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Mark Apodaca

Removal of the President

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1 hour ago, Josh Martin said:

I would interpret the language in question as giving the board exclusive authority to remove officers,

I'm confused.  On what basis do you say this? What is it about the quoted bylaw language that you think makes it an exclusive grant of power?  That interpretation seems to fly in the face of RONR regarding the language required to constitute an exclusive grant of authority and it also flies in the face of a long stream of opinions in this forum. I see nothing about this bylaw language that meets the requirement of page 483, lines 9-11 of RONR regarding an exclusive grant of authority.

 I agree with Mr. Katz and Dr. Kapur. I believe that both the board and the membership have the right to remove officers. At best (or worst?)  it is a matter of bylaws interpretation. 

If the drafters had intended that the board have the exclusive authority to remove officers, they could have said so very easily. 

 

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12 hours ago, Mark Apodaca said:

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

 

7 hours ago, Atul Kapur said:

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

 

4 hours ago, Mark Apodaca said:

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.

I responded to that post as it was a good summary of the thread up to that point, and consistent with what you were saying in other posts about the petition needing to be specific. If you were acting as a conduit for someone else's opinion, then they have made this particular objection up out of whole cloth; i.e. there is nothing in what you have quoted to suggest that the petition/request for special meeting needs to be specific. 

I apologize for any confusion.

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1 hour ago, Joshua Katz said:

First, do you agree that this is a matter of bylaw interpretation?

Yes, I have no disagreement that this is ultimately a matter of bylaws interpretation for the society itself to decide.

1 hour ago, Joshua Katz said:

Second, I'm curious how you came to your conclusion. What about those words suggests exclusive authority to you?

In my view, the language in question supersedes and replaces RONR’s rules concerning the removal of officers. In other words, the procedures described in the bylaws are the only manner in which an officer may be removed. The bylaws make no mention of the membership removing an officer (except in the case of upholding the board’s decision in this matter on appeal), and therefore, I do not think it can be done. I do not agree with the interpretation that this merely adds to the disciplinary options in RONR.

My reading of the phrase that “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...” (RONR, 11th ed., pg. 653) is that these rules apply if the bylaws are silent. If the bylaws are not silent, then the bylaws have provided otherwise. The bylaws need not specifically state that the procedures in RONR are inapplicable.

I would also suggest that the fact that the bylaws specifically provide an “appeal” mechanism in cases where the board has chosen to remove an officer undermines the general presumption that any decision of the board may be rescinded, or that the membership may reach its own decision on this matter. If the general presumption applied, there would be no need for this provision. This suggests that the provision was specifically added because it was desired that in that instance, and in that instance only, the membership may intervene.

Edited by Josh Martin

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13 hours 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. 

That comports with the advice that the folks here have been giving you. 

The call of the meeting is the notice that is sent out to all members after the petition with the requisite number of signatures is presented.  The petition is not the call.  If the petition is faulty, the call never happens, but there is no requirement in that language that requires the petition be announced to anyone.  It can be accomplished by stealth, encrypted phone, dead drops, meetings by the old stump in the park in the dead of night, or other advanced tradecraft, keeping everyone in the dark, if the petitioners prefer it that way.

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1 hour ago, Josh Martin said:

In my view, the language in question supersedes and replaces RONR’s rules concerning the removal of officers. In other words, the procedures described in the bylaws are the only manner in which an officer may be removed. The bylaws make no mention of the membership removing an officer (except in the case of upholding the board’s decision in this matter on appeal), and therefore, I do not think it can be done. I do not agree with the interpretation that this merely adds to the disciplinary options in RONR.

 

I think this goes to a topic we've discussed at length on other threads without resolution: when has a bylaw provision modified or added to a RONR provision, and when has it occupied the field, so to speak, rendering RONR irrelevant. I think we've both taken positions here consistent with our prior statements on that question.

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5 hours ago, Josh Martin said:

"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.”

I don't think it's 100% clear that the members can't initiate removal.  After reading the first sentence above, one might say to oneself, "That's all fine, if it's determined by the Board.  But, what if it's determined by the membership?  Where might those rules be found?  In RONR perhaps?

Or, failing that, since the Board is subordinate to the Full Members on this matter, could the membership instruct the board to adopt a removal motion and submit the matter to the membership?

I don't think it's wise to take a firm position on this without seeing the entire bylaws.  For all we know there's some other article that would cause any of us to switch sides.  But I'll note that when interpreting enumerated powers of a board, we normally treat them as powers delegated to the board, yet not surrendered by the membership, and subject to rescission or instruction, unless there is explicit mention that the board has exclusive power in such-and-such an area.

Also, did we determine the "and/or" state of the successor clause, if any?

Edited by Gary Novosielski

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2 hours ago, Gary Novosielski said:

Also, did we determine the "and/or" state of the successor clause, if any?

 

29 minutes ago, Joshua Katz said:

Yes, it appears in the OP.

And the actual language is " LAD Board shall be elected by ballot to a term of two (2) years or until their successors are elected "

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1 hour ago, Daniel H. Honemann said:

Is it too late to point out that, as a matter of fact, you guys don't know what you're talking about?  🙂

Are you going to keep us in suspense or tell us how we went astray?  What should we be talking about? :unsure:. I've been hoping you would weigh in! We need to get this right. 

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I am planning to share with you the outcome.  Most likely tomorrow.  I work full time as the Chief Financial Officer/Chief Procurement Officer of a state institution and we are in the process of our annual financial audit.  Be with you...

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I value this website because it is a place where advise and ideas can be shared.  It is a place where parliamentarians can meet with other parliamentarians and have healthy and intelligential discussions on different topics.

Last June, I was the parliamentarian during an association’s conference outside New Mexico.  I was under contract to serve during the two-day business meeting during the conference.  This was the first time I visited the state.  As the parliamentarian, I took the opportunity to review state statutes, the articles of incorporation, and the bylaws.  I even reviewed the association’s Form 990 income tax return.  The bylaws are well written and structured, and I learned, while I was at the conference, that the membership hired an attorney to draft new revised bylaws which were approved during the 2017 business meeting at the conference.  However, during the 2019 business meeting, there were fifty pages of amendments to the bylaws.  The membership called for a special meeting just to focus on the amendments to the bylaws even though nearly all the amendments were grammar changes.  The special meeting will be on September 21st.  I was asked to return.

Earlier this week, I received an email from the Vice President stating that a petition was received.  In the petition, 55 members signed the document for a special meeting to be called.  One-fifth of the membership is 38.  The special meeting calls for the removal of the President.

Now, I am not under contract with the association.  I know the members of the board of directors.  I also know the members of the group which started the petition.  As a parliamentarian, it is my responsibility to be neutral.  On Thursday evening, I met with the President, Vice President, and Secretary through Zoom.  I could tell that they did not wish to go along with the calling of a special meeting and tried to find every way not to.

Their comments were (1) the petition was not the original document, (2) some of those who signed the document were not members of the association, (3) according to the bylaws, only the board can remove officers, (4) not all members throughout the state are aware of the petition, and (5) the list of reasons for wanting to remove the President were not specific enough.

I told them that this was not something I could help them with at a moment’s notice as I would need time to write my opinion and it will come with a fee.  They did not want to wait.  They wanted to response fast as the vice president mentioned in a separate email. 

I gave them three points:

1.       The bylaws state that special meetings may be called upon the written request of one-fifth (1/5th) of the Full Members in good standing.  The petition was the written request and of the 187 Full Members, 38 would be needed.  The petition ended up with 55.  The bylaws do not state which method is to be used as the written request.  RONR does not specify also.

2.       The full membership does not need to know until after 1/5th is met for calling the special meeting then all members will be notified.  I stressed the importance of the word “all”.

3.       Even though the bylaws state that the board can remove an officer, it does not state that only the board can do so.  Therefore, the Full Membership can remove officers.

The officers mentioned that they also plan to meet with a couple of lawyers.  I told them that was their decision to make and I was not in the position to advise them to do so.  That was it.

My honest opinion as I share this with you, the petition stating the President was incompetent and a bully, negligence, and power hungry were pretty serious charges.  But I also know that they were in office for only two months and had a couple of board meetings through Zoom, and I do not know how the group came up with the three charges.  The President is concerned that he will not have a fair trial and due process.  There is no ethics or discipline committee.  I can only wait and see what the outcome will be. 

I welcome your thoughts.

Mark

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2 hours ago, Mark Apodaca said:

Last June, I was the parliamentarian during an association’s conference outside New Mexico. 

Clearly, I misunderstood the situation. Please strike all my comments regarding positions you can take in debate, and read them as positions someone can take in debate.

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Joshua,

I appreciate your sharing your thought and comments.  I like to see different perspectives and they make me think.  Hope to meet you at the NAP conference.  

Mark

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On 8/9/2019 at 6:49 PM, Daniel H. Honemann said:

Is it too late to point out that, as a matter of fact, you guys don't know what you're talking about?  🙂

Well, the sooner the better, but it's never too late.

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19 hours ago, Mark Apodaca said:

I value this website because it is a place where advise and ideas can be shared.  It is a place where parliamentarians can meet with other parliamentarians and have healthy and intelligential discussions on different topics.

Last June, I was the parliamentarian during an association’s conference outside New Mexico.  I was under contract to serve during the two-day business meeting during the conference.  This was the first time I visited the state.  As the parliamentarian, I took the opportunity to review state statutes, the articles of incorporation, and the bylaws.  I even reviewed the association’s Form 990 income tax return.  The bylaws are well written and structured, and I learned, while I was at the conference, that the membership hired an attorney to draft new revised bylaws which were approved during the 2017 business meeting at the conference.  However, during the 2019 business meeting, there were fifty pages of amendments to the bylaws.  The membership called for a special meeting just to focus on the amendments to the bylaws even though nearly all the amendments were grammar changes.  The special meeting will be on September 21st.  I was asked to return.

Earlier this week, I received an email from the Vice President stating that a petition was received.  In the petition, 55 members signed the document for a special meeting to be called.  One-fifth of the membership is 38.  The special meeting calls for the removal of the President.

Now, I am not under contract with the association.  I know the members of the board of directors.  I also know the members of the group which started the petition.  As a parliamentarian, it is my responsibility to be neutral.  On Thursday evening, I met with the President, Vice President, and Secretary through Zoom.  I could tell that they did not wish to go along with the calling of a special meeting and tried to find every way not to.

Their comments were (1) the petition was not the original document, (2) some of those who signed the document were not members of the association, (3) according to the bylaws, only the board can remove officers, (4) not all members throughout the state are aware of the petition, and (5) the list of reasons for wanting to remove the President were not specific enough.

I told them that this was not something I could help them with at a moment’s notice as I would need time to write my opinion and it will come with a fee.  They did not want to wait.  They wanted to response fast as the vice president mentioned in a separate email. 

I gave them three points:

1.       The bylaws state that special meetings may be called upon the written request of one-fifth (1/5th) of the Full Members in good standing.  The petition was the written request and of the 187 Full Members, 38 would be needed.  The petition ended up with 55.  The bylaws do not state which method is to be used as the written request.  RONR does not specify also.

2.       The full membership does not need to know until after 1/5th is met for calling the special meeting then all members will be notified.  I stressed the importance of the word “all”.

3.       Even though the bylaws state that the board can remove an officer, it does not state that only the board can do so.  Therefore, the Full Membership can remove officers.

The officers mentioned that they also plan to meet with a couple of lawyers.  I told them that was their decision to make and I was not in the position to advise them to do so.  That was it.

My honest opinion as I share this with you, the petition stating the President was incompetent and a bully, negligence, and power hungry were pretty serious charges.  But I also know that they were in office for only two months and had a couple of board meetings through Zoom, and I do not know how the group came up with the three charges.  The President is concerned that he will not have a fair trial and due process.  There is no ethics or discipline committee.  I can only wait and see what the outcome will be. 

I welcome your thoughts.

Mark

I'm on board with these three points, but they do seem to be in stark contrast with the positions you took in the original post, or were those supposed to be a recap of the opinions of others?

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3 minutes ago, Gary Novosielski said:

I'm on board with these three points, but they do seem to be in stark contrast with the positions you took in the original post, or were those supposed to be a recap of the opinions of others?

I agree with you on both counts. The opinions which Mr. Apodaca just expressed in his most recent comment are in stark contrast to those positions that he was taking in previous posts.

@Mark Apodaca, can you explain?

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I took the opinions of others after careful thought.  That is why I appreciated your discussions, opinions and perspectives.  I had another meeting with the officers and explained.  I was frank with them by explaining that I do have discussions with other parliamentarians which helps come to better opinions after careful thought.  I will be glad to explain more during the NAP conference if you attend and we have an opportunity to meet.  

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9 minutes ago, Mark Apodaca said:

I will be glad to explain more during the NAP conference if you attend and we have an opportunity to meet.  

I do hope to be there and hope to meet you.  I'm planning on attending the convention, but a recent back problem may cause me to have to cancel.   I guess one might say we had a "healthy" discussion about the issues you raised!  Some might say it was "unhealthy", but it got our attention and I think we all learned from it.  I still wish that the RONR authorship team would weigh in on whether the bylaw provision giving the board the power to remove board members for cause amounts to an exclusive grant of power to remove officers.  I believe that all but  one of us who have commented on that issue are of the opinion that the grant of power is not exclusive.

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19 minutes ago, Richard Brown said:

  I still wish that the RONR authorship team would weigh in on whether the bylaw provision giving the board the power to remove board members for cause amounts to an exclusive grant of power to remove officers.  I believe that all but  one of us who have commented on that issue are of the opinion that the grant of power is not exclusive.

Well I, for one, have often found that attempting to construe the provisions of bylaws, which I have not read, of an organization that I know nothing about, to be rather risky.

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As a layman in parliamentary terms, I have to say that this discussion has been fascinating and enlightening. I think much of the confusion about the petition / request seems to be the a mistaken impression that the request is a call for the meeting. The request is just that any call would be something completely separate. 

I have some questions about the make up of the board in question that may shed some light on who can remove an officer, or may not. When the board is elected are they elected as officers who then constitute the board, or do they elect a board that then selects officers? It would seem to me that that would decide just who the body is that can remove an officer is. 

As for the charges being explained in detail, I would hope that the petitioner can do this, but it seems to me that that is best left for the eventual special meeting and debate on the motion. If this were something less serious I would make a motion like " I move to hold the Christmas party at Ray's Restaurant" I don't make the motion " I move we hold the Christmas party at Ray's Restaurant because I really like it there and he gave us a good price and it is centrally located to all our membership."

I also thought that the wording of the charges may be a bit problematic, not because of a lack of detail, but because they don't seem to match the bylaws exactly. Bullying and harassment may be violations but I am not sure they are incompetence. Is demonstrated negligence the same as gross negligence? The power grab would seem to me to be better worded as exceeding ones' authority. I suspect all of this could be explained in debate, so my thoughts may be needless quibbling in that regard.

 

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