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Removal of an officer based on bylaws


James Brown

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I recently notified the board of directors of our 501(c)(3) organization that I was providing notice of an "intent to remove" our board president. I provided notice based on language in our bylaws. I notified them via email 14 days in advance of their next regularly scheduled meeting, and 7 days in advance of the required (by our bylaws) time for the booster members to be made aware of the intent to remove.

The board replied that their meetings were closed and only open by invitation from the board president, and that based on that neither myself or any general boosters were allowed to attend the meeting. They went on to explain that they would discuss my motion for an "intent to remove" at the board meeting and that the board of directors would decide whether to proceed from there and announce the "intent to remove". I feel that this breaks our bylaws as it isn't the proper process as outlined in our bylaws. There also isn't any language in our bylaws about the meetings being closed. This has unfortunately created a contentious back and forth over the interpretation of our organization's bylaws. 

I have been pouring over RONR, as well as State Law because I am concerned that in trying to protect the board president from expulsion without regard to our bylaws, the board of directors are potentially putting our organization at risk by breaking our bylaws. Everything I'm reading points to the board being incorrect. They seem to act as though I'm missing something. It feels like procrastination on the board's part at best... I believe the board is incorrect in their interpretation of our bylaws and should allow the "intent to remove" to move forward as outlined in the bylaws. I believe they are denying the boosters their rights as outlined in our bylaws, and supported by State Law. Any advice will help. Thank you.

I've pasted excerpts from our bylaws below for reference. I have removed the name of our organization for privacy reasons.

SECTION 7 The terms of office for all positions are one (1) year or until their successors are elected.

* ARTICLE IX REMOVAL OF OFFICERS AND DIRECTORS Any Officer or member of the Board of Directors may be removed from an elected position by three-fourths (3/4) of the Boosters present at any regularly scheduled, or Special meeting of BLANK. Advance notice of intent to remove, at least seven (7) days prior to the meeting, shall be communicated to the Boosters. Any officer or Board Member may be temporarily relieved of responsibilities and authorities from an elected position by a three-fourths (3/4) vote of the Board of Directors until such time as there is opportunity for a removal vote at a regularly scheduled or special meeting of BLANK. At such general meeting, the determination of the Board of Directors shall be confirmed by a majority vote, or if not, the Officer or Board Member shall continue in the elected position for the remainder of the unexpired term.

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On 11/30/2022 at 2:13 PM, James Brown said:

I recently notified the board of directors of our 501(c)(3) organization that I was providing notice of an "intent to remove" our board president. I provided notice based on language in our bylaws. I notified them via email 14 days in advance of their next regularly scheduled meeting, and 7 days in advance of the required (by our bylaws) time for the booster members to be made aware of the intent to remove.

The board replied that their meetings were closed and only open by invitation from the board president, and that based on that neither myself or any general boosters were allowed to attend the meeting. They went on to explain that they would discuss my motion for an "intent to remove" at the board meeting and that the board of directors would decide whether to proceed from there and announce the "intent to remove". I feel that this breaks our bylaws as it isn't the proper process as outlined in our bylaws. There also isn't any language in our bylaws about the meetings being closed. This has unfortunately created a contentious back and forth over the interpretation of our organization's bylaws. 

I have been pouring over RONR, as well as State Law because I am concerned that in trying to protect the board president from expulsion without regard to our bylaws, the board of directors are potentially putting our organization at risk by breaking our bylaws. Everything I'm reading points to the board being incorrect. They seem to act as though I'm missing something. It feels like procrastination on the board's part at best... I believe the board is incorrect in their interpretation of our bylaws and should allow the "intent to remove" to move forward as outlined in the bylaws. I believe they are denying the boosters their rights as outlined in our bylaws, and supported by State Law. Any advice will help. Thank you.

I've pasted excerpts from our bylaws below for reference. I have removed the name of our organization for privacy reasons.

SECTION 7 The terms of office for all positions are one (1) year or until their successors are elected.

* ARTICLE IX REMOVAL OF OFFICERS AND DIRECTORS Any Officer or member of the Board of Directors may be removed from an elected position by three-fourths (3/4) of the Boosters present at any regularly scheduled, or Special meeting of BLANK. Advance notice of intent to remove, at least seven (7) days prior to the meeting, shall be communicated to the Boosters. Any officer or Board Member may be temporarily relieve responsibilities and authorities from an elected position by a three-fourths (3/4) vote of the Board of Directors until such time as there is opportunity for a removal vote at a regularly scheduled or special meeting of BLANK. At such general meeting, the determination of the Board of Directors shall be confirmed by a majority vote, or if not, the Officer or Board Member shall continue in the elected position for the remainder of the unexpired term.

just some short remarks (as a kick off)

 

"The board replied that their meetings were closed and only open by invitation from the board president"

who replied? was this aboard decision (as far as you know?) or just a reply  from the secretary on his own behalf.

Under RONR the board (as meeting) decides who to allow into the meeting, decisions of the president can be overruled in appeal by the board.

what do your bylaws say about the  boosters, what rights and duties do they have? 

the bylaws article IX that you quote is unclear if the special or general meeting is a meeting of the board or a meeting of the organisation, if it is a meeting of the board are Boosters normally invited?

article IX does say the Booster get communication of the meeting at least 7 days in advance  , is that not the same as having an invitation?

this is just a first kick off more will folow

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1. While I believe it was a board decision, the secretary replied on behalf of the board, via email in which the entire board was cc'd.

2. As far what the bylaws say about the boosters - the only thing I can find is that a booster is "anyone interested in supporting the objectives of the organization".

3. Article IX simply says "any regularly scheduled, or Special meeting of the Boosters Association". The secretary informed in their email that all board meetings are closed, per the bylaws. I can't find anything in the bylaws that supports that, and it isn't supported by State Law. I've included the bylaws for our board meetings below.
* SECTION 11 The Board of Directors shall meet monthly during the months of May, June, August, September, October, November, January, February, March, and April. At the close of each meeting, those present shall determine the date of the next meeting in order to best serve the needs of all members. Special meetings shall be called by the President upon written request of five (5) voting members of the Board. Special meetings may be conducted by any means of communication, including telephone or internet.

4. I would agree that communication 7 days in advance is the same as an invitation.

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On 11/30/2022 at 10:05 AM, James Brown said:

1. While I believe it was a board decision, the secretary replied on behalf of the board, via email in which the entire board was cc'd.

2. As far what the bylaws say about the boosters - the only thing I can find is that a booster is "anyone interested in supporting the objectives of the organization".

3. Article IX simply says "any regularly scheduled, or Special meeting of the Boosters Association". The secretary informed in their email that all board meetings are closed, per the bylaws. I can't find anything in the bylaws that supports that, and it isn't supported by State Law. I've included the bylaws for our board meetings below.
* SECTION 11 The Board of Directors shall meet monthly during the months of May, June, August, September, October, November, January, February, March, and April. At the close of each meeting, those present shall determine the date of the next meeting in order to best serve the needs of all members. Special meetings shall be called by the President upon written request of five (5) voting members of the Board. Special meetings may be conducted by any means of communication, including telephone or internet.

4. I would agree that communication 7 days in advance is the same as an invitation.

Providing more detail as to why I included "SECTION 7 The terms of office for all positions are one (1) year or until their successors are elected." in my original post - When looking into RONR FAQs #20 I found this... I feel that it supports the hierarchy of State, Bylaws, RONR. 

 

20. How can we get rid of officers we don't like before their term is up?

It depends. If the bylaws just state a fixed term for the officer, such as “two years,” or if they say the officer serves for a specified term “and until [the officer’s] successor is elected” (or words to that effect), then the group must use formal disciplinary proceedings, which involve the appointment of an investigating committee, preferral of charges, and the conduct of a formal trial. The procedure is complex and should be undertaken only after a careful review of Chapter XX of RONR.

On the other hand, if the bylaws state a term for the office but add “or until [the officer’s] successor is elected,” or contain other wording explicitly indicating that the officer may be removed before the term expires, then the officer can be removed from office by a two-thirds vote, by a majority vote when previous notice has been given, or by a vote of the majority of the entire membership—any one of which will suffice. A successor may thereafter be elected for the remainder of the term.

Of course, if the bylaws themselves establish a procedure for removal from office, that procedure must be followed. [RONR (12th ed.) 62:16.]

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On 11/30/2022 at 9:13 AM, James Brown said:

* ARTICLE IX REMOVAL OF OFFICERS AND DIRECTORS Any Officer or member of the Board of Directors may be removed from an elected position by three-fourths (3/4) of the Boosters present at any regularly scheduled, or Special meeting of BLANK. Advance notice of intent to remove, at least seven (7) days prior to the meeting, shall be communicated to the Boosters.

What, if anything, do your bylaws say about how and by whom this notice is to be given.

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Everything that the bylaws say about notice is included in Article IX. As our board is in charge of communication to the booster organization, I deferred to them. When it became obvious to me that they were not going to release the notice within the 7 day time frame - I offered to release the notice myself, although I was very hesitant to as I felt this violates decorum in some fashion. They did not respond, and the notice failed to be released in time.

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On 11/30/2022 at 10:39 AM, James Brown said:

Everything that the bylaws say about notice is included in Article IX. As our board is in charge of communication to the booster organization, I deferred to them. When it became obvious to me that they were not going to release the notice within the 7 day time frame - I offered to release the notice myself, although I was very hesitant to as I felt this violates decorum in some fashion. They did not respond, and the notice failed to be released in time.

Are you saying that your bylaws say nothing at all about notice to be given to boosters concerning regular meetings of the organization?

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On 11/30/2022 at 11:01 AM, James Brown said:

If you're asking about the bylaws saying anything about notice given to "boosters concerning any regularly scheduled meetings of the organization" I would say no, I haven't found anything in the bylaws about that.

Sorry I wasn't clear.  I am referring to notice to be given to all members of the organization of regular meetings of the full membership.  Are no such notices given?

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On 11/30/2022 at 11:22 AM, James Brown said:

Notice is given for regular meetings of the full membership, yes.

Well, I suggest that you ask whoever it is that sends out this notice (usually the Secretary) that your notice of intent to move to remove (whoever it is) from office be included in this notice for the next regular meeting of the full membership.

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The issue at hand is that the Secretary per the Executive Board is refusing to send out the notice for intent to remove because they feel that the board of directors should investigate the reasons for the motion before allowing it to be released to the boosters. So they are negating the need for a meeting of the full membership.

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On 11/30/2022 at 11:38 AM, James Brown said:

The issue at hand is that the Secretary per the Executive Board is refusing to send out the notice for intent to remove because they feel that the board of directors should investigate the reasons for the motion before allowing it to be released to the boosters. So they are negating the need for a meeting of the full membership.

So you asked the Secretary to send out the notice and you have been told that this will not be done?

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That's the way I feel sir. From what I am told, they are referencing RONR. However I have found nothing in RONR to support their position. From what I read on the official RONR website, under FAQs #20, it's all in the wording of how board members are elected and their terms. Referencing FAQs #20 on the RONR website, I feel confident that our bylaws support removal of the director by booster vote only.

According to the FAQs: "On the other hand, if the bylaws state a term for the office but add “or until [the officer’s] successor is elected,” or contain other wording explicitly indicating that the officer may be removed before the term expires, then the officer can be removed from office by a two-thirds vote, by a majority vote when previous notice has been given, or by a vote of the majority of the entire membership—any one of which will suffice. A successor may thereafter be elected for the remainder of the term.

Of course, if the bylaws themselves establish a procedure for removal from office, that procedure must be followed. [RONR (12th ed.) 62:16.]"

Our bylaws clearly state in section 7: The terms of office for all positions are one (1) year or until their successors are elected.

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Am I correct that the hierarchy is as follows? State law, bylaws, RONR. Because it appears that RONR is very low on the list of references and that State law and bylaws trump RONR.

In that case, Indiana Code 2022 on non-profits says the following:

IC 23-17-12-8         Removal of director by vote of members
Sec. 8. (a) Members may remove a director elected by the members with or without cause unless articles of incorporation provide otherwise.

(b) Except when otherwise provided in the articles of incorporation, if a director is elected by:

(1) a class, chapter, or other organizational unit; or

(2) region or other geographic grouping;

the director may be removed only by the members of the class, chapter, unit, or grouping entitled to vote.

(c) Except as provided in section 10 of this chapter, a director may be removed under subsection (a) or (b) only if the number of votes cast to remove the director would be sufficient to elect the director at a meeting to elect directors.

(d) If cumulative voting is authorized, a director may not be removed if:

(1) the number of votes; or

(2) the director was elected by a class, chapter, unit, or grouping of members, the number of votes of the class, chapter, unit, or grouping;

sufficient to elect the director under cumulative voting is voted against the director's removal.

(e) A director elected by members may be removed by the members only at a meeting called for the purpose of removing the director. The meeting notice must state that the purpose of the meeting is the removal of the director.

(f) In determining if a director is protected from removal under subsection (b), (c), or (d), it is assumed that the votes against removal are cast in an election for the number of directors of the class to which the director to be removed belonged on the date of the director's election.

(g) An entire board of directors may be removed under subsections (a) through (e).

As added by P.L.179-1991, SEC.1. Amended by P.L.96-1993, SEC.9.

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On 11/30/2022 at 11:58 AM, James Brown said:

That's the way I feel sir. From what I am told, they are referencing RONR. However I have found nothing in RONR to support their position. From what I read on the official RONR website, under FAQs #20, it's all in the wording of how board members are elected and their terms. Referencing FAQs #20 on the RONR website, I feel confident that our bylaws support removal of the director by booster vote only.

According to the FAQs: "On the other hand, if the bylaws state a term for the office but add “or until [the officer’s] successor is elected,” or contain other wording explicitly indicating that the officer may be removed before the term expires, then the officer can be removed from office by a two-thirds vote, by a majority vote when previous notice has been given, or by a vote of the majority of the entire membership—any one of which will suffice. A successor may thereafter be elected for the remainder of the term.

Of course, if the bylaws themselves establish a procedure for removal from office, that procedure must be followed. [RONR (12th ed.) 62:16.]"

Our bylaws clearly state in section 7: The terms of office for all positions are one (1) year or until their successors are elected.

Yes, but your bylaws do establish a procedure for removal from office.

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On 11/30/2022 at 12:59 PM, Dan Honemann said:

Yes, but your bylaws do establish a procedure for removal from office.

Thank you sir.

On 11/30/2022 at 1:02 PM, Dan Honemann said:

This is correct.

Thank you sir.

On 11/30/2022 at 1:04 PM, Dan Honemann said:

Questions concerning the proper application of state law should be addressed to an attorney.

Understood. Thank you. I realize that I have answered a lot of my own questions. Just doing my due diligence, because I truly want this done the right way. Appreciate your input.

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On 11/30/2022 at 1:27 PM, Atul Kapur said:

What do your bylaws say about who can call or require a special meeting of the members ("Boosters"). Not a special meeting of the board, a meeting of the membership. 

There is nothing in the bylaws about that. Yay or nay.

I would add that in the secretary's last email, they stated that the Executive Board "requested" that I not share their decision with boosters as it could create division and would be in "direct conflict" with Article 2 of our bylaws which I've pasted below. I think they're reaching, and unfortunately I think it looks very suspicious on their part. I've honored their request nonetheless - for now.

ARTICLE II OBJECTIVES The objectives shall be to support the ***** and ***** programs, as established by the ****, by providing:

➢ Supplemental financial support; and

➢ Supplemental communication to students, parents, school administrators, and the community; and

➢ Positive encouragement to students and Staff; and

➢ Volunteer personal assistance.

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