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Many issues with chair — how to we fix this?


Little John 657
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Hello. I am part of a council/board that is part of a quasi-goverment, we are an operational board, and we are having considerable issues with our elected chair. Our constitution states that the chair is elected by the membership for a four-year term and is designated as the chair of our council (this constitution is at a higher governance level and supersedes our bylaws). However, since they were elected, we have not been able to govern effectively.

For example, our finances are undergoing an audit, but our finance committee has not been involved in the process. In addition, our staff, rents, and utilities are two weeks overdue in payment because the chair has not signed on these expenses (and this is the second time that the chair has violated the staff's contracts about pay). They have also gone and spoken with our bank about our account, despite them not being a signing authority on the account.

In addition, the chair decided to close our public office while the audit is happening, but did so without our permission (and also has the only key to the office).

The person was elected to office at the end of May, but so far has only called one meeting (and that was with insufficient notice) and cancelled all other meetings since.

The chair has been holding secret politically-motivated meetings in our public office without our knowledge, and we consider this inappropriate.

Suffice to say, we're not happy with the chair, but we're not sure what to do. That's why I am turning to this forum for advice.

I have been reading my copy of RONR trying to figure this out, so I'll run over a few things here:

  • We have draft bylaws that we agreed to act in accordance with in principle (though this was not recorded in the minutes of that meeting for some reason), but have not formally ratified;
  • Our draft bylaws do allow for regular and special meetings of the council;
  • Our provisions in our draft bylaws for waiving notice for meetings says that all persons have to be present or have waived notice if they are not present;
  • We have committees, including HR, finance, and governance;
  • The chair, vice-chair, or any two council members can call a meeting;
  • In the event the chair and vice-chair are not present, the council can select an interim chair;
  • We do not have set meetings dates and times for the council.

What we are considering if calling meetings of the necessary committees and preparing a report with recommendations to the full council, and then preparing a series of resolutions based on those recommendations and passing those at the next meeting. I believe that we can also make written decisions that have to be ratified at the next meeting where we have ha chance to have a proper discussion on the matter. And I understand that we can move to strike the rules and suspend the chair from the meeting (and potentially more if there is an investigation and trial).

However, I can't figure out how we can have a meeting of the council if the chair refuses to call one. I know that we can have a committee of the whole for our council to deal with matters, but I don't know whether we can call that committee the same way that we would call other committee meetings (i.e., any two members or the chair of the committee calling the meeting).

Can we hold a council meeting without the chair if we call a meeting in accordance with our draft bylaws if the chair refuses to attend (according to RONR, I don't believe that they count for quorum)? Can we call a committee of the whole without having a board meeting to establish the committee (it's not a committee established in our bylaws)? Basically, what are our options if the chair refuses to do their job and refuses to call meetings? Because we can't do our job and we don't know how to force a way for us to resolve these matters.

Thank you!

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On 9/14/2021 at 2:47 PM, Rob Elsman said:

I am confused by who "they" are that was/were elected.  Are there multiple chairmen?  At any rate, the electing authority is getting what it elected.  If it wants anyone better, it will have to elect him/them--whatever.

I am using "they" as singular in this case to minimize identifying information about the people involved.

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Generally, the body that elects the person is the one that can remove that person. From what you've said, that sounds like the membership. Are there any provisions for a special meeting of the membership?

On 9/14/2021 at 3:15 PM, Little John 657 said:

The chair has been holding secret politically-motivated meetings in our public office without our knowledge, and we consider this inappropriate.

You say the organization is a quasi-government. Potentially, is this misuse of public property? (that's not an RONR question but may require a legal opinion).

On 9/14/2021 at 3:15 PM, Little John 657 said:

However, I can't figure out how we can have a meeting of the council if the chair refuses to call one.

Well, you said just above this statement that

On 9/14/2021 at 3:15 PM, Little John 657 said:

The chair, vice-chair, or any two council members can call a meeting;

If you think that you can call committee meetings under the terms of the draft bylaws, why can't you call a council meeting under the same terms?

Otherwise, you should look to the senior organization's constitution for suggestions on what procedures to follow.

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On 9/14/2021 at 2:15 PM, Little John 657 said:

I am part of a council/board that is part of a quasi-goverment, we are an operational board, and we are having considerable issues with our elected chair.

What exactly is meant by the term "quasi-government?"

On 9/14/2021 at 2:15 PM, Little John 657 said:
  • We have draft bylaws that we agreed to act in accordance with in principle (though this was not recorded in the minutes of that meeting for some reason), but have not formally ratified;

What exactly is meant by this? Do you currently have bylaws and a new set of bylaws has been proposed? Or do you not currently have any bylaws at all?

If you currently have bylaws, what do your current bylaws say about these subjects (such as calling meetings of the board)? If you do not currently have bylaws, you mentioned that you have a constitution. What does that document say about these subjects?

What the draft bylaws say on these subjects is irrelevant, notwithstanding the meaningless agreement to act in accordance with them "in principle" (whatever that means).

On 9/14/2021 at 2:15 PM, Little John 657 said:

What we are considering if calling meetings of the necessary committees and preparing a report with recommendations to the full council, and then preparing a series of resolutions based on those recommendations and passing those at the next meeting. I believe that we can also make written decisions that have to be ratified at the next meeting where we have ha chance to have a proper discussion on the matter. And I understand that we can move to strike the rules and suspend the chair from the meeting (and potentially more if there is an investigation and trial).

All of this appears to be correct, although I would note that the option of taking action and ratifying it later is absolutely a last resort, since the members who take such action do so in their capacity as individuals (not as the board), so there can be quite severe consequences if those actions are not ratified.

On 9/14/2021 at 2:15 PM, Little John 657 said:

However, I can't figure out how we can have a meeting of the council if the chair refuses to call one.

What do your current rules say on the subject of calling board meetings?

On 9/14/2021 at 2:15 PM, Little John 657 said:

I know that we can have a committee of the whole for our council to deal with matters, but I don't know whether we can call that committee the same way that we would call other committee meetings (i.e., any two members or the chair of the committee calling the meeting).

No, a committee of the whole may not be called in the same manner as other committees. The only way for the board to enter Committee of the Whole is for the board to vote to do so during a regular or properly called meeting of the board. Even if you could call a Committee of the Whole meeting, that wouldn't help you. It is not correct that you "can have a committee of the whole for our council to deal with matters." The Committee of the Whole ultimately needs to rise and report to the board. The Committee of the Whole itself lacks the power to act for the board.

On 9/14/2021 at 2:15 PM, Little John 657 said:

Can we hold a council meeting without the chair if we call a meeting in accordance with our draft bylaws if the chair refuses to attend (according to RONR, I don't believe that they count for quorum)?

Assuming the meeting can be properly called, the meeting may be held without the chair. The chair must be notified of the meeting, but it may be held in the chair's absence if the chair does not attend.

The chair of the board, if a member of the board, does count toward the quorum.

On 9/14/2021 at 2:15 PM, Little John 657 said:

Can we call a committee of the whole without having a board meeting to establish the committee (it's not a committee established in our bylaws)?

No, and even if you could, it wouldn't help you.

On 9/14/2021 at 2:15 PM, Little John 657 said:

Basically, what are our options if the chair refuses to do their job and refuses to call meetings?

I don't know. For starters, I don't actually know whether it's true that it is your chair's job to call meetings. :)

You've posted a lot about what your draft bylaws say, but you haven't said anything about what your current rules say about calling meetings of the board.

On 9/14/2021 at 10:20 PM, Atul Kapur said:

If you think that you can call committee meetings under the terms of the draft bylaws, why can't you call a council meeting under the same terms?

I disagree with the premise that the rules in the draft bylaws are somehow applicable. Further, I disagree with the suggestion that a rule regarding calling committee meetings applies to calling meetings of the board.

Edited by Josh Martin
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On 9/15/2021 at 5:39 AM, Josh Martin said:

I disagree with the premise that the rules in the draft bylaws are somehow applicable.

That's why there was an "if" at the beginning of my sentence. I made no assumption about whether the draft bylaws were in effect (in principle) but went with the OP's statement.

You are assuming that these draft bylaws are replacing existing bylaws. My assumption was that this is a newly formed organization; based on the OP's use of "draft" instead of "revised". We are both using our best efforts to fill in a lot of missing information.

On 9/15/2021 at 5:39 AM, Josh Martin said:

I disagree with the suggestion that a rule regarding calling committee meetings applies to calling meetings of the board.

That's not what I said. What I noted was that the OP believes that the committees have the right to meet. This is presumably under the draft bylaws that they are operating under. If that is the case (that the draft bylaws are operational), then they have recourse to this provision of those draft bylaws.

On 9/14/2021 at 3:15 PM, Little John 657 said:

The chair, vice-chair, or any two council members can call a meeting;

 

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On 9/14/2021 at 9:20 PM, Atul Kapur said:

Generally, the body that elects the person is the one that can remove that person. From what you've said, that sounds like the membership. Are there any provisions for a special meeting of the membership?

You say the organization is a quasi-government. Potentially, is this misuse of public property? (that's not an RONR question but may require a legal opinion).

Well, you said just above this statement that

If you think that you can call committee meetings under the terms of the draft bylaws, why can't you call a council meeting under the same terms?

Otherwise, you should look to the senior organization's constitution for suggestions on what procedures to follow.

Thank you Atul.

In our draft bylaws, there are provisions for special meetings, but not in our old bylaws (those bylaws were completely inappropriate for any kind of governance of the organization, repeat provisions from the Constitution over which we have to jurisdiction, and propose topics that contravene the Constitution, which is why I drafted new bylaws that are more comprehensive and try to fill in a lot of the holes that the Constitution and old bylaws have left us with).

It might be considered misuse of property, but I will have to talk to those who are better in the know about how our quasi-government works when it comes to this (we're an Indigenous government, and though we have government recognition to move towards being recognized as a formal government, we're aren't there yet).

According to RONR, any two members of a committee can call a committee meeting, so our bylaws are not necessary for this. However, I can't seem to find clarification about who can call meetings of a board in RONR. From what I can find, regular board meetings can either be on a regular schedule or by resolution, and special board meetings; special board meetings have to be outlined in the bylaws or when authorized by the assembly for formal disciplinary proceedings. But because our bylaws are provisional and we do not have it recorded in the minutes that we agreed to abide by them until they are formally adopted, I don't know what effect they can actually have, especially if this ends up in court.

I have been trying to discuss this with more senior leadership in our quasi-government, but they are very busy and I haven't had much success there at this time.

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On 9/17/2021 at 4:36 PM, Little John 657 said:

In our draft bylaws, there are provisions for special meetings, but not in our old bylaws (those bylaws were completely inappropriate for any kind of governance of the organization, repeat provisions from the Constitution over which we have to jurisdiction, and propose topics that contravene the Constitution, which is why I drafted new bylaws that are more comprehensive and try to fill in a lot of the holes that the Constitution and old bylaws have left us with).

Okay, but if I understand correctly that your draft bylaws have not yet been adopted, then what you call your "old bylaws" are in fact your current bylaws and must continue to be followed unless and until the draft bylaws are adopted.

On 9/17/2021 at 4:36 PM, Little John 657 said:

From what I can find, regular board meetings can either be on a regular schedule or by resolution, and special board meetings; special board meetings have to be outlined in the bylaws or when authorized by the assembly for formal disciplinary proceedings.

Yes, this is correct.

On 9/17/2021 at 4:36 PM, Little John 657 said:

But because our bylaws are provisional and we do not have it recorded in the minutes that we agreed to abide by them until they are formally adopted, I don't know what effect they can actually have, especially if this ends up in court.

They have no effect. They would have no effect even if this fact that "we agreed to abide by them until they are formally adopted" was in the minutes. They have to be formally adopted to be effective, by following the amendment procedure in your current bylaws.

So what, if anything, do your current bylaws (or constitution) say in regard to meetings of the board/council?

I will also add that since does indeed seem to be some sort of governmental body, there may also be rules on these subjects in applicable law, although that is a question for an attorney.

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 Thanks, Josh.

You could drive a convoy of semi trucks through the holes of our current bylaws and legislation, but we have very few people with governance or legal experience to try to fix these matters and there has been a lot of infighting by people who suddenly think that they are governance experts. Basically, we would be throwing out the original bylaws and bringing in new bylaws, but the new bylaws are in draft form right now as they have not been adopted as revised bylaws.

I don't have formal training in governance, though I have chaired governance committees for two boards that I have sat on and helped to revise bylaws during that time. I am also bringing forward resolutions to our legislative assemblies to try to fix some of the holes, but it is a really slow process, and I rely on experts to best advise us of what we should be doing. We are also undergoing a constitutional reform process, but that is slow going as well.

 

On 9/15/2021 at 3:39 AM, Josh Martin said:

What exactly is meant by the term "quasi-government?"

We're an Indigenous government, and though we have government recognition to move towards being recognized as a formal government, we haven't yet received formal recognition.

 

On 9/15/2021 at 3:39 AM, Josh Martin said:

What exactly is meant by this? Do you currently have bylaws and a new set of bylaws has been proposed? Or do you not currently have any bylaws at all?

If you currently have bylaws, what do your current bylaws say about these subjects (such as calling meetings of the board)? If you do not currently have bylaws, you mentioned that you have a constitution. What does that document say about these subjects?

Yes, we do have current bylaws, but those bylaws are completely inappropriate for any kind of governance of the organization, repeat provisions from our constitution over which we have to jurisdiction, and propose provisions that contravene our constitution, which is why I drafted new bylaws that are more comprehensive and try to fill in a lot of the holes that our constitution and old bylaws have left us with

As an example of the old bylaws, they say absolutely nothing about meetings of the council—there is no mention of any kind about regular, special, nor any other kind of meetings (e.g., committees). In addition, they list two different elected offices that govern our jurisdiction (i.e., both the council and the chair are to govern, and listed in separate provisions of the bylaws), one of which is in contravention to our constitution, and say nothing about who makes the final decision on matters. Language is ambiguous on many things. Unfortunately, our constitution says nothing about the calling of meetings (it has a lot of holes in it too). And to be completely honest, I don't even know if these are the current bylaws, as I have seen a different version somewhere but I don't have a copy of those.

The reason that we are looking at moving through committees is because we have a resolution that was passed that put members of the council onto committees, but with the current bylaws not having anything about committees, I don't even know how valid those committees are.

 

On 9/15/2021 at 3:39 AM, Josh Martin said:

What the draft bylaws say on these subjects is irrelevant, notwithstanding the meaningless agreement to act in accordance with them "in principle" (whatever that means).

What is means is that we agreed to abide by these bylaws as a council until such time as we are able to formally adopt them through the membership (we have a lot governance issues that we really need to sort out). The intention was that it would at least give us some guidance on governance and how we govern ourselves as a council until we could formally adopt them.

 

On 9/15/2021 at 3:39 AM, Josh Martin said:

All of this appears to be correct, although I would note that the option of taking action and ratifying it later is absolutely a last resort, since the members who take such action do so in their capacity as individuals (not as the board), so there can be quite severe consequences if those actions are not ratified.

Good to know; thanks.

 

On 9/15/2021 at 3:39 AM, Josh Martin said:

What do your current rules say on the subject of calling board meetings?

Absolutely nothing.

 

On 9/15/2021 at 3:39 AM, Josh Martin said:

No, a committee of the whole may not be called in the same manner as other committees. The only way for the board to enter Committee of the Whole is for the board to vote to do so during a regular or properly called meeting of the board. Even if you could call a Committee of the Whole meeting, that wouldn't help you. It is not correct that you "can have a committee of the whole for our council to deal with matters." The Committee of the Whole ultimately needs to rise and report to the board. The Committee of the Whole itself lacks the power to act for the board.

That's good to know; thanks. We had wondered if a committee of the whole could make recommendations in a report to the board for when the board meets and then make decisions as a council, but it doesn't sound like that will work.

 

On 9/15/2021 at 3:39 AM, Josh Martin said:

Assuming the meeting can be properly called, the meeting may be held without the chair. The chair must be notified of the meeting, but it may be held in the chair's absence if the chair does not attend.

That's kind of where I am stuck. Our current bylaws say absolutely nothing about calling of meetings, our Constitution says absolutely nothing about calling meetings, and I can't find anything in RONR about who has the authority to call council meetings other than by resolution, regular schedule, or outlined in the bylaws, none of which we have in our current bylaws. But it is good to know that the chair doesn't have to attend the meeting if they have been given notice but refuse to attend.

 

On 9/15/2021 at 3:39 AM, Josh Martin said:

I don't know. For starters, I don't actually know whether it's true that it is your chair's job to call meetings. :)

That's where I am stuck. In our current bylaws, no one has the authority to call a meeting, and by default, it has always been the chair. Again, we have governance issues that I am trying to fix.

 

You can see the predicament that I currently find myself in. We are working on resolutions for the board meeting, but right now, we can't bring those forward to discuss and vote because we aren't having a board meeting.

Edited by Little John 657
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On 9/17/2021 at 6:00 PM, Josh Martin said:

Okay, but if I understand correctly that your draft bylaws have not yet been adopted, then what you call your "old bylaws" are in fact your current bylaws and must continue to be followed unless and until the draft bylaws are adopted.

Given the additional facts provided by the OP, I agree with Mr. Martin on this statement and his following responses.

On 9/17/2021 at 6:17 PM, Little John 657 said:

As an example of the old bylaws .... they list two different elected offices that govern our jurisdiction (i.e., both the council and the chair are to govern, and listed in separate provisions of the bylaws), one of which is in contravention to our constitution

If the constitution is the senior document, then anything in the bylaws that conflicts with the constitution is null and void.

 

 

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On 9/17/2021 at 5:17 PM, Little John 657 said:

Yes, we do have current bylaws, but those bylaws are completely inappropriate for any kind of governance of the organization, repeat provisions from our constitution over which we have to jurisdiction, and propose provisions that contravene our constitution, which is why I drafted new bylaws that are more comprehensive and try to fill in a lot of the holes that our constitution and old bylaws have left us with.

Your current bylaws are your current bylaws. It doesn't matter how "inappropriate" they are. It's great that the society is in the process of adopting new bylaws, but unless and until those draft bylaws are actually adopted, you're stuck with your current bylaws.

On 9/17/2021 at 5:17 PM, Little John 657 said:

What is means is that we agreed to abide by these bylaws as a council until such time as we are able to formally adopt them through the membership (we have a lot governance issues that we really need to sort out). The intention was that it would at least give us some guidance on governance and how we govern ourselves as a council until we could formally adopt them.

Yes, I understand this was the intent. Notwithstanding this, the adoption of such a motion has no force or effect. The organization is bound by its current bylaws unless and until they are properly amended. A motion to follow the draft bylaws before they have been formally adopted is out of order and is null and void if adopted, since such a motion conflicts with the existing bylaws.

On 9/17/2021 at 5:17 PM, Little John 657 said:

Absolutely nothing.

Well, then I suppose the organization will have to interpret its extremely lacking bylaws as best as it can in this matter.

On 9/17/2021 at 5:17 PM, Little John 657 said:

That's kind of where I am stuck. Our current bylaws say absolutely nothing about calling of meetings, our Constitution says absolutely nothing about calling meetings, and I can't find anything in RONR about who has the authority to call council meetings other than by resolution, regular schedule, or outlined in the bylaws, none of which we have in our current bylaws. But it is good to know that the chair doesn't have to attend the meeting if they have been given notice but refuse to attend.

There is nothing else in RONR on this subject. As you note, board meetings may be called "by resolution, regular schedule, or outlined in the bylaws." Your board apparently has failed to call a meeting by resolution and your bylaws (unwisely) fail to provide any rules on this matter. So it will be up to your organization to interpret its own bylaws, until the organization can adopt the new draft bylaws.

Obviously an interpretation that the board is incapable of ever meeting if it forgets to schedule a meeting by resolution would not be reasonable. I think one reasonable interpretation would be that the rules are the same as for calling committee meetings. Another reasonable interpretation may be that only the chair has the authority to call meetings, since we are told that is the organization's custom. It will ultimately be up to the organization to decide this matter.

Edited by Josh Martin
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On 9/14/2021 at 3:15 PM, Little John 657 said:

The person was elected to office at the end of May, but so far has only called one meeting (and that was with insufficient notice) and cancelled all other meetings since.

RONR gives no authority to the chair to cancel a meeting.

 

On 9/18/2021 at 5:10 PM, Josh Martin said:
On 9/17/2021 at 6:17 PM, Little John 657 said:

That's kind of where I am stuck. Our current bylaws say absolutely nothing about calling of meetings, our Constitution says absolutely nothing about calling meetings, and I can't find anything in RONR about who has the authority to call council meetings other than by resolution, regular schedule, or outlined in the bylaws, none of which we have in our current bylaws. But it is good to know that the chair doesn't have to attend the meeting if they have been given notice but refuse to attend.

There is nothing else in RONR on this subject. As you note, board meetings may be called "by resolution, regular schedule, or outlined in the bylaws." Your board apparently has failed to call a meeting by resolution and your bylaws (unwisely) fail to provide any rules on this matter. So it will be up to your organization to interpret its own bylaws, until the organization can adopt the new draft bylaws.

RONR (12th ed.) 21:9 says, "If a board or committee meeting is adjourned without any provision having been made for future meetings, the next meeting is held at the call of the chairman (see also 50:21–22)."

Unfortunately, RONR doesn't seem to give much guidance regarding a situation where the chair of a board purposely doesn't call a meeting, or even how a board that elects its own officers calls its first meeting when the term of office of the board has expired and a new board has been elected.

If there is a vice-chair, I would assume that he or she has the power to call a meeting when the chair fails to act.

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