Bylaw in conflict with an Article

[Tomm]

The Bylaws say:
Article V, Section 4:
E. Vacancies occurring on the Board during the year (January 1 through December 31) may be filled by appointment by the Board. A majority vote of the Board (5) is required for said appointment. An appointment ends on December 31 of the year appointed. An appointed term does not enter in the six (6) year limit set forth in the Articles.

The Articles of Incorporation says:
Article VIII, 2nd paragraph:
Three (3) Directors in a manner set forth in the Corporate Bylaws, shall be elected each year to serve for a term of three (3) years and shall serve until their successors are installed. A Member/Director may be elected to a maximum of two (2) three-year terms, six (6) years total, on the Board of Directors.

QUESTION: Seems to me that the Bylaw is attempting to nullify the Article of Incorporation. It also appears to me that the Bylaw is more related to electing or appointing a person to fill a vacancy while the Articles of Incorporation is referring to term limits. 

Do you find the Bylaw to be in conflict with the Article of Incorporation or is it okay for the Bylaw to contradict the Articles in such a manner?

Shouldn't the Articles be required to say something to the effect, "six (6) years total, on the board of Directors or as specified in the Bylaws"  to allow the Bylaws to override the term limit? "Six (6) years total" seems pretty cut and dry to me but others argue that an appointment isn't the same being elected.

[Rob Elsman]

They're your rules; you tell us. 🙂

[laser158689]

A Member/Director may be elected to a maximum of two (2) three-year terms, six (6) years total, on the Board of Directors.

Not seeing a conflict.  Articles of Incorporation speak to elected members & their limits.  Bylaws are about appointed members.

[Rob Elsman]

But, aren't the appointed members actually elected by the board? 🧐

[Tomm]

On 1/9/2023 at 3:16 PM, Rob Elsman said:

But, aren't the appointed members actually elected by the board?

Yup, I believe in executive session.

[Rob Elsman]

Well, I don't get the point that @laser158689is making.

[laser158689]

On 1/9/2023 at 5:16 PM, Rob Elsman said:

But, aren't the appointed members actually elected by the board? 🧐

Sounds like they are appointed by the Board, as opposed to an election among the assembly itself.

[Richard Brown]

On 1/9/2023 at 4:07 PM, laser158689 said:

A Member/Director may be elected to a maximum of two (2) three-year terms, six (6) years total, on the Board of Directors.

Not seeing a conflict.  Articles of Incorporation speak to elected members & their limits.  Bylaws are about appointed members.

 

On 1/9/2023 at 4:16 PM, Rob Elsman said:

But, aren't the appointed members actually elected by the board? 🧐

I agree with Laser158689.   I don't see a conflict.  I do not see directors who are appointed (whether by election or motion) to serve temporarily (for at most 364 or 365 days) as being elected directors in the sense contemplated by either the  Articles of Incorporation or the Bylaws.  Although OP Tomm did not expressly say so, I imagine that "elected" directors are elected by the membership, not the board, and they are elected for three-year terms. 

I do not see a conflict.

[laser158689]

An appointment would take the form of a main motion like this...

RESOLVED, that the following named person be appointed a Regular Member of the Board for a term expiring December 31, 2023 - Henry Robert

That's different from an election.  If a contingent of the Board had someone else in mind, I suspect that would be handled by a motion to Amend.

 

[Rob Elsman]

No, I think the handling of multiple nominations would be handled as an election, even if the original form of the motion contained the name of one person.

[Rob Elsman]

It is worth noting that Article VIII is written in the agentless passive voice, so it is impossible to know who is doing the action of the verb.

[Tomm]

On 1/9/2023 at 3:55 PM, Richard Brown said:

Although OP Tomm did not expressly say so, I imagine that "elected" directors are elected by the membership, not the board, and they are elected for three-year terms. 

Yes. 

Just seems to me that the Articles define the maximum time a Director can serve and the Bylaw is saying just ignore the Article.

[Shmuel Gerber]

On 1/9/2023 at 6:25 PM, Tomm said:

Just seems to me that the Articles define the maximum time a Director can serve and the Bylaw is saying just ignore the Article.

But what you quoted does not say how much time a director can serve. It says for how many terms and how much time he can be elected. 

[Tomm]

On 1/9/2023 at 4:30 PM, Shmuel Gerber said:

On 1/9/2023 at 4:25 PM, Tomm said:

Just seems to me that the Articles define the maximum time a Director can serve and the Bylaw is saying just ignore the Article.

But what you quoted does not say how much time a director can serve.

But it does say "six(6)years total, on the Board of Directors"

I guess I'm reading too much into the six years total?

[Shmuel Gerber]

On 1/9/2023 at 4:27 PM, Tomm said:

A Member/Director may be elected to a maximum of two (2) three-year terms, six (6) years total, on the Board of Directors.

 

On 1/9/2023 at 6:36 PM, Tomm said:

But it does say "six(6)years total, on the Board of Directors"

I guess I'm reading too much into the six years total?

If you're reading anything into one phrase of a sentence without reading the entire sentence, then you're reading too much into it. 

[Gary Novosielski]

It seems to me that the bylaws provision is attempting to get around the rule in RONR that for the purposes of assessing term limits, anything more than a half term counts as one term.  The provision in the Articles of Incorporation intends to impose term limits.

But this intent seems unartfully phrased, to the point that the bylaws provision may succeed in its attempt. 

Edited January 10, 2023 at 04:06 AM by Gary Novosielski
spelling

[Guest CMBperc]

As Mr. Gerber stated  "If you're reading anything into one phrase of a sentence without reading the entire sentence, then you're reading too much into it."  It might help to review Roget and you'll see that 'appointed' and 'elected' are not synonyms.  They are antonyms which my dictionary says is a word opposite in meaning to another.  If you are really concerned about how many years an appointed Director may serve why not make a bylaw revision that limits the number of times someone can serve as an appointed Director?

[Gary Novosielski]

The words may not be synonyms, but when RONR refers to appointed officers, it is in the context of those offices which are usually filled by appointment rather than election, such as an Executive Director or a Parliamentarian.  

In the case of offices typically elected, RONR draws no distinction on how one came to be in office, whether elected at a general or special election, elected by the board to fill a vacancy, or appointed by the president to do so.  Once in office, the path taken is not relevant.

Some societies do draw a distinction in powers or duties based on how one came to office.  In my view such rules are rarely a good idea and encourage just this sort of hair splitting without discernable benefit.

[Tomm]

On 1/10/2023 at 8:09 PM, Gary Novosielski said:

In the case of offices typically elected, RONR draws no distinction on how one came to be in office, whether elected at a general or special election, elected by the board to fill a vacancy, or appointed by the president to do so.  Once in office, the path taken is not relevant.

This is exactly why I'm having difficulty understanding why, when the Articles say, "six (6) years total, on the Board of Directors" the six years isn't the maximum limit on serving.

Seems your saying it doesn't matter how the person got into the position, and my concern isn't with election or appointment but the maximum limit of time they may serve.

This is how I speculate the Bylaw came to be;

First of all, the Board has the authority to amend the Bylaws without Member involvement.

Second, the Articles of Incorporation are much harder to amend because only the Members can amend them and the quorum limit is fairly high.

Seems to me that at some point in time the Board was having a hard time finding a Member to fill a vacancy because everybody who was willing to serve had already served a six (6) year term, so rather than attempting to amend the Articles, they kinda reverse engineered the Bylaws to add the wording, "An appointment term does not enter in the six (6) year limit set forth in the Articles", which to me is an attempt to nullify and override the Articles of Incorporation. It's also a little suspicious that that wording was added at the very end of the (already existing?) Bylaw. 

 

I know, our rules, our interpretation.

Thanks for your input.

 

[Josh Martin]

On 1/10/2023 at 9:55 PM, Tomm said:

This is exactly why I'm having difficulty understanding why, when the Articles say, "six (6) years total, on the Board of Directors" the six years isn't the maximum limit on serving.

But the sentence in its entirety reads "A Member/Director may be elected to a maximum of two (2) three-year terms, six (6) years total, on the Board of Directors."

In order to properly understand the meaning of a rule, it would seem to me it is desirable to, at a minimum, read the entire sentence.

And the full paragraph reads as follows:

"Three (3) Directors in a manner set forth in the Corporate Bylaws, shall be elected each year to serve for a term of three (3) years and shall serve until their successors are installed. A Member/Director may be elected to a maximum of two (2) three-year terms, six (6) years total, on the Board of Directors."

When the entire rule is read in context, I am inclined to agree with the interpretation of Mr. Gerber. A person who is appointed to serve for a term of one year (or less) under the provision in the bylaws has not been appointed to a "three-year term." The words "six (6) years total" seems to be additional explanatory text noting that two three year terms is equivalent to six years rather than an additional rule.

If the organization had desired, as you suggest, to provide that members shall serve for no more than six years, period, the organization very easily could have written the sentence to say "A Member/Director may serve a maximum of six (6) years total on the Board of Directors." But they didn't.

It will ultimately, of course, be up to the organization to interpret its own rules. Certainly, in the long run, it would seem desirable to amend the articles and the bylaws for clarity.

It also seems desirable in the long run to amend the rule in the articles because the rule in the articles does not say consecutive terms (although I imagine is what was meant), it just says two three-year terms, so it would seem the organization will eventually run out of people eligible to be elected.

On 1/10/2023 at 9:55 PM, Tomm said:

This is how I speculate the Bylaw came to be;

First of all, the Board has the authority to amend the Bylaws without Member involvement.

Second, the Articles of Incorporation are much harder to amend because only the Members can amend them and the quorum limit is fairly high.

Seems to me that at some point in time the Board was having a hard time finding a Member to fill a vacancy because everybody who was willing to serve had already served a six (6) year term, so rather than attempting to amend the Articles, they kinda reverse engineered the Bylaws to add the wording, "An appointment term does not enter in the six (6) year limit set forth in the Articles", which to me is an attempt to nullify and override the Articles of Incorporation. It's also a little suspicious that that wording was added at the very end of the (already existing?) Bylaw. 

This all seems correct. Notwithstanding this, I do not think this changes the fact that a person appointed or elected to serve for a term which "ends on December 31 of the year appointed" has not been elected to a three-year term.

On 1/10/2023 at 12:53 PM, Guest CMBperc said:

As Mr. Gerber stated  "If you're reading anything into one phrase of a sentence without reading the entire sentence, then you're reading too much into it."  It might help to review Roget and you'll see that 'appointed' and 'elected' are not synonyms.  They are antonyms which my dictionary says is a word opposite in meaning to another.  If you are really concerned about how many years an appointed Director may serve why not make a bylaw revision that limits the number of times someone can serve as an appointed Director?

I think many of the posters are reading too much into this "appointed" vs. "elected" distinction. I am not persuaded that the use of the word "appointed" rather than "elected," in and of itself, is dispositive in this matter. I also do not entirely agree that these terms, in all cases, are antonyms. While they are sometimes used in this manner, I do not think that is necessarily how they are used in parliamentary law. On the contrary, it would seem to me that "appointed" in parliamentary law is a general term, and "elected" is a particular manner of appointment. See, for instance, RONR (12th ed.) 13:23, 50:11.

Further, to the extent that "appointed" and "elected" are used as antonyms, in that context it is generally the case that "appointed" refers to a person chosen by an individual (e.g. the chair) and "elected" refers to a person chosen by a group.

Indeed, as Mr. Elsman suggests, it seems to me the persons "appointed" by the board were, in fact, "elected" by the board.

I am well aware, however, that many organizations use the word "elected" to refer solely to persons elected by the membership and will use the word "appointed" to refer to persons elected by the board to fill a vacancy. I don't think this usage actually makes much sense, but it appears that may well be the usage in this instance.

In any event, I concur with Mr. Gerber that a person who is appointed or elected to a term which "ends on December 31 of the year appointed" has not been "elected to a three-year term."

Edited January 11, 2023 at 06:59 PM by Josh Martin