Elected vs appointed directors

[smb]

Somewhat related to another thread, but figured it should be a separate discussion.

A Board consists of 7 directors "elected" by the members and 2 additional directors "appointed by the Board."

Elsewhere in the bylaws [and policies] there are several sections where it makes a difference whether a director was "elected" or "appointed".

The bylaws also provide that in case of a vacancy, a successor is "appointed by the President, subject to confirmation by the Board."

One of the "elected" directors resigned.  The president appointed a successor and the board confirmed.  The question is whether this new director is an "appointed" director or an "elected" director.  Logically, I would think that references to "appointed" vs "elected" directors refers to the normal way one becomes a director and the vacancy provision simply adds an element of confusion.  Thus one "appointed" to fill a vacancy in an "elected" position is still sitting in an "elected" position. But, to put this into RONR-ese, since the process for filling a board vacancy is similar to the process in RONR for "appointing" a committee via "nominations by the Chair [p. 494]  I have to wonder whether others would differ from my 'logical' approach and consider this new director "appointed" instead of "elected."

I recognize this is a question of bylaws interpretation, and I have already advised the board they have the responsibility to do so,  but I'm curious to know if others have encountered this situation.

[Rob Elsman]

What did the society intend when the bylaw was adopted? Something must have been intended.

[Dan Honemann]

My guess is that, in those sections in the bylaws where it makes a difference whether a director was "elected" or "appointed", "appointed" refers to directors who are appointed by the board, but my guess doesn't count for much.

[Guest Zev]

If anyone claims that the person in question was elected rather than appointed then I could demand to see the minutes of the meeting which contains the tellers report of that election. 

[smb]

Ok, a refinement....

If we assume such directors are 'appointed', are they appointed by the President or appointed by the Board? A significant factor since the power of removal lies with the power of appointment.  RONR at p. 497 ll. 7-13 suggests that the President would have authority to remove only if the appointment was "by the President acting alone."  But that section refers solely to committee appointments.  Does the same principle apply to an executive board?  [I am referring to a Board of Directors which is the "deliberative assembly" itself; not an appointed "executive committee" that is subject to the assembly.] 

While I recognize this may be an issue of bylaw interpretation, my interest here is in determining whether experienced parliamentarians who might be asked to opine would apply pp. 497 to an executive board or apply the section literally to committee appointments only. In another post one of our contributors suggested it does -- but I think the subject warrants some further discussion.  Thx

[Rob Elsman]

The general rule with respect to the filling of vacancies on an executive board is given in RONR (11th Ed.), p.467.

Because there seems to be a different and superseding rule in your organization's governing documents, what is said in RONR won't be of any help.

[Richard Brown]

On 6/14/2019 at 3:14 PM, smb said:

One of the "elected" directors resigned.  The president appointed a successor and the board confirmed.  The question is whether this new director is an "appointed" director or an "elected" director.  Logically, I would think that references to "appointed" vs "elected" directors refers to the normal way one becomes a director and the vacancy provision simply adds an element of confusion.  Thus one "appointed" to fill a vacancy in an "elected" position is still sitting in an "elected" position. But, to put this into RONR-ese, since the process for filling a board vacancy is similar to the process in RONR for "appointing" a committee via "nominations by the Chair [p. 494]  I have to wonder whether others would differ from my 'logical' approach and consider this new director "appointed" instead of "elected."

I agree with the rationale you expressed above and also agree with your conclusion that this is ultimately a bylaws interpretation issue.

Although the director who resigned was an elected director, and one might also consider that director position to be that of an elected director, it is true that the method of filling the vacancy is by appointment.

However, I find no problem with your rationale that ultimately this director could be considered an electric elected director by virtue of the director position that he holds.

Edited to correct an electrifying typo! Thanks, Weldon ! 

Edited June 16, 2019 at 04:38 PM by Richard Brown
Typographical correction.

[Bruce Lages]

Mr. Brown's last sentence really gave me quite a charge.

[Rob Elsman]

I was shocked, but I was trying not to say anything.

[Richard Brown]

I find both interpretations are reasonable. The director can be considered an elected director by virtue of the director seat he holds. He can also be considered to be an appointed director by virtue of the way he got the position. 

Without seeing the bylaws in their entirety, I think both interpretations are reasonable.  I cannot say that SMB's interpretation is unreasonable based on the information we have.

[Weldon Merritt]

I believe that Mr. Lages and reelsman were reacting to your statement that "this director could be considered an electric director." (Emphasis added.)

[Richard Brown]

Oops!  LOL!!  I did not catch that! I made the comment on my cell phone and also made the response I just made on my cell phone and overlooked that mistake in the tiny print. I'm also fairly certain I was using voice to text and simply didn't catch the mistake. I was wondering why they found my position so outrageous! Thanks, Weldon!

[Josh Martin]

On 6/14/2019 at 5:43 PM, Guest Zev said:

If anyone claims that the person in question was elected rather than appointed then I could demand to see the minutes of the meeting which contains the tellers report of that election. 

Yes, there is no doubt that this particular person was appointed and confirmed by the board. In the context of these provisions which refer to “appointed” directors, however, it may well be that such provisions should properly be interpreted to refer only to positions which are appointed in the first instance, not to directors which are appointed due to a vacancy in an elected position.

With that said, I think an interpretation that the provisions also refer to those directors who are appointed to fill a vacancy in an elected position would be reasonable.

On 6/15/2019 at 1:25 PM, smb said:

If we assume such directors are 'appointed', are they appointed by the President or appointed by the Board? 

They are appointed by the President and confirmed by the board, as the rule provides.

On 6/15/2019 at 1:25 PM, smb said:

A significant factor since the power of removal lies with the power of appointment.  RONR at p. 497 ll. 7-13 suggests that the President would have authority to remove only if the appointment was "by the President acting alone."  But that section refers solely to committee appointments.  Does the same principle apply to an executive board?  [I am referring to a Board of Directors which is the "deliberative assembly" itself; not an appointed "executive committee" that is subject to the assembly.] 

I think it is reasonable to view them as analogous to committee members nominated by the chairman and approved by the board for purposes of removal, assuming the board positions in question would not require formal disciplinary procedures for removal, and assuming the bylaws are silent regarding removal.

Edited June 16, 2019 at 09:22 PM by Josh Martin

[J. J.]

There may specific positions whose occupants have the title of "elected director" and "appointed director."  It would be possible for someone to be appointed to fill a vacancy in the position of "appointed director." 

This is a question where you would need to consult the bylaws, carefully. 

[jstackpo]

When the board "appointed" one of those "appointed members" how did the board come to a decision as to who to appoint? 

I'll bet that it was by an election process of some sort!

So, thus, all the board members are "elected members" -- the difference is who did the electing, the other board members or the general membership?  Do the bylaws make that distinction?

(I'll bet they don't!)

[Josh Martin]

1 hour ago, jstackpo said:

When the board "appointed" one of those "appointed members" how did the board come to a decision as to who to appoint? 

I'll bet that it was by an election process of some sort!

So, thus, all the board members are "elected members" -- the difference is who did the electing, the other board members or the general membership?  Do the bylaws make that distinction?

(I'll bet they don't!)

Yes, I think it would be more accurate to say that the persons “appointed” by the board are in fact “elected” by the board, and that the rules should instead distinguish between members elected by the membership and those elected by the board, rather than distinguishing between appointed and elected members. The bylaws as they are presently written, however, describe those persons selected by the board as “appointed by the board” and those persons selected by the membership as “elected.” As a result, it seems entirely reasonable to conclude that when the bylaws refer to “appointed” members, they refer to those persons selected by the board.

Edited June 17, 2019 at 09:19 PM by Josh Martin

[jstackpo]

Even a presidential appointment is an "election" of sorts, just with an electorate of one.

"Appointment" is the authority (usually from the bylaws) to name a person, or persons, to various positions.

"Election" is just one of a fair number of methods by which one, or a group, decides from a body of candidates just who to appoint.  Others could be seniority, drawing straws, drawing cards, mortal combat, height, any number of possibilities. Can you think of others?

[Josh Martin]

48 minutes ago, jstackpo said:

Even a presidential appointment is an "election" of sorts, just with an electorate of one.

"Appointment" is the authority (usually from the bylaws) to name a person, or persons, to various positions.

"Election" is just one of a fair number of methods by which one, or a group, decides from a body of candidates just who to appoint.  Others could be seniority, drawing straws, drawing cards, mortal combat, height, any number of possibilities. Can you think of others?

Yes, as I have already stated, there are ways that the organization could have more clearly worded its intent.

The bylaws as they are presently written, however, refer to board members who are “elected” by the membership and those who are “appointed” by the board, and also to board members who (in the case of a vacancy in an elected office) are “appointed” by the President and confirmed by the board. In addition, there are apparently rules in the bylaws in which it makes a difference whether a board member is “elected” or “appointed.” As a result, it would seem that there is a particular meaning to these terms in the context of the bylaws, and unless and until the organization has amended its bylaws to clarify this matter, the organization will, in the interim, figure out what that meaning is.

[Guest 615]

On 6/16/2019 at 8:58 AM, Rob Elsman said:

I was shocked, but I was trying not to say anything.

I'm ec static a year later reading this