How to determine if bylaws are being broken

[James Brown]

Back in November of 2022 - In our non-profit organization, a decision was made by several boosters to remove the board president out of office before the end of their term. The cause was "abuse of power and conduct unbecoming a member of the board." The members sent an email to the board secretary notifying them of their intent. The boosters felt this was supported, based on their interpretation of the By-Laws. They requested an "intent to remove" meeting. This was based on the Article from our bylaws shown below.

ARTICLE IX REMOVAL OF OFFICERS AND DIRECTORS
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 Booster Association. Advance notice of intent to remove, at least seven (7) days prior to the meeting, shall be communicated to the Boosters. Any officer or Board Member may be temporarily relieved of responsibilities and authorities from an elected position by a three-fourths (3/4) vote of the Board of Directors until such time as there is opportunity for a removal vote at a regularly scheduled or special meeting of Booster Association. At such general meeting, the determination of the Board of Directors shall be confirmed by a majority vote, or if not, the Officer or Board Member shall continue in the elected position for the remainder of the unexpired term.

What the boosters failed to realize is that the the only regularly scheduled booster meetings were at Election time in April, and once in May - the recently amended (May 2021) bylaws had removed the previous regular booster meetings which were held in August, November, December, January, April and May.

Since the board made it clear that board meetings were closed to regular boosters, this meant there were no options to meet with the board at a board meeting, other than by invitation by the board president. With the president refusing to meet, this also meant the motion for an "intent to remove meeting" was effectively struck down.

What the Executive board chose to do instead was to evaluate the merits and validity of the "intent to remove" motion in their booster board meeting, without allowing input or representation from boosters. They also chose not to make the other boosters aware that there was a motion made for an intent to remove.

When the boosters realized that the board would be refusing to meet, they set upon a plan outline in state law that allows for a percentage of the voting boosters to demand a special meeting. A booster decided to email a large number of voting boosters, making them aware of the president's "abuse of power" and "conduct unbecoming a member of the board". The email requested the signatures of the boosters to demand a special meeting. The booster email ignored the "intent to remove", and focused solely on the demand for a special meeting.

The board released a statement in response to the entire booster organization, saying that a meeting was not necessary and that they had already dealt with the issue. 

My questions regarding the possible violation of bylaws are:

1. Has the Executive board broken bylaws by choosing to vote on the merits of the "intent to remove" motion without ?

2. Have they broken bylaws by refusing to release the "intent to remove" motion to the boosters?

3. Has the board broken bylaws by attempting to thwart, or supersede State Law by claiming that they handled the issue themselves and that a meeting wasn't necessary?

Thank you in advance for your assistance.

 

[Josh Martin]

On 2/6/2023 at 11:43 AM, James Brown said:

What the boosters failed to realize is that the the only regularly scheduled booster meetings were at Election time in April, and once in May - the recently amended (May 2021) bylaws had removed the previous regular booster meetings which were held in August, November, December, January, April and May.

How are special meetings of the association called under the rules in your organization's bylaws?

On 2/6/2023 at 11:43 AM, James Brown said:

1. Has the Executive board broken bylaws by choosing to vote on the merits of the "intent to remove" motion without ?

It appears that part of this sentence is missing, but I assume the full question is whether the Executive Board has violated the bylaws by choosing to vote on the merits of the motion without hearing input from the boosters. Assuming this is correct, no, I don't think so.

In relevant part, the bylaws provide "Any officer or Board Member may be temporarily relieved of responsibilities and authorities from an elected position by a three-fourths (3/4) vote of the Board of Directors until such time as there is opportunity for a removal vote at a regularly scheduled or special meeting of Booster Association."

Nothing in the bylaws appears to require that the board seek input from other persons when making that determination.

On 2/6/2023 at 11:43 AM, James Brown said:

2. Have they broken bylaws by refusing to release the "intent to remove" motion to the boosters?

No, I don't think so (at least, not yet). In relevant part, the bylaws provide "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 Booster Association. Advance notice of intent to remove, at least seven (7) days prior to the meeting, shall be communicated to the Boosters."

As I understand the facts, no special meeting of the boosters has yet been called and the next regular meeting of the boosters is not until April, as you stated "the only regularly scheduled booster meetings were at Election time in April, and once in May." It's more than seven days until April, and obviously notice cannot be provided for the motion to be considered at a special meeting which presently does not exist.

On 2/6/2023 at 11:43 AM, James Brown said:

3. Has the board broken bylaws by attempting to thwart, or supersede State Law by claiming that they handled the issue themselves and that a meeting wasn't necessary?

I think there are two different questions here, one of which relates to the "intent to remove" and one of which relates to calling a special meeting.

In regard to the intent to remove, I think there is some ambiguity on this matter. The bylaws read, in relevant part:

"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 Booster Association. Advance notice of intent to remove, at least seven (7) days prior to the meeting, shall be communicated to the Boosters. Any officer or Board Member may be temporarily relieved of responsibilities and authorities from an elected position by a three-fourths (3/4) vote of the Board of Directors until such time as there is opportunity for a removal vote at a regularly scheduled or special meeting of Booster Association. At such general meeting, the determination of the Board of Directors shall be confirmed by a majority vote, or if not, the Officer or Board Member shall continue in the elected position for the remainder of the unexpired term."

The rule is ambiguous as to who may submit an "intent to remove." It may well be that only the board has the authority to submit notice of intent to remove. Indeed, the rule does not appear to contemplate the possibility that the membership could consider removal of an officer if the board has recommended that the officer not be removed. Instead, the rule appears to only contemplate a situation in which the board recommends removal.

"At such general meeting, the determination of the Board of Directors shall be confirmed by a majority vote, or if not, the Officer or Board Member shall continue in the elected position for the remainder of the unexpired term."

To the extent that only the board has the authority to initiate removal, then the board has violated no rule. On the other hand, if the rule permits a certain number of boosters to initiate an "intent to remove," then the board has violated that rule. Ultimately, it will be up to the society itself to interpret its own bylaws.

The second question relates to state law. I am not an attorney and express no view on the proper interpretation of the state law in question (especially considering I have not seen it). So I cannot say whether or not the interpretation that "allows for a percentage of the voting boosters to demand a special meeting" is correct. If there is any dispute on this matter, such questions should be directed to an attorney.

To the extent that this interpretation is correct, however, then the board is obviously required to follow state law. The fact that the board, in its view, has "handled the issue themselves" does not obviate the need for a special meeting. To the extent there are disagreements over the rules pertaining to this matter (as noted above), those issues can be resolved at the special meeting.

I would additionally note that it would be prudent in the long run to amend the bylaws for clarity, as well as for practicality. It seems clear that this rule was written at a time when the society met much more frequently, and it could use some updates to reflect the society's new meeting schedule.

Edited February 6, 2023 at 07:31 PM by Josh Martin

[Richard Brown]

I’m not sure I agree totally with Mr. Martin’s  interpretation. It appears to me there are two ways to remove an officer. The first method mentioned  in the bylaws is by 3/4 of the boosters present at a regular or special boosters meeting provided seven days advance notice is given. I note that provision does not say “3/4 vote“ or “vote of 3/4 of”.  I personally interpret it as being the vote of 3/4 of the members present.

The second way of removing an officer is for the board to first vote to suspend the officer and for the membership to then “confirm“ or ratify the suspension by a majority vote at a regular or special boosters meeting.

I view the two methods of removing an officer as being totally independent of each other.

in that sense, I’m not sure that I agree with Mr. Martin.

[Josh Martin]

On 2/6/2023 at 2:04 PM, Richard Brown said:

I’m not sure I agree totally with Mr. Martin’s  interpretation. It appears to me there are two ways to remove an officer. The first method mentioned  in the bylaws is by 3/4 of the boosters present at a regular or special boosters meeting provided seven days advance notice is given. I note that provision does not say “3/4 vote“ or “vote of 3/4 of”.  I personally interpret it as being the vote of 3/4 of the members present.

The second way of removing an officer is for the board to first vote to suspend the officer and for the membership to then “confirm“ or ratify the suspension by a majority vote at a regular or special boosters meeting.

I view the two methods of removing an officer as being totally independent of each other.

in that sense, I’m not sure that I agree with Mr. Martin.

Upon further reflection, I am inclined to agree that this is the most reasonable interpretation of the rule in question, based upon the facts provided.

[James Brown]

On 2/6/2023 at 2:26 PM, Josh Martin said:

How are special meetings of the association called under the rules in your organization's bylaws? 
Special meetings can only be called by the board president.

It appears that part of this sentence is missing, but I assume the full question is whether the Executive Board has violated the bylaws by choosing to vote on the merits of the motion without hearing input from the boosters. Assuming this is correct, no, I don't think so.
Part of the sentence was missing, you are correct. Thank you for catching that!

In relevant part, the bylaws provide "Any officer or Board Member may be temporarily relieved of responsibilities and authorities from an elected position by a three-fourths (3/4) vote of the Board of Directors until such time as there is opportunity for a removal vote at a regularly scheduled or special meeting of Booster Association."
Nothing in the bylaws appears to require that the board seek input from other persons when making that determination.
I would agree that this is correct.

No, I don't think so (at least, not yet). In relevant part, the bylaws provide "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 Booster Association. Advance notice of intent to remove, at least seven (7) days prior to the meeting, shall be communicated to the Boosters." 
As I understand the facts, no special meeting of the boosters has yet been called and the next regular meeting of the boosters is not until April, as you stated "the only regularly scheduled booster meetings were at Election time in April, and once in May." It's more than seven days until April, and obviously notice cannot be provided for the motion to be considered at a special meeting which presently does not exist.
I would agree that this is correct.

I think there are two different questions here, one of which relates to the "intent to remove" and one of which relates to calling a special meeting.

In regard to the intent to remove, I think there is some ambiguity on this matter. The bylaws read, in relevant part:

"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 Booster Association. Advance notice of intent to remove, at least seven (7) days prior to the meeting, shall be communicated to the Boosters. Any officer or Board Member may be temporarily relieved of responsibilities and authorities from an elected position by a three-fourths (3/4) vote of the Board of Directors until such time as there is opportunity for a removal vote at a regularly scheduled or special meeting of Booster Association. At such general meeting, the determination of the Board of Directors shall be confirmed by a majority vote, or if not, the Officer or Board Member shall continue in the elected position for the remainder of the unexpired term."

The rule is ambiguous as to who may submit an "intent to remove." It may well be that only the board has the authority to submit notice of intent to remove. Indeed, the rule does not appear to contemplate the possibility that the membership could consider removal of an officer if the board has recommended that the officer not be removed. Instead, the rule appears to only contemplate a situation in which the board recommends removal.

"At such general meeting, the determination of the Board of Directors shall be confirmed by a majority vote, or if not, the Officer or Board Member shall continue in the elected position for the remainder of the unexpired term."

To the extent that only the board has the authority to initiate removal, then the board has violated no rule. On the other hand, if the rule permits a certain number of boosters to initiate an "intent to remove," then the board has violated that rule. Ultimately, it will be up to the society itself to interpret its own bylaws.
How do I find out if that is a rule? Where in RONR is there language to support these decisions?

The language in the Article I provided is all there is in regards to the "intent to remove". I agree it is indeed ambiguous as to how this is carried out and by whom. It is my understanding of the bylaws that it is not "only the board that has the authority to initiate removal", otherwise there wouldn't be a provision for the boosters to remove an officer from the board.

No matter the merits of the "intent to remove", it appears (from my understanding of that Article) that it is the regular boosters who would inform the board that there is an intent to remove. At that point it would fall upon the board to communicate the "intent to remove" to the boosters - in our organization the board handles all communication to the booster association. I am aware that some of this is irrelevant due to the April time frame of regularly scheduled booster meetings.

As far as a certain number of boosters required to initiate the "intent to remove" and/or demand a special meeting with the intention of removing the president, it is indeed supported by our state law and has been confirmed to me by my attorney. The fact that the board decided to rule upon the intent to remove outside of booster input seems to be a violation of the bylaws - which at face value allows for boosters to initiate an "intent to remove", and is supported or superseded if you will by state law.

The board could have used the lack of a regularly scheduled meeting as their reasoning, and chose to ignore the "intent to remove".

Instead they chose to actually rule or vote on the "intent to remove" and denied the voting boosters their right to hear the "merits" or "baseless accusations" of the case.

I would additionally note that it would be prudent in the long run to amend the bylaws for clarity, as well as for practicality. It seems clear that this rule was written at a time when the society met much more frequently, and it could use some updates to reflect the society's new meeting schedule. AGREED!

 

[James Brown]

On 2/7/2023 at 9:45 AM, James Brown said:

 

I would add that initially, when the boosters requested the "intent to remove" meeting - they requested that it be held during a regularly scheduled BOARD meeting back in November of 2022.

The group of boosters misunderstood that this was a board meeting and that board meetings were closed (the bylaws were amended in 2021, and several regularly scheduled booster meetings were removed). For what it's worth, there were members of the executive board, as well as regular board members who thought that all of the board meetings had an opportunity for open discussion with regular booster membership. They misinformed the boosters of this, and it was based on this information that the boosters moved forward with their "intent to remove" motion.

To say the least there was a lot of confusion on both sides of this situation in the interpretation of the bylaws, closed meetings, open meetings, etc. I think it's safe to say that no one (including the board) really understood the bylaws, or RONRs relationship to them. I am thankful to this forum for clearing up several of those confusing situations, at least for myself  

My hope is that both sides come out of this with a clearer understanding of the rules and there are less ambiguities in our bylaws moving forward...

[Josh Martin]

On 2/7/2023 at 8:45 AM, James Brown said:

How do I find out if that is a rule? Where in RONR is there language to support these decisions?

There is not too much in RONR that will tell you what your organization's bylaws mean. But the Principles of Interpretation in RONR (12th ed.) 56:68 may be of some guidance.

On 2/7/2023 at 8:45 AM, James Brown said:

The language in the Article I provided is all there is in regards to the "intent to remove". I agree it is indeed ambiguous as to how this is carried out and by whom. It is my understanding of the bylaws that it is not "only the board that has the authority to initiate removal", otherwise there wouldn't be a provision for the boosters to remove an officer from the board.

On further reflection (and I thank Mr. Brown for pointing this out as well), yes, I think this is correct.

On 2/7/2023 at 8:45 AM, James Brown said:

As far as a certain number of boosters required to initiate the "intent to remove" and/or demand a special meeting with the intention of removing the president, it is indeed supported by our state law and has been confirmed to me by my attorney.

I will take your word for it. If state law indeed provides that a certain number of boosters can demand a special meeting, then if said number of boosters demand a special meeting, then a special meeting must be held.

On 2/7/2023 at 8:45 AM, James Brown said:

The fact that the board decided to rule upon the intent to remove outside of booster input seems to be a violation of the bylaws - which at face value allows for boosters to initiate an "intent to remove", and is supported or superseded if you will by state law.

I am inclined to agree. If the bylaws provide that the association can remove a member, then the board's opinion of the merits of the intent to remove is irrelevant in that regard.

[James Brown]

On 2/7/2023 at 7:37 PM, Josh Martin said:

I am inclined to agree. If the bylaws provide that the association can remove a member, then the board's opinion of the merits of the intent to remove is irrelevant in that regard.

In light of this information, how would an association deal with such a violation? There is nothing in our bylaws regarding violation of the bylaws. Is this something I would have to find in RONR or State Law?

[Josh Martin]

On 2/8/2023 at 6:23 AM, James Brown said:

In light of this information, how would an association deal with such a violation? There is nothing in our bylaws regarding violation of the bylaws. Is this something I would have to find in RONR or State Law?

I am not certain what you mean by "deal with" the violation. To the extent this question relates to how the association can still move forward with the action, when a meeting dealing with this matter arises, if the chair rules that the motion to remove is out of order, a member would appeal from the decision of the chair.

To the extent this question relates to what should be done regarding the board members for the violation, what action should be taken in that regard is ultimately up to the assembly. Your bylaws appear to include procedures for removal of board members. It appears the regularly held elections are also coming up soon, so it may be desirable to elect board members who will comply with the bylaws.

Edited February 8, 2023 at 01:43 PM by Josh Martin

[James Brown]

On 2/8/2023 at 8:42 AM, Josh Martin said:

I am not certain what you mean by "deal with" the violation. To the extent this question relates to how the association can still move forward with the action, when a meeting dealing with this matter arises, if the chair rules that the motion to remove is out of order, a member would appeal from the decision of the chair.

To the extent this question relates to what should be done regarding the board members for the violation, what action should be taken in that regard is ultimately up to the assembly. Your bylaws appear to include procedures for removal of board members. It appears the regularly held elections are also coming up soon, so it may be desirable to elect board members who will comply with the bylaws.

As this is new ground for me, I'm not sure what I meant by "deal" with it either. I wasn't sure if there was bylaw jail or timeout LOL.

I see merit in both methods of action regarding violations.

Thank you! 

[James Brown]

On 2/8/2023 at 8:42 AM, Josh Martin said:

I am not certain what you mean by "deal with" the violation. To the extent this question relates to how the association can still move forward with the action, when a meeting dealing with this matter arises, if the chair rules that the motion to remove is out of order, a member would appeal from the decision of the chair.

Mr. Martin, can you provide more detail on the highlighted section?

1. I'm assuming the "chair" is the President - or in the case that the President is the member being removed - the Vice-President?

2. Does this mean the chair can hear the motion to remove, then decide it is "out of order" or in other words baseless and without merit? If I'm understanding our bylaws correctly, the motion to remove is voted on by the boosters. Is this where the "appeal" or vote comes into play?

3. What do you mean when you say "a member would appeal from the decision of the chair"? The wording of that seems odd. Maybe just to me lol.

[Josh Martin]

On 2/10/2023 at 6:50 AM, James Brown said:

1. I'm assuming the "chair" is the President - or in the case that the President is the member being removed - the Vice-President?

The "chair" is the person who is currently presiding. In most assemblies, the President is the regular presiding officer.

It is correct that in the instance of a motion to remove the President from office, the President should turn the chair over to the Vice President for that motion's consideration.

On 2/10/2023 at 6:50 AM, James Brown said:

2. Does this mean the chair can hear the motion to remove, then decide it is "out of order" or in other words baseless and without merit? If I'm understanding our bylaws correctly, the motion to remove is voted on by the boosters. Is this where the "appeal" or vote comes into play?

No. The determination would be whether the motion is in order - that is, in compliance with the organization's rules. It has nothing to do with the merits of the motion - that's what debate is for. I'm not entirely certain what the basis would be for the ruling in this instance, but the chair should be certain to explain the reasoning for their ruling.

To give an example which is not applicable here, suppose a member made a motion to remove out of the blue, without providing the notice required in the organization's bylaws. That would be an instance in which the chair would properly rules the motion out of order.

On 2/10/2023 at 6:50 AM, James Brown said:

3. What do you mean when you say "a member would appeal from the decision of the chair"? The wording of that seems odd. Maybe just to me lol.

A member appeals from the decision of the chair when the member disagrees with the chair's ruling on a question of order. That is, if the chair rules the motion out of order and a member disagrees with this, the member would move to appeal from the decision of the chair. If this is seconded by another member, the question is then in the hands of the assembly which, after debate, may overturn the chair's ruling by a majority vote.

[James Brown]

On 2/10/2023 at 8:22 AM, Josh Martin said:

The "chair" is the person who is currently presiding. In most assemblies, the President is the regular presiding officer.

It is correct that in the instance of a motion to remove the President from office, the President should turn the chair over to the Vice President for that motion's consideration.

No. The determination would be whether the motion is in order - that is, in compliance with the organization's rules. It has nothing to do with the merits of the motion - that's what debate is for. I'm not entirely certain what the basis would be for the ruling in this instance, but the chair should be certain to explain the reasoning for their ruling.

To give an example which is not applicable here, suppose a member made a motion to remove out of the blue, without providing the notice required in the organization's bylaws. That would be an instance in which the chair would properly rules the motion out of order.

A member appeals from the decision of the chair when the member disagrees with the chair's ruling on a question of order. That is, if the chair rules the motion out of order and a member disagrees with this, the member would move to appeal from the decision of the chair. If this is seconded by another member, the question is then in the hands of the assembly which, after debate, may overturn the chair's ruling by a majority vote.

Thank you!