Removal from Office

[Mark Apodaca, PRP]

I was studying 62:1 through 62:16 which covers removing an officer from the board.

I was contacted by some members of an association and a couple of officers.  They called for a special meeting which was about removing the Chairman from the board.  The special meeting is scheduled for this coming Sunday. As I read the association's bylaws, it says:

Removal from Office.

Elected and appointed Board members may be removed after due process hearing for failure to carry out their duties or for other good and sufficient reason by two thirds (2/3) vote of the Board of Directors present and voting.

About the call for a special meeting, the association's bylaws state:

Special Meetings of the Members

The Board of Directors may call additional meetings. Fifteen (15) or more active members may petition the Board of Directors to call a special meeting. The notice for special meeting shall be given no less than fourteen (14) days in advance. The quorum of the special meeting shall be fifteen (15) active members.

The requirements for the call for a special meeting were met.

Nowhere in the bylaws mentions the process for members to remove an officer and for this organization, only the board can remove a board member.  My thought is that once the special meeting takes place, a motion to remove the Chairman will be out of order because the bylaws specify that only the board can remove a board member.

Any thoughts/comments?

 

[Josh Martin]

2 hours ago, Mark Apodaca said:

Nowhere in the bylaws mentions the process for members to remove an officer and for this organization, only the board can remove a board member.  My thought is that once the special meeting takes place, a motion to remove the Chairman will be out of order because the bylaws specify that only the board can remove a board member.

Any thoughts/comments?

I agree with your analysis. We are told that the desire is to remove the chairman "from the board." This presumably means that the chairman is currently a member of the board, and therefore, to remove him from the board is to remove a board member. The rules in your bylaws pertaining to the removal of board members take precedence over RONR's rules on this subject, and those rules provide that board members are removed by the board.

So if the membership wishes to remove a board member prior to the end of the member's term, it will be necessary for the membership to first amend the bylaws to provide a mechanism for the membership to remove board members.

Edited February 26, 2021 at 02:09 AM by Josh Martin

[Guest Puzzling]

Assuming the chairman was elected by the members the members have the right (after due process) to remove the chairman. The option that the board can also remove officers is an extra option not an exclusive one.

[Mark Apodaca, PRP]

Yes, it is the chairperson of the board.  The organization board has chairperson and vice chairperson.  Thanks...

[Josh Martin]

46 minutes ago, Guest Puzzling said:

Assuming the chairman was elected by the members the members have the right (after due process) to remove the chairman. The option that the board can also remove officers is an extra option not an exclusive one.

I would view the rules on this matter as exclusive.

In your view, however, what procedures should be followed for the members to remove the chairman? Should the members follow the same procedures as in the rule in the bylaws for the board removing the board member, even though the rule makes no mention of the membership? Or would the rules default back to the rules in RONR? If the latter, we would need to know what the bylaws say about the term of office.

[Guest Puzzling]

10 hours ago, Josh Martin said:

I would view the rules on this matter as exclusive.

In your view, however, what procedures should be followed for the members to remove the chairman? Should the members follow the same procedures as in the rule in the bylaws for the board removing the board member, even though the rule makes no mention of the membership? Or would the rules default back to the rules in RONR? If the latter, we would need to know what the bylaws say about the term of office.

I do not see much difference between the rules in RONR and the rules in the bylaws (except that the bylaws mentions boardmembers), so the point is a bit moot. If there were important differences  I would go forth bylaws and if in doubt  go for the combination of rules that gives the defendant the most time and rights. 

But :is is all without knowing all the relevant bylaws so if I see them I might change my opinion.

10 hours ago, Josh Martin said:

we would need to know what the bylaws say about the term of office.

I fully agree with that.

[Guest Puzzling]

11 hours ago, Mark Apodaca said:

Yes, it is the chairperson of the board.  The organization board has chairperson and vice chairperson.  Thanks...

Not sure what to make of this.

Which chairperson do you want to remove from which offices and/or boards? 

If it is an internal board situation then maybe the board is the only deciding assembly.

An internal board situation would be if the chairperson of the board is a boardmember and there is no suggestion to remove the chairperson of the board.

We just need more details...

[Josh Martin]

18 minutes ago, Guest Puzzling said:

I do not see much difference between the rules in RONR and the rules in the bylaws (except that the bylaws mentions boardmembers), so the point is a bit moot.

I certainly do not think the differences between the rules in RONR and the rules in the bylaws are so minor as to be "moot," and there are also two different processes in RONR and we don't know which one would apply, so I don't know how you are so certain what differences there are. I agree that the distinction between board members and officers is not particularly troubling, since board members are officers so far as RONR is concerned.

The rules in RONR on this subject are that:

• If the bylaws provide that officers serve for a fixed term or provide that officers serve "and until their successors are elected," the officer may be removed only for cause (that is, neglect of duty in office or misconduct) through formal disciplinary procedures as detailed in Section 63 of RONR, which provide generally for an investigative committee, the adoption of a resolution preferring charges, a trial, and finally a vote on the question of guilt and the penalty. A majority is sufficient to adopt the penalty, even for removal from office.
• If the bylaws provide that officers serve "or until their successors are elected," the officer may be removed for whatever reasons the society deems appropriate, and the motion to do so requires a 2/3 vote, a vote of a majority of the entire membership, or a majority vote with previous notice.

In contrast, the bylaws provide that board members "may be removed after due process hearing for failure to carry out their duties or for other good and sufficient reason by two thirds (2/3) vote of the Board of Directors present and voting." This does not exactly match either procedure in RONR. It requires cause (which is defined slightly differently than in RONR), it requires a "due process hearing" (the details of which are not specified, but is presumably similar to the trial in RONR), but does not appear to require the other preliminary steps called for in RONR, and requires a 2/3 vote.

So I think the question remains: In your view, however, what procedures should be followed for the members to remove the chairman? Should the members follow the same procedures as in the rule in the bylaws for the board removing the board member, even though the rule makes no mention of the membership? Or would the rules default back to the rules in RONR?

Edited February 26, 2021 at 02:18 PM by Josh Martin

[Guest Puzzling]

1 hour ago, Josh Martin said:

I certainly do not think the differences between the rules in RONR and the rules in the bylaws are so minor as to be "moot," and there are also two different processes in RONR and we don't know which one would apply, so I don't know how you are so certain what differences there are. I agree that the distinction between board members and officers is not particularly troubling, since board members are officers so far as RONR is concerned.

The rules in RONR on this subject are that:

• If the bylaws provide that officers serve for a fixed term or provide that officers serve "and until their successors are elected," the officer may be removed only for cause (that is, neglect of duty in office or misconduct) through formal disciplinary procedures as detailed in Section 63 of RONR, which provide generally for an investigative committee, the adoption of a resolution preferring charges, a trial, and finally a vote on the question of guilt and the penalty. A majority is sufficient to adopt the penalty, even for removal from office.
• If the bylaws provide that officers serve "or until their successors are elected," the officer may be removed for whatever reasons the society deems appropriate, and the motion to do so requires a 2/3 vote, a vote of a majority of the entire membership, or a majority vote with previous notice.

In contrast, the bylaws provide that board members "may be removed after due process hearing for failure to carry out their duties or for other good and sufficient reason by two thirds (2/3) vote of the Board of Directors present and voting." This does not exactly match either procedure in RONR. It requires cause (which is defined slightly differently than in RONR), it requires a "due process hearing" (the details of which are not specified, but is presumably similar to the trial in RONR), but does not appear to require the other preliminary steps called for in RONR, and requires a 2/3 vote.

So I think the question remains: In your view, however, what procedures should be followed for the members to remove the chairman? Should the members follow the same procedures as in the rule in the bylaws for the board removing the board member, even though the rule makes no mention of the membership? Or would the rules default back to the rules in RONR?

I thought the differences were smaller than you mentioned  sorry

I also wrote 

If there were important differences  I would go forth bylaws and if in doubt  go for the combination of rules that gives the defendant the most time and rights. 

So if the bylaws are further silent on this

RONR section 63 ( this would be the due process bit anyway) with a 2/3 supermajority vote needed.(as in the bylaws)

[Josh Martin]

3 hours ago, Guest Puzzling said:

I thought the differences were smaller than you mentioned  sorry

I also wrote 

If there were important differences  I would go forth bylaws and if in doubt  go for the combination of rules that gives the defendant the most time and rights. 

So if the bylaws are further silent on this

RONR section 63 ( this would be the due process bit anyway) with a 2/3 supermajority vote needed.(as in the bylaws)

What basis is there in parliamentary law for "mixing and matching" provisions from the bylaws (especially when those provisions apply to the board, not the membership) with provisions in RONR? What statement in RONR do you think supports this position?

I feel sympathetic to the view that there should be a mechanism for the members to remove a board member, but my own view is that the society's bylaws as they are presently written do not provide such a mechanism, and that the society will need to amend the bylaws to provide one if that is what the society wishes. I am not aware of any principle in parliamentary law which suggests that a society can invent a disciplinary procedure which does not currently exist based on a "combination of rules that gives the defendant the most time and rights."

Edited February 26, 2021 at 07:33 PM by Josh Martin

[Richard Brown]

19 hours ago, Guest Puzzling said:

Assuming the chairman was elected by the members the members have the right (after due process) to remove the chairman. The option that the board can also remove officers is an extra option not an exclusive one.

I actually agree with Guest Puzzling here. I am not convinced that the quoted bylaw provision which gives the board the power to remove board members is an exclusive grant of power to the board. Unless the grant of power is exclusive, the membership itself, if it elects this particular board member, also has the power to remove him.

Ultimately, I think this is a question of bylaws interpretation and the society itself must decide whether both the membership and the board have the power to remove these officers or if only the board has that power.

[Josh Martin]

1 hour ago, Richard Brown said:

I actually agree with Guest Puzzling here. I am not convinced that the quoted bylaw provision which gives the board the power to remove board members is an exclusive grant of power to the board. Unless the grant of power is exclusive, the membership itself, if it elects this particular board member, also has the power to remove him.

Okay, but how does the membership remove him?

1 hour ago, Richard Brown said:

Ultimately, I think this is a question of bylaws interpretation and the society itself must decide whether both the membership and the board have the power to remove these officers or if only the board has that power.

I have no disagreement with that.

[Mark Apodaca, PRP]

I took the liberty of checking the Minnesota Nonprofit Organization Statute.  

BOARD

317A.223 REMOVAL OF DIRECTORS.

Subdivision 1.Modification.

 The provisions of this section apply unless a different method of removal is provided for in the articles or bylaws.

Subd. 2.Removal by directors when there are members with voting rights.

If there are members with voting rights, a director may be removed at any time, with or without cause, if:

(1) the director was named by the board to fill a vacancy;

(2) the members with voting rights have not elected directors in the interval between the time of the appointment to fill the vacancy and the time of the removal; and

(3) a majority of the remaining directors present affirmatively vote to remove the director.

Subd. 3.Removal by directors when there are no members with voting rights.

 If there are no members with voting rights, a director may be removed at any time, with or without cause, by those directors eligible to elect the director.

Subd. 4.Removal by members with voting rights.

 A director may be removed at any time, with or without cause, by those members eligible to elect the director.

OFFICERS

 

317A.341 RESIGNATION; REMOVAL; VACANCIES.

Subdivision 1.Resignation.

 An officer may resign by giving written notice to the corporation. The resignation is effective without acceptance when the notice is given to the corporation, unless a later effective date is named in the notice.

Subd. 2.Removal.

Except as otherwise provided in the articles or bylaws, an officer may be removed, with or without cause, by a resolution adopted by the board or by the members with voting rights, whichever elected or appointed the officer. An officer appointed by the president may also be removed at any time, with or without cause, by the president. To the extent authorized in the articles, the bylaws, or a resolution approved by the affirmative vote of a majority of the directors present, the president of a corporation may remove an officer elected or appointed by the board, other than the treasurer. A removal as described in this subdivision is without prejudice to contractual rights of the officer.

Subd. 3.Vacancy.

 A vacancy in an office because of death, resignation, removal, disqualification, or other cause may, or in the case of a vacancy in the office of president or treasurer must, be filled for the unexpired part of the term in the manner provided in the articles or bylaws, or as determined by the board or under section 317A.321.

[Richard Brown]

1 hour ago, Mark Apodaca said:

I took the liberty of checking the Minnesota Nonprofit Organization Statute.  

 Is this organization a Minnesota nonprofit corporation?   If so, since the bylaws do provide for a different method of removing officers and directors, I believe the bylaw provision will be controlling. 

[Mark Apodaca, PRP]

Yes, the organization is a nonprofit organization.  

 

[Richard Brown]

15 minutes ago, Mark Apodaca said:

Yes, the organization is a nonprofit organization.  

 

Well, that wasn’t my question. My question was, “is this organization a Minnesota non profit corporation?”  Your answer doesn’t answer whether it is a non profit CORPORATION or if it is headquartered in MINNESOTA. Those two details are rather important. 

[Mark Apodaca, PRP]

If I follow you correctly, it is a nonprofit corporation and headquartered in Minnesota.  Articles of incorporation filed in Minnesota.  The name of the organization is Minnesota Association of Deaf Citizens, Inc.

[Josh Martin]

13 hours ago, Mark Apodaca said:

Subdivision 1.Modification.

 The provisions of this section apply unless a different method of removal is provided for in the articles or bylaws.

Subd. 2.Removal.

Except as otherwise provided in the articles or bylaws...

With the caveat that legal questions ultimately should be directed to an attorney, it seems that because a "different method of removal" is provided for in the bylaws, the provisions of these sections do not apply.

So it comes back to the question of whether the provision in the bylaws which states "Elected and appointed Board members may be removed after due process hearing for failure to carry out their duties or for other good and sufficient reason by two thirds (2/3) vote of the Board of Directors present and voting." grants the board exclusive authority in this regard or, in the alternative, whether it provides that the board may also remove a board member, but does not remove the membership's authority in this regard. In the latter case, this raises additional questions regarding the process for the membership to remove a board member.

My own view is that, based upon the facts presented here, the provision in question grants the board exclusive authority in this regard. This is ultimately, however, a question of bylaws interpretation which the society will have to answer for itself. RONR has some Principles of Interpretation in RONR (12th ed.) 56:68.

If the society finds the bylaws to be unclear in this regard (or if the society is displeased with what the bylaws say), the bylaws should be amended.

I would also add that even if the membership does in fact lack the authority to remove a board member under the bylaws, the membership could certainly adopt a resolution expressing its opinion on the subject, such as by adopting a motion expressing "no confidence" in the chairman or calling on the chairman to resign. While such a resolution would not have the effect of actually removing the chairman, the chairman may wish to consider whether he can continue to effectively perform his duties if he lacks the confidence of the society's membership, and whether it may be beneficial to the society to submit his resignation in such a case.