Rights of Ex-Officio Board Members

[FL Steve]

Our organization is a private yacht club.  Its affairs are managed by an elected Board of Directors and a hired manager and staff.  In addition to the elected BOD members, the bylaws provide for several additional ex-officio  board members appointed by the commodore and approved by the BOD.  Ex-officio member responsibilities usually include the chairing of a standing committee.  (The primary role of a standing committee is to make recommendations to the board.)  The bylaws state that these ex-officio members shall receive notice of meetings and that these members do not have the right to vote.  The Bylaws are silent on any other rights or prohibitions.  

Elected board members receive committee reports prior to or during  board meetings.  The question is, are the ex-officio members of the board entitled to receive committee reports?

[Josh Martin]

15 minutes ago, FL Steve said:

Our organization is a private yacht club.  Its affairs are managed by an elected Board of Directors and a hired manager and staff.  In addition to the elected BOD members, the bylaws provide for several additional ex-officio  board members appointed by the commodore and approved by the BOD.  Ex-officio member responsibilities usually include the chairing of a standing committee.  (The primary role of a standing committee is to make recommendations to the board.)  The bylaws state that these ex-officio members shall receive notice of meetings and that these members do not have the right to vote.  The Bylaws are silent on any other rights or prohibitions.  

Elected board members receive committee reports prior to or during  board meetings.  The question is, are the ex-officio members of the board entitled to receive committee reports?

In RONR, the world is neatly divided into members and non-members. Members (including ex-officio members) have all the rights of membership (including the right to vote), and non-members have none of the rights of membership. If your organization chooses to create something in between a full member and a non-member, your organization will have to figure out what rights such persons have. In the long run, the bylaws should be amended to resolve any ambiguity. In the interim, the organization will have to interpret its current rules as best as it can. See RONR, 11th ed., pgs. 588-591 for some Principles of Interpretation.

Edited April 29, 2020 at 03:47 PM by Josh Martin

[Gary Novosielski]

On 4/29/2020 at 11:31 AM, FL Steve said:

Our organization is a private yacht club.  Its affairs are managed by an elected Board of Directors and a hired manager and staff.  In addition to the elected BOD members, the bylaws provide for several additional ex-officio  board members appointed by the commodore and approved by the BOD.  Ex-officio member responsibilities usually include the chairing of a standing committee.  (The primary role of a standing committee is to make recommendations to the board.)  The bylaws state that these ex-officio members shall receive notice of meetings and that these members do not have the right to vote.  The Bylaws are silent on any other rights or prohibitions.  

Elected board members receive committee reports prior to or during  board meetings.  The question is, are the ex-officio members of the board entitled to receive committee reports?

There does not seem to be anything in the nature of "ex-officio" in these appointments.   The term ex officio means (arising) out of an office, i.e., that they are members by virtue of holding some (other) office.  But these people are members because they are appointed by the Commodore by name, and ratified by the board, not because they hold some specific office.  They are not, therefore members ex officio.

In any case, the intention of the bylaws seems to be the creation of some other class of members who are not elected by the membership and who do not have the right to vote in board meetings.  If that is the only right that is removed by the bylaws, then it is reasonable to assume that all other rights of membership remain in place.  It also appears that these members would not count in establishing the presence or absence of a quorum, since that is assumed to refer to a necessary number of voting members.

[Josh Martin]

8 hours ago, Gary Novosielski said:

In any case, the intention of the bylaws seems to be the creation of some other class of members who are not elected by the membership and who do not have the right to vote in board meetings.  If that is the only right that is removed by the bylaws, then it is reasonable to assume that all other rights of membership remain in place.  It also appears that these members would not count in establishing the presence or absence of a quorum, since that is assumed to refer to a necessary number of voting members.

This may well be a reasonable interpretation, but I don't think we have enough information about the organization's bylaws to say for sure, since all we have been provided is a brief paraphrase.

As I have noted previously, the Principles of Interpretation in RONR will likely be of assistance. The key principle to start with, it seems to me, is Principle #8.

"In cases where the bylaws use a general term and also two or more specific terms that are wholly included under the general one, a rule in which only the general term is used
applies to all the specific terms. Where the bylaws provide in the basic enumeration of the classes of membership that "members may be active, associate, or honorary," the
general term "member" is used to apply to all three classes of members. But if, in the article on Members, it is stated that members may be either active or associate
members, or if that article simply describes "members" without classification, as in the Sample Bylaws, Article III (pp. 584–85), the term "member" applies only to those classes
or that class of members, even if honorary members are provided for elsewhere—in which case honorary membership is not real membership. Similarly, if the bylaws provide for "elected officers" and "appointed officers," the word "officers" or the expression "all officers," used elsewhere in establishing the term during which office shall be held, applies to both the elected and the appointed officers." (RONR, 11th ed., pg. 591)

So the first question is to determine whether this separate class of members is included under the general classification of "members" in the organization's bylaws. If it is not included, then we are told that this class "is not real membership." As a consequence, it would seem to me that such persons only have such rights as are granted by the organization or its rules.

On the other hand, if it is determined that this class is included under the general classification of "members," then I fully agree that such members have the same rights as other members, except to the extent limited by the bylaws. Principle #6 appears to make this clear.

"6) A prohibition or limitation prohibits everything greater than what is prohibited, or that goes beyond the limitation; but it permits what is less than the limitation, and also permits things of the same class that are not mentioned in the prohibition or limitation and that are evidently not improper. The Sample Bylaws, Article IV, Section 4 (p. 585) limits a member to holding one office at a time. This limitation carries with it, of course, the prohibition of holding more than two or three offices as well. The next clause in Article IV, Section 4 (p. 585) prohibits officers from serving three consecutive terms in the same office. Hence, an officer cannot serve four consecutive terms, but may serve two consecutive terms. Article IX of the Sample Bylaws (p. 588) limits amendments to the bylaws to those of which notice has been given and which are adopted by a two-thirds vote. Thus, the change of a single word is prohibited unless these conditions are met, and a revision of the entire bylaws requires that the same steps be taken." (RONR, 11th ed., pg. 590)

Since the organization has (hopefully) read its bylaws and I have not, I will defer to them in applying these principles to interpret the meaning of their bylaws.

Of course, the best solution would be for the organization to actually define in its bylaws what rights these quasi-members do (and do not) have - or better yet, stop bothering with this "non-voting" member nonsense altogether and simply invite these persons to attend and speak at meetings when and if it wishes to do so (which in my experience, is often really what organizations want to do, but are under the impression that they need to make people non-voting members in order to accomplish this).

Edited May 1, 2020 at 03:01 PM by Josh Martin