Determining a board meeting quorum when vacancies have not been filled

[EdmChurch]

This question related to our church.

Our bylaws stated the board meeting quorum must have a minimum of two thirds of the Board Members in attendance.

Our Board is formed by 4 elected chairperson, 1 elected board chairperson, 1 elected treasurer, 1 elected facility chairperson, 4 pastoral staff and 1 senior pastor.

Right now we only have 2 elected chairperson, 1 elected board chairperson, 1 elected facility chairperson, and 4 pastoral staff.

So to call for a board meeting, how many people we need?

 

Edited June 29, 2019 at 10:23 PM by EdmChurch

[Joshua Katz]

2/3 of 8 is 5 point something, so you need 6 to have a quorum. However, that's unrelated to your question:

15 minutes ago, EdmChurch said:

So to call for a board meeting, how many people we need?

 

To answer that, you need to know what your bylaws say about calling a meeting. What do they say about that?

[EdmChurch]

To rephrase my question, so my board meeting quorum will be based on 2/3 of the total number of board members we can filled (12) or based on the number of board members we have now (8)?

[Gary Novosielski]

56 minutes ago, EdmChurch said:

This question related to our church.

Our bylaws stated the board meeting quorum must have a minimum of two thirds of the Board Members in attendance.

Our Board is formed by 4 elected chairperson, 1 elected board chairperson, 1 elected treasurer, 1 elected facility chairperson, 4 pastoral staff and 1 senior pastor.

Right now we only have 2 elected chairperson, 1 elected board chairperson, 1 elected facility chairperson, and 4 pastoral staff.

So to call for a board meeting, how many people we need?

 

The requirements for calling a meeting are unrelated to quorum. 

But presuming a meeting was properly called, your quorum is now 6, if that paraphrase of the bylaws properly represents the actual language. You currently have 8 board members.  Empty chairs cannot be members.  So 2/3 of 8 is 5.333... which, unless you have fractional memberships, means 6 are needed.

[Joshua Katz]

14 minutes ago, EdmChurch said:

To rephrase my question, so my board meeting quorum will be based on 2/3 of the total number of board members we can filled (12) or based on the number of board members we have now (8)?

Based solely on what we've seen from your bylaws, the latter. 

[EdmChurch]

13 hours ago, Joshua Katz said:

Based solely on what we've seen from your bylaws, the latter. 

The term for the elected chairperson will be expired on Jul 1, 2019. So the number of board members we going to have will be 7?

Under the Not-for-Profit Corporation (NPF) Act, a corporation is required to specify in its articles either a fixed number of directors or a minimum and maximum number of directors (refer to subsection 7(1) of the NFP Act).

So i don't see my church using fixed number nor using min/max number of directors. Am i missing something?

 

[Joshua Katz]

Well, I can't tell you why the body responsible for filling vacancies on your board hasn't done so. It should. 

As for the NPF Act, we don't give legal advice here - all our answers are in accordance with RONR, and any applicable procedural statute takes precedence. For legal advice, you'd need to talk to an attorney. 

[EdmChurch]

33 minutes ago, Joshua Katz said:

Well, I can't tell you why the body responsible for filling vacancies on your board hasn't done so. It should. 

As for the NPF Act, we don't give legal advice here - all our answers are in accordance with RONR, and any applicable procedural statute takes precedence. For legal advice, you'd need to talk to an attorney. 

We tried to find someone to fill in the vacancy but we have 4 YES, 2 NO and 2 Abstained at our last board meeting (6 present and 2 did not show up). We need 3/4 approval from the board members, so 3/4 of 6 = 4.5 or 5.

[Gary Novosielski]

1 hour ago, EdmChurch said:

The term for the elected chairperson will be expired on Jul 1, 2019. So the number of board members we going to have will be 7?

Under the Not-for-Profit Corporation (NPF) Act, a corporation is required to specify in its articles either a fixed number of directors or a minimum and maximum number of directors (refer to subsection 7(1) of the NFP Act).

So i don't see my church using fixed number nor using min/max number of directors. Am i missing something?

 

In your first message you seemed to indicate that your full board had a fixed number (12) seats.  

Bear in mind that the authorized board size and the quorum are two very different things.

[EdmChurch]

10 minutes ago, Gary Novosielski said:

In your first message you seemed to indicate that your full board had a fixed number (12) seats.  

Bear in mind that the authorized board size and the quorum are two very different things.

Other than what i have mentioned so far, all our meeting will be carried out according to the lastest edition of the RONR if we silents on (i.e. not being mentioned in our bylaws).

On one hand i am trying to understand our bylaws requirements, but on the other hand i am trying to understand did our bylaws follows the NFP Act.

The Act said, "If a vacancy occurs on the board of directors, the remaining directors can continue to exercise all the powers of directors as long as the number of remaining elected directors constitutes a quorum, that is, a majority of the directors, or the minimum number of directors required at a meeting, unless otherwise specified in your corporation's by-laws (refer to subsection 136(2) of the NFP Act)."

So what constitutes a quorum in my case? We required a minimum of 2/3 of board members in attendance at any meeting.

I am not asking legal advise here but trying to understand all these numbers here. I appreciated all your folks' help here.

[Atul Kapur]

1 hour ago, EdmChurch said:

Under the ... Act, a corporation is required to specify in its articles either a fixed number of directors or a minimum and maximum number of directors....

So i don't see my church using fixed number nor using min/max number of directors. Am i missing something?

The Articles of Incorporation are different from your bylaws and are filed with the government. The church office likely has a copy.

But I agree with Mr. Katz that you said your bylaws specify a number and that you should be filling your vacancies.

1 hour ago, EdmChurch said:

The term for the elected chairperson will be expired on Jul 1, 2019.

Do the bylaws language about the term mention "and" or "or" the election of their successors? Depending on the exact language, the term may be extended if there is no replacement chosen.

[EdmChurch]

4 minutes ago, Atul Kapur said:

The Articles of Incorporation are different from your bylaws and are filed with the government. The church office likely has a copy.

But I agree with Mr. Katz that you said your bylaws specify a number and that you should be filling your vacancies.

Do the bylaws language about the term mention "and" or "or" the election of their successors? Depending on the exact language, the term may be extended if there is no replacement chosen.

I am still trying to locate such an article.

The chairperson does not want to extend his term.

[Atul Kapur]

I wasn't talking about whether your chairmen wanted to extend the term. I was saying your bylaws language may automatically extend the term until a replacement is chosen.

[Atul Kapur]

13 minutes ago, EdmChurch said:

I am not asking legal advise here

Actually, you are. You are asking us to interpret what a particular statement in the Act means and how it applies to your situation. That's legal advice.

If you limited it to asking how to interpret the language in your bylaws, we can advise there. But, even then, it's only advice and the decision is up to your church.

[Joshua Katz]

50 minutes ago, EdmChurch said:

The Act said, "If a vacancy occurs on the board of directors, the remaining directors can continue to exercise all the powers of directors as long as the number of remaining elected directors constitutes a quorum, that is, a majority of the directors, or the minimum number of directors required at a meeting, unless otherwise specified in your corporation's by-laws (refer to subsection 136(2) of the NFP Act)."

 

I think what's confusing you here (as well it should, really) is that the Act requires that the remaining directors constitute a quorum, but we're saying that the quorum is based on the number of actual, human directors, making it impossible for the board to consist of less than a quorum. You are right to be confused. Lawyers often are not terribly familiar with parliamentary procedure, and that is sometimes reflected in legislative drafting. However, note that, in some organizations, the bylaws specify quorum differently. Some organizations, for instance, specify quorum by fixing a number (the NAP recommends this, although I'm not clear why). Others might include language specifically basing it on the allocated size, not the number of actual humans (which is roughly equivalent to fixing a number). 

All we can tell you is that, absent bylaw provisions, the RONR understanding of quorum is based on the number of human members of the body meeting. And we can tell you that, in our opinions, your bylaws (since you use RONR as your parliamentary authority) should be understood to mean 2/3 of the number of actual, human members of your board, which gives you a quorum of 6 (and will give you a quorum of 5 if the membership drops to 7). What we can't tell you is whether or not this is consistent with the Act. Statutes are complicated, you can't look at language in isolation (looking only at the language quoted, there is no problem, but it contains cross-references to other sections), and you need to interpret them in light of other legal principles and other statutes. That's what lawyers do. So, to make sure I'm clear, all of my answers have been only about RONR and, to some extent, your bylaws. 

[Atul Kapur]

13 minutes ago, Joshua Katz said:

Some organizations, for instance, specify quorum by fixing a number (the NAP recommends this, although I'm not clear why).

Well, in this case it would avoid the confusion that @EdmChurch is facing.

[Joshua Katz]

Got me there Dr. Kapur. But what if the number were set at 2/3 of 12, or 8? They are about to have a 7 person board, if I understand correctly.

[Atul Kapur]

Ideally, bylaws should tell you what to do in any situation. An association that I belong to just amended our bylaws to provide for the case where the number of directors in office is less than quorum (those left call a special meeting to fill vacancies). We based this provision on the language in our NFP Corporation Act, even though we are not incorporated.

@EdmChurch appears to be quoting from a Guide to the act, rather than the act itself. I wouldn't be surprised if that act has a provision covering this situation, as does the act in my jurisdiction.

[Gary Novosielski]

5 hours ago, EdmChurch said:

The Act said, "If a vacancy occurs on the board of directors, the remaining directors can continue to exercise all the powers of directors as long as the number of remaining elected directors constitutes a quorum, that is, a majority of the directors, or the minimum number of directors required at a meeting, unless otherwise specified in your corporation's by-laws (refer to subsection 136(2) of the NFP Act)."

The most important part of that provision is the phrase "unless otherwise specified in your corporation's bylaws".  So although I'm not a lawyer, I could be forgiven for concluding that if your bylaws do otherwise specify, you need not be concerned with what that particular section of the Act says. (But do refer to subsection 136(2) as suggested.)

Many regulations in similar acts contain that phrase, mostly to make certain that you have some rules to go by if your bylaws are on the skimpy side. 

Although RONR says that state law takes precedence over your bylaws, that is not the case where the law specifically defers to your bylaws, as this one does.

Edited June 30, 2019 at 09:20 PM by Gary Novosielski
As noted.

[EdmChurch]

Thank you everyone for your contribution and advise.

[Alexis Hunt]

@EdmChurch, as you mentioned, the articles of the corporation require that a minimum and maximum number of directors, or a fixed number, be set out. The articles are separate from the bylaws, and if your church does not have a copy on hand, they definitely need to get one from the corporate registry---there is probably a legal requirement that the church keep a copy, in addition to needing them to properly understand situations such as this one. They are governing documents that supersede the bylaws.

The provision saying "as long as the remaining elected directors constitute a quorum" is written in light of the default quorum provided in the Act, which specifies that it is based on the minimum number of directors. In that case, the quorum requirement has nothing to do with the number of directors actually in office. However, if your bylaws specify a different number, then that may take precedence over the default in the Act, if it is within the scope of the power of a bylaw to do (often, corporate statutes and/or regulations restrict the power of bylaws to set quorum, and your articles would take precedence as well). If your bylaws do say that the quorum is 2/3 of directors, then that is probably interpreted as 2/3 of the directors in office, not 2/3 of the total number of seats on the board.

Additionally, you mentioned requiring 3/4 approval to appoint new board members. But again, this requires careful reading of your bylaws, in particular to determine whether that requirement is 3/4 of all directors, 3/4 of the total number of director positions, 3/4 of the directors present at the meeting, or 3/4 of the directors voting (in which case a director present but abstaining would not be counted). Of course, 4 to 2 is not 3/4 by any metric, but it still feels worth pointing out.