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Mark Apodaca

Removal of the President

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I thought this would be of interest.  I met with the President, Vice President, and Secretary of an association earlier on video conference.  They received a petition from a group of members who want the President removed.  They came up with three reasons:

  1. incompetent leadership, management,  and governance on behalf of the association after being elected, which included bullying and harassment
  2. demonstrated negligence according to the bylaws
  3. demonstrated power-hungry access to all the association's funds, including investments

They are calling for a special meeting.  The President and board were elected only two months ago.

The association has 187 members and to have a special meeting requires 1/5 of the membership agreeing to a special meeting.  That is 37 members.

The bylaws state:

Any Officer determined by the Board to be incompetent or grossly neglectful of his/her duties may be removed by a two-third (2/3) vote of the voting members of the LAD Board. The officer determined to have been grossly neglectful or incompetent shall have the right to an appeal to be heard and decided at a special session of the Full Members called for that purpose. The decision of a majority of the Full Members at any special meeting called for such purpose shall be final as to the matters specifically appealed thereto.

Robert's Rules of Order states:

§62. REMOVAL FROM OFFICE AND OTHER REMEDIES FOR DERELICTION OF DUTY IN OFFICE OR MISCONDUCT 

Removal from Office

Except as the bylaws may provide otherwise, any regularly elected officer of a permanent society can be removed from office by the society's assembly as follows:

                •             If the bylaws provide that officers shall serve "for __  years or until their successors are elected," the officer in question can be removed from office by adoption of a motion to do so. The vote required for adoption of such a motion is (a) a two-thirds vote, (b) a majority vote when previous notice (as defined on p. 121) has been given, or (c) a vote of a majority of the entire membership—any one of which will suffice. A motion to remove an officer from [page 654] office is a question of privilege (19) affecting the organization of the assembly, and so also is the filling of any vacancy created by the adoption of such a motion.*

                •             If, however, the bylaws provide that officers shall serve only a fixed term, such as "for two years" (which is not a recommended wording; see p. 573, l. 33 to p. 574, l. 3), or if they provide that officers shall serve "for __ years and until their successors are elected," an officer can be removed from office only for cause—that is, neglect of duty in office or misconduct—in accordance with the procedures described in 63; that is, an investigating committee must be appointed, charges must be preferred, and a formal trial must be held.

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I asked if ALL the members were notified and the answer was NO.  The small group of members came up with the 37 members in order to meet the 1/5th.  Because ALL members were not notified, the petition was null and void.

Secondly, as stated above, only the board can remove the President.  The President can appeal to the membership.  Nowhere in the bylaws state that the membership can remove the President.

Third, the petition states the reasons and they were not very specific.  They need to be specific so the 187 members will understand why.  Section 62  says "except as the bylaws may provide otherwise" the bylaws state:

The Board shall be elected by majority vote of those voting members in attendance at the biennial Conference meeting. LAD Board shall be elected by ballot to a term of two (2) years or until their successors are elected.

This meets the first bullet.  But, the bylaws state only the board can remove the President.

Your thoughts please...

Mark

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15 minutes ago, Mark Apodaca said:

I asked if ALL the members were notified and the answer was NO.  The small group of members came up with the 37 members in order to meet the 1/5th.  Because ALL members were not notified, the petition was null and void.

 

I don't follow. All members must be given notice of a meeting, but not necessarily of a request to have a meeting. If your bylaws allow 37 members to call a special meeting (and presumably give some procedure for setting the date) then it seems to me that 37 members can call a meeting, so long as notice is given to all members, and the length of the notice is reasonable, and the notice specifies the business to be conducted.

16 minutes ago, Mark Apodaca said:

 Secondly, as stated above, only the board can remove the President.  The President can appeal to the membership.  Nowhere in the bylaws state that the membership can remove the President.

 

Well, I'm not so sure. The general rule is that, given the term of office language, the body which elects can also remove without a disciplinary process - in this case, presumably, that is the assembly. The bylaws also give the board that power, so clearly the board can do so, but it is not clear to me that the language takes away the power of the members to do so. That is, it isn't clear to me that it gives the board the exclusive power to do so. Stay tuned as others may disagree.

18 minutes ago, Mark Apodaca said:

 Third, the petition states the reasons and they were not very specific.  They need to be specific so the 187 members will understand why.  Section 62  says "except as the bylaws may provide otherwise" the bylaws state:

 

Who says they need to be specific? It seems to me that it would be fine to not give any reasons at all, and simply call a meeting with this item of business. Do you have a bylaw requirement somewhere saying otherwise?

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All members were not notified.  They just got 37 names and think they met the requirement of 1/5th of the members when in fact,  ALL members should be notified.

This is a state association.  Members live in every city throughout the state.  The most who can attend the special meeting will perhaps be 50.  Knowing that most won't be able to travel miles for an half-day meeting will not be cost and time effective unless they are told why.  If I was a member, I would want to know the specifics before I want to sign the petition and attend the meeting.

 

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10 minutes ago, Mark Apodaca said:

All members were not notified.  They just got 37 names and think they met the requirement of 1/5th of the members when in fact,  ALL members should be notified.

 

One of us is confusing two things. If, in fact, all members are not given notice of the meeting (not of the fact of the petition, but that the meeting is set) then the meeting will be void.

11 minutes ago, Mark Apodaca said:

This is a state association.  Members live in every city throughout the state. 

Unless your bylaws specify what notice is required, this is an important factor in determining what is reasonable notice.

12 minutes ago, Mark Apodaca said:

The most who can attend the special meeting will perhaps be 50. 

Do your bylaws say anything about quorum for special meetings? If not, quorum is a majority of the membership, and in this case, the meeting will be inquorate and unable to conduct business.

13 minutes ago, Mark Apodaca said:

If I was a member, I would want to know the specifics before I want to sign the petition and attend the meeting.

Well, people sign petitions for all sorts of reasons, such as not liking the President in this case, as well as for good reasons. If the request contains only vague generalities, the best course is not to join in the request for a meeting (since neither your bylaws, as far as I can tell, nor RONR, refers to petitions in this context, I'm going to drop that term and call it what it is - a request for a special meeting). If enough others join in the request, and you as a member are on notice that the purpose of the meeting is to remove the President, and no specific reasons have been given, it seems to me that that is, itself, a good reason to attend. It's an important matter worth weighing in on - and either specifics will come out at the meeting, or you can vote against removing the President. I fail to see how "we want to remove the President," by itself, is not enough to tell members whether or not attending is a good idea. It may be poor marketing, because including more specifics might get people fired up to come vote for removal, but it doesn't, unless you have a rule on the matter, make the notice void.

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22 minutes ago, Mark Apodaca said:

All members were not notified.  They just got 37 names and think they met the requirement of 1/5th of the members when in fact,  ALL members should be notified.

 I disagree. I do not interpret that bylaw provision as requiring that all members be contacted when you are trying to get 37 members to sign a petition for a special meeting. There is no need to notify all members. It is perfectly permissible to contact only those members who the proponents believe are most likely to sign the petition.

Giving notice of the meeting itself is something else. All members must be given notice of the meeting, but they do not have to be given notice that a petition to call a special meeting is being circulated

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This is what the bylaws say about special meetings:

 

SECTION 2: SPECIAL MEETINGS 
 
Special meetings of the Association may be called by the President or by the Board and shall be called upon the written request of one-fifth (1/5) of the Full Members in a good standing. The purpose of the special meeting shall be stated in the call, and ten (10) days prior written notice shall be given for any such special meeting. 

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55 minutes ago, Mark Apodaca said:

Secondly, as stated above, only the board can remove the President.

I disagree and agree with Joshua Katz that the bylaw provision in question does not grant the board the exclusive power to remove the president. That might have been the intent, but the language used does not express that. Since the grant of power to the board is not exclusive, and RONR provides that the body which elects members of a board have the power to remove them, it is my opinion that both the board and the membership have the power to remove officers. However, that is ultimately a question of laws interpretation which only the members of your organization can make.

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2 minutes ago, Mark Apodaca said:

This is what the bylaws say about special meetings:

 

SECTION 2: SPECIAL MEETINGS 
 
Special meetings of the Association may be called by the President or by the Board and shall be called upon the written request of one-fifth (1/5) of the Full Members in a good standing. The purpose of the special meeting shall be stated in the call, and ten (10) days prior written notice shall be given for any such special meeting. 

I stand by my original opinion that it is not necessary to notify the entire membership that you are seeking 35 members to sign a petition requesting a special meeting. Notice needs to be given only for the meeting itself.

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As of a few minutes ago, I was informed that the President and Secretary are going to meet with attorneys.  They feel the petition is null and void because:

  1. The received petition is photocopied. A petition with original signatures are required, and;

  2. Not all members were aware of the petition. All members must be aware of an active petition, and;

  3. A number of individuals who signed the petition are not members of the association, and;

  4. The reasons for removal were not specific. Reasons for removal must be specified, and;

  5. According to LAD Bylaws; Article IV, Section 7: Any officer determined by the LAD Board to be incompetent or grossly neglectful of his/her duties may be removed by a two-third (⅔) vote of the voting members of the LAD Board. Therefore, only the Board of Directors has the authority to remove an officer.

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There were 3 issues presented. Here's my breakdown as far as opinion vs. fact:

1 hour ago, Mark Apodaca said:

I asked if ALL the members were notified and the answer was NO.  The small group of members came up with the 37 members in order to meet the 1/5th.  Because ALL members were not notified, the petition was null and void.

 

I think it is clear that, so far as RONR is concerned, there is simply no requirement that people seeking a special meeting inform the full membership that they are doing so. There is, of course, a requirement that they give notice a reasonable time before the meeting itself. If any of your other rules touch on the subject, of course, it becomes a matter of interpretation, but if not, then I think it's beyond opinion and there is no room for ambiguity.

1 hour ago, Mark Apodaca said:

 Secondly, as stated above, only the board can remove the President.  The President can appeal to the membership.  Nowhere in the bylaws state that the membership can remove the President.

 

Whether the grant of power to the board includes exclusive power is a matter of bylaw interpretation, and therefore my opinion is just that - an opinion.

1 hour ago, Mark Apodaca said:

 Third, the petition states the reasons and they were not very specific.  They need to be specific so the 187 members will understand why.  Section 62  says "except as the bylaws may provide otherwise" the bylaws state:

 

I think it is clear that, so far as RONR is concerned, there is no such requirement. Special meetings require notice which specifies all the business to be conducted, and are limited to the business so listed, but they do not require lists of reasons. If there is an applicable rule or, more likely, statute, then that's another matter. But so far as RONR is concerned, no, I don't think this is a matter of interpretation.

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19 minutes ago, Mark Apodaca said:

As of a few minutes ago, I was informed that the President and Secretary are going to meet with attorneys.  They feel the petition is null and void because:

 

  1.  

Well, people are free to feel what they want to feel. Is there any chance that this organization is governed by a state statute, such as a sunshine law?

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3 minutes ago, Mark Apodaca said:

Louisiana state statute.

Well, if there's an applicable procedural statute, it takes precedence over your bylaws and RONR, by RONR's own terms. (If there's an applicable substantive statute, it doesn't take procedural precedence, but you're still supposed to follow it for obvious reasons.) So the RONR-based answers may not be all that helpful.

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  1. incompetent leadership, management,  and governance on behalf of the association after being elected, which included bullying and harassment
  2. demonstrated negligence according to the bylaws
  3. demonstrated power-hungry access to all the association's funds, including investments 

The petition caught the board except for two members by surprise.  Two already knew that a petition was coming and said nothing.  I know that this group who put together the petition have negative feelings about the President and wanted him out just after the election.    They had one or two board meetings since they took office during the first Saturday of June.  So how can the members point out the three if there were board meetings without members.  A petition needs to be justified.  For number 2, the President did not break any bylaws, the secretary did.  He did not send out the conference minutes from last June to the membership within 30 days per bylaws.

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1 minute ago, Mark Apodaca said:

A petition needs to be justified.

You keep saying this, but as I've pointed out, the use of the term petition is needlessly complicating, and nothing in RONR or what you've shown us of your bylaws supports this view. Perhaps something in the statute does. Regardless, I don't think I can be of much help, both because there's a statute and because it seems to me you have already decided what the answer is.

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I follow you, Joshua.  Take a look at No. 3, the investments.  The new President and Treasurer had a meeting with the investment consultant from Morgan Stanley.  They just wanted to understand the organization's investments.  The group defined it as "power hungry access".  To me, there is no justification.  If he ordered MS to sell stocks and transfer the money to the treasury, that may be a problem.  Also there is no investment policy.

That is why I believe that the reasons should be specific.  He would need to prepare his defense, otherwise he will be attacked during the meeting and unprepared.

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What you're describing are (possibly, I'm not a member and don't want to venture an opinion) reasons to vote no. They are not, under your rules and the parliamentary authority you've adopted, procedural defects. If the organization thinks they should be, it can amend the bylaws to remove the "until" language, so that removal from office (except via the board process described, if you choose to keep that) would require a disciplinary process. As it stands, your bylaws do not require one, which yes, allows for some element of surprise. You can counter that by standing up at the meeting and saying in debate that the President has been unfairly surprised and not given time to prepare a defense, and for that reason you are voting no and urge others to do the same.

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4 hours ago, Mark Apodaca said:

As of a few minutes ago, I was informed that the President and Secretary are going to meet with attorneys.  They feel the petition is null and void because:

 

  1. The received petition is photocopied. A petition with original signatures are required, and;

  2. Not all members were aware of the petition. All members must be aware of an active petition, and;

  3. A number of individuals who signed the petition are not members of the association, and;

  4. The reasons for removal were not specific. Reasons for removal must be specified, and;

  5. According to LAD Bylaws; Article IV, Section 7: Any officer determined by the LAD Board to be incompetent or grossly neglectful of his/her duties may be removed by a two-third (⅔) vote of the voting members of the LAD Board. Therefore, only the Board of Directors has the authority to remove an officer.

1) Some jurisdictions allow signatures on such a petition to be done electronically. I'm not at all certain this point is valid so I'm glad they are consulting with an attorney.

2) I disagree with you and agree with Mssrs. Katz and Brown. The only requirement for the petition is that it have the support of 1/5 of the members. No one else needs to be aware of its existence until it is submitted to the President, Secretary, or the Board. You are confusing the petition and the notice of the special meeting. Now that the petition has been delivered (& received) the obligation is on the President / Board to call the special meeting that has been requested/demanded in the petition. The President/Board will have to send notice of the special meeting to every member. That's what every member has to receive, not the fact that there is an active petition.

3) Only Full Members can validly petition/request a special meeting according to the quotation you've given from the bylaws. So the question is whether 38 (not 37) Full Members have signed the petition/request. (1/5th of 187 is 37.4 so you need 38)

4) You're just making this up. There is nothing in the quotations you've given to say this at all.

5) As has been said by others, this does not say that only the Board has the exclusive right to remove officers.

 

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Atul,

The four items you read were copied and pasted here.  They came from a drafted letter written by the secretary to the leader of the group who came up with the petition.  So, I did not make this up.  For what you mentioned in item 2, I agree with you all.  This association has a history, as I am told, of members being divided over its leadership.  I also have been told that in the past, two lawsuits took place.  This is something I don't want to get involved with.  I think it is best for them to let attorneys handle it.

G'day gentlemen.  Happy Friday.  If you will be attending the NAP conference, I hope to meet you.  

Mark

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10 hours ago, Mark Apodaca said:

I asked if ALL the members were notified and the answer was NO.  The small group of members came up with the 37 members in order to meet the 1/5th.  Because ALL members were not notified, the petition was null and void.

Secondly, as stated above, only the board can remove the President.  The President can appeal to the membership.  Nowhere in the bylaws state that the membership can remove the President.

 Third, the petition states the reasons and they were not very specific.  They need to be specific so the 187 members will understand why.  Section 62  says "except as the bylaws may provide otherwise" the bylaws state:

The Board shall be elected by majority vote of those voting members in attendance at the biennial Conference meeting. LAD Board shall be elected by ballot to a term of two (2) years or until their successors are elected.

This meets the first bullet.  But, the bylaws state only the board can remove the President.

Not all members must receive the petition. All members must receive the notice of the special meeting. The notice must specify that the meeting is for the purpose of removing the President, but it is not necessary for the notice to state the reasons why.

It appears, however, that the membership does not have the authority to remove the President directly. Instead, the bylaws (which take precedence over RONR’s rules on this matter) grant the power to remove an officer to the board. The membership has the authority to overturn the board’s decision to remove an officer, but if the board decides not to remove an officer, it looks like the officer stays put, unless there are other provisions in the bylaws on removal of officers or board members we have not been informed of.

Any Officer determined by the Board to be incompetent or grossly neglectful of his/her duties may be removed by a two-third (2/3) vote of the voting members of the LAD Board. The officer determined to have been grossly neglectful or incompetent shall have the right to an appeal to be heard and decided at a special session of the Full Members called for that purpose. The decision of a majority of the Full Members at any special meeting called for such purpose shall be final as to the matters specifically appealed thereto.”

10 hours ago, Joshua Katz said:

Well, I'm not so sure. The general rule is that, given the term of office language, the body which elects can also remove without a disciplinary process - in this case, presumably, that is the assembly. The bylaws also give the board that power, so clearly the board can do so, but it is not clear to me that the language takes away the power of the members to do so. That is, it isn't clear to me that it gives the board the exclusive power to do so. Stay tuned as others may disagree.

I would interpret the language in question as giving the board exclusive authority to remove officers, except that the board’s decision to remove an officer may be appealed to the membership, as specified in the rule.

9 hours ago, Mark Apodaca said:

As of a few minutes ago, I was informed that the President and Secretary are going to meet with attorneys.  They feel the petition is null and void because:

  1. The received petition is photocopied. A petition with original signatures are required, and;

  2. Not all members were aware of the petition. All members must be aware of an active petition, and;

  3. A number of individuals who signed the petition are not members of the association, and;

  4. The reasons for removal were not specific. Reasons for removal must be specified, and;

  5. According to LAD Bylaws; Article IV, Section 7: Any officer determined by the LAD Board to be incompetent or grossly neglectful of his/her duties may be removed by a two-third (⅔) vote of the voting members of the LAD Board. Therefore, only the Board of Directors has the authority to remove an officer.

I don’t think reasons 1, 2, or 4 have any merit, at least as a parliamentary matter. Nothing in your bylaws or RONR says that original signatures are required, that all members must be made aware of the petition, or that the reasons for removal must be specific.

Reason 4 has merit only to the extent that the number of nonmembers who signed the petition would reduce the number of signatures below the required number. If excluding the signatures of nonmembers that there are no longer enough signatures to call for the meeting, then it is invalid. If there are still enough signatures after the signatures of nonmembers are excluded, it is invalid.

I agree with Reason 5, although in my view, the call for the meeting remains valid - it is just that at the meeting, the chair can rule that the motion is out of order. I would advise that the President turn over the chair to the Vice President for the consideration of these matters.

It may well be that there are additional rules in applicable law, which I shall defer to the attorney on.

8 hours ago, Mark Apodaca said:

I follow you, Joshua.  Take a look at No. 3, the investments.  The new President and Treasurer had a meeting with the investment consultant from Morgan Stanley.  They just wanted to understand the organization's investments.  The group defined it as "power hungry access".  To me, there is no justification.  If he ordered MS to sell stocks and transfer the money to the treasury, that may be a problem.  Also there is no investment policy.

That is why I believe that the reasons should be specific.  He would need to prepare his defense, otherwise he will be attacked during the meeting and unprepared.

But nothing in your bylaws actually requires this.

 

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11 hours ago, Mark Apodaca said:

All members were not notified.  They just got 37 names and think they met the requirement of 1/5th of the members when in fact,  ALL members should be notified.

This is a state association.  Members live in every city throughout the state.  The most who can attend the special meeting will perhaps be 50.  Knowing that most won't be able to travel miles for an half-day meeting will not be cost and time effective unless they are told why.  If I was a member, I would want to know the specifics before I want to sign the petition and attend the meeting.

 

That may be, but there's no language in RONR or, AFAIK, your bylaws that support that position. They need to have information to decide whether to attend, but only those who wish to call the meeting have a need to know about the petition, and at a minimum, only enough to constitute 1/5 of the membership.  They think they have met the requirement because they have met the requirement.

Any 1/5 of the members can call for a meeting, and they might be the only 37 that know about it unless some people when approached did not sign the petition.  But there is no requirement that all members should be notified of its existence.  This is simply wrong.

Now, if the petition succeeds in gaining 1/5 support, which it apparently has, the actual call for the special meeting, including the time, place, and a notice specifically describing the business to be considered, must be sent to ALL members. That is the only time members need to have enough information to decide whether to attend. 

Edited by Gary Novosielski

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14 minutes ago, Gary Novosielski said:

That may be, but there's no language in RONR or, AFAIK, your bylaws that support that position. 

Huh? What is AFAIK?  Never mind. AFAIK ="as far as I know".

14 minutes ago, Gary Novosielski said:

Any 1/5 of the members can call for a meeting, and they might be the only 37 that know about it . . . .

As Dr. Kapur pointed out, 1/5 of the membership of 187 would require 38 signatures, not 37. 

Edited by Richard Brown
Edited statement about AFAIK

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5 minutes ago, Richard Brown said:

AFAIK

As far as I know

1 hour ago, Josh Martin said:

It appears, however, that the membership does not have the authority to remove the President directly. Instead, the bylaws (which take precedence over RONR’s rules on this matter) grant the power to remove an officer to the board. The membership has the authority to overturn the board’s decision to remove an officer, but if the board decides not to remove an officer, it looks like the officer stays put, unless there are other provisions in the bylaws on removal of officers or board members we have not been informed of.

 

First, do you agree that this is a matter of bylaw interpretation? Second, I'm curious how you came to your conclusion. What about those words suggests exclusive authority to you?

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