Election Question

[penny]

We held an election for a 2nd Vice President. The person who won the election resigned BEFORE that term was to begin, so never took that seat. SO - does the person who got the 2nd most votes then become the winner of the election? Is the position considered Vacated and the existing BOD can then select a replacement? Our constitution does address if a BOD member resigns mid-term, but does not address what happens in this situation where the term had not yet begun.

 

Edited May 1, 2020 at 05:10 AM by penny

[Gary Novosielski]

The person with the 2nd most votes could not have achieved a majority vote, and definitely does not become the winner.

If the winner had declined the office immediately, a second ballot would be in order.  But if the winner did not decline, the election was complete at that point.

In my opinion, when the new term begins, a vacancy will exist in that office, and if the board has the power to fill vacancies, that would be the appropriate action.  They would be free to appoint the runner-up at that point, but they should also consider the possible reasons  that person was not elected.  They are also free to appoint any other qualified individual.

[penny]

Thank you. Is there a section in RR that covers this?

 

Edited May 1, 2020 at 06:29 AM by penny

[Josh Martin]

9 hours ago, penny said:

We held an election for a 2nd Vice President. The person who won the election resigned BEFORE that term was to begin, so never took that seat. SO - does the person who got the 2nd most votes then become the winner of the election? Is the position considered Vacated and the existing BOD can then select a replacement? Our constitution does address if a BOD member resigns mid-term, but does not address what happens in this situation where the term had not yet begun.

Could you clarify your statement that "The person who won the election resigned BEFORE that term was to begin, so never took that seat." Was this person present at the election and declined at that time? Alternately, was this person absent at the time of the election, but immediately declined when they learned of the election? Or did the person originally accept the position and change their mind some time later?

If the person declined at the time that they learned of their election, this is an incomplete election which is to be completed by the same body which held the initial election. What happens next (in the event this body will not meet until after the term begins) depends on what your bylaws say regarding the term of office.

If the person originally accepted the office and later changed their mind, then I concur with Mr. Novosielski that while no vacancy exists at this time, a vacancy will exist when the term begins. As a consequence, the same rules can be applied as if the resignation happened after the term had begun. Additionally, RONR has no rule preventing an organization from preemptively filling a vacancy, so the board (assuming your constitution authorizes the board to fill vacancies) is free to select someone now, with the understanding that the appointment will not be effective until the start of the term.

In any event, the runner-up certainly does not become the winner of the election.

9 hours ago, penny said:

Thank you. Is there a section in RR that covers this?

RONR does not directly address these questions. As to the question of whether the "runner-up" suddenly becomes the winner, RONR notes the following...

"If he does decline, the election is incomplete, and another vote can be taken immediately or at the next meeting without further notice." (RONR, 11th ed., pg. 444)

"A plurality that is not a majority never chooses a proposition or elects anyone to office except by virtue of a special rule previously adopted. If such a rule is to apply to the election of officers, it must be prescribed in the bylaws." (RONR, 11th ed., pg. 405)

As Mr. Novosielski notes, it is not mathematically possible for the runner-up to have obtained a majority vote.

As to the question of what occurs when a resignation happens prior to the beginning of the term, this is complicated, because RONR assumes that there is no gap between the election becoming final and the start of the term, so this is a bit of a question of bylaws interpretation. RONR does, however, say the following:

"An election to an office becomes final immediately if the candidate is present and does not decline, or if he is absent but has consented to his candidacy. If he is absent and has not consented to his candidacy, the election becomes final when he is notified of his election, provided that he does not immediately decline. If he does decline, the election is incomplete, and another vote can be taken immediately or at the next meeting without further notice. After an election has become final as stated in this paragraph, it is too late to reconsider (37) the vote on the election.

An officer-elect takes possession of his office immediately upon his election's becoming final, unless the bylaws or other rules specify a later time. If a formal installation ceremony is prescribed, failure to hold it does not affect the time at which the new officers assume office." (RONR, 11th ed., pg. 444)

So RONR is clear regarding what to do if the member declines before the election becomes final. RONR also alludes to the possibility that the bylaws or other rules may specify "a later time" for an officer-elect to take possession of the office, but nothing in this sentence suggests that the existence of such a rule affects the time at which the election becomes final. As a result, it seems clear that the procedures in the foregoing paragraph are no longer applicable in such cases, and we can turn to the usual rules for filling vacancies.

"The power to appoint or elect persons to any office or board carries with it the power to accept their resignations, and also the power to fill any vacancy occurring in it, unless the bylaws expressly provide otherwise. In the case of a society whose bylaws confer upon its executive board full power and authority over the society's affairs between meetings of the society's assembly (as in the example on p. 578, ll. 11–15) without reserving to the society itself the exclusive right to fill vacancies, the executive board is empowered to accept resignations and fill vacancies between meetings of the society's assembly. For particular vacancies, see page 457, lines 22–30 (president-elect), page 458, lines 7–18, and page 575, lines 6–17 (president and vice-presidents). See also page 177 (vacancies in a committee)." (RONR, 11th ed., pgs. 467-468)

It may matter, however, exactly what the bylaws say on this subject. You say that "Our constitution does address if a BOD member resigns mid-term, but does not address what happens in this situation where the term had not yet begun." It is conceivable that this provision is written in such a way that it limits the types of vacancies the board may act upon. What exactly does the constitution say on this subject?

[penny]

The person originally accept the position and changed their mind. The Election was held via mail-in ballot, the results tallied and announced- this occurred in March, the term for which the person was elected was to commence July 1st. The person notified the current BOD that they were no longer willing to take the position in April.

It does make sense, and what I was interpreting, that when the officer does NOT take their position July 1st, then there is a vacancy - and at that time, per our constitution, the existing BOD may appoint a replacement.

Thank you for your assistance, I do appreciate it