Removal of board member

[Guest JAW]

A Board of Directors is going to be having a vote to remove a board member. 

Does the board member facing the accusations get a vote to keep themselves in the position or are they excluded from the vote?  There is nothing in our bylaws stating anything either way. 

[Josh Martin]

On 4/6/2023 at 5:36 PM, Guest JAW said:

A Board of Directors is going to be having a vote to remove a board member. 

Does the board member facing the accusations get a vote to keep themselves in the position or are they excluded from the vote?  There is nothing in our bylaws stating anything either way. 

I will first assume for the sake of argument that the bylaws do, in fact, authorize the board to remove board members and that the procedures specified in your bylaws on this matter are being followed.

As to your question, the board member should not vote on this matter, but ultimately has the right to do so.

"No member should vote on a question in which he has a direct personal or pecuniary interest not common to other members of the organization. For example, if a motion proposes that the organization enter into a contract with a commercial firm of which a member of the organization is an officer and from which contract he would derive personal pecuniary profit, the member should abstain from voting on the motion. However, no member can be compelled to refrain from voting in such circumstances." RONR (12th ed.) 45:4

[Gary Novosielski]

On 4/6/2023 at 6:36 PM, Guest JAW said:

A Board of Directors is going to be having a vote to remove a board member. 

Does the board member facing the accusations get a vote to keep themselves in the position or are they excluded from the vote?  There is nothing in our bylaws stating anything either way. 

Nothing at all?  What exactly do the bylaws say about the process by which the board may remove a board member?

[Guest JAW]

It shows we need a 2/3 vote of the voting members but it doesn’t specify whether the member in question gets to vote for/against it.  This is a non-profit youth sports org. 

[Gary Novosielski]

On 4/7/2023 at 5:50 PM, Guest JAW said:

It shows we need a 2/3 vote of the voting members but it doesn’t specify whether the member in question gets to vote for/against it.  This is a non-profit youth sports org. 

There is a reason why I asked for the exact provision.

[Drake Savory]

On 4/6/2023 at 6:28 PM, Josh Martin said:

As to your question, the board member should not vote on this matter, but ultimately has the right to do so.

Why shouldn't they?  There is no problem with them voting on their appointment to an office and that could be considered "a direct personal ... interest not common to other members of the organization"

[Gary Novosielski]

On 4/7/2023 at 6:08 PM, Gary Novosielski said:

There is a reason why I asked for the exact provision.

And I guess I'm not going to get it.

[Josh Martin]

On 4/11/2023 at 6:43 PM, Drake Savory said:

Why shouldn't they?  There is no problem with them voting on their appointment to an office and that could be considered "a direct personal ... interest not common to other members of the organization"

I think the following citation is instructive in this regard.

"The rule on abstaining from voting on a question of direct personal interest does not mean that a member should not vote for himself for an office or other position to which members generally are eligible, or should not vote when other members are included with him in a motion. If a member never voted on a question affecting himself, it would be impossible for a society to vote to hold a banquet, or for the majority to prevent a small minority from preferring charges against them and suspending or expelling them (61, 63)." RONR (12th ed.) 45:5

RONR explicitly states that elections are exempt from the rule of 45:4, and explains the reasoning for this is because these are positions "to which members generally are eligible." The question before the assembly is not "Shall Mr. A be elected as President?" but is instead "Who shall be elected as President," and Mr. A is only one of many eligible persons for the office. On a motion to remove the President, however, the President (and only the President) is the person who the assembly is considering removing from office. It would seem to me that this is a "direct personal or pecuniary interest not common to other members of the organization."

The text also specifically refers to motions relating to disciplinary procedures against a majority of the society, noting it would be absurd for the majority to abstain in such instances. It would generally seem that, conversely, when a single member is the subject of discipline, the member is expected to abstain from the votes on such matters.

It is, of course, ultimately up to the member himself to determine whether the member has a "direct personal or pecuniary interest not common to other members of the organization." So in the event the President determines that he is capable of setting his personal opinions about himself aside and can make a fair judgment on whether he should be removed from office, he ultimately cannot be prevented from casting a vote in this matter, unless the organization's bylaws or applicable law so provide.

Edited April 12, 2023 at 07:54 PM by Josh Martin

[Drake Savory]

On 4/12/2023 at 1:50 PM, Josh Martin said:

or for the majority to prevent a small minority from preferring charges against them and suspending or expelling them (61, 63)." RONR (12th ed.) 45:5

Doesn't this imply that a member can vote against preferring charges or expelling themselves? 

[Josh Martin]

On 4/12/2023 at 9:53 PM, Drake Savory said:

Doesn't this imply that a member can vote against preferring charges or expelling themselves? 

No, I don't think it implies that a member should feel free to vote against preferring charges or expelling themselves in all cases. Once again, the particular language is "or for the majority to prevent a small minority from preferring charges against them and suspending or expelling them." This discusses a very particular and unusual instance, and clearly indicates that in the highly unusual situation where a minority attempts to expel a majority of the society, members can and should feel free to vote against this. I would not interpret this as suggesting that an individual member should feel free to vote against disciplinary procedures concerning themselves. If the intent was that members should feel free to vote on disciplinary procedures concerning themselves in all cases, I would imagine the authors would have used broader language.

But if the question is whether a member can vote on such matters, the answer is ultimately "yes," unless some other rule prevents this. The rule in question provides "No member should vote on a question in which he has a direct personal or pecuniary interest not common to other members of the organization. For example, if a motion proposes that the organization enter into a contract with a commercial firm of which a member of the organization is an officer and from which contract he would derive personal pecuniary profit, the member should abstain from voting on the motion. However, no member can be compelled to refrain from voting in such circumstances." RONR (12th ed.) 45:4, emphasis added

RONR does provide certain, limited circumstances under which a member is, in fact, prohibited from voting on disciplinary matters concerning themselves. On other disciplinary matters, the member would retain the right to vote (unless something in the organization's bylaws or applicable law provides otherwise), but the member should not do so. The circumstances in which a member is prevented from voting on disciplinary matters are as follows:

• If the society follows the formal disciplinary procedures in Section 63, the society has the option when preferring charges to suspend a member of some or all of their rights of membership (except those rights relating to the disciplinary procedure itself) until the conclusion of the trial. If the organizations society this option, the member could lose their right to vote on upcoming disciplinary procedures (as well as, potentially, their right to vote on anything else).
• If the society follows the formal disciplinary procedures in Section 63, the member is required to leave the room during the society's consideration of guilt and the penalty. As a result, the member will not be able to vote on those matters.

In the circumstances discussed here, the disciplinary procedures are not conducted under Section 63 of RONR, but instead follow the organization's own disciplinary process. As a result, the President ultimately has the right to vote on whether he shall be removed from office (unless something in the organization's bylaws or applicable law provides otherwise), although he should not do so.

Edited April 13, 2023 at 01:03 PM by Josh Martin

[Atul Kapur]

Quote

@Drake Savory: Doesn't this imply that a member can vote against preferring charges or expelling themselves? 

Yes, if more than one person are, in the same motion, charged or subject to expulsion.

"The rule on abstaining from voting on a question of direct personal interest does not mean that a member ... should not vote when other members are included with him in a motion." 45:5

Edited April 13, 2023 at 01:06 PM by Atul Kapur

[Josh Martin]

On 4/13/2023 at 8:02 AM, Atul Kapur said:

If more than one person are, in the same motion, charged or subject to expulsion.

"The rule on abstaining from voting on a question of direct personal interest does not mean that a member ... should not vote when other members are included with him in a motion." 45:5

Well, and that gets into another debate as to how liberally one should interpret 45:5. Personally, I do not think it should be interpreted to mean that 45:4 is tossed out the window any time a motion involves two or more members, and the examples in 45:5 are instructive in interpreting the meaning of this rule. But I am aware that others take a different view of this question.

I think there also some other complications in the case of disciplinary procedures and to what extent it is appropriate to include multiple members in a single motion relating to discipline. I think this varies depending on what stage the disciplinary process is at.