Removal of an Officer

[Guest Madisyn M.]

 " 8. An Officer, Regional Representative, or other member holding a Party position may be removed from that position for cause by two-thirds vote of the entire Executive Committee."  (From our Bylaws)

It has been argued that as the words "by motion" are not written in the Bylaws, this removal is out of order according to RONR. There is nothing further in our Bylaws regarding the removal of an officer.

Is it proper to remove an office in this manner? There is a motion being made this Sunday to remove an Officer for neglect of duty or misconduct. Members of our Executive Committee have stated that this motion cannot be made per our bylaws and removal of an officer can ONLY happen after an investigation and trial in which charges are preferred by an Investigation Committee. I have scoured RONR and, from my interpretation, our Bylaws stand and removal of an officer in this manner is NOT out of order or prohibited. (If it makes a difference part of the "misconduct" includes sexual misconduct that happened between 2 members of the EC outside of a meeting and outside of organization business. The accused corroborated the sequence of events as the accuser reported they happened.)

Can someone please help me understand which side of the argument is correct?

Thanks!

[Joshua Katz]

On 12/17/2022 at 5:45 AM, Guest Madisyn M. said:

" 8. An Officer, Regional Representative, or other member holding a Party position may be removed from that position for cause by two-thirds vote of the entire Executive Committee."  (From our Bylaws)

It has been argued that as the words "by motion" are not written in the Bylaws, this removal is out of order according to RONR. There is nothing further in our Bylaws regarding the removal of an officer.

Your bylaws take precedence over RONR, so any suggestion that your bylaws are "out of order according to RONR" is mistaken.

[Josh Martin]

On 12/17/2022 at 5:45 AM, Guest Madisyn M. said:

It has been argued that as the words "by motion" are not written in the Bylaws, this removal is out of order according to RONR. There is nothing further in our Bylaws regarding the removal of an officer.

I think there is potentially some ambiguity on what procedures are required to remove an officer, although I do not think the fact that the words "by motion" are not written in the bylaws has anything to do with it.

On 12/17/2022 at 5:45 AM, Guest Madisyn M. said:

Is it proper to remove an office in this manner?

I think there is some ambiguity on this matter. It seems to me the key words in the provision, as it relates to this question, are the words "for cause."

"Except as the bylaws may provide otherwise, any regularly elected officer of a permanent society can be removed from office by the society's assembly as follows:

• If the bylaws provide that officers shall serve “for __ years or until their successors are elected,” the officer in question can be removed from office by adoption of a motion to do so. The vote required for adoption of this incidental main motion is (a) a two-thirds vote, (b) a majority vote when previous notice (as defined in 10:44) has been given, or (c) a vote of a majority of the entire membership—any one of which will suffice. A motion to remove an officer from office is a question of privilege (19) affecting the organization of the assembly, and so also is the filling of any vacancy created by the adoption of such a motion.

• If, however, the bylaws provide that officers shall serve only a fixed term, such as “for two years” (which is not a recommended wording; see 56:28), or if they provide that officers shall serve “for __ years and until their successors are elected,” an officer can be removed from office only for cause—that is, neglect of duty in office or misconduct—in accordance with the procedures described in 63; that is, an investigating committee must be appointed, charges must be preferred, and a formal trial must be held." RONR (12th ed.) 62:16, emphasis added

"Careful thought should be given to whether, given the circumstances of the particular organization, it is preferable (1) to permit removal of officers only for cause, through disciplinary proceedings that may involve a formal trial, or (2) instead to permit their removal at the pleasure of the membership by a two-thirds vote, a majority vote when previous notice has been given, or a vote of a majority of the entire membership—any one of which will suffice (see 62:16)." RONR (12th ed.) 56:29

When RONR uses the term "for cause," this refers not only to a requirement that there be a "cause" for removal (defined in RONR as "neglect of duty in office or misconduct," but also that there must be "due process" - a procedure through which the organization determines whether there is cause for removal.

The rule in 62:16, however, also begins with the provision "Except as the bylaws may provide otherwise," so ultimately the controlling rule on this subject is not what is said in RONR, but what is said in your organization's bylaws. We are told that those rules provide, in their entirety, "An Officer, Regional Representative, or other member holding a Party position may be removed from that position for cause by two-thirds vote of the entire Executive Committee."

The words "for cause" are not further defined. As a result, it will ultimately be up to the organization to determine exactly what that means.

On 12/17/2022 at 5:45 AM, Guest Madisyn M. said:

Members of our Executive Committee have stated that this motion cannot be made per our bylaws and removal of an officer can ONLY happen after an investigation and trial in which charges are preferred by an Investigation Committee.

This is a reasonable summary of the manner in which formal disciplinary procedures are conducted in RONR, but your bylaws make no mention of any of this. The organization will have to determine the meaning of the words "for cause" in the organization's bylaws.

On 12/17/2022 at 5:45 AM, Guest Madisyn M. said:

If it makes a difference part of the misconduct...

I do not think it makes a difference. The key parliamentary question here appears to relate to the procedure for the organization to make a "for cause" determination, and the nature of the misconduct makes no difference in that regard.

On 12/17/2022 at 5:45 AM, Guest Madisyn M. said:

Can someone please help me understand which side of the argument is correct?

Ultimately, I believe there is some ambiguity in the provision in the bylaws, and it will ultimately be up to the organization to interpret its own bylaws.

Personally, I think it is something of a stretch to suggest the words "for cause," in and of themselves, mean that the organization is required to use the full, formal disciplinary procedures in RONR, as some members of the Executive Committee appear to be suggesting. It might be somewhat more reasonable to suggest that these words require some level of due process that would be more involved than a simple main motion, but that the organization would determine exactly what those procedures look like.

In the long run, it may be prudent to amend the bylaws to clarify this matter.

Edited December 17, 2022 at 03:38 PM by Josh Martin

[Richard Brown]

It is my opinion that the removal from office provision in the bylaws is “providing otherwise“ in the bylaws and that therefore  the removal from office procedures in chapter XX and section 62 of RONR do not apply. That seems to me to be the pretty clear consensus of previous threads on the subject in this forum. 

I do agree that the case would be even clearer if the words “by motion“ were included in the bylaw language, but I do not believe that is determinative. However, to the extent that there may be uncertainty or an ambiguity in the bylaws, as Mr. Martin pointed out this would be a matter of bylaws interpretation for the organization itself to make. 

Edited to add: I believe RONR is clear that its disciplinary and removal from office procedures are “default provisions“ to be used when a society’s  bylaws are silent. Your bylaws are not silent on the issue.

 

Edited December 17, 2022 at 04:33 PM by Richard Brown
Added last paragraph

[Gary Novosielski]

On 12/17/2022 at 6:45 AM, Guest Madisyn M. said:

 "8. An Officer, Regional Representative, or other member holding a Party position may be removed from that position for cause by two-thirds vote of the entire Executive Committee."  (From our Bylaws)

It has been argued that as the words "by motion" are not written in the Bylaws, this removal is out of order according to RONR. There is nothing further in our Bylaws regarding the removal of an officer.

Since votes occur as the result of motions being made, this argument is ridiculous.  Whether or not the words "by motion" are included, a motion will be required "to remove <name> from office for cause."   Whether the cause is sufficient for removal will likely be the primary topic of debate on the motion before the vote is taken.  As is no requirement here to use the hearing procedure in RONR, that procedure is not necessary.

Another reason it is ridiculous is that, if true, it would mean that this language in the bylaws has no meaning at all.  One of the basic principles of interpretation of bylaws is that if something was included, it was done for a reason.  To assert that this language was included in the bylaws for no purpose other than wasting ink, is absurd.

A third reason it is ridiculous is that RONR specifies that none of its rules can be interpreted to overrule anything in the bylaws.  Where the bylaws and RONR conflict, RONR always yields to the bylaws.  Period.

[J. J.]

The method for removing an officer, if not expressed in they bylaws or special rules, in some manner, is covered in RONR 62:16.  The bylaw you quoted give the executive committee that ability to remove and to set the vote needed to remove, but not the method needed to get to that vote.  If (as the passage Mr. Martin cited) the bylaws provide that the term of office shall be a fixed term, or a fixed term "and until a successor is elected," a reasonable interpretation, and the safest, would be to have a trial.  If the bylaws included something that pointed to another process, e.g. saying that that an officer may be removed "by motion," then it would be less likely that a trial could be required.

Note that, if a trial is not held, a future meeting may determine that one is required and that the removal is void as it violated the basic right of the officer (23:6 e).  If so, the officer would be restored immediately.  It is therefor far safer to have a trial, as there would be no possible violation of a basic right.

[J. J.]

On 12/17/2022 at 11:41 AM, Gary Novosielski said:

Since votes occur as the result of motions being made, this argument is ridiculous.  Whether or not the words "by motion" are included, a motion will be required "to remove <name> from office for cause."   Whether the cause is sufficient for removal will likely be the primary topic of debate on the motion before the vote is taken.  As is no requirement here to use the hearing procedure in RONR, that procedure is not necessary.

Another reason it is ridiculous is that, if true, it would mean that this language in the bylaws has no meaning at all.  One of the basic principles of interpretation of bylaws is that if something was included, it was done for a reason.  To assert that this language was included in the bylaws for no purpose other than wasting ink, is absurd.

A third reason it is ridiculous is that RONR specifies that none of its rules can be interpreted to overrule anything in the bylaws.  Where the bylaws and RONR conflict, RONR always yields to the bylaws.  Period.

And if the term of office is "for a term of ____ years and until the successor is elected?" 

I would add that the bylaw does specify which body can remove, and the vote needed.  It does not specify the method needed to reach that vote. 

[Gary Novosielski]

In my view:

The specific rule for removal takes priority over the general rule on interpreting the and/or language.

The method needed to reach a vote on a given action is a motion to do that thing.  That is essentially the definition of a motion.

Edited December 17, 2022 at 05:02 PM by Gary Novosielski

[J. J.]

On 12/17/2022 at 11:58 AM, Gary Novosielski said:

The specific rule for removal takes priority over the general rule on interpreting the and/or language.

The method needed to reach a vote on a given action is a motion to do that thing.

The bylaws, however, do not specify that action, which is the problem.  They would specify the action if they said "by motion," or gave some other indication as to the method used.  They do not.  (I would add that if the bylaws said "or until their successors are elected," that would also be sufficient.)

It becomes a bylaw interpretation question, with one interpretation leading to breach of a continuing nature if found to be incorrect.

[Gary Novosielski]

On 12/17/2022 at 12:06 PM, J. J. said:

The bylaws, however, do not specify that action, which is the problem.  They would specify the action if they said "by motion," or gave some other indication as to the method used.  They do not.  (I would add that if the bylaws said "or until their successors are elected," that would also be sufficient.)

The action is removal. What is not specified is the method to cause that action to be carried out.

"A motion is a formal proposal by a member, in a meeting, that the assembly take certain action." [3:22]  

"The basic form of motion—the only one whose introduction brings business before the assembly—is a main motion." [3:23]

The language may not say "by motion" but neither does it say "pursuant to a trial".  I maintain that, absent some provision to the contrary, the authority to remove an officer "by two-thirds vote" means that a motion to take such an action is in order.

[J. J.]

On 12/17/2022 at 12:27 PM, Gary Novosielski said:

The action is removal. What is not specified is the method to cause that action to be carried out.

"A motion is a formal proposal by a member, in a meeting, that the assembly take certain action." [3:22]  

"The basic form of motion—the only one whose introduction brings business before the assembly—is a main motion." [3:23]

The language may not say "by motion" but neither does it say "pursuant to a trial".  I maintain that, absent some provision to the contrary, the authority to remove an officer "by two-thirds vote" means that a motion to take such an action is in order.

It would not have to say "pursuant to a trial"  if the bylaws provide for a fixed term or a term "and until a successor is elected."  Presumably, though Madisyn M. has not specified, they do.  If the term was "or until a successor," would there be any doubt that a trial was not needed?

These bylaws include language (presumably) that mandates a trial and do not specifically override that language.  At worst, it i a bylaw interpretation question.  If the assembly finds that a trial is not necessary, a future assembly may determine that one was and that failure to follow that created a breach of a continuing nature (23:6 e).  If there is a trial, even if the assembly decides one is not needed, there is no breach. 

Edited December 17, 2022 at 05:39 PM by J. J.

[Richard Brown]

On 12/17/2022 at 11:27 AM, Gary Novosielski said:

  I maintain that, absent some provision to the contrary, the authority to remove an officer "by two-thirds vote" means that a motion to take such an action is in order.

I concur. I further reiterate that all of the disciplinary procedures in chapter XX and specifically the removal from office procedures in section 22 of RONR are default provisions which come in to play only in the absence of applicable provisions in the bylaws.

[J. J.]

On 12/17/2022 at 1:19 PM, Richard Brown said:

I concur. I further reiterate that all of the disciplinary procedures in chapter XX and specifically the removal from office procedures in section 22 of RONR are default provisions which come in to play only in the absence of applicable provisions in the bylaws.

There is no other "applicable provision" in this case.  A clause that said the officer could be removed "by motion," "by rescinding the election" or something clear would be "applicable provisions."  These bylaws lack those.

If the bylaws said "or until the successor is elected," that would be sufficient to remove a trial requirement. 

These bylaws establish that the Executive Committee may remove and that the vote needed is two thirds.  There is no specific removal of the trial requirement.  They tell the who, but not the how. 

[Guest Madisyn M.]

For clarification: 

"JJ" who has responded here, was the Parliamentarian who suggested these things to the organization. The Executive Committee felt that it had interpreted it's bylaws properly. The chair is potentially getting removed and a Parliamentary was called in to address. It was advised by JJ that our bylaws were insufficient. His advisement has caused a division amongst the Executive Committee and general membership. The split being whether JJ's advisement was the only way forward.

Our bylaws address terms: 

a) During even numbered Annual Convention years, beginning with 2020, the Chair, Treasurer, even numbered At-Large members, and even numbered Regional Representatives will be elected to two-year terms. 

b) During odd numbered Annual Convention years, beginning with 2021, Vice-Chair, Secretary, odd numbered At-Large members, and odd numbered Regional Representatives will be elected to two-year terms.

There are other issues that JJ advised on that the EC disagreed with but conceded to the chair's motions as JJ defended it and we didn't know any better at the time. I will be posting those separate issues in another thread.

We were looking for additional opinions from other Parliamentarians, as some members felt JJ had a biased view on the issues, so I appreciate so many others speaking on the matter. It's been very helpful.

 

[J. J.]

The clause "elected to two-year terms" is key.  Had the bylaws said something else beyond that, including, but not limited to, stating that  the executive committee committee could remove an officer "by motion," it would be clear.

It is a question of interpretation of the bylaws, but the ones suggested by Messrs. Novosielski and Brown can lead to breach of a continuing nature if rejected by the assembly.  I will also note that the national body did find this language insufficient to remove an officer, in similarly worded national bylaws. 

If given a choice between a reasonable interpretation of the bylaws that could lead to a continuing breach and one that would not, I will usually, if not always, recommend the one that does not lead to a continuing breach. 

[Atul Kapur]

While I don't always agree with @J. J. (and I disagree with him and @Josh Martinhere), I believe it is unfair, at a minimum, to describe him as biased. As this discussion has shown, there are varied opinions on this topic.

[Gary Novosielski]

On 12/17/2022 at 12:37 PM, J. J. said:

It would not have to say "pursuant to a trial"  if the bylaws provide for a fixed term or a term "and until a successor is elected."  Presumably, though Madisyn M. has not specified, they do.  If the term was "or until a successor," would there be any doubt that a trial was not needed?

These bylaws include language (presumably) that mandates a trial and do not specifically override that language.  At worst, it i a bylaw interpretation question.  If the assembly finds that a trial is not necessary, a future assembly may determine that one was and that failure to follow that created a breach of a continuing nature (23:6 e).  If there is a trial, even if the assembly decides one is not needed, there is no breach. 

I agree that if the bylaws said "or until" then removal is easy.  And if they say "and until" then a trial is required. 

But this general rule applies only if that is all the bylaws have to say on the matter.   If they also contain a specific provision that an officer can be removed by the board, by a two-thirds vote, then all that is necessary is a two-thirds vote, as a result of an ordinary main motion to remove the officer.  The specific overrides the general.

That's my story and I'm stickin' to it. 😶

[Gary Novosielski]

On 12/17/2022 at 2:43 PM, J. J. said:

The clause "elected to two-year terms" is key.  Had the bylaws said something else beyond that, including, but not limited to, stating that  the executive committee committee could remove an officer "by motion," it would be clear.

It is a question of interpretation of the bylaws, but the ones suggested by Messrs. Novosielski and Brown can lead to breach of a continuing nature if rejected by the assembly.  I will also note that the national body did find this language insufficient to remove an officer, in similarly worded national bylaws. 

If given a choice between a reasonable interpretation of the bylaws that could lead to a continuing breach and one that would not, I will usually, if not always, recommend the one that does not lead to a continuing breach. 

If it is desired to preclude the possibility of a continuing breach, a Point of Order may be raised immediately to force an interpretation of the bylaws.  Since the point of order was timely, the question of timeliness raised in 23:6 no longer applies.  If the bylaws are interpreted in a timely manner to mean that no trial is required, that's the end of it.  

But further, removal from office violates no protection of absentees, privacy of votes, or basic rights of membership, as referenced in 23:6e.  The "right" to hold office as a basic right of membership does not exist.

[J. J.]

On 12/17/2022 at 3:00 PM, Gary Novosielski said:

I agree that if the bylaws said "or until" then removal is easy.  And if they say "and until" then a trial is required. 

But this general rule applies only if that is all the bylaws have to say on the matter.   If they also contain a specific provision that an officer can be removed by the board, by a two-thirds vote, then all that is necessary is a two-thirds vote, as a result of an ordinary main motion to remove the officer.  The specific overrides the general.

That's my story and I'm stickin' to it. 😶

The problem is that the bylaws say nothing else about the method of removal.  Adding the words "by motion," would say something else.  Saying that the election could be rescinded would say something else.  Even saying that the targeted officer would be send a week's notice of intent to remove would be something else.  There are none of these things are in there. 

The bylaws specify who can remove, but not the process for removal. 

[J. J.]

On 12/17/2022 at 3:15 PM, Gary Novosielski said:

If it is desired to preclude the possibility of a continuing breach, a Point of Order may be raised immediately to force an interpretation of the bylaws.  Since the point of order was timely, the question of timeliness raised in 23:6 no longer applies.  If the bylaws are interpreted in a timely manner to mean that no trial is required, that's the end of it.  

But further, removal from office violates no protection of absentees, privacy of votes, or basic rights of membership, as referenced in 23:6e.  The "right" to hold office as a basic right of membership does not exist.

Yes it does.  The point of order could be raised each session for long as the breach occurs (23:6).  While it could not be renewed the same session, it could be raised at a future session or sessions. 

Absentee rights exist because proper notice of a trial must be given. 

[Guest Madisyn M.]

There are several reasons why it is believed that JJ was acting under bias. Whether by his own bias or through information given to him that was biased (as he counseled the accused and spoke on his behalf.) And after advising the EC on these matters, which affected how we operate...he stated that he would testify on behalf of the accused in an investigation and trial (which did not cover the sexual misconduct reported to the EC). The chair was accused of sexual misconduct, which led to all of this. I could give details, but they really don't matter except to determine the validity of the advisement of JJ as Parliamentarian as being unbiased. I digress.

I would argue, and have argued, that RONR is very clear. My interpretation as a new novice to RONR, which I have used to support my interpretation. My being a novice in the matter, when compared to JJ's interpretation with years as a PRP and CRP, have crippled my ability to even be heard.

 

2:12 Except for the corporate charter in an incorporated society, the bylaws (as the single, combination-type instrument is called in this book) comprise the highest body of rules in societies as normally established today. Such an instrument supersedes all other rules of the society, except the corporate charter, if there is one.

(Plainly: Bylaws as their written overrule all other rules, including but not limited to RONR)

2:18 When a society or an assembly has adopted a particular parliamentary manual—such as this book—as its authority, the rules contained in that manual are binding upon it in all cases where they are not inconsistent with the bylaws (or constitution) of the body, any of its special rules of order, or any provisions of local, state, or national law applying to the particular type of organization.

(Plainly: RONR are binding only where they are consistent with the Bylaws, as they are written.)

Let's look at our Bylaws....

8. An Officer, Regional Representative, or other member holding a Party position may be removed from that position for cause by two-thirds vote of the entire Executive Committee.

(Votes can only be made after a motion is made and the question is stated per RONR. Therefore, it is assumed that "motion" is implied when the clause "by 2/3rds vote" is clearly written in the Bylaws.)

Furthermore, if the EC cannot come to a definition of "for cause", RONR states the following "an officer can be removed from office only for cause—that is, neglect of duty in office or misconduct".

 

62:16 Except as the bylaws may provide otherwise, any regularly elected officer of a permanent society can be removed from office by the society’s assembly as follows:

(If bylaws do NOT provide how an officer can be removed, do the following.)

 

JJ argued that our bylaws were too vague and needed to fall to RONR 62:16, second section per our bylaws wording of officer terms. This wording is ONLY applicable if the Bylaws do not explicitly state a way to remove officers. Furthermore, when stated that removal by voting is insufficient, I fall to RONR 62:16 FIRST section "If the bylaws provide that officers shall serve “for __ years or until their successors are elected,” the officer in question can be removed from office by adoption of a motion to do so". This statement is provided bylaws do not cover removal, in that if only a term is stated and the term is stated as provided in RONR, then a vote is sufficient, and no trial is necessary. RONR allows for EITHER removal by vote OR removal by investigation and trial, depending on the wording of term limits. So BOTH options are applicable and sufficient to remove an officer. And as our Bylaws offer removal via vote, they stand and are backed by RONR.

This is my interpretation, and evidence for such. I would like to know how PRP and CRP have interpreted this as well, given the RONR and Bylaws evidence I have given.

Thanks

[Guest Madisyn M.]

I have attempted several times to respond and several times my response has been removed. As such, I will address things in a separate thread.

[Guest Madisyn M.]

I have attempted several times to respond and several times my response has been removed. As such, I will address things in a separate thread.

[J. J.]

No, I spoke to the chair, as the rules require.

As noted here, the bylaws do not say that offices may be removed without a trial or by motion or by rescinding the election; they do not "provide otherwise."  You have a clause in your bylaws that, absent any other instruction, requires a trial.  Your bylaws vary from RONR, but no not remove, even by implication, the trial requirement.

So, at worst, you have bylaw interpretation question.  If your group should have a trial, and one not required, there is no breach of the rules.  If your group does not have a trial, and one is required, the removal is null and void.  Hence, it is safer to have a trial. 

[Guest Madisyn M.]

@J. J.hence the argument of bias as the chair is the one under scrutiny for sexual misconduct.