is a violation of the bylaws and may be addressed by a Point of Order. The issue seems to be with questioning whether this is a continuing breach, since the rules in RONR on that subject provide only that the adoption of a main motion constitutes such a breach, and there was no conflict at the time the person was elected.

It seems to me, however, that whether it is a continuing breach is irrelevant. If the person is currently ineligible to serve, then there is a current violation of the organization’s bylaws, and a Point of Order is timely for that reason.

I guess my concern is, if the allegation isn't as clear cut as the guy not meeting the residency requirements, how does one defend themselves against such an allegation of a current violation of the organization's bylaws, or is he not entitled to such a defense other than perhaps he and one other appealing a well taken point of order?    But you may be right because I see your point about the timeliness.

[Guest Zev]

1 hour ago, George Mervosh said:

...or is he not entitled to such a defense other than perhaps he and one other appealing a well taken point of order?

Did he not have a defense at the moment the chairman stated that the bylaws amendment became pending and the debate started?

2 hours ago, George Mervosh said:

I don't think anyone would argue that the adoption of a motion to amend the bylaws related to officers could eliminate or remove the current officers simply by its adoption.

Once the bylaws amendment is adopted and the office is abolished I fail to see what controversy could possibly exist. If the office does not exist as of this exact moment then how in the world could some person argue that he is the current officeholder of an office that does not exist? Nevertheless, some people may be confused with the logic of all this and very likely would attempt to resolve it by attaching a proviso to the bylaws amendment clarifying what is to occur with the current officeholder.

[Josh Martin]

5 hours ago, George Mervosh said:

I guess my concern is, if the allegation isn't as clear cut as the guy not meeting the residency requirements, how does one defend themselves against such an allegation of a current violation of the organization's bylaws, or is he not entitled to such a defense other than perhaps he and one other appealing a well taken point of order?    But you may be right because I see your point about the timeliness.

Generally eligibility requirements are not (or should not be) written in such a way that there is an “allegation” which must be defended against. If an organization requires for eligibility for office that a person must be a member of the society, or must live in a certain geographical area, or must be an employee of a certain company, or must hold a certain license or certification, or so forth, these are verifiable facts based upon records. The person either does or does not have the qualification in question, and I do not think pointing out that the person does not have the qualification in question is an allegation against the member’s good name.

It is conceivable that an organization might adopt vague “eligibility” requirements like stating that officers must be “of good moral character” or something, and I agree that a Point of Order regarding that requirement would not be appropriate.

3 hours ago, Guest Zev said:

Did he not have a defense at the moment the chairman stated that the bylaws amendment became pending and the debate started?

Well, I think we’re talking about the issue of the person who no longer meets the eligibility requirements, not the bylaw amendment. The member may (if he is present) speak in debate on the appeal of the Point of Order, but he does not have an opportunity for the sort of “defense” described in Ch. XX of RONR (although, for the reasons noted above, I don’t think this is generally a problem).

3 hours ago, Guest Zev said:

Once the bylaws amendment is adopted and the office is abolished I fail to see what controversy could possibly exist. If the office does not exist as of this exact moment then how in the world could some person argue that he is the current officeholder of an office that does not exist? Nevertheless, some people may be confused with the logic of all this and very likely would attempt to resolve it by attaching a proviso to the bylaws amendment clarifying what is to occur with the current officeholder.

I think Mr. Mervosh may have fallen through a “not” hole.

Edited April 3, 2019 at 10:09 PM by Josh Martin

[J. J.]

5 hours ago, George Mervosh said:

I guess my concern is, if the allegation isn't as clear cut as the guy not meeting the residency requirements, how does one defend themselves against such an allegation of a current violation of the organization's bylaws, or is he not entitled to such a defense other than perhaps he and one other appealing a well taken point of order?    But you may be right because I see your point about the timeliness.

If it were found that the motion electing the officer was still in effect them a point of order could be raised based on p. 445, ll. 19-22.

I would refer you to a paper, but I forget which that it is. 

[J. J.]

I found it.  Precedent and RONR, National Parliamentarian, Third Quarter 2012.  

I'm sorry, but my memory is going.  

Edit:  I am attaching a copy because it sounds so much like this thread. 

NP 31.doc

Edited April 3, 2019 at 10:24 PM by J. J.

[Guest Zev]

When I click on the hyperlink the system says that the document does not exist. Why?

 

[Weldon Merritt]

11 minutes ago, Guest Zev said:

When I click on the hyperlink the system says that the document does not exist. Why?

 

It worked for me.