Nominating Committee and Board Vacancy

[Alaina Pierret]

I am hoping to pick the brains of parliamentary authorities on a very specific issue that has come up in my club. First, we are a very small member based national club. We hold an annual election that begins with a slate compiled by a nominating committee. The slate is mailed to all members and nominations from the floor are opened. Our board serves two year terms with half elected in even years and the other half elected in odd years. We have an issue that has come about for the second time in three years. We have a current board member whose term is not expired (has one year left on his term) that wants to be nominated for an open officer position. When this issue arose before, the board member was told they must resign the seat they held in order to be included on the slate by the nominating committee. Our basis for this is our bylaws state, Article III, Section 1“They shall hold office for a terms of two (2) years and shall serve until their successors have been elected.” Further, our bylaws state Article III, Section 5 “Any vacancies occurring on the Board or among the Officers during the year shall be filled, until the next annual election, by a majority vote of the remaining members of the Board…” Since this is our annual election, by not forcing the resignation of the director at the time the slate is created, a person will serve an entire year without member input or involvement since the remaining board members fill the vacancy that has been created.

Is this the correct way to handle this issue or have we misinterpreted our bylaws by forcing the board member to resign? Have we created a precedent or custom by doing this in the past? A complete copy of our bylaws is attached. 

 

Thank you all in advance.

2017 USNMC ByLaws.pdf

[Josh Martin]

22 minutes ago, Alaina Pierret said:

Is this the correct way to handle this issue or have we misinterpreted our bylaws by forcing the board member to resign?

It is ultimately up to the organization to interpret its own bylaws, but in my opinion, the organization has misinterpreted its bylaws in this matter. I see nothing in the cited language which suggests that an officer is required to resign from their current position in order to run for a different position.

22 minutes ago, Alaina Pierret said:

Have we created a precedent or custom by doing this in the past?

You have certainly created a custom by doing this in the past, since the fact that something has been done a certain way in the past is what a custom is. Simply doing something a certain way in the past does not create a precedent. That happens when there is a ruling by the chair on a question of order, followed by any subsequent appeal.

The bylaws and other written rules of the society, however, take precedence over any erroneous custom to the contrary. A precedent carries more weight, since it is a formal interpretation of the rules, but it is still the case that an incorrect precedent can and should be corrected.

"However, if a customary practice is or becomes in conflict with the parliamentary authority or any written rule, and a Point of Order (23) citing the conflict is raised at any time, the custom falls to the ground, and the conflicting provision in the parliamentary authority or written rule must thereafter be complied with. If it is then desired to follow the former practice, a special rule of order (or, in appropriate circumstances, a standing rule or a bylaw provision) can be added or amended to incorporate it." RONR (12th ed.) 2:25

The fact that an organization has been doing things wrong in the past is no reason to keep doing them wrong.

Edited April 1, 2021 at 12:45 AM by Josh Martin

[Atul Kapur]

19 minutes ago, Alaina Pierret said:

We have a current board member whose term is not expired (has one year left on his term) that wants to be nominated for an open officer position. When this issue arose before, the board member was told they must resign the seat they held in order to be included on the slate by the nominating committee.

I didn't see anything in the bylaws that says one person cannot be a director and an officer (or even hold two different offices) at the same time. There is no prohibition on that in RONR, either.

 

21 minutes ago, Alaina Pierret said:

Is this the correct way to handle this issue or have we misinterpreted our bylaws by forcing the board member to resign?

I believe that you have misinterpreted.

22 minutes ago, Alaina Pierret said:

Have we created a precedent or custom by doing this in the past?

Doesn't matter if you have. If a custom is in conflict with your rules, the custom falls to the ground once the discrepancy is pointed out.

[Guest Margaret (Peggy) Wolfe]

Follow-up question.....The bylaws may not prevent it explicitly, but is that the intention of the bylaws?

 

Seems to me the pertinent paragraph is ARTICLE IV, Section 4 subparagraph b which says "no one shall be a candidate for more than one position."  Seems to me that this implies one person one position overall.

 

If someone does holds two positions simultaneously does this mean they get two votes?  Or do you potentially have an even number of board members and potentially a tie in votes?  And if you can hold more than one position, can you hold two or three?  Seems to me if this is ok, you could end up with a board of eleven positions made up of five or six people.

 

 

[Richard Brown]

35 minutes ago, Guest Margaret (Peggy) Wolfe said:

Follow-up question.....The bylaws may not prevent it explicitly, but is that the intention of the bylaws?

It is up to the organization itself to interpret its own bylaws. 

35 minutes ago, Guest Margaret (Peggy) Wolfe said:

Seems to me the pertinent paragraph is ARTICLE IV, Section 4 subparagraph b which says "no one shall be a candidate for more than one position."  Seems to me that this implies one person one position overall.

is ultimately up to your organization to interpret this position, but it is my interpretation, and I dare say probably the interpretation of the vast majority of the members of this forum, that the quoted provision only prevents someone from being a candidate for more than one office at a time, but not necessarily from holding two officers at one time. It would be quite easy for the bylaws to say, as many bylaws do, that a member may not hold more than one office at a time. Your bylaws do not say that.

35 minutes ago, Guest Margaret (Peggy) Wolfe said:

If someone does holds two positions simultaneously does this mean they get two votes?

No. RONR it’s quite clear that a member gets only one vote, even if he holds more than one position:

“45:2 One Person, One Vote. It is a fundamental principle of parliamentary law that each person who is a member of a deliberative assembly is entitled to one—and only one—vote on a question. This is true even if a person is elected or appointed to more than one position, each of which would entitle the holder to a vote. For example, in a convention, a person selected as delegate by more than one constituent body may cast only one vote. An individual member’s right to vote may not be transferred to another person (for example, by the use of proxies).

35 minutes ago, Guest Margaret (Peggy) Wolfe said:

Or do you potentially have an even number of board members and potentially a tie in votes?

A tie vote it’s always possible, regardless of how many members you have. This can be due to vacancies, absences, abstentions, etc. However, a tie vote does not mean you are in limbo. A motion fails on a tie vote. It requires a majority vote for passage.

35 minutes ago, Guest Margaret (Peggy) Wolfe said:

And if you can hold more than one position, can you hold two or three?

Yes, unless prohibited by your bylaws. It is ultimately up to your membership to determine whether they are going to elect a person to more than one office unless the bylaws prohibit it.

Edited to add:  If a member who currently holds one office for which the term is not expiring is running for another office, the members are presumably aware of that fact and may choose not to elect him or her to the second office.  It seems to me that if the members do elect the person to the second office, they have expressed their desire/preference/interpretation by doing so.

Edited April 1, 2021 at 11:32 AM by Richard Brown
Added last paragraph and removed the beginning of an out of place quote that contained no text.

[Guest Margaret (Peggy) Wolfe]

QUESTION: does the fact that clearly by history and documentation it was never the intention within the club and was apparently introduced as a possibility in error, make a difference in implementation?

BACKGROUND:

originally, in this club, the vylaws indicated that all 11 board members were elected to one-year terms annually.  The clause i mentioned above "no one person shall be a candidate for more than one office" served to indicate that the intention was there be 11 individuals for the 11 positions.  Further, as you had to be a candidate every year, the issue of resigning before running again for a different position did not apply.

at one point, the bylaws were changed to two-year board terms.  All 11 positions were up for election every-other year.  The same clause served to indicate the intention of one person one role in both running and serving.

Thirteen years ago bylaws were changed to change  the board election so that the board was split into even-year terms and odd-year terms with about half elected each year.  That clause was left unchanged.  

However, several years ago, when a sitting board member with an unexpired term wanted to run for a different position, remembering the intention that had always existed from the club's inception (and that still existed) , the board member was advised he had to resign his existing position in order to run which he did.

Previous answerers insist that there is nothing in these bylaws to prevent someone from running for a second position, or from holding two or more positions,  

QUESTION: does the fact that this was clearly by history and documentation never the intention within the club, and was apparently introduced as a possibility in error, make a difference in implementation?

[Dan Honemann]

There is nothing preventing you from raising a point of order concerning this question should it become necessary to do so, and you may take an appeal from the ruling of the chair if it is contrary to your opinion. In other words, your assembly will have to decide what your bylaws mean.

[Richard Brown]

10 minutes ago, Guest Margaret (Peggy) Wolfe said:

QUESTION: does the fact that clearly by history and documentation it was never the intention within the club and was apparently introduced as a possibility in error, make a difference in implementation?

Guest Margaret, I do not believe the additional you just provided makes any difference in our opinions, or at least not in my opinion.  Four things still hold true:  First, as all of us who have responded have said, it is ultimately up the members of your organization to interpret its bylaws. 

Second, by electing this person to a second position without him or her having resigned from the first position, or even having promised to resign from it if elected, indicates to me that the membership is saying "we don't care if this person holds two positions".  

Third, the issue can be put to a vote of the membership by someone raising a point of order that the bylaws prohibit a member from holding more than one office.  The chair will rule on the point of order and the ruling can then be appealed to the assembly.  The ruling of the assembly is final.

Fourth, it is a very simple matter to amend your bylaws to add a statement that "no member may hold more than one officer or board position" or other language to that effect. You can further provide that a member is not eligible to run for one position while holding another position that is not expiring or that if a member is elected to a second  position he is deemed to have vacated the first office to which he was elected.   There are various ways to  prevent a member from holding two positions, but I do not personally interpret your bylaws as doing that as currently worded. 

[Josh Martin]

1 hour ago, Guest Margaret (Peggy) Wolfe said:

Seems to me the pertinent paragraph is ARTICLE IV, Section 4 subparagraph b which says "no one shall be a candidate for more than one position."  Seems to me that this implies one person one position overall.

The original question wasn't whether someone could actually serve in multiple positions. The question was whether a member was required to resign from the member's current position in order to run for a different position. I wasn't under the impression that the member intended to serve in both positions. Rather, the member just wanted to know whether they actually won the new position before resigning from their current position. Seems entirely reasonable to me.

In my view, the cited rules (including this one) do not prevent this. The member is not a "candidate" for the position they currently hold, so running for a new position does not make them a "candidate" for more than one position.

1 hour ago, Guest Margaret (Peggy) Wolfe said:

If someone does holds two positions simultaneously does this mean they get two votes?

No.

1 hour ago, Guest Margaret (Peggy) Wolfe said:

Or do you potentially have an even number of board members and potentially a tie in votes?

Tie votes can occur even without an even number of board members. Members might resign or be absent, or there could be a vacancy. Even if a tie vote occurs, it's not the end of the world. The motion fails.

1 hour ago, Guest Margaret (Peggy) Wolfe said:

And if you can hold more than one position, can you hold two or three?

Unless the bylaws provide otherwise, members can hold any number of positions.

1 hour ago, Guest Margaret (Peggy) Wolfe said:

Seems to me if this is ok, you could end up with a board of eleven positions made up of five or six people.

This would be theoretically possible, yes.

1 hour ago, Guest Margaret (Peggy) Wolfe said:

QUESTION: does the fact that clearly by history and documentation it was never the intention within the club and was apparently introduced as a possibility in error, make a difference in implementation?

To an extent, yes. But there are limits on how far history, documentation, and intention can take you.

"When the meaning is clear, however, the society, even by a unanimous vote, cannot change that meaning except by amending its bylaws. An ambiguity must exist before there is any occasion for interpretation. If a bylaw is ambiguous, it must be interpreted, if possible, in harmony with the other bylaws. The interpretation should be in accordance with the intention of the society at the time the bylaw was adopted, as far as this can be determined. Again, intent plays no role unless the meaning is unclear or uncertain, but where an ambiguity exists, a majority vote is all that is required to decide the question. The ambiguous or doubtful expression should be amended as soon as practicable." RONR (12th ed.) 56:68

The additional information provided does not change my opinion. If there was an ambiguity in the language of the bylaws regarding this matter, this additional background may be relevant. I see absolutely nothing in the cited language of the bylaws, however, which suggests that a member is required to resign from their current position in order to run for a different one.

It will ultimately, of course, be up to the organization to interpret its own bylaws, and it may well come to a different interpretation than I have. In the long run, it would seem desirable in any event to amend the bylaws for clarity regarding this matter. If it is desired that 1) no one can serve in more than one office and 2) a person must resign from their current office in order to even be a nominee for another office (rather than only being required to resign when they actually win), the bylaws should be amended to explicitly state this so that there is no question on the subject.

Edited April 1, 2021 at 12:33 PM by Josh Martin

[Guest Margaret (Peggy) Wolfe]

Thank you all.  This is a big help.