No Provision In Bylaws For Officer Replacement And Need To Fill Vacancy

[DLB]

I serve on the Board of Directors of a small nonprofit that is a registered 501(c)(3). We are going through a period of rebuilding the nonprofit as it is at a low point in activity. Our Board Chair recently resigned, and we needed to fill that vacancy as well as a vacancy in the office of Secretary without an annual membership meeting.  We can do little without a Board Chair or Executive Committee. We filled the vacancies by vote of the board, but upon later review of the bylaws, there is no provision for vacancies of officers. Only board members. I have posted relevant sections from the bylaws below. Is there any way to possibly construe that the Board of Directors has the authority to replace officers? What are our options here?  Could this be construed to be allowed under the general authority given in Section 5 (g). The Board has the authority to fill vacancies on the board. 

We don't really have an active membership and the board is what is left of the organization after a period of change. 

What if we just let our decision stand? 

Thank you for your assistance. 

 

Article IV: Directors

Section 3. Election. Up to eight directors shall be elected at the annual meeting of

the corporation from a slate presented by the Nominating Committee.

Additional directors may be elected to fill vacated positions.

Section 4. Vacancies. Vacancies occurring between annual meetings may be

filled by the Board from nominations made by the Nominating Committee.

Additional nominations may be made provided that they are presented in

writing by a member of the Board to the Chair prior to the meeting, and

provided that prior consent of the nominee has been obtained. A two-thirds

vote, a quorum being present, shall elect. Each person elected to fill an

unexpired term shall remain a director until reelected for a full term or until a

successor is elected by the members, either at the next annual meeting of the

corporation or at any special meeting duly called for that purpose.

Section 5. Duties and Powers. The Board of Directors shall have the power,

without approval by the members of the corporation, to authorize and direct the

proper officers of the corporation, on behalf of the corporation,

(g) to take any other actions necessary to carry out the

policies and functions of the corporation.

 

Article V: Officers

Section 1. Composition and Qualifications. The executive officers of the

corporation shall be one Chair who shall act as Convener; one or more Vice-

Chairs; a Secretary; and a Treasurer. Any two of the executive offices,

except those of Chair and Secretary, and Chair and Treasurer, may be filled by

the same person. Each executive officer shall be a member of the corporation

and shall have served on the Board of Directors.

 

Section 2. Term. All officers of the corporation shall serve for two-year terms or

until their successors are elected and qualified. No officer shall fill the same

office for more than two consecutive terms, with the exception of the Treasurer,

who may serve for three consecutive terms. A term of office shall coincide with

the fiscal year of the corporation.

 

Section 3. Election. The election of officers shall take place at the annual meeting

of the membership from a slate presented by the Nominating Committee. The

slate shall be included with the notice of the annual meeting sent to all members.

Additional nominations may be made provided that they are presented in

writing to the Chair prior to the annual meeting, and provided that prior consent

of the nominee has been obtained.

 

Section 4. Removal. Any officer may be removed by a majority vote of a quorum

of the Board of Directors if, in their judgment and after making findings that

shall be recorded in the minutes, the duties of the office have not been fulfilled.

 

Article VI: Duties of Officers

 

Section 1. Chair. The Chair shall preside at all meetings of the members, the

Board of Directors, and the Executive Committee. The Chair shall discharge

such functions as are ordinarily discharged by the President or Chair of a Board

of Directors, and those that are assigned by the Board. The Chair shall also

appoint chairs of committees or working groups, subject to approval by the

Board, except the chair of the Nominating Committee.

 

Article VII: Committees

 

Section 1. Executive Committee. The Executive Committee shall consist of the

executive officers of the corporation. Not more than three additional directors

may be appointed by the Chair and approved by the Board.

 

Section 2. Powers. The Executive Committee shall, during the intervals between

meetings of the Board, possess and exercise all the powers of the Board in

managing the affairs and property of the corporation, except as otherwise

provided by law, these by-laws, or resolution of the Board of Directors.

The presence of a majority of the Executive Committee shall constitute a quorum.

The Secretary shall keep full and fair records and accounts of the proceedings

and transactions of the Executive Committee. All actions shall be reported to the

Board at its next meeting, and shall be subject to revision or

alteration, provided that no rights of third persons may be affected by any

revision or alteration.

Edited December 10, 2022 at 04:03 PM by DLB

[J. J.]

The vice chair should automatically become chair, so that should be a problem. 

[DLB]

On 12/10/2022 at 1:15 PM, J. J. said:

The vice chair should automatically become chair, so that should be a problem. 

We do not have a vice chair either. 

[Atul Kapur]

Article IV, Section 4 mentions a special meeting of the members, presumably called by the board. Do your bylaws say more about special meetings and the board's authority to call one?

Alternatively, is there anything in applicable legislation that addresses your situation? 

I am a bit surprised that Article V, Section 4 allows the board to remove an officer but there is nothing regarding how to fill any vacancy, including the one that would result from a removal. 

Edited December 11, 2022 at 12:08 AM by Atul Kapur

[Gary Novosielski]

On 12/10/2022 at 2:15 PM, J. J. said:

The vice chair should automatically become chair, so that should be a problem. 

Is this a not-hole instance?

 

[Gary Novosielski]

On 12/10/2022 at 6:58 PM, Atul Kapur said:

Article IV, Section 4 mentions a special meeting of the members, presumably called by the board. Do your bylaws say more about special meetings and the board's authority to call one?

Alternatively, is there anything in applicable legislation that addresses your situation? 

I am a bit surprised that Article V, Section 4 allows the board to remove an officer but there is nothing regarding how to fill any vacancy, including the one that would result from a removal. 

Would not the general power to carry on the business of the society be sufficient?  It would normally authorized the acceptance of resignations and, by implication, filling of the resulting vacancy.

[J. J.]

On 12/11/2022 at 3:33 PM, Gary Novosielski said:

Is this a not-hole instance?

 

Yep. 

 

[Josh Martin]

On 12/11/2022 at 2:35 PM, Gary Novosielski said:

Would not the general power to carry on the business of the society be sufficient?

Maybe.

"The power to appoint or elect persons to any office or board carries with it the power to accept their resignations, and also the power to fill any vacancy occurring in it, unless the bylaws expressly provide otherwise. In the case of a society whose bylaws confer upon its executive board full power and authority over the society's affairs between meetings of the society's assembly (as in the example in 56:43) without reserving to the society itself the exclusive right to fill vacancies, the executive board is empowered to accept resignations and fill vacancies between meetings of the society's assembly. For particular vacancies, see 47:22 (president-elect), and 47:28–30 and 56:32 (president and vice-presidents). See also 13:23 (vacancies in a committee)." RONR (12th ed.) 47:57

So for one thing, it depends on whether the language used in the bylaws is viewed as equivalent to "full power and authority over the society's affairs between meetings of the society's assembly." I can see reasonable arguments that it is, since "any other actions necessary to carry out the policies and functions of the corporation seems pretty broad."

But the fact that the bylaws explicitly grant the board to fill vacancies in director positions, but not officer positions, may complicate matters

"If the bylaws authorize certain things specifically, other things of the same class are thereby prohibited. There is a presumption that nothing has been placed in the bylaws without some reason for it. There can be no valid reason for authorizing certain things to be done that can clearly be done without the authorization of the bylaws, unless the intent is to specify the things of the same class that may be done, all others being prohibited. Thus, where Article IV, Section 1 of the Sample Bylaws (56:62) lists certain officers, the election of other officers not named, such as a sergeant-at-arms, is prohibited." RONR (12th ed.) 56:58

So that principle of interpretation might argue that by specifically granting the board authority to fill director vacancies (but leaving the bylaws silent on officer vacancies), then that means the board cannot fill officer vacancies.

I can see reasonable arguments for either side here. Ultimately, it will be up to the organization to interpret its own bylaws.

On 12/10/2022 at 9:56 AM, DLB said:

We don't really have an active membership and the board is what is left of the organization after a period of change. 

I assume that the board members are themselves members of the organization. So you do still have some sort of membership.

[DLB]

Any further thoughts on what we should do? Is our only option to call an annual meeting or special meeting of the 'membership' or can we continue the course as is with our board elected officers?

[Atul Kapur]

Well, one thing you could do would be to respond to my question posted above. The added information may help to get you a more definitive answer.

But remember what @Josh Martin said, that ultimately this is a question of interpreting your bylaws, and that's up to your (remaining) members.

[DLB]

See below. The problem is we do not have ten members (!) or five members of our board. The board has elected it's most recent officers and so we may not have a duly elected executive officer which one is required for a quorum for a membership meeting.  We are down to a skeleton crew of four board members. This was the reason we elected a new board chair as the board. We intend to recruit and appoint new board members. The board does have the power to fill vacancies on the board itself. We do have a quorum for the board as that only requires one-third of the total membership of the board.

We could recruit people to attend an annual meeting and go from there but we hoped to get our house in order so to speak before holding such a meeting. This would include forming a nominating committee etc. These bylaws are also broken or incomplete in covering the nominating committee because it is only mentioned three times and the board chair may not appoint the chair of the nominating committee. 

We are in a unique situation. We have a skeleton crew and broken bylaws. It would be most efficient and expedient to have the board elect/appoint the officers for now until we can get off the ground.

 

Section 4. Annual Meeting. There shall be a meeting of the membership at least

annually, on a date, at a time and a place, determined by the Board of Directors,

for the purpose of electing officers and a Board of Directors for the ensuing year,

and for the transaction of such other business as may be brought before the

meeting.

 

Section 7. Special Meetings. Special meetings of the members, for any purpose or

purposes, may, unless otherwise provided by law, be called at any time by the

Chair, by five members of the Board of Directors, or by ten members of the

corporation, upon written request delivered to the Secretary of the corporation.

Such request shall state the purpose or purposes of the proposed meeting.Upon

request duly made in accordance with these provisions, it shall be the duty of the

Secretary to call a special meeting of the members, to be held at such time as the

Secretary may fix in accordance with the request, but no less than five or more

than thirty days after receipt of the request. If the Secretary shall neglect or such

a call, the persons making the request may do so. The business to be transacted

at any special meeting shall be confined to the purpose or purposes stated in the

call for the meeting, and matters germane thereto.

 

Section 8. Notice of Special Meetings. Written notice of any special meeting of

the members, stating the place, day, hour, and nature of the business to be

transacted, shall be mailed, to each member in the records of the corporation, at

such address as appears in the records of the corporation, at least five days

before such meeting, unless a greater period of notice is required by law in a

particular case. The mailing of a notice in the manner provided in this

section shall be considered notice served.

 

Section 9. Quorum. Attendance by a member in person at any meeting shall

constitute a waiver of notice. The presence of ten voting members, including one

executive officer, shall constitute a quorum for the transaction of business at all

duly called meetings of the members. If a quorum is not present the

meeting may be adjourned.

 

 

[DLB]

I failed to note this gem. These bylaws need serious revision.  So does this mean we can follow the bylaws of the League of Women Voters of our state in how they treat officers? We are not the League of Women Voters. I am not sure how this ended up in these bylaws as I was not around then. 

Section 5. Rules of Order. Except as otherwise provided by these by-laws, the

conduct of all meetings shall be governed by "The Model Rules of Order of the

League of Women Voters."

Edited December 15, 2022 at 04:30 PM by DLB

[Josh Martin]

On 12/15/2022 at 8:36 AM, DLB said:

Any further thoughts on what we should do? Is our only option to call an annual meeting or special meeting of the 'membership' or can we continue the course as is with our board elected officers?

As I have previously noted, I think the rules on this subject in the organization's bylaws are ambiguous, and it will ultimately be up to the organization to interpret them.

On 12/15/2022 at 10:24 AM, DLB said:

The problem is we do not have ten members (!) or five members of our board. The board has elected it's most recent officers and so we may not have a duly elected executive officer which one is required for a quorum for a membership meeting.  

The problem of having less than five members of the board could be resolved by filling one of those vacancies, since there is no dispute that the board can fill vacancies in director positions.

The quorum issue is more serious. There is a provision in RONR which permits the quorum requirement to be suspended if every member of the organization is present. This may be quite useful to your organization in the present circumstances, regardless of how this current problem is resolved. See RONR (12th ed.) 25:10.

Certainly, it appears that it will ultimately be desirable to address a number of issues in the bylaws.

On 12/15/2022 at 10:29 AM, DLB said:

I failed to note this gem. These bylaws need serious revision.  So does this mean we can follow the bylaws of the League of Women Voters of our state in how they treat officers? We are not the League of Women Voters. I am not sure how this ended up in these bylaws as I was not around then. 

I am not certain. Such a provision is quite odd, especially in that it relates to an entirely different organization. I would guess that your bylaws were originally drafted by someone who was involved in LWV.

I will note that this certainly does not mean that you can follow "the bylaws of the League of Women Voters of our state," because that is not what the rule says. The rule instead refers to "The Model Rules of Order of the League of Women Voters," whatever that is. I tried searching a bit and was unable to find any document with this title.

Edited December 15, 2022 at 06:35 PM by Josh Martin

[Dan Honemann]

The League of Women Voters of the United States has adopted RONR as its parliamentary authority.