Resolving Erroneous Election of Chair

[michael macmillan]

A peculiar problem has arisen in my organization. At the AGM, a person was elected as Chair who subsequently was determined to be ineligible for nomination by virtue of lacking a required qualification. The bylaws state that "the person with the highest number of votes shall be elected". There were only two candidates. Legal counsel to the organization has submitted a report stating that the other candidate should be the incumbent chair. Does this meaning that the remaining legitimate candidate has been elected,since the votes for the other candidate should be discounted? Further, does the board have to take any additional steps to acclaim, recognize the validity of this person as chair? 

Also, this board has been acting with the illegitimate chair for several weeks. Does the board need to take any specific actions to ratify measures/motions undertaken with an improperly constituted board?

 

Thanks for your thoughts.

MM

[Richard Brown]

41 minutes ago, michael macmillan said:

A peculiar problem has arisen in my organization. At the AGM, a person was elected as Chair who subsequently was determined to be ineligible for nomination by virtue of lacking a required qualification. The bylaws state that "the person with the highest number of votes shall be elected". There were only two candidates. Legal counsel to the organization has submitted a report stating that the other candidate should be the incumbent chair. Does this meaning that the remaining legitimate candidate has been elected,since the votes for the other candidate should be discounted? Further, does the board have to take any additional steps to acclaim, recognize the validity of this person as chair? 

Also, this board has been acting with the illegitimate chair for several weeks. Does the board need to take any specific actions to ratify measures/motions undertaken with an improperly constituted board?

 

Thanks for your thoughts.

MM

First, we need a lot more information in order to try to help you. Second, your question is as much a legal question as it is a parliamentary one. We do not do legal here. You need to consult an attorney about that.

For openers, we need to know more about the alleged ineligibility of the person elected as chairman  to serve as chairman . What is the precise language of the bylaws which makes him ineligible to serve as chairman? Do the bylaws make him ineligible to serve, or only ineligible for nomination? There is a difference.  Please quote the relevant bylaw language verbatim. Do not paraphrase, but quote the applicable provision verbatim.

Edited to add: there is also the issue of whether the board has the authority to invalidate an election conducted by the general membership, but that is a separate (and very significant) issue. 

Edited November 9, 2019 at 04:05 PM by Richard Brown
Added last paragraph

[Dan Honemann]

I agree that a great deal more information is needed, and would add that, generally speaking, and unless some applicable bylaw or special rule of order provides otherwise, when a person has been declared to have been elected to an office, his election to that office must be regarded as being valid unless and until the body that held the election determines otherwise.

[michael macmillan]

Thank you for the prompt responses and important questions about this matter. 

1) Eligibility to be nominated and to serve.

The organization in question is a self-regulating professional body, created by a legislative act.  The Act states that "The Board is composed of the Chair, Vice-Chair, the past Chair, the Secretary, the Treasurer, each of whom must hold a licence." A licence is defined in the act as an "active-practising license", which is one of several categories in the by-laws, but the specified requirement in the Act. So, while the individual is eligible to vote in such an election, they are not eligible to hold office. 

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Act Text: 8 (1) The Board is composed of
(a) the Chair, the Vice-chair, the past Chair, the Secretary and the Treasurer,
each of whom must hold a licence;

2 (x) “licence” means an active-practising licence with or without conditions or
restrictions or a temporary licence issued in accordance with this Act and the regulations;

xxxxxxxxxxxxxxxxxxxxxxx

By-Laws Text:

2. In these By-Laws,

(k) "Voting member" or "voting membership" means those persons in a retired category of affiliation and those members who hold one of the following licences:
(i) Active-Practising;
(ii) Active-Practising with conditions or restrictions; or
(iii) Active-Practising candidate.

Vacancy on the Board
7. (1) With the exception of the Chair and the public representatives, the Board may at any time fill a vacancy on the Board with a different Board member, or appoint an additional member to the Board to fill the vacant position to complete the remainder of the term of the vacancy.
(2) Where the office of Chair becomes vacant, it shall be filled in accordance with Article 12(5).
Removal of Board member

8. (1) If a member of the Board does not attend three consecutive meetings, without sufficient cause accepted by the Board, the member shall be removed from the Board and a vacancy shall be declared.
(2) The Board may, by a 2/3 majority vote of the total Board membership, remove any Board member for reason other than non-attendance, before the expiration of the period of office and appoint another person in their stead. The person so appointed shall hold office during such time only as the member in whose place they are appointed would have held office had that member not been removed.

12(5) If the office of the Chair becomes vacant prior to the expiration of the Chair's term, the Vice Chair will assume the position of the Chair for the duration of the term and the Board may appoint a new Vice Chair from the voting membership to serve in the office of Vice Chair until the next annual general meeting at which an election for Vice Chair shall be held. The Vice Chair who has succeeded to the vacant office of the Chair shall remain in office for the balance of the vacating Chair’s term and, by resolution of the Board may remain as Chair for a subsequent term. In this event, the term of the newly elected Vice Chair may be extended to coincide with that of the Chair. If at the time the office of Chair becomes vacant the Vice Chair cannot assume the position of Chair, the Board shall appoint a Chair to serve the balance of the vacating Chair’s term.

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The lack of a licence was not discovered until after the AGM where the election was held, and actions have been since taken to rectify the situation. This includes opinions from two different legal counsel which concluded that the ineligible person was not duly elected, but which offered different conclusions about how to rectify the situation. 

Incidentally the by-laws specify that "voting shall take place at the annual general meeting", though there are provisions in the by-laws to fill board vacancies by appointment or internal board elections in the interim. 

I am particularly interested in the point raised by Mr. Honemann that the individual should continue to hold office until the organization determines their ineligbiilty. Does this still apply when the legislative act specifies a requirement for office?

beyond that, I would be interested to hear more about the distinction between eligibilty to serve versus eligibility for nomination, since I would have assumed that the lack of the former would have disqualified one for the latter. Is that not the case?

I should add that the person in question subsequently obtained the missing credential weeks after the election was held. Does a retroactive eligibilty affect the conclusion? 

Incidentally, the Vice-Chair, who had been approved to occupy the Chair as specified in 12(5), has recently resigned as Chair.

Finally, another Board member has resigned so there may be no board quorum unless the  remaining candidate for the chair from the AGM becomes chair.

So, where do these facts and act/by-laws leave the situation of who is the chair?

 

[Joshua Katz]

37 minutes ago, michael macmillan said:

beyond that, I would be interested to hear more about the distinction between eligibilty to serve versus eligibility for nomination, since I would have assumed that the lack of the former would have disqualified one for the latter. Is that not the case?

 

The usual question that arises is the other way around. You have someone who is ineligible to be nominated who gets into office without being nominated - by write-in, for instance. 

Now, as for your question: legal questions are beyond the scope of the forum, so all we can do is give parliamentary answers. Here's my view entirely from a parliamentary perspective. I don't think this person is automatically out. You are, it appears to me (but I can be wrong since I haven't seen everything) in compliance with your bylaws and out of compliance with a state substantive law. State substantive laws do not, as a purely parliamentary matter, supersede your bylaws. The mafia can follow RONR and adopt a motion to carry out a hit without doing anything out of order. The problem in the mafia case, of course, arises when carrying out the motion - which typically takes place outside of the meeting itself. The conflict with substantive laws will then lead to be arrested and so forth. Similarly, here, I don't think the election is out of order, it's just illegal. So I think you should remove the person by the procedure in your bylaws, and then fill the vacancy by the procedure in your bylaws. I also think it's quite clear on how to do that - the Vice Chair becomes Chair, and you appoint a person to the Vice Chair position (but see below). The second-highest vote getter, as usual, has nothing at all to do with it (unless, of course, the board happens to select him, but it need not do so). 

But we're told that the Vice Chair resigned from the Chair position after acquiring it. Had the Vice Chair position been filled in the meantime? If not, fill that position, and that person will become Chair, then fill the Vice Chair position again. 

As a general matter, although your rules may differ, a quorum is a majority of living, breathing members, so you should not have a quorum problem. Even if your quorum is based on the number of board positions, though, I fail to see why choosing someone else, rather than the second highest vote getter, would produce a quorum issue.

But then there's this:

46 minutes ago, michael macmillan said:

I should add that the person in question subsequently obtained the missing credential weeks after the election was held. Does a retroactive eligibilty affect the conclusion? 

 

It seems to me that it might. But to answer definitively as to whether or not you are now in compliance with the law requires statutory interpretation, which is way beyond the scope of this forum, and that question should be directed to the 2 attorneys you've already employed.

NOW the huge caveat: whether or not a substantive law is self-executing is a legal question, not a parliamentary one. Everything I've written above is premised on it not being self-executing. But if a lawyer tells you that he's automatically disqualified, well, then the position was effectively vacant ab initio.

[michael macmillan]

Thank you for these helpful suggestions. I think the Vice-Chair to Chair appointment route will simply matters appreciably. I plan to present it at an extended board meeting tomorrow morning.  

All these comments are much appreciated.

MM