Can the members reinstate a member of the board?

[Tomm]

Our board of directors are elected by the general membership. The board recently removed one of the directors for reasons that most of the general membership firmly disagree with.

Question: Is there anything other than a bylaw that would prevent the general membership from making a motion at the next general membership meeting (October) and vote to reinstate that director? So far there has not been a replacement for that director mentioned or appointed. The termination happened less than 24 hours after the last board meeting (which is suspicious). The board is currently on a two month hiatus.

 

[Richard Brown]

27 minutes ago, Tomm said:

Our board of directors are elected by the general membership. The board recently removed one of the directors for reasons that most of the general membership firmly disagree with.

Question: Is there anything other than a bylaw that would prevent the general membership from making a motion at the next general membership meeting (October) and vote to reinstate that director? So far there has not been a replacement for that director mentioned or appointed. The termination happened less than 24 hours after the last board meeting (which is suspicious). The board is currently on a two month hiatus.

 

Tom, that is a hard question to answer without a LOT of additional information.  It might even be too complex for us to answer in this forum, but we can give it a shot if we have enough additional information.

Just for openers, we need to know EXACTLY what your bylaws say about several things, including specifically how the directors are elected in the first place, what exactly your bylaws say about removing directors from office, what exactly your bylaws say about filling vacancies, and what powers the bylaws give to your board, etc. we need exact verbatim quotes from the bylaws, not paraphrases.

Also, the way I read your post you seem to say this removal took place a day after a board meeting. Since actions of this type can only take place in meetings, exactly how, when and by whom (what person or group) was this director removed?

 Provide the information that we need from your bylaws as well as the additional factual details and we will see what we can do.

[Tomm]

3 hours ago, Richard Brown said:

Just for openers, we need to know EXACTLY what your bylaws say about several things, including specifically how the directors are elected in the first place, what exactly your bylaws say about removing directors from office, what exactly your bylaws say about filling vacancies, and what powers the bylaws give to your board, etc. we need exact verbatim quotes from the bylaws, not paraphrases.

Also, the way I read your post you seem to say this removal took place a day after a board meeting. Since actions of this type can only take place in meetings, exactly how, when and by whom (what person or group) was this director removed?

An executive session was called via email sometime AFTER the end of the Thursday board meeting. The meeting notice did not mention what the meeting was being called for.

Directors are elected by the general membership:

ARTICLE VIII – ELECTION OF BOARD OF DIRECTORS

SECTION 1:  POLLING PLACES, TIMES AND DATES

Election of the Board shall be held on the second Tuesday in December each year.

The Board may schedule earlier voting dates.

The Board shall select the number of polling places, their locations and times of operation for voting within Sun City, Maricopa County, Arizona.

The Board shall select the number of days for online voting through the Web Portal.

SECTION 2:  VOTES

The Board candidate or candidates receiving the highest number of votes shall be elected to the vacancy or vacancies for which the election is held.

Removing directors from office. (From Articles of Incorporation)

Article IX

Removal of any elected or appointed Director may be done in either of the following ways:

A.                  By a vote of two-thirds (2/3) of the members of the Board of Directors after a member of the Board is absent from three (3) or more consecutive regular meetings of the Board or who, in the opinion of such two-thirds (2/3) of the Board members, is unwilling or incapable of performing his or her share of the duties and responsibilities of a Director.

B. The Members may remove any elected or appointed Director in the following manner, and any vacancy so created may be filled in the following manner:

1. A petition for a removal election of one or more Directors, specifying by name or names the occupants of the seats whose removal is desired, signed by not less than ten percent (10%) of the voting Members of the Corporation as of the preceding July 1st, may be filed with the Secretary of the Corporation not less than ten (10) days preceding a regularly scheduled meeting of the Board of Directors. At such meeting, the Board shall then schedule an election for the purpose of voting on the removal and replacement of any Directors whose removal is sought, said election to be held not later than forty-five (45) days and not less than thirty-five (35) days after such aforesaid meeting, and said election shall be conducted in accordance with the Bylaws of the Corporation regarding election of Directors. Appropriate announcement thereof shall be made by the Board of Directors on the bulletin boards of the Corporation.

2. Balloting at such removal elections shall proceed in the same manner as specified in Article X of the Bylaws, except that at least fifty percent (50%) of the members of the Balloting Committee shall be selected from those signing the removal petition.

3. Any member of the Corporation in good standing and who is qualified under Article IV, Section 2, of the Bylaws may become a candidate for election to the Board to fill the position of a specified Director whose removal is being sought, by filing a petition signed by not less than one hundred (100) of the voting Members in good standing, and such petition and other material, as required by Article IX of the Corporate Bylaws, shall be filed with the Chairman of the Elections Committee not later than fifteen (15) days preceding the date set for the election. 

FILLING VACANCIES:

SECTION 4:  LENGTH OF TERMS AND VACANCIES

The term of office for an elected Board of Director shall be three (3) years. At the annual election, three (3) Board of Directors shall be elected for three (3) year terms. One, two or three-year elected terms enter into the six (6) year limit set forth in the Articles. In the event more than three (3) vacancies exist as of the deadline for turning in the petitions, those vacancies shall also be filled at the annual election as follows:

 1.       A candidate receiving less than one hundred (100) votes shall not be eligible to fill any vacancies.

2.       The candidate receiving the highest number of votes, after the three (3) three-year terms are filled, shall fill the next longest vacant term. 

3.       If a candidate is elected to the Board and prior to the beginning date of the term for which he/she has been elected, declines or is unable to assume the office, then the term of the declining candidate shall be filled with the unsuccessful candidate receiving the next highest number of votes, based on the vote totals of the candidates in the last annual Board election. 

4.       The Election Committee (also known as the Balloting Committee) will determine the order of placement in the event of a tie vote. The method shall be a simple drawing of the names of the candidates involved in the tie vote. 

5.       Vacancies occurring on the Board during the year (January 1 through December 31) may be filled by appointment by the Board. A majority vote of the Board (5) is required for said appointment. An appointment ends on December 31 of the year appointed.  An appointed term does not enter in the six (6) year limit set forth in the Articles.

 

Board of Directors: (From Articles of Incorporation)

 Article VIII

1. The affairs of the Corporation shall be conducted by a Board of Directors and such Officers as the Board may elect or appoint. The Board shall select from its own members a president, one or more vice-presidents, a secretary, and a treasurer. It may select an assistant treasurer who is not required to be a member of the Board. All Officers shall be elected at the first meeting of the Board of Directors in January of each year and shall hold office for a period of one (1) year and until their successors are elected and installed. The number of Directors shall be nine (9). Directors shall be elected by the Members at an annual election in the manner prescribed in the Bylaws.

2. Three (3) Directors in a manner set forth in the Corporate Bylaws, shall be elected each year to serve for a term of three (3) years and shall serve until their successors are installed. A Member/Director may be elected to a maximum of two (2) three-year terms, six (6) years total, on the Board of Directors.(Approved by the membership on Nov. 20, 2003)

3. The Directors shall have the power to adopt Bylaws not in conflict with the Articles of Incorporation.

4. The Bylaws may be amended, modified, revised, or revoked by the Directors or by the Members. In the event of conflict concerning the Bylaws as amended, modified, revised, or revoked by the Directors, the action of the Members shall prevail.

5. The Bylaws of the Corporation shall prescribe the qualifications of Members and the terms of admission to membership, provided that the voting rights of all Members shall be equal and all Members shall have equal rights and privileges, and be subject to equal responsibilities. Such Bylaws shall also provide the method for determining assessments to be paid by the Members.

6. The Board of Directors shall have power to fill vacancies occurring on the Board or in any Office. Any Director or Officer so chosen shall hold such position until the next election when a successor is elected, qualified, and assumes such position.

7. The Corporation shall not convey any substantial part of its assets, or any real property of assessed value for tax purposes exceeding $50,000, without affirmative vote of a majority of its membership entitled to vote thereon.

[Gary Novosielski]

Presumably the "executive session" was a special meeting held in executive session.  

Special meetings cannot take up any business that was not described in the call of the meeting, so nothing done at that meeting has any force or effect.  It is entirely likely that the director has not been removed.

Were any of the directors absent from that board meeting?  Did the director who was allegedly removed attend? 

It seems to me that rather than moving to "reïnstate" the director, the Membership can, by a majority vote at their next meeting, adopt a motion declaring the action of the board to be null and void.  If adopted, it would mean that there was never a time when that seat was vacant.

See RONR 12th ed. §23:9

Edited August 1, 2021 at 01:46 AM by Gary Novosielski
to add citation.

[Tomm]

7 minutes ago, Gary Novosielski said:

Were any of the directors absent from that board meeting?  Did the director who was allegedly removed attend? 

Yes, there were 2 directors who did not attend, in fact the director that was removed was not in attendance because that director did not see the email notice until after the meeting was held. Only 7 of the 9 directors were in attendance. 

[Richard Brown]

43 minutes ago, Tomm said:

Yes, there were 2 directors who did not attend, in fact the director that was removed was not in attendance because that director did not see the email notice until after the meeting was held. Only 7 of the 9 directors were in attendance. 

What was the actual vote to remove the Director? In particular, how many directors voted yes to remove?

Edited to add: In addition, what do your bylaws or articles of incorporation say about the amount of notice necessary for a special meeting of the Board of Directors?

Edited August 1, 2021 at 02:42 AM by Richard Brown
Added last paragraph

[Tomm]

5 minutes ago, Richard Brown said:

What was the actual vote to remove the Director? In particular, how many directors voted yes to remove?

Edited to add: In addition, what do your bylaws or articles of incorporation say about the amount of notice necessary for a special meeting of the Board of Directors?

The actual vote was 7-0. The director that was terminated and one other board member were not in attendance.

The Bylaws state:

"Special Sessions of the Board may be called by the President or upon the written request of three (3) or more Board of Directors. The purpose of the meeting shall be stated in the call and posted on the website. Except in case of emergency, at least seventy-two (72) hours' shall be given."

They used the "emergency" excuse because many board members were leaving shortly for vacation!

[Richard Brown]

Based on the additional information you have provided, I am inclined to agree with Mr. Novosielski that the removal from office does not appear to have complied with you your bylaws and is likely invalid. I am basing that opinion primarily on the fact that the notice of the special meeting apparently did not specify the business to be conducted at the meeting and also because I question whether the the circumstances constituted such an emergency as to justify not providing the required 72 hours notice for a special meeting.

Some additional information will be helpful, especially as to what options might be available to you.

First, please give us more details as to the purported reason for the removal from office and when that information became available to the board. For example, had there been ongoing issues  with the Director or had something just been discovered that was not known prior to the board meeting on the previous day that led the board to think it needed to take such drastic emergency action?  What exactly is the reason the board members wanted him removed? Was his performance or possible removal discussed at all in the regular board meeting?

Second, please give us the timeline as to the date and time of the regular board meeting, the date and time that the notice of special board meeting was issued, and the date and time of the actual special meeting.

Note;  I am assuming that the board meeting held on the previous day was a regularly scheduled board meeting. If it was not, and if it was a special meeting, please tell us what the stated purpose of the meeting was.

 

[Gary Novosielski]

17 hours ago, Tomm said:

Yes, there were 2 directors who did not attend, in fact the director that was removed was not in attendance because that director did not see the email notice until after the meeting was held. Only 7 of the 9 directors were in attendance. 

The rule that the call of a special meeting must describe the business to be considered is a rule that protects absentees, and as such may not be suspended even by a unanimous vote, and if violated creates a continuing breach, so that a Point of Order may be raised at any time.

If there were no absentees, then it might be argued that there were no absentees to protect.  But as there were two absentees, this argument cannot be made.

I continue to believe that the simplest method of reversing this invalid action is to adopt a motion at a Membership meeting that the attempted act of the Board to remove this director was null and void, as it violated a procedural rule that is not suspendible.

Edited August 1, 2021 at 07:10 PM by Gary Novosielski

[Tomm]

2 hours ago, Richard Brown said:

First, please give us more details as to the purported reason for the removal from office and when that information became available to the board. For example, had there been ongoing issues  with the Director

Many of your questions have been addressed in a previous post under a different issue of concern. My current concern is can the general membership vote to have the director reinstated at a general membership meeting?

The terminated director was not a "go-along to get-along" director. Often times opposing points of view were use to challenge the boards motions/decisions and the good ole boys of the board didn't like that! Ironically, that director was only board member who had a career of actually serving on real corporate boards. That director's knowledge was head and shoulders above any other board member and they didn't like that (IMO).

2 hours ago, Richard Brown said:

Second, please give us the timeline as to the date and time of the regular board meeting, the date and time that the notice of special board meeting was issued, and the date and time of the actual special meeting.

The last regular meeting before a 2 month hiatus was held at 9 a.m. on Thursday, June 24th. At that meeting the director was verbally accused of a conflict of interest but nothing in the bylaws allows for termination because of a conflict of interest. (The bylaw only requires that it must be reported if one may possibly exist.) Nothing was said about calling a special meeting at that regular meeting. The board president then sent out an email between 3 and 4 o'clock on that Thursday, June 24th calling for an special meeting to be held in executive session on Friday, June 25th at 2 p.m. and the director was terminated for failure or unwilling to perform his/her duties. 

[Gary Novosielski]

21 minutes ago, Tomm said:

My current concern is can the general membership vote to have the director reinstated at a general membership meeting?

Yes.  you can make this motion at a general membership meeting, but to be clear, what I am suggesting isn't a vote to reinstate the director, but rather a vote to declare that the director was never properly removed at all.  This may seem to be an excessively fine distinction but it is not.

A vote to reinstate a director who was removed might not be in order.  A vote to declare the attempted action of the Board to be null and void would be a valid motion.

17 hours ago, Gary Novosielski said:

See RONR 12th ed. §23:9

Which reads:

23:9 Remedy When Action Taken by an Executive Board Is Null and Void.

If the executive board of a society takes action that exceeds the board’s instructions or authority, that conflicts with a decision made by the assembly of the society, or that falls under any of the categories listed in 23:6, a point of order can be raised at a board meeting at any time during the continuance of the breach. If the point of order is sustained, the action must be declared null and void. Alternatively, the society’s assembly can adopt an incidental main motion by majority vote declaring that the board’s action is null and void; or, if it is affecting business at a meeting of the assembly, the board’s action can be declared null and void by a ruling of the chair relating to the affected business or on a relevant point of order raised by a member. It is also possible for the assembly to bring disciplinary measures against the board members who voted for the improper action. If the assembly finds itself in sympathy with the board’s action and the action is one that that assembly could have authorized in advance, the assembly can instead ratify the action as explained in 10:54–57.    (emphasis added)

Since it is unlikely that a point of order will be raised at a future board meeting, and a point of order at the membership meeting might be ruled not well taken, as the action does not affect the business of the Membership meeting, the proper course of action is the incidental main motion to declare the board's action null and void.  There would be no valid reason to declare such a motion out of order.  

Be prepared to have your motion seconded, and also be prepared to Appeal  (§24) if the chair should erroneously declare the motion out of order.

Edited August 1, 2021 at 07:33 PM by Gary Novosielski

[Tomm]

Would it also be fair to say that according to 23:6-d Any action has been taken in violation of a fundamental principle of parliamentary law (25:9), the director's rights were violated because of being absent from the meeting?  

[Gary Novosielski]

2 hours ago, Tomm said:

Would it also be fair to say that according to 23:6-d Any action has been taken in violation of a fundamental principle of parliamentary law (25:9), the director's rights were violated because of being absent from the meeting?  

Merely being absent doesn't violate his rights, but if he was not properly notified it would.  Whether that would violate a fundamental principle of parliamentary law is not at all clear. Besides. the criteria for a continuing breach are most important when you're attempting to raise a point of order, and that's not what I'm suggesting, since a point of order would need to be done in a board meeting, and clearly nobody's going to do that. 

That's why I believe the alternative I highlighted in 23:9 is appropriate since it is done in a Membership meeting, as an incidental main motion requiring only a second and a majority vote.  If the membership is strongly opposed to what the board did, this is simple, clean and effective.  It comes the closest to describing your situation exactly.

It does not get involved with the validity of their reasoning, or any details or fine points of whether the meeting was a valid emergency.  It merely notes that action was null and void because the call of the special meeting did not describe the business to be conducted, which violates the rights of absentees, regardless of why they're absent. 

Edited August 2, 2021 at 02:38 AM by Gary Novosielski

[Tomm]

How about 23:6-c Any action has been taken in violation of applicable procedural rules prescribed by federal, state, or local law,?

Can the violation be that the call of the meeting didn't specify the business? I'm trying to convince one of the directors who did not attend the special meeting (a friendly) to raise a point of order at the upcoming meeting in September. Just trying to find some actual justification within 23:6 that can be used! 

[Gary Novosielski]

12 minutes ago, Tomm said:

How about 23:6-c Any action has been taken in violation of applicable procedural rules prescribed by federal, state, or local law,?

Can the violation be that the call of the meeting didn't specify the business? I'm trying to convince one of the directors who did not attend the special meeting (a friendly) to raise a point of order at the upcoming meeting in September. Just trying to find some actual justification within 23:6 that can be used! 

Huh? You already have all the justification you need in 23:6(e), since the rule protects absentees, and there were two absentees.  

But what meeting are you talking about?  A point of order would have to be made at the board meeting, and if there was a unanimous vote to remove the director, it is likely not to be favorably ruled on, nor to win on appeal.  The motion I described can be done at a membership meeting, where you say you have majority support.

And what federal state or local law are you talking about?  You didn't mention this before.  Yes, the violation is that the call of the meeting did not specifying the business, but that's a rule in your bylaws and in RONR, not, to my knowledge, in federal law.  But I'm not a lawyer, and if you need legal advice you'll need one of those.

[Guest Zev]

Mr. Tomm:

38 minutes ago, Tomm said:

Can the violation be that the call of the meeting didn't specify the business?

Mr. Novosielski has stated specifically that this is the basis for a motion from the membership ordering the board that their action is null.

38 minutes ago, Tomm said:

I'm trying to convince one of the directors who did not attend the special meeting (a friendly) to raise a point of order at the upcoming meeting in September.

Mr. Novosielski is also specifically counseling you against this course of action because the board is ill-disposed and will not perform the act you desire.

38 minutes ago, Tomm said:

Just trying to find some actual justification within 23:6 that can be used!

Again, Mr. Novosielski has provided you with the most secure method of dealing with this issue based on 23:9 as he has indicated. Please Mr. Tomm, take his advice. It is the best any of us can do for you given the facts.

[Tomm]

51 minutes ago, Gary Novosielski said:

Merely being absent doesn't violate his rights,

I thought you previously said being absent didn't violate his rights?

The two absentees were the director who was dismissed and another director who was friendly to the dismissed director. I'm going to try to convince him to raise a point of order at the next meeting of the board.

Sorry for dragging this out. Thanks for your help. You guys are a God send and I REALLY appreciate all your help.

[Gary Novosielski]

Just now, Tomm said:

I thought you previously said being absent didn't violate his rights?

The two absentees were the director who was dismissed and another director who was friendly to the dismissed director. I'm going to try to convince him to raise a point of order at the next meeting of the board.

Sorry for dragging this out. Thanks for your help. You guys are a God send and I REALLY appreciate all your help.

Yes, I did say that being absent didn't violate anyone's rights.  But violating a rule intended to protect absentees does create a continuing breach and makes the action of the board null and void.

I suggest you go back and read all of the replies in this thread a lot more carefully than you apparently have up to now, and then if you insist on taking the weaker course of action, I wish you luck.

[Tomm]

9 minutes ago, Gary Novosielski said:

I suggest you go back and read all of the replies in this thread a lot more carefully than you apparently have up to now, and then if you insist on taking the weaker course of action, I wish you luck.

I got it. Just attempting to use belts and suspenders. If the null and void meeting argument fails perhaps the protection of the absentee will be a second bite for a call of a point of order call?

Thanks again. 

[Guest Zev]

Mr Tomm:

Please read Mr. Novosielski's reply carefully. In the case you insist on trying to get the directors to see things your way, then yes, a point of order would be correct. However, as we have noted it will in all likelihood fail.

However, if you then decide to take this matter to the membership, which is what we think you should do to begin with, then no, no point of order in that meeting but a regular main motion declaring the board's action null. Nothing else. Just a terse "your dismissal of director so-and-so is null and void and hereby countermanded." No attempt to justify the action or getting involved in the interpretation of this, that, or the other.

[Gary Novosielski]

21 hours ago, Tomm said:

I got it. Just attempting to use belts and suspenders. If the null and void meeting argument fails perhaps the protection of the absentee will be a second bite for a call of a point of order call?

Thanks again. 

<sigh>  You can't raise a point of order because it's not a board meeting and the action took place at one.  And how is the null and void argument going to fail if, as you said originally, most of the general membership is strongly against what they did?  Or was that wishful thinking?

Anyway, good luck with whatever you decide.

[Tomm]

On 8/1/2021 at 12:06 PM, Gary Novosielski said:

The rule that the call of a special meeting must describe the business to be considered is a rule that protects absentees,

One last question please on how it protects the absentees!

Is it because, if they don't know what the meeting was to be about they have no way of knowing or determining whether or not they should attend? 

[Joshua Katz]

Yes. If you tell people we're going to conduct business about X, they might decide, well, I don't care about X, but if they were doing Y you bet I'd show up. If you then do Y...

[Gary Novosielski]

28 minutes ago, Tomm said:

One last question please on how it protects the absentees!

Is it because, if they don't know what the meeting was to be about they have no way of knowing or determining whether or not they should attend? 

Exactly.

Edited to add:

And it should be noted that the rule is considered to protect absentees, notwithstanding that it might be argued that the absentees actually knew, somehow, what the meeting was about.  It needs to be in the call of the meeting, "clearly and specifically describing the subject matter of the motions or items of business to be brought up".  [9:13]

Edited August 4, 2021 at 05:10 PM by Gary Novosielski

[Tomm]

On 8/2/2021 at 5:06 PM, Guest Zev said:

However, if you then decide to take this matter to the membership, which is what we think you should do to begin with, then no, no point of order in that meeting but a regular main motion declaring the board's action null. Nothing else. Just a terse "your dismissal of director so-and-so is null and void and hereby countermanded." No attempt to justify the action or getting involved in the interpretation of this, that, or the other.

Would that be a simple majority or 2/3rds?