Use of the term ex officio in governing documents

[Guest Glen Hall]

The term "ex officio" is misunderstood by many, and when used in governing documents, extra wording is many times unnecessarily added to make clear that the ex officio member can vote, propose motions, etc., sometimes enumerating many of the already-known rights of the members of the board or committee.  The way I understand the term, it is the way the person got to be a member, like elected or appointed, and unless they come from outside the organization and are not to be counted toward a quorum, the term seems unnecessary. 

For example, if the president of an organization is to be a member of the board, it should just say, "The president shall be a member of the Board of Trustees," or if naming all members of the board, the office of the president could be listed along with other directors, and other officers if they are to be members as well, without naming them as ex officio members.  It seems to me that this would be sufficient and would cause less confusion.

Feedback, please.

Glen

[Glen Hall]

The question is from me.  I didn't sign in before posting...

[Richard Brown]

On 3/30/2023 at 10:23 AM, Guest Glen Hall said:

The term "ex officio" is misunderstood by many, and when used in governing documents, extra wording is many times unnecessarily added to make clear that the ex officio member can vote, propose motions, etc., sometimes enumerating many of the already-known rights of the members of the board or committee.  The way I understand the term, it is the way the person got to be a member, like elected or appointed, and unless they come from outside the organization and are not to be counted toward a quorum, the term seems unnecessary. 

For example, if the president of an organization is to be a member of the board, it should just say, "The president shall be a member of the Board of Trustees," or if naming all members of the board, the office of the president could be listed along with other directors, and other officers if they are to be members as well, without naming them as ex officio members.  It seems to me that this would be sufficient and would cause less confusion.

Feedback, please.

Glen

Dr. Hall, to an extent I agree with you. The use of the term "ex-officio" does sometimes seem superfluous.  However, there is a time and place for using the term "ex-officio".  A prime example is when the bylaws provide that the president is ex-officio a member of all committees.  In that context, because the term "ex-officio" is used, it makes clear that he has the right, but not the duty, to attend committee meetings and he is not counted for quorum purposes.  On the other hand, if the bylaws say that "the president shall be a member of all committees", this implies (infers?) that he is a full-fledged member in the ordinary sense of the word and that he does have a duty to attend the committee meetings and that he is counted for quorum purposes.

I had almost this same issue come up in a board meeting a few days ago.  The rules were being amended to provide that the "president" shall be a member of a certain committee.  When I pointed out that he is already a member ex-officio of all committees, he explained that he is aware of that but that by this amendment he wants to make plain that the president is a full-fledged regular member of this particular committee and that he WILL count for quorum purposes.

[Glen Hall]

On 3/30/2023 at 11:31 AM, Richard Brown said:

Dr. Hall, to an extent I agree with you. The use of the term "ex-officio" does sometimes seem superfluous.  However, there is a time and place for using the term "ex-officio".  A prime example is when the bylaws provide that the president is ex-officio a member of all committees.  In that context, because the term "ex-officio" is used, it makes clear that he has the right, but not the duty, to attend committee meetings and he is not counted for quorum purposes.  On the other hand, if the bylaws say that "the president shall be a member of all committees", this implies (infers?) that he is a full-fledged member in the ordinary sense of the word and that he does have a duty to attend the committee meetings and that he is counted for quorum purposes.

I had almost this same issue come up in a board meeting a few days ago.  The rules were being amended to provide that the "president" shall be a member of a certain committee.  When I pointed out that he is already a member ex-officio of all committees, he explained that he is aware of that but that by this amendment he wants to make plain that the president is a full-fledged regular member of this particular committee and that he WILL count for quorum purposes.

Thanks, Richard.  Those are in alignment with what I was thinking, especially in cases like you mentioned that the president was an ex officio member of all committees.  By that wording then, those committees do not list the president as a member since listed in the president's duties is that the president is a member of all committees?

[Josh Martin]

On 3/30/2023 at 10:23 AM, Guest Glen Hall said:

The term "ex officio" is misunderstood by many, and when used in governing documents, extra wording is many times unnecessarily added to make clear that the ex officio member can vote, propose motions, etc., sometimes enumerating many of the already-known rights of the members of the board or committee.  The way I understand the term, it is the way the person got to be a member, like elected or appointed, and unless they come from outside the organization and are not to be counted toward a quorum, the term seems unnecessary. 

For example, if the president of an organization is to be a member of the board, it should just say, "The president shall be a member of the Board of Trustees," or if naming all members of the board, the office of the president could be listed along with other directors, and other officers if they are to be members as well, without naming them as ex officio members.  It seems to me that this would be sufficient and would cause less confusion.

I agree entirely. There is no practical difference between an ex officio member and other members, except that in two very specific circumstances, an ex officio member does not count toward the quorum:

• When the ex officio member is outside the authority of the society.
• When the bylaws provide that the President serves as an ex officio member of all committees.

So in all other cases, providing that someone is "an ex officio member" or simply "a member" will have no practical difference in meaning. Using "member" instead may well avoid confusion since, as you note, many people are confused about the meaning of the phrase "ex officio member". As a result, it may well be prudent to only use the term "ex officio member" in those rare instances where it makes a difference. The use of the term could even be avoided in those cases, if desired, by instead adding language pertaining to the fact that the member does not count toward the quorum.

On 3/30/2023 at 11:31 AM, Richard Brown said:

Dr. Hall, to an extent I agree with you. The use of the term "ex-officio" does sometimes seem superfluous.  However, there is a time and place for using the term "ex-officio".  A prime example is when the bylaws provide that the president is ex-officio a member of all committees.  In that context, because the term "ex-officio" is used, it makes clear that he has the right, but not the duty, to attend committee meetings and he is not counted for quorum purposes.  On the other hand, if the bylaws say that "the president shall be a member of all committees", this implies (infers?) that he is a full-fledged member in the ordinary sense of the word and that he does have a duty to attend the committee meetings and that he is counted for quorum purposes.

I think you could make a reasonable argument that, even although the term "ex officio" is not used, the President is nonetheless an "ex officio member," based on the definition of that term, and therefore the rules pertaining to ex officio members are still applicable.

But to be safe, it would probably be better to either use the term "ex officio member" in that instance or to add explicit language providing that the President does not count toward the quorum.

Edited March 31, 2023 at 12:28 PM by Josh Martin

[Richard Brown]

On 3/31/2023 at 7:24 AM, Josh Martin said:

But to be safe, it would probably be better to either use the term "ex officio member" in that instance or to add explicit language providing that the President does not count toward the quorum.

 I’m not sure I understand the point you’re trying to make by that comment, because in the example I used the president DOES want to be a full-fledged member and DOES want to count for quorum purposes. he specifically does not want to be an ex officio member. I do agree, though, that any ambiguity could be removed by additional language to that effect, I.e., that he shall count for quorum purposes.

[Gary Novosielski]

On 3/31/2023 at 8:54 AM, Richard Brown said:

 I’m not sure I understand the point you’re trying to make by that comment, because in the example I used the president DOES want to be a full-fledged member and DOES want to count for quorum purposes. he specifically does not want to be an ex officio member. I do agree, though, that any ambiguity could be removed by additional language to that effect, I.e., that he shall count for quorum purposes.

The fact remains that if the president is made a member because of being president, rather than by the normal appointment process, he is by definition an ex-officio member, and the rules of ex-officio membership apply.

I think that if it is desired to avoid the Latin, it would still be advisable to use language such as:

The president, by reason of holding that office, is a member of all committees, except the Nominating Committee.

[Richard Brown]

On 3/31/2023 at 4:02 PM, Gary Novosielski said:

The fact remains that if the president is made a member because of being president, rather than by the normal appointment process, he is by definition an ex-officio member, and the rules of ex-officio membership apply.

I think that if it is desired to avoid the Latin, it would still be advisable to use language such as:

The president, by reason of holding that office, is a member of all committees, except the Nominating Committee.

Not in the example I gave.  That language defeats the purpose of expressly naming him as a member of a certain committee.  The intent is that he WiLL count for quorum purposes on that committee.  btw, you might read 47:20 and 50:16.  I think you missed the point of what was intended by the amendment I used in my example.

[Josh Martin]

On 3/31/2023 at 7:54 AM, Richard Brown said:

 I’m not sure I understand the point you’re trying to make by that comment, because in the example I used the president DOES want to be a full-fledged member and DOES want to count for quorum purposes. he specifically does not want to be an ex officio member. I do agree, though, that any ambiguity could be removed by additional language to that effect, I.e., that he shall count for quorum purposes.

Yes, I was referring to the usual case - where the society does not want the President to be counted for quorum purposes.

But to be clear, if the President is a member of the committee by virtue of being President, he is an ex-officio member of that committee, whether the bylaws use the term "ex-officio" or not. That is the definition of an ex-officio member - when a person holds a position by virtue of holding some other position, rather than being specifically appointed to the position.

Nonetheless, I concur that if the bylaws provide that the President is a member of a particular committee, then the President counts toward the quorum. The rule in RONR refers only to a situation in which the President is an ex-officio member of all committees. The bylaws may well provide for an arrangement as you have discussed here, in which the President is specifically named as an ex-officio member of a particular committee and, in addition, is also an ex-officio member of all committees. Under those circumstances, I believe the President would count toward the quorum for the committees where the President is specifically named.

[Richard Brown]

@Josh MartinThank you for the clarification.  I agree.

[Gary Novosielski]

On 3/31/2023 at 5:15 PM, Richard Brown said:

Not in the example I gave.  That language defeats the purpose of expressly naming him as a member of a certain committee.  The intent is that he WiLL count for quorum purposes on that committee.  btw, you might read 47:20 and 50:16.  I think you missed the point of what was intended by the amendment I used in my example.

Yes, I understand; in the example you gave, where the intent is that he will be a full and equal member, and count toward a quorum, a provision in the bylaws that the president is a member of (nearly) all committees, does not accomplish that intent.  Instead, he should be appointed to the committee by name, not by virtue of the office, or if it is desired that this apply to all future presidents, the bylaws should contain explicit language overriding the rule in RONR pertaining to quorum

[Richard Brown]

On 3/31/2023 at 8:53 PM, Gary Novosielski said:

Yes, I understand; in the example you gave, where the intent is that he will be a full and equal member, and count toward a quorum, a provision in the bylaws that the president is a member of (nearly) all committees, does not accomplish that intent.  Instead, he should be appointed to the committee by name, not by virtue of the office, or if it is desired that this apply to all future presidents, the bylaws should contain explicit language overriding the rule in RONR pertaining to quorum

Gary, you are still misunderstanding what I am saying. In the situation I am talking about, the president is already a member ex officio of all committees. They do not have a nominating committee. However, the particular amendment was to actually list the president as one of the members of a particular committee in the provision in their rules establishing THAT COMMITTEE. The intent is that he be a regular member of that particular committee AND THST HE WILL COUNT FOR QUORUM PURPOSES.  I believe the amendment accomplished that purpose, although, he is still technically a member “ex officio“ because he is made a member by virtue of his position as president. However, since he is expressly listed as a member of that committee in the provision of their rules establishing that committee, I believe that accomplishes the purpose. Although adding language to the effect that “he shall count for quorum purposes“ might make the provision crystal clear, I don’t think it is necessary. RONR provides in the principles of interpretation that everything in the bylaws is presumed to be put there for a purpose and also that the specific controls over the general. Since the rule establishing that committee states that the president is a member of that committee, I believe those two principles of interpretation make it clear that he is a regular member of that committee and counts for quorum purposes.  That is certainly the intent of the amendment.   It is not necessary that the assembly adopt a motion every year specifically naming whoever is president as a member of the committee.

[Dan Honemann]

On 4/1/2023 at 8:53 AM, Richard Brown said:

Gary, you are still misunderstanding what I am saying. In the situation I am talking about, the president is already a member ex officio of all committees. They do not have a nominating committee. However, the particular amendment was to actually list the president as one of the members of a particular committee in the provision in their rules establishing THAT COMMITTEE. The intent is that he be a regular member of that particular committee AND THST HE WILL COUNT FOR QUORUM PURPOSES.  I believe the amendment accomplished that purpose, although, he is still technically a member “ex officio“ because he is made a member by virtue of his position as president. However, since he is expressly listed as a member of that committee in the provision of their rules establishing that committee, I believe that accomplishes the purpose. Although adding language to the effect that “he shall count for quorum purposes“ might make the provision crystal clear, I don’t think it is necessary. RONR provides in the principles of interpretation that everything in the bylaws is presumed to be put there for a purpose and also that the specific controls over the general. Since the rule establishing that committee states that the president is a member of that committee, I believe those two principles of interpretation make it clear that he is a regular member of that committee and counts for quorum purposes.  That is certainly the intent of the amendment.   It is not necessary that the assembly adopt a motion every year specifically naming whoever is president as a member of the committee.

Two things occur to me.  The first is that it would be helpful if you would quote the exact language of the entire rule to which you refer.  The second is to note that the problem with referring to RONR's principles of interpretation in support of what you are saying appears to concede that there is some ambiguity requiring interpretation.

[Gary Novosielski]

On 4/1/2023 at 8:53 AM, Richard Brown said:

Gary, you are still misunderstanding what I am saying. In the situation I am talking about, the president is already a member ex officio of all committees. They do not have a nominating committee. However, the particular amendment was to actually list the president as one of the members of a particular committee in the provision in their rules establishing THAT COMMITTEE. The intent is that he be a regular member of that particular committee AND THST HE WILL COUNT FOR QUORUM PURPOSES.  I believe the amendment accomplished that purpose, although, he is still technically a member “ex officio“ because he is made a member by virtue of his position as president. However, since he is expressly listed as a member of that committee in the provision of their rules establishing that committee, I believe that accomplishes the purpose. Although adding language to the effect that “he shall count for quorum purposes“ might make the provision crystal clear, I don’t think it is necessary. RONR provides in the principles of interpretation that everything in the bylaws is presumed to be put there for a purpose and also that the specific controls over the general. Since the rule establishing that committee states that the president is a member of that committee, I believe those two principles of interpretation make it clear that he is a regular member of that committee and counts for quorum purposes.  That is certainly the intent of the amendment.   It is not necessary that the assembly adopt a motion every year specifically naming whoever is president as a member of the committee.

I still think I understand, but it seems to be the case that we disagree.

If I'm correct that the language makes the president a member of a specific committee, then by definition this is an ex-officio membership, even if the phrase is not used.  The fact that it was named as a specific committee does not, in my view alter the rule that: 

As an ex-officio member of a committee, the president has the same rights as the other committee members, but is not obligated to attend meetings of the committee and is not counted in determining the number required for a quorum or whether a quorum is present.

My reading of 47:20 would be that this rule applies whether the appointment is in the bylaws or by a vote of the assembly, and whether it applies to all committees, all committees with exceptions, or any mix and match appointment to specific committees, so long as it is an ex-officio appointment. 

I understand that we are to assume that the new language was placed there for some reason, but without further clarification, we have nothing to suggest that  the intent had to do with a quorum requirement.  In fact, if the rule above is held to apply to all ex-officio appointments of the president, then no such ambiguity exists in the first place.

If the intent of a bylaws amendment is to supersede an existing rule in RONR, then I think it should say something explicit that contradicts the rule.

Edited April 1, 2023 at 05:15 PM by Gary Novosielski

[Josh Martin]

On 4/1/2023 at 12:08 PM, Gary Novosielski said:

I still think I understand, but it seems to be the case that we disagree.

If I'm correct that the language makes the president a member of a specific committee, then by definition this is an ex-officio membership, even if the phrase is not used.  The fact that it was named as a specific committee does not, in my view alter the rule that: 

As an ex-officio member of a committee, the president has the same rights as the other committee members, but is not obligated to attend meetings of the committee and is not counted in determining the number required for a quorum or whether a quorum is present.

My reading of 47:20 would be that this rule applies whether the appointment is in the bylaws or by a vote of the assembly, and whether it applies to all committees, all committees with exceptions, or any mix and match appointment to specific committees, so long as it is an ex-officio appointment. 

I understand that we are to assume that the new language was placed there for some reason, but without further clarification, we have nothing to suggest that  the intent had to do with a quorum requirement.  In fact, if the rule above is held to apply to all ex-officio appointments of the president, then no such ambiguity exists in the first place.

If the intent of a bylaws amendment is to supersede an existing rule in RONR, then I think it should say something explicit that contradicts the rule.

The full context of the rule in question provides:

"In some organizations, the president is responsible for appointing, and is ex officio a member of, all committees (with the exception of the nominating committee, which should be expressly excluded from such a provision, and with the further possible exception of all disciplinary committees; see 56:47). But only when he is so authorized by the bylaws—or, in the case of a particular committee, by vote of the assembly—does he have this authority and status. As an ex-officio member of a committee, the president has the same rights as the other committee members, but is not obligated to attend meetings of the committee and is not counted in determining the number required for a quorum or whether a quorum is present." RONR (12th ed.) 47:20

With this context, I am inclined to think that 47:20 is applicable only to a rule where the bylaws provide that the President is an ex-officio member of all committees, and not to all cases where the President is an ex-officio member of a committee.

This principle appears to be more clearly stated in FAQ #2.

"Without exception, ex-officio members of boards and committees have exactly the same rights and privileges as do all other members, including, of course, the right to vote. There are, however, two instances in which ex-officio members are not counted in determining the number required for a quorum or in determining whether or not a quorum is present. These two instances are:

1. In the case of the president, whenever the bylaws provide that the president shall be an ex-officio member of all committees (or of all committees with certain stated exceptions);"

Notwithstanding this, I have no disagreement that if the society wishes to provide that the President is made an ex-officio member of all committees and, in addition, the organization wishes for the President to be counted in the quorum for a particular committee, the best method to do so would be to explicitly state as much.

Edited April 2, 2023 at 04:38 PM by Josh Martin

[Gary Novosielski]

 

On 4/2/2023 at 12:34 PM, Josh Martin said:

With this context, I am inclined to think that 47:20 is applicable only to a rule where the bylaws provide that the President is an ex-officio member of all committees, and not to all cases where the President is an ex-officio member of a committee.

This principle appears to be more clearly stated in FAQ #2.

But in the very text you quoted we find:

"But only when he is so authorized by the bylaws—or, in the case of a particular committee, by vote of the assembly—does he have this authority and status."

Which says that the same rule applies, not only when authorized in  the bylaws, and not only for multiple committees.

Perhaps the FAQ oversimplifies the actual text in RONR?

Edited April 3, 2023 at 02:38 AM by Gary Novosielski

[Richard Brown]

On 4/2/2023 at 9:37 PM, Gary Novosielski said:

Perhaps the FAQ oversimplifies the actual text in RONR?

No, the FAQ sums up the rule perfectly.  So does @Josh Martin. In addition, 50:16, which has not yet been mentioned, says the same thing.  So does 56:47.  The president is not counted for quorum purposes only when the bylaws name him ex officio as a member of ALL committees (except for any committees specifically excluded such as the nominating committee).   I think it is you who is trying to read too much into 47:20.

[Josh Martin]

On 4/2/2023 at 9:37 PM, Gary Novosielski said:

But in the very text you quoted we find:

"But only when he is so authorized by the bylaws—or, in the case of a particular committee, by vote of the assembly—does he have this authority and status."

Which says that the same rule applies, not only when authorized in  the bylaws, and not only for multiple committees.

The phrase "or, in the case of a particular committee, by vote of the assembly" refers to a circumstance in which a person, who serves as a society's President, is appointed as an individual as a member of a committee (not an ex-officio member). It has nothing to do with the President serving as an ex-officio member, and lends nothing to interpreting the meaning of 47:20 as applied to the President serving as an ex-officio member of a particular committee. The phrase cannot be referring to an ex-officio member, because ex-officio members are not appointed "by vote of the assembly" - they serve by virtue of holding some other office.

Setting aside the particular situation introduced by Mr. Brown here (which is a complicated situation involving a case where the President is an ex-officio member of all committees and particular, identified committees), suppose that the bylaws of a particular society provide that the President is an ex-officio member of the Membership Committee. Just that committee, no others. In those circumstances, do you believe the President would be counted in the quorum for the Membership Committee?

Edited April 3, 2023 at 04:36 PM by Josh Martin

[Glen Hall]

This has proven to be a most interesting thread, and very informative.

Let me try something less complicated.  The Treasurer is a member of the board as described in the bylaws:  "The Treasurer shall serve without vote as a member of the Board of Directors."  This is the language I prefer, as opposed to:  "The Treasurer shall serve without vote as an ex officio member of the Board of Directors."  In my opinion they say the same thing but without the confusing language to those who do not know the meaning of the words "ex officio."  Many times I see following the sentence:  "The Treasurer shall serve without vote as an ex officio member of the Board of Directors ... ," the added wording "... and have the power to vote and all other privileges of a member of the Board."  This was my point and I'm sorry it wasn't clearer, at least I hope I am now...

[Josh Martin]

On 4/3/2023 at 5:14 PM, Glen Hall said:

Let me try something less complicated.  The Treasurer is a member of the board as described in the bylaws:  "The Treasurer shall serve without vote as a member of the Board of Directors."  This is the language I prefer, as opposed to:  "The Treasurer shall serve without vote as an ex officio member of the Board of Directors."  In my opinion they say the same thing but without the confusing language to those who do not know the meaning of the words "ex officio."

I agree that it is simpler to say "member" rather than "ex officio member," but when organizations mess around with the rights of members, that raises its own complications. If the intent is for this member to have all rights of membership other than the right to vote, I think it is preferable to state this rather than rely on implication.

[Glen Hall]

I think we agree.  Members have all rights unless they are restricted in the bylaws, or for special committees, in the resolution establishing the special committee.

[Gary Novosielski]

On 4/3/2023 at 12:33 PM, Josh Martin said:

The phrase "or, in the case of a particular committee, by vote of the assembly" refers to a circumstance in which a person, who serves as a society's President, is appointed as an individual as a member of a committee (not an ex-officio member). It has nothing to do with the President serving as an ex-officio member, and lends nothing to interpreting the meaning of 47:20 as applied to the President serving as an ex-officio member of a particular committee. The phrase cannot be referring to an ex-officio member, because ex-officio members are not appointed "by vote of the assembly" - they serve by virtue of holding some other office.

Setting aside the particular situation introduced by Mr. Brown here (which is a complicated situation involving a case where the President is an ex-officio member of all committees and particular, identified committees), suppose that the bylaws of a particular society provide that the President is an ex-officio member of the Membership Committee. Just that committee, no others. In those circumstances, do you believe the President would be counted in the quorum for the Membership Committee?

Well, let me answer your question by asking one.   If a society had only two committees, Membership and Nominating, and the bylaws provided that the president was an ex-officio member of all committees, except the Nominating committee, do you believe the president would be counted in the quorum for the Membership committee?

It seems to me that if the president's portfolio of ex-officio memberships can be specified by saying all except  A, B, and C. it could also be specified by saying only D, E, and F, with results that would be subject to the same rule.

Or not.

 

[Josh Martin]

On 4/4/2023 at 5:38 PM, Gary Novosielski said:

Well, let me answer your question by asking one.   If a society had only two committees, Membership and Nominating, and the bylaws provided that the president was an ex-officio member of all committees, except the Nominating committee, do you believe the president would be counted in the quorum for the Membership committee?

No. The text provides that if the rules state the President is an ex-officio member of all committees, with certain exceptions, then the President is not counted in the quorum for those committees.

On 4/4/2023 at 5:38 PM, Gary Novosielski said:

It seems to me that if the president's portfolio of ex-officio memberships can be specified by saying all except  A, B, and C. it could also be specified by saying only D, E, and F, with results that would be subject to the same rule.

But Mr. Novosielski, generally, the authors don't use extra words for no reason.

If it had been the intent of the authors that the President, as an ex-officio member, does not count in the quorum for a committee, period, wouldn't the text simply say so?

Edited April 5, 2023 at 04:51 PM by Josh Martin

[Dan Honemann]

On 4/4/2023 at 6:38 PM, Gary Novosielski said:

It seems to me that if the president's portfolio of ex-officio memberships can be specified by saying all except  A, B, and C. it could also be specified by saying only D, E, and F, with results that would be subject to the same rule.

You're right. In each of these instances the president will be no different than any other committee member.

[Atul Kapur]

Now I'm confused (I'd say "puzzling" but I don't want to have to pay licensing fees).

Mr. Novosielski's first alternative is

On 4/4/2023 at 6:38 PM, Gary Novosielski said:

the president's portfolio of ex-officio memberships can be specified by saying all except  A, B, and C

That appears to be a generalization of the language in the Sample Bylaws 56:65 Section 4: "The President shall be ex officio a member of all committees except the Nominating Committee and any disciplinary committees." So in this case, the president is not counted for quorum, which seems to contradict this statement

On 4/5/2023 at 2:01 PM, Dan Honemann said:

You're right. In each of these instances the president will be no different than any other committee member.

What am I missing?