The law, bylaws and parliamentary authority

[Guest Clark Pierard]

1. The state statutes for non-profits states:

       "Except as otherwise provided in the articles of incorporation or bylaws, an officer may be removed at any time with or without cause by the board of directors"

2. Neither the articles of incorporation nor the bylaws have any language about removing an officer.

3. However, the bylaws prescribe the most current edition of RONR as the Parliamentary Authority.

4. The bylaws do contain the language: "each officer shall begin his term following election at the end of the annual meeting and shall hold office for a term of two years and until their successors have been elected."  According to RONR that means that officers may only be removed for cause through disciplinary procedures (p. 574).  

Does the bylaw language in fact "provide otherwise" based upon the parliamentary authority that is prescribed in the bylaws?  I assume so but am not confident that is the case.

If that is the case, could the membership suspend that rule of order and recess so that the board of directors meet to remove an officer? 

[Gary Novosielski]

No.  A rule about removing officers is not a rule of order, and is not suspendible.  Rules of order are those that relate to the orderly conduct of business during a meeting.  

It is, however, a reasonable interpretation that by citing RONR as your parliamentary authority in your bylaws, your bylaws cannot be said to be truly silent on any issue for which there are applicable rules found in RONR.

[Atul Kapur]

I happen to disagree with Mr. Novosielski whether a reference to RONR is adequate to supersede the provision in the state statute (as opposed to an explicit provision on director removal in the Articles or Bylaws). Our opinions are, however, not relevant as this question is best asked of a lawyer with expertise in NFP law in your jurisdiction.

[Guest C. Pierard]

13 hours ago, Gary Novosielski said:

No.  A rule about removing officers is not a rule of order, and is not suspendible.  Rules of order are those that relate to the orderly conduct of business during a meeting.  

It is, however, a reasonable interpretation that by citing RONR as your parliamentary authority in your bylaws, your bylaws cannot be said to be truly silent on any issue for which there are applicable rules found in RONR.

I guess that was my suspicion but also my conundrum.  The language elaborating removal is in the Rules of Order, not in the Bylaws.  So, while the Bylaws may contain rules of order (rules in the nature of special rules of order) that are suspendable,  it is also true that the Parliamentary Authority may contain language that is not in the nature of rules of order and is not suspendable.  Which surprised me for some reason.

And perhaps I need an attorney

[Josh Martin]

On 9/26/2019 at 11:46 PM, Guest Clark Pierard said:

Does the bylaw language in fact "provide otherwise" based upon the parliamentary authority that is prescribed in the bylaws?

RONR has the following to say on this matter:

”If the law under which an organization is incorporated allows proxy voting to be prohibited by a provision of the bylaws, the adoption of this book as parliamentary authority by prescription in the bylaws should be treated as sufficient provision to accomplish that result (cf. footnote, p. 580).” (RONR, 11th ed., pg. 429)

”Where a particular type of organization is subject to local, state, or national law containing provisions relating to its procedure—as for certain procedures in a labor organization, in condominium associations, or in an incorporated association—it may be desirable to add at this point a phrase such as, "and any statutes applicable to this organization that do not authorize the provisions of these bylaws to take precedence." However, such statutes (those that do not authorize bylaws to take precedence) supersede all rules of the organization which conflict with them, even if no mention is made of it in the bylaws.” (RONR, 11th ed., pg. 580, footnote)

In my view, the footnote on pg. 580 clarifies that this principle is intended to apply to all statutes where the statute permits the bylaws to take precedence, not just to statutes concerning proxy voting. The footnote also suggests additional language which is presumably make this intent clearer to the society and to the courts.

Nonetheless, I concur entirely with Mr. Kapur that whether it is ultimately correct, as a matter of law in a particular jurisdiction, that adopting RONR in the bylaws suffices for statutes which permit the bylaws to take precedence, is a question for an attorney.

On 9/26/2019 at 11:46 PM, Guest Clark Pierard said:

If that is the case, could the membership suspend that rule of order and recess so that the board of directors meet to remove an officer? 

No, such a rule is not suspendable.

On 9/27/2019 at 12:08 AM, Gary Novosielski said:

No.  A rule about removing officers is not a rule of order, and is not suspendible.  Rules of order are those that relate to the orderly conduct of business during a meeting.  

I would quibble over this assertion that the rules in RONR pertaining to removal of officers are not rules of order. The rules governing this process are undoubtedly rules which relate to the orderly conduct of business within meetings.

Nonetheless, I agree that in a case where those rules require formal disciplinary procedures by the membership to remove an officer, a motion to suspend the rules to permit the board to remove an officer without such procedures is not in order.

Edited September 28, 2019 at 02:58 PM by Josh Martin

[Shmuel Gerber]

5 minutes ago, Josh Martin said:

I would quibble over this assertion that the rules in RONR pertaining to removal of officers are not rules of order. The rules governing this process are undoubtedly rules which relate to the orderly conduct of business within meetings.

Nonetheless, I agree that in a case where those rules require formal disciplinary procedures by the membership to remove an officer, a motion to suspend the rules to permit the board to remove an officer without such procedures is not in order.

I would quibble with your quibble. A rule in the parliamentary authority stating that particular wording in the bylaws means that officers cannot be removed by a vote of the assembly except after cause has been shown is not in the nature of a rule of order, and neither is the relevant provision in the bylaws defining the term of office in the nature of a rule of order.

[Guest Zev]

Do I need a lawyer to interpret the words "Except as otherwise provided in the articles of incorporation or bylaws,..." ?

[Gary Novosielski]

1 hour ago, Shmuel Gerber said:

I would quibble with your quibble. A rule in the parliamentary authority stating that particular wording in the bylaws means that officers cannot be removed by a vote of the assembly except after cause has been shown is not in the nature of a rule of order, and neither is the relevant provision in the bylaws defining the term of office in the nature of a rule of order.

Well, I'm certainly not going to quibble with your quibble with his quibble. 

😵

[J. J.]

5 hours ago, Shmuel Gerber said:

I would quibble with your quibble. A rule in the parliamentary authority stating that particular wording in the bylaws means that officers cannot be removed by a vote of the assembly except after cause has been shown is not in the nature of a rule of order, and neither is the relevant provision in the bylaws defining the term of office in the nature of a rule of order.

I have to quibble with your quibble of Josh's quibble.

The requirement to show cause can only exist within a meeting and does deal with the transaction of business, i.e. a penalty cannot be imposed without first establishing cause.  I am not seeing a reference in RONR which says any deviation from RONR on this point must be established in the bylaws, as there are with some things, e.g. proxy voting.

I would also note that there is effectively no definition of cause.  A simple expression " That X be removed from office 'cause we don't want him to serve any longer," would be in order (though perhaps not advisable). 

Edited September 28, 2019 at 03:49 AM by J. J.

[Gary Novosielski]

21 minutes ago, J. J. said:

I have to quibble with your quibble of Josh's quibble.

The requirement to show cause can only exist within a meeting and does deal with the transaction of business, i.e. a penalty cannot be imposed without first establishing cause.  I am not seeing a reference in RONR which says any deviation from RONR on this point must be established in the bylaws, as there are with some things, e.g. proxy voting.

I would also note that there is effectively no definition of cause.  A simple expression " That X be removed from office 'cause we don't want him to serve any longer," would be in order (though perhaps not advisable). 

Are you suggesting that such a rule would be suspendible?

[Dan Honemann]

14 hours ago, Guest Zev said:

Do I need a lawyer to interpret the words "Except as otherwise provided in the articles of incorporation or bylaws,..." ?

Well, it is likely that you will need a lawyer to assist you in interpreting a statute which provides that the rules in an organization's bylaws may supersede a particular statutory provision.

The question to be decided is whether or not, in construing such a statute, the rules in RONR are to be considered as being incorporated into, thus effectively becoming a part of, bylaws which provide that the rules in RONR shall govern in the absence of a bylaw provision to the contrary (as Mr. Martin has already noted is the intent expressed in RONR itself). I am aware of at least two instances in which courts have adopted RONR's view of this matter, and none which have as yet ruled to the contrary (although this does not mean that there are none, or that there will be none).

[Gary Novosielski]

12 hours ago, Daniel H. Honemann said:

I am aware of at least two instances in which courts have adopted RONR's view of this matter, and none which have as yet ruled to the contrary (although this does not mean that there are none, or that there will be none).

Perhaps not, but this is at least cause for guarded optimism.

[J. J.]

21 hours ago, Gary Novosielski said:

Are you suggesting that such a rule would be suspendible?

I think the rule in RONR that the assembly would have to determine case is a rule in the nature of a rule of order and  could be superseded by a special rule.

Absent a special rule, it involves the right to due process, and, as a basic right of an individual member, it could not be suspended.

[Atul Kapur]

On 9/28/2019 at 8:06 AM, Daniel H. Honemann said:

I am aware of at least two instances in which courts have adopted RONR's view of this matter, and none which have as yet ruled to the contrary (although this does not mean that there are none, or that there will be none).

Do you have  citations for these cases ?

[Dan Honemann]

WKS Crystal Lake, LLC v. LeFew, Appellate Court of Illinois, Second District (2015), which I think you'll find here.

Cori, et al. v. Martin, Jr., et al., is a case decided in 2019 in the Circuit Court, Third Judicial Circuit, Madison County, Illinois (No. 16-MR-111)

 

 

 

[Atul Kapur]

11 hours ago, Daniel H. Honemann said:

 

Thank you. I look forward to reviewing them.

[Richard Brown]

On 10/11/2019 at 4:54 PM, Atul Kapur said:

Thank you. I look forward to reviewing them.

As do I.