Notifying Ineligible Candidates and Membership AFTER Election?

[AndrewDaca]

Hello, our industry organization held an election to fill 5 positions with 15 candidates nominated and approved by the nomination committee. The bylaws discusses eligibility for different categories such as geography, a "non voting membership" and limitations to number of elected individuals that can be elected from a single company within the industry.

These 15 candidates were sent out to the membership for voting and the election took place.

At the AGM where election results were revealed, it was announced that two of the candidates were not eligible as all the non-voting seats (2) were filled by existing board members. One of the two on the Board was appointed by the Board two months before the election but the "non-voting status" of the Board member was not made public. One of the two "ineligible" people ended up with the most votes in the election. Neither candidate nor the membership was notified before the AGM that the two candidates were ineligible. 

The Membership is upset as they did not know they were casting votes for ineligible candidates and as such, "wasted their votes". The candidates are upset - especially the top vote earner.

Our Bylaws state: "The Board prior to holding an election will validate all nominations submitted. If a nomination is declared invalid all Members submitting the nomination must be notified and given the opportunity to correct their nomination." Furthermore, our Bylaws note "Robert’s Rules of Order, unless in contravention of these Bylaws, shall be the adopted rules of order at any general meeting, including the Annual General Meeting."

What is / was the responsibility of the organization for notifying the candidates / membership of eligibility? Is sending out the slate of candidates to the membership without additional "eligibility notes" a tacit approval by the organization of eligibility? 

Should an error or oversight like this happen, what should we do?

A member indicates that Robert's Rules states: "If it is discovered after an election that the person elected does not meet the eligibility requirements, and even if the person has begun to serve, the election is void. The organization must have another election." Does this apply as the membership was not notified until after the election but our Board did know but did not communicate out?

Thank you for your insights.

 

[Joshua Katz]

57 minutes ago, AndrewDaca said:

The Membership is upset as they did not know they were casting votes for ineligible candidates and as such, "wasted their votes". The candidates are upset - especially the top vote earner.

 

Wait. What is it being proposed that you do about it?

57 minutes ago, AndrewDaca said:

What is / was the responsibility of the organization for notifying the candidates / membership of eligibility? Is sending out the slate of candidates to the membership without additional "eligibility notes" a tacit approval by the organization of eligibility? 

Well, I'd say the responsibility is:

57 minutes ago, AndrewDaca said:

The Board prior to holding an election will validate all nominations submitted. If a nomination is declared invalid all Members submitting the nomination must be notified and given the opportunity to correct their nomination.

But that is not something that can be corrected now. I don't know your election process well enough to know what you mean by slate, a term that RONR does not use. However, given that the Board is supposed to do this, I would think accepting a nomination implies that the Board found the nomination valid. What that means is probably a matter of bylaws interpretation. It could mean the form of the nomination is incorrect (I feel like that is the better interpretation given that they should be given the opportunity to correct their nomination - how do you correct the nomination if the candidate is ineligible?) It could mean the candidate is not eligible. 

Do you have any rules prohibiting write-ins and nominations from the floor? If not, I'm not sure that this rule accomplishes much.

1 hour ago, AndrewDaca said:

Should an error or oversight like this happen, what should we do?

 

A point of order can be raised at any time that an ineligible person is serving in office. Until a point of order is raised, assuming the person has taken office, he is actually in office, and there's no "nullifying" his past actions. 

As to what happens next, here's what I think, but stay tuned because I am not entirely confident: 

If the person has taken office, you have a vacancy, which is to be filled the way a vacancy would ordinarily be filled. Absent other rules, that means by whoever appointed the person to begin with.

If the person has not taken office, you have an incomplete election, which needs to be completed.

To head off a potential follow-up, under no circumstances (with the usual caveat about your own rules) would you ever seat the runner-up automatically.

[AndrewDaca]

Thanks Joshua for the reply. I hope I can add more clarity and answer your questions.

The 5 positions are filled by a simple "who are the five people who earned the most votes from the 15 nominations received from the membership and approved by the nomationations committee". These 15 names (I referred to this perhaps incorrectly in my OP as "slate") were sent to the membership and each member could vote for up-to five people.

Write in and from the floor nominations do not apply in the traditional sense as we had an open nomination process for a set period of time where the membership nominated candidates and we sent out the nominations and voting instructions to the membership after the nominations committee vetted the candidates.

We realized the ineligibility AFTER the election closed and did not notify the candidates or membership. Instead, a week later at the AGM, we announced the results. When the top vote earner's name was not announced (this person was a favorite and had prominent support), some members asked for the vote count to be read. We did not have that available so when the pointed question of "where did (name of top vote earner) place" we then said, "first but that person was ineligible and therefore disqualified". That created a torrent of dissent and we said we would review.

The "top vote getter" did not take the seat as we did not permit it. This person and many of our membership want us to remedy this situation with placing the "top vote getter" on the Board and removing the person who came in "fifth" (but really sixth). We want to do what is right under the Rules.

Your comment is where we are at "If the person has not taken office, you have an incomplete election, which needs to be completed" but wedo not understand "how to complete". Do we need to allow the person to serve and bump the "fifth place person"? Allow top vote getter AND the "fifth place person" to serve? Re-do the election?

We know this is a mess and looking for guidance before have to seek more formal legal advice if we need to. Thank you all for your insights.

 

[Joshua Katz]

10 minutes ago, AndrewDaca said:

The 5 positions are filled by a simple "who are the five people who earned the most votes from the 15 nominations received from the membership and approved by the nomationations committee". These 15 names (I referred to this perhaps incorrectly in my OP as "slate") were sent to the membership and each member could vote for up-to five people.

 

Is this in your rules? It is a prohibited procedure in RONR unless your bylaws allow it.

11 minutes ago, AndrewDaca said:

We realized the ineligibility AFTER the election closed and did not notify the candidates or membership. Instead, a week later at the AGM, we announced the results. When the top vote earner's name was not announced (this person was a favorite and had prominent support), some members asked for the vote count to be read. We did not have that available so when the pointed question of "where did (name of top vote earner) place" we then said, "first but that person was ineligible and therefore disqualified". That created a torrent of dissent and we said we would review.

Yes, I can see why you'd get this reaction. Once the election has concluded, it is not the Board's prerogative to not seat the winner. Rather, you need a point of order, made and ruled upon at a meeting, and subject to appeal. By saying you'd review, you essentially tried to retain that power for the Board.

12 minutes ago, AndrewDaca said:

Your comment is where we are at "If the person has not taken office, you have an incomplete election, which needs to be completed" but wedo not understand "how to complete". Do we need to allow the person to serve and bump the "fifth place person"? Allow top vote getter AND the "fifth place person" to serve? Re-do the election?

 

 

12 minutes ago, AndrewDaca said:

The "top vote getter" did not take the seat as we did not permit it. This person and many of our membership want us to remedy this situation with placing the "top vote getter" on the Board and removing the person who came in "fifth" (but really sixth). We want to do what is right under the Rules.

 

Well, that strikes me as not quite the right question. When do your bylaws say he takes office? If they say nothing, he takes office immediately. The Board's incorrect decision to prevent it has no effect, in my view, if the rules say he's in office. So I'm not sure yet that this is an incomplete election.

You are right that your rules, subject to my question above, create some difficulty for an incomplete election. But first, take care about this use of we. The Board has no role here. Certainly the answer is not to place 6 people on a 5 person body. And nothing impacts the four without an issue - well, hmm, their election could have come out different if the people had different options - but I think, as a matter of procedure, that is not relevant because the use of the ballot is in the past. So re-doing the entire election is not the answer either. I suspect the answer is to hold a new election solely for the remaining position, as you would with a vacancy. But given that your rules do not require a majority to be elected, I am anxious to hear what others have to say.

[Atul Kapur]

Your bylaws obviously have many provisions that are not in accordance with RONR. There's nothing wrong with that, it's allowed and they supersede RONR, but it makes it difficult to give you a definitive answer here.

It sounds like you accidentally allowed a ineligible candidate to appear on the ballot and your membership gave this person the most votes.

Whether the board has the power to " review" and decide what happens now depends on your bylaws and any laws that may apply. I wouldn't be surprised if it does.

Without knowing all the details, I lean to the opinion that this person was ineligible, even though their name appeared on the ballot, and remain ineligible, no matter how many votes they got.

However,  what you need is a  formal parliamentary opinion  after someone has  been able to review your governing documents in their entirety.

 

The American Institute of Parliamentarians or the National Association of Parliamentarians  can both provide names.