Removal of an officer based on bylaws

[James Brown]

On 12/1/2022 at 5:18 PM, Josh Martin said:

Certainly this would not make sense, but I do not think that is what your rules provide. It would appear that such matters may be considered at any regularly scheduled or special meeting of the boosters. Your organization's bylaws should provide the rules concerning when regular meetings are held and how special meetings are called.

"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."

Based upon the facts presented, I do not see a basis for the Secretary to refuse to release the intent to remove. There does not appear to be anything in the bylaws supporting such an action.

Thank you. Very helpful. Do you feel it would be fair to request that the board release the notice of intent to remove, and for them to set up a regular general booster member meeting? Or would it qualify as a Special Meeting since it involves the intent to remove? Because as of now… there seems to be a sort of loophole or technicality for the president to basically stonewall this notice and meeting. Which, if this is covered by law, bylaws, or RONR - is fine. Fascinating and frustrating. But fine lol. I’m learning a lot!

[Atul Kapur]

There appear to be two areas of confusion.

There are two ways of removing an officer, and you and the board appear to be mashing the two together: (a) the membership can remove an officer, or (b) the board can remove an officer. 

The membership would take action (a) at a membership meeting. The board would take action (b) at a board meeting.

You gave notice of intent which, as a member, started process (a). However, what is missing is a request or demand to call a special meeting. The board (or, at least, the secretary) appears to believe that the board has the authority to decide whether your notice of intent goes anywhere. That is outside their authority. If they do not want to call a special meeting and there is no way for the members to require a special meeting then, as has been mentioned already, the notice should go out for the next regular meeting of the membership.

The second area of confusion is revealed by 

On 12/1/2022 at 6:33 PM, James Brown said:

them to set up a regular general booster member meeting? Or would it qualify as a Special Meeting since it involves the intent to remove

As you would be asking them to set up a non-scheduled meeting, that makes it a special meeting. Removal could also occur at a regular meeting.

[James Brown]

On 12/1/2022 at 6:53 PM, Atul Kapur said:

There appear to be two areas of confusion.

There are two ways of removing an officer, and you and the board appear to be mashing the two together: (a) the membership can remove an officer, or (b) the board can remove an officer. 

The membership would take action (a) at a membership meeting. The board would take action (b) at a board meeting.

You gave notice of intent which, as a member, started process (a). However, what is missing is a request or demand to call a special meeting. The board (or, at least, the secretary) appears to believe that the board has the authority to decide whether your notice of intent goes anywhere. That is outside their authority. If they do not want to call a special meeting and there is no way for the members to require a special meeting then, as has been mentioned already, the notice should go out for the next regular meeting of the membership.

The second area of confusion is revealed by 

As you would be asking them to set up a non-scheduled meeting, that makes it a special meeting. Removal could also occur at a regular meeting.

Ok. That kind of confirms what I thought… With no general meeting anywhere in sight - April is the next closest regular meeting - and the board, or at least the president, definitely not wanting to schedule a special meeting… our booster members seem to have no power. Which is unfortunate. I wonder what would happen if there was an entirely corrupt board (that is NOT the case here thank goodness) - how would the boosters ever be able to remove anyone from office until it was too late? Interesting…

[James Brown]

On 12/1/2022 at 7:28 AM, Josh Martin said:

The board is free to decide that its meetings are closed if it wishes, unless otherwise provided in applicable law or the organization's rules.

Although that is not really relevant to the present question, because the bylaws provide that officers are removed by the membership.

What is there to decide? The rules as presented do not appear to require anything in particular for notice of an intent to remove.

Coming back to this… If it’s not in the bylaws that board meetings are closed to members and it wasn’t even known by current board members until a week ago, and it’s actually a “Custom” that the board meetings are closed - is the board still free to close it’s meetings?

[Josh Martin]

On 12/1/2022 at 6:03 PM, James Brown said:

Ok. That kind of confirms what I thought… With no general meeting anywhere in sight - April is the next closest regular meeting - and the board, or at least the president, definitely not wanting to schedule a special meeting… our booster members seem to have no power.

Have we established that, in fact, only the board and the President have the authority to call a special meeting of the membership?

I believe we still have not yet seen the provision in the bylaws relating to calling special meetings of the membership. You provided a provision relating to calling special meetings of the board.

In the event it is correct that only the board and the President can call a special meeting of the membership, then the organization may wish to consider amending the bylaws to change this at the next opportunity.

Based upon the ever-increasing length of this thread and the apparent complexity of this issue, it may also be advisable to consult a professional parliamentarian who can work with you to review the governing documents in their entirety. The National Association of Parliamentarians and American Institute of Parliamentarians provide referrals.

On 12/1/2022 at 6:03 PM, James Brown said:

how would the boosters ever be able to remove anyone from office until it was too late?

How frequently are regular meetings of the boosters held?

On 12/1/2022 at 6:21 PM, James Brown said:

Coming back to this… If it’s not in the bylaws that board meetings are closed to members and it wasn’t even known by current board members until a week ago, and it’s actually a “Custom” that the board meetings are closed - is the board still free to close it’s meetings?

Yes. There is no need for a rule in the bylaws on this matter. A custom is indeed sufficient - and even if there were not a custom, the board is free to start holding closed sessions now. RONR provides that the board may enter closed session in a particular case, or even to hold all of its meetings in closed session. The only reason the board would be prohibited from holding closed meetings would be if some provision in your organization's rules or applicable law so provides.

Edited December 2, 2022 at 03:14 AM by Josh Martin

[James Brown]

On 12/1/2022 at 10:12 PM, Josh Martin said:

Have we established that, in fact, only the board and the President have the authority to call a special meeting of the membership?

I believe we still have not yet seen the provision in the bylaws relating to calling special meetings of the membership. You provided a provision relating to calling special meetings of the board.

In the event it is correct that only the board and the President can call a special meeting of the membership, then the organization may wish to consider amending the bylaws to change this at the next opportunity.

Per our bylaws: SECTION 11 - EXCERPT - 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.

Based upon the ever-increasing length of this thread and the apparent complexity of this issue, it may also be advisable to consult a professional parliamentarian who can work with you to review the governing documents in their entirety. The National Association of Parliamentarians and American Institute of Parliamentarians provide referrals.

Thank you for the suggestion, I will definitely look into it.

How frequently are regular meetings of the boosters held?

Twice a year. Once at Elections next April, and once directly after elections either in April or May at the annual organizational meeting.

Yes. There is no need for a rule in the bylaws on this matter. A custom is indeed sufficient - and even if there were not a custom, the board is free to start holding closed sessions now. RONR provides that the board may enter closed session in a particular case, or even to hold all of its meetings in closed session. The only reason the board would be prohibited from holding closed meetings would be if some provision in your organization's rules or applicable law so provides.

Fair enough. There is no provision in the bylaws. Regarding law, I would need to investigate that further.

As it currently stands, I spoke earlier with one of our board members "Jill". Jill informed me that the board had found supporting documents in their Articles of Incorporation that they could hold closed meetings. She said that the board was not planning to make me aware of that information, and that she was sharing that information with me as a fellow "human being". She also informed me that regarding the board's position towards my request for an intent to remove - they are ignoring that as well and will not be releasing it.

Based on that information, she said everything had "basically come to a stop" and that the board currently had no plans to reach out and share this information. If I am to proceed at this point, it appears it will have to be with a better understanding of our applicable laws, and consulting a professional parliamentarian.

I agree that this thread has exhausted its limits. I appreciate all of the time, and effort and information that everyone has shared with me. Thank you.

 

[Josh Martin]

On 12/2/2022 at 5:23 AM, James Brown said:

Per our bylaws: SECTION 11 - EXCERPT - 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.

Yes, you have provided this excerpt, but you earlier provided the full text of Section 11, which reads as follows:

"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."

So Section 11 appears to be regarding meetings of the Board of Directors.

On 12/2/2022 at 5:23 AM, James Brown said:

Twice a year. Once at Elections next April, and once directly after elections either in April or May at the annual organizational meeting.

In the event that only the board can call a special meeting of the membership and the membership only holds regular meetings twice a year, then it will certainly be difficult as a practical matter for the boosters to remove a board member against the board's wishes.

Edited December 2, 2022 at 11:48 AM by Josh Martin

[James Brown]

On 12/2/2022 at 6:48 AM, Josh Martin said:

Yes, you have provided this excerpt, but you earlier provided the full text of Section 11, which reads as follows:

"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."

So Section 11 appears to be regarding meetings of the Board of Directors.

That's correct. I thought you were asking about Special Meetings.

In the event that only the board can call a special meeting of the membership and the membership only holds regular meetings twice a year, then it will certainly be difficult as a practical matter for the boosters to remove a board member against the board's wishes.

Understood, thank you...

 

[Atul Kapur]

Quote

So Section 11 appears to be regarding meetings of the Board of Directors.

Quote

That's correct. I thought you were asking about Special Meetings.

The section you quoted just speaks about regular and special meetings of the board. It has nothing to do with special meetings of the membership. 

[Josh Martin]

On 12/2/2022 at 7:33 AM, James Brown said:

That's correct. I thought you were asking about Special Meetings.

Yes, but I was asking about special meetings of the membership.

[James Brown]

On 12/2/2022 at 11:53 AM, Josh Martin said:

Yes, but I was asking about special meetings of the membership.

I do not see anything in our bylaws concerning special meetings of the membership. Unless I'm misunderstanding our bylaws?

At the beginning of our bylaws it states:
ARTICLE I    NAME
Name of the Organization shall be XX Boosters Association; hereinafter referred to “XXBA”

ARTICLE II OBJECTIVES
The objectives shall be to support the XX and XX programs, as established by the XX, 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.

ARTICLE III    MEMBERSHIP
Voting membership shall be comprised of parents or guardians of middle and high school students participating in all XX and XX programs of the Community School Corporation of XXXX, and shall hereinafter be referred to as “Voting Boosters.” Anyone interested in supporting the objectives of XXBA, shall hereinafter be referred to as “Boosters.”

ARTICLE IV    BOARD OF DIRECTORS
The Board of Directors shall be the managing body of XXBA. The Board of Directors shall be responsible for coordinating the XXBA’s affairs as well as establishing the budget and reporting the budget at the Annual Organizational Meeting.

Maybe I'm getting confused...

In the article concerning removal of officers and directors, of which there are 2 methods of removal; a) By members and b) by the Board - it states in a) that a Board Member may be removed at "any regularly scheduled, or Special meeting of the XXBoosters Association. " And then again in option b) concerning removal by Board it states again that a Board member can be relieved until there is an opportunity for a removal vote at a "regularly scheduled, or Special meeting of the XXBoosters Association. "

While it appears there is mention of Special Meetings of the membership, there is no mention of who can call for a special meeting of the membership.

Unless I'm to assume that since the Board of Directors are the managing body of the boosters, the same rule that requires the president to call special meetings for the board, would also apply to the boosters?

[James Brown]

On 12/2/2022 at 1:16 PM, James Brown said:

I do not see anything in our bylaws concerning special meetings of the membership. Unless I'm misunderstanding our bylaws?

At the beginning of our bylaws it states:
ARTICLE I    NAME
Name of the Organization shall be XX Boosters Association; hereinafter referred to “XXBA”

ARTICLE II OBJECTIVES
The objectives shall be to support the XX and XX programs, as established by the XX, 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.

ARTICLE III    MEMBERSHIP
Voting membership shall be comprised of parents or guardians of middle and high school students participating in all XX and XX programs of the Community School Corporation of XXXX, and shall hereinafter be referred to as “Voting Boosters.” Anyone interested in supporting the objectives of XXBA, shall hereinafter be referred to as “Boosters.”

ARTICLE IV    BOARD OF DIRECTORS
The Board of Directors shall be the managing body of XXBA. The Board of Directors shall be responsible for coordinating the XXBA’s affairs as well as establishing the budget and reporting the budget at the Annual Organizational Meeting.

Maybe I'm getting confused...

In the article concerning removal of officers and directors, of which there are 2 methods of removal; a) By members and b) by the Board - it states in a) that a Board Member may be removed at "any regularly scheduled, or Special meeting of the XXBoosters Association. " And then again in option b) concerning removal by Board it states again that a Board member can be relieved until there is an opportunity for a removal vote at a "regularly scheduled, or Special meeting of the XXBoosters Association. "

While it appears there is mention of Special Meetings of the membership, there is no mention of who can call for a special meeting of the membership.

Unless I'm to assume that since the Board of Directors are the managing body of the boosters, the same rule that requires the president to call special meetings for the board, would also apply to the boosters?

In our state law is the following regarding members meetings...

IC 23-17-10-2      Special meetings; meetings and participation by remote communication

     Sec. 2. (a) A corporation with members must hold a special meeting of members as follows:
(1) On call of the corporation's president or board of directors or other person, including a member or an officer, specifically authorized to do so by the articles of incorporation or bylaws.
(2) Except as provided in the articles of incorporation or bylaws of a religious corporation, if the holders of at least ten percent (10%) of all the votes entitled to be cast on an issue proposed to be considered at the proposed special meeting sign, date, and deliver to the corporation's secretary at least one (1) written demand for the meeting describing the purpose for which the meeting is to be held.
     (b) Unless otherwise provided under section 7 of this chapter, the close of business on the thirtieth day before delivery of the demand for a special meeting to a corporate officer is the record date for the purpose of determining if the ten percent (10%) requirement of subsection (a) has been met.
     (c) If a notice for a special meeting demanded under subsection (a)(2) is not given under section 5 of this chapter within thirty (30) days after the date the written demand is delivered to the corporation's secretary, regardless of the requirements of subsection (d), a person signing the demand may do the following:
(1) Set the time and place of the meeting.
(2) Give notice under section 5 of this chapter.
     (d) A special meeting of members may be held inside or outside of Indiana at the place stated in or fixed in accordance with the bylaws.
     (e) The bylaws may provide that a special membership meeting will not be held in any place but may instead be held solely by means of remote communication. If a place for meeting is not stated in or fixed in accordance with the bylaws, the board of directors may either:
(1) determine the location of the special meeting; or
(2) elect that the special membership meeting will not be held at any place, but solely by means of remote communication.
     (f) If provided for in the bylaws or authorized by the board of directors, and subject to any guidelines and procedures the board of directors adopts, members not physically present at a special meeting of members may:
(1) participate in the special meeting of members by means of remote communication; and
(2) if the conditions under subsection (g) are met, be considered present in person and vote at the special meeting of members, regardless of whether the meeting is held at a designated place or solely by means of remote communication.
     (g) To conduct a special meeting by means of remote communication, the corporation must do the following:
(1) Implement reasonable measures to verify the identity of each member considered present and permitted to vote at the meeting.
(2) Implement reasonable measures to ensure all members have an opportunity to participate and vote on matters discussed at the meeting, including an opportunity to read or hear the proceedings.
(3) Maintain minutes of the meeting, including a record of any votes cast or actions taken by a member.
     (h) Only those matters that are within the purposes described in the meeting notice required under section 5 of this chapter may be conducted at a special meeting of members.
As added by P.L.179-1991, SEC.1. Amended by P.L.206-2021, SEC.8.

[Atul Kapur]

Well, if your bylaws are silent as to calling special meetings of the membership (and nothing you have shared mentions them), then the law appears (I am not a lawyer and this is not legal advice) to provide a procedure: 10% of the voting membership needs to demand one in writing. 

[James Brown]

On 12/2/2022 at 1:41 PM, Atul Kapur said:

Well, if your bylaws are silent as to calling special meetings of the membership (and nothing you have shared mentions them), then the law appears (I am not a lawyer and this is not legal advice) to provide a procedure: 10% of the voting membership needs to demand one in writing. 

Understood. Thank you.

[James Brown]

On 12/1/2022 at 10:12 PM, Josh Martin said:

Yes. There is no need for a rule in the bylaws on this matter. A custom is indeed sufficient - and even if there were not a custom, the board is free to start holding closed sessions now. RONR provides that the board may enter closed session in a particular case, or even to hold all of its meetings in closed session. The only reason the board would be prohibited from holding closed meetings would be if some provision in your organization's rules or applicable law so provides.

Mr. Martin, referring to our organization's articles of incorporation (AIC) dated back to May 2019. They include that year's version of the bylaws. They have since been amended (as of April 2021), and I have been posting sections of the amended bylaws here. In my prior conversation with a board member, they explained that the board was referencing the organization's AIC to explain why their meetings were closed. I'm confused, because if they're using the AIC as the basis for their meetings being closed, it appears that there were General Meetings that were open to membership in these older bylaws. I am pasting the following below from our AIC.

ARTICLE V     GENERAL MEETINGS
       SECTION 1  The regular meeting of XXBA shall be held in the months of August, January, February, March and April, unless a special meeting is called by the President or a majority of the Board of Directors as hereinafter set forth.

       SECTION 2  The regular meeting in March or April shall be known as the Annual Meeting for the purpose of election of Officers and members of the Board of Directors.

       SECTION 3  The President, or a majority of the Board of Directors, with at least five (5) days' notice, may call a special meeting.

       SECTION 4  A quorum for regular or special general meeting is defined as those boosters present.

[James Brown]

Do Articles of Incorporation supersede bylaws?

[Atul Kapur]

RONR (12th ed.) 2:7

"In an incorporated organization, the corporate charter [known as Articles of Incorporation in some states] supersedes all its other rules, none of which can legally contain anything in conflict with the charter ."

[Josh Martin]

On 12/2/2022 at 1:20 PM, James Brown said:

Mr. Martin, referring to our organization's articles of incorporation (AIC) dated back to May 2019. They include that year's version of the bylaws. They have since been amended (as of April 2021), and I have been posting sections of the amended bylaws here.

To be clear, is the "Article V" from your most recent post part of the Articles of Incorporation themselves, or part of an old copy of the bylaws included with the Articles of Incorporation?

On 12/2/2022 at 1:36 PM, James Brown said:

Do Articles of Incorporation supersede bylaws?

Yes.

On 12/2/2022 at 1:20 PM, James Brown said:

I'm confused, because if they're using the AIC as the basis for their meetings being closed, it appears that there were General Meetings that were open to membership in these older bylaws. I am pasting the following below from our AIC.

I can't guess what your board is referring to, but whether or not there is something in the articles on this matter, the board is correct that meetings of the board may be closed to persons who are not members of the board, unless something in your organization's rules or applicable law provide otherwise.

Meetings of the full membership, obviously, must be open to the full membership.

The article you are citing in your most recent post refers to meetings of the full membership. It has no bearing on whether board meetings are open to the membership.

Edited December 2, 2022 at 08:30 PM by Josh Martin

[James Brown]

On 12/2/2022 at 3:19 PM, Josh Martin said:

To be clear, is the "Article V" from your most recent post part of the Articles of Incorporation themselves, or part of an old copy of the bylaws included with the Articles of Incorporation?

"Article V" is part of an old copy of the bylaws included with the Articles of Incorporation.

I can't guess what your board is referring to, but whether or not there is something in the articles on this matter, the board is correct that meetings of the board may be closed to persons who are not members of the board, unless something in your organization's rules or applicable law provide otherwise.

Meetings of the full membership, obviously, must be open to the full membership.

The article you are citing in your most recent post refers to meetings of the full membership. It has no bearing on whether board meetings are open to the membership.

Apologies for the confusion... I understand fully that board meetings are only open to members of the board.

I am trying to understand if the old bylaws included with the Articles of Incorporation supercede the most recent version of the bylaws.
 

 

 

[Atul Kapur]

You are going to need a professional parliamentarian (or a lawyer) to review all these documents to determine the actual status of the bylaws included with the Articles of Incorporation to see if they are actually part of the Articles (along with, as advised earlier, reviewing all the documents and advising you further).

[James Brown]

On 12/2/2022 at 11:07 PM, Atul Kapur said:

You are going to need a professional parliamentarian (or a lawyer) to review all these documents to determine the actual status of the bylaws included with the Articles of Incorporation to see if they are actually part of the Articles (along with, as advised earlier, reviewing all the documents and advising you further).

Understood. Thank you.

[Guest ellie]

Bylaws state and the Officer in question is the President-Elect.  The removal is due to Conduct and not negligence of duties.

My Question is whether an Investigative committee can be bypassed and the charges brought before the Governing Board at a Special Meeting without due process of an investigation.  

Section 1 C) "The officers shall serve for one year.  Officers may serve in such offices for more than one term but may not serve more than two consecutive terms.  The President_Elect shall automatically succeed to the office of President the following year."

Section 3 "In the event that an officer is deemed to be incapable of fulfilling the duties for which elected and declines to resign from office voluntarily, the Officer may be removed from office under the following procedure:

A)To remove an elected officer, a special meeting of the Governing Board may be convened as per the rules outlined herein.  Provided a quorum is present at the meeting, a 3/4 vote of the Governing Board in attendance shall be required to remove an elected officer from office.

[puzzling]

On 12/15/2022 at 12:34 AM, Guest ellie said:

Bylaws state and the Officer in question is the President-Elect.  The removal is due to Conduct and not negligence of duties.

My Question is whether an Investigative committee can be bypassed and the charges brought before the Governing Board at a Special Meeting without due process of an investigation.  

Section 1 C) "The officers shall serve for one year.  Officers may serve in such offices for more than one term but may not serve more than two consecutive terms.  The President_Elect shall automatically succeed to the office of President the following year."

Section 3 "In the event that an officer is deemed to be incapable of fulfilling the duties for which elected and declines to resign from office voluntarily, the Officer may be removed from office under the following procedure:

A)To remove an elected officer, a special meeting of the Governing Board may be convened as per the rules outlined herein.  Provided a quorum is present at the meeting, a 3/4 vote of the Governing Board in attendance shall be required to remove an elected officer from office.

please start a new post for this. 

section 3 seems not applicable so your normal disciplinary procedure should bebused (or RONR's one if the organisation does not have its own rules)