Term limits for Directors and deferred elections

[Guest Lisa Tumi]

Hi 

Question on having to defer elections and term limits.

We had an operational issue that caused us to delay our elections past FYE. Voted at the next Board meeting to extend elections for 6 months. How does that affect 1) a board member that termed out after 3 years at FYE, 2) a Board member that termed out at FYE after 6 years. How is the time between FYE and the next Board meeting affect membership?

Additional question, if an Officer was termed out at 6 years are they eligible to be extended as an officer or does the requirement to take a year off take precedence?

 

Section 10.             TERMS OF SERVICE DIRECTORS

a)      The term of office for each member shall be three (3) years. 

b)      A member may be re-elected to serve an additional three (3) year term, for a maximum of six (6) consecutive years.  Following the six (6) years, a member is eligible to serve the Board after the lapse of one (1) year. 

c)      Terms of offices coincide with the organization's fiscal year

 

Section 11.             TERMS OF SERVICE OFFICERS

a)      The term of office shall be one (1) year.

b)      Each Officer, including an Officer elected to fill a vacancy, shall hold office until the expiration of the term for which he or she was elected and until the election of a successor, or until that Officer’s earlier resignation or removal in accordance with these bylaws and California Nonprofit Corporation Law.

c)      An Officer may be re-elected to the same office for a maximum of two (2) consecutive terms.

 

[Caryn Ann Harlos]

That language of terms of office is very bad.  It seems to me that since they are prescribed as fixed terms  with no qualifying language such as "and until their successors are elected" that after FYE the organization no longer has a board. See 56:28.

There are other questions raised about the authority of the board to even extend elections regardless of the description of the terms of office, particularly for more than a quarterly time period.  Lot's of details not given.

Very curious about what others willl say.

Edited December 22, 2022 at 12:46 PM by Caryn Ann Harlos

[Josh Martin]

On 12/22/2022 at 3:40 AM, Guest Lisa Tumi said:

Voted at the next Board meeting to extend elections for 6 months

Based upon the information provided, it does not seem the board had the authority to do this. The bylaws provide for directors that "The term of office for each member shall be three (3) years." and for officers that "The term of office shall be one (1) year." So I do not think it is in order to "extend" the terms except by amending the bylaws.

The bylaws do appear to provide that the officers (although not the directors) "shall hold office... until the election of a successor," however, such a provision is intended to ensure continuity of service in the event that the organization is unable to complete elections at the scheduled time. It is not intended to permit an organization (let alone a subordinate board) to decide in advance not to hold elections at the prescribed time.

So I would say your board really messed things up and has quite a pickle now. It might be advisable to hire a professional parliamentarian to help sort this mess out. Both the National Association of Parliamentarians and American Institute of Parliamentarians provide referrals.

On 12/22/2022 at 3:40 AM, Guest Lisa Tumi said:

How does that affect 1) a board member that termed out after 3 years at FYE,

The rules in question for directors provide as follows:

"a) The term of office for each member shall be three (3) years. 

b) A member may be re-elected to serve an additional three (3) year term, for a maximum of six (6) consecutive years.  Following the six (6) years, a member is eligible to serve the Board after the lapse of one (1) year."

Based on these facts, a term is three years, period. In addition, the bylaws quite clearly provide that directors shall serve "for a maximum of six (6) consecutive years." So even if a term could be lengthened (which does not appears to be the case), no board member can serve longer than six consecutive years.

So I suppose there are two different ways of looking at this:

• It could be viewed that the term was not, in fact, extended. As a result, the member has actually only served one three year term, and may be elected to a second consecutive three year term. After that time, the board member would not be eligible for a third term until after a lapse of one year.
• If the term is viewed as having been extended, then the member could be elected to a second term, however, the member would no longer be eligible to serve after having served six consecutive years. The seat would then become vacant, and the board member would need to have a lapse of one year before serving again.

On 12/22/2022 at 3:40 AM, Guest Lisa Tumi said:

a Board member that termed out at FYE after 6 years.

A board member that has already served for six years is certainly no longer eligible to serve on the board. They must wait for at least one year before serving again. There is the complication of determining whether this one year waiting period starts when the board member's term actually expired or whether it starts at the end of the "extended" term.

On 12/22/2022 at 3:40 AM, Guest Lisa Tumi said:

Additional question, if an Officer was termed out at 6 years are they eligible to be extended as an officer or does the requirement to take a year off take precedence?

The officers are in a somewhat different situation. The relevant provisions for the officers provide as follows:

"a) The term of office shall be one (1) year.

b) Each Officer, including an Officer elected to fill a vacancy, shall hold office until the expiration of the term for which he or she was elected and until the election of a successor, or until that Officer’s earlier resignation or removal in accordance with these bylaws and California Nonprofit Corporation Law.

c) An Officer may be re-elected to the same office for a maximum of two (2) consecutive terms."

Officers serve for a term of one year, for a maximum of two consecutive terms. Unlike directors, however, the officers serve "until the election of a successor." So officers would continue serving when the elections were not held at the appropriate time. This is, in effect, an extension of the existing term rather than the start of a new term.

So I don't know what you mean by an officer termed out "at 6 years," since the bylaws limit officers to two terms. Could you clarify? How do your elections work? Are both directors and officers elected by the membership? Or are directors elected by the membership and officers are elected by the board?

If what you are getting at with this is that directors are elected by the membership and officers are elected by the board, and a person has reached the term limit to serve as a director but has not reached the term limit to serve as an officer, then the person could no longer serve as a director, but could be elected to a second term as an officer, since the bylaws do not appear to require that officers must be directors.

Edited December 22, 2022 at 01:32 PM by Josh Martin

[Caryn Ann Harlos]

Ahh missed that "until the election of a successor" for an officer so at least they have those.

[Josh Martin]

I suppose the other thing I will add is that since the bylaws refer to the California Nonprofit Corporation Law, it may well be there is something in that law which is relevant to this subject. That would be a question for an attorney.

[Gary Novosielski]

On 12/22/2022 at 4:40 AM, Guest Lisa Tumi said:

Hi 

Question on having to defer elections and term limits.

We had an operational issue that caused us to delay our elections past FYE. Voted at the next Board meeting to extend elections for 6 months. How does that affect 1) a board member that termed out after 3 years at FYE, 2) a Board member that termed out at FYE after 6 years. How is the time between FYE and the next Board meeting affect membership?

Additional question, if an Officer was termed out at 6 years are they eligible to be extended as an officer or does the requirement to take a year off take precedence?

 

Section 10.             TERMS OF SERVICE DIRECTORS

a)      The term of office for each member shall be three (3) years. 

b)      A member may be re-elected to serve an additional three (3) year term, for a maximum of six (6) consecutive years.  Following the six (6) years, a member is eligible to serve the Board after the lapse of one (1) year. 

c)      Terms of offices coincide with the organization's fiscal year

 

Section 11.             TERMS OF SERVICE OFFICERS

a)      The term of office shall be one (1) year.

b)      Each Officer, including an Officer elected to fill a vacancy, shall hold office until the expiration of the term for which he or she was elected and until the election of a successor, or until that Officer’s earlier resignation or removal in accordance with these bylaws and California Nonprofit Corporation Law.

c)      An Officer may be re-elected to the same office for a maximum of two (2) consecutive terms.

 

I don't see anything in what you quoted that would authorized the board to "defer" elections.  Unless there are some other portions of the bylaws that apply, I believe the board acted improperly and created a continuing breach of the rules by adopting a motion that conflicts with the bylaws.

In that case, a point of order could be raised at any time that the action of the board should be declared null and void.  Discipline against board members who voted in the affirmative would also be a possibility.  Boards have only such powers as are contained in the bylaws. 

As always, however, state laws and regulations that apply to organizations such as yours might superseded the rules in RONR.