Resignation of President- new election procedures

[Guest Guest]

A non-profit organization's President resigned due to medical issues in May. At the June meeting, an election was held to accept the resignation as well as elect a new officer to replace the President.  This month (August) the previous President returned to a meeting, stated the organization has been operating illegally.  All business that has been conducted since the new President was elected should be disregarded, as the bylaws currently state: The Vice President - assumes the office of the President in the event of President’s resignation, absence or inability to serve.  The new President was not able to be elected until annual elections occur. 

There is no mention in the bylaws on how to handle a mid-year resignation or election process, other than the yearly elections, and terms.

Everyone but the past president is in agreeance that the election was okay, including the Vice President.  How should we proceed? If the new president can not be president- what happens with all the business that was conducted over the course of the past two months.  The past President sat on this information for months, and withheld it purposely from the organization. 

[Atul Kapur]

Under RONR, when the office of president is vacant, the vice president automatically ascends to the presidency. So your actually vacancy was in the position of vice president. How you correct this situation is something that I will leave to others to advise you - other than to say that it sounds like you are in a complicated situation and the organization will likely benefit from the services of a parliamentarian to advise you specifically.

But that does not mean that the former president is correct in saying that the meetings are invalid (I'm not commenting on "illegal" as this is not a legal forum) or that the business done was invalid and should be disregarded. If there were any decisions that were decided by one vote, it is possible that those may be challenged, but not other decisions nor the fact that the meetings, themselves, occurred.

[Guest GuestUser]

On 8/16/2023 at 3:58 PM, Atul Kapur said:

Under RONR, when the office of president is vacant, the vice president automatically ascends to the presidency. So your actually vacancy was in the position of vice president. How you correct this situation is something that I will leave to others to advise you - other than to say that it sounds like you are in a complicated situation and the organization will likely benefit from the services of a parliamentarian to advise you specifically.

But that does not mean that the former president is correct in saying that the meetings are invalid (I'm not commenting on "illegal" as this is not a legal forum) or that the business done was invalid and should be disregarded. If there were any decisions that were decided by one vote, it is possible that those may be challenged, but not other decisions nor the fact that the meetings, themselves, occurred.

Thank you, that does make sense, I am going to suggest to the governing board to recruit the services of a parliamentarian. 

[Josh Martin]

On 8/16/2023 at 2:01 PM, Guest Guest said:

A non-profit organization's President resigned due to medical issues in May. At the June meeting, an election was held to accept the resignation as well as elect a new officer to replace the President.  This month (August) the previous President returned to a meeting, stated the organization has been operating illegally.  All business that has been conducted since the new President was elected should be disregarded, as the bylaws currently state: The Vice President - assumes the office of the President in the event of President’s resignation, absence or inability to serve.  The new President was not able to be elected until annual elections occur. 

There is no mention in the bylaws on how to handle a mid-year resignation or election process, other than the yearly elections, and terms.

Everyone but the past president is in agreeance that the election was okay, including the Vice President.  How should we proceed? If the new president can not be president- what happens with all the business that was conducted over the course of the past two months.  The past President sat on this information for months, and withheld it purposely from the organization. 

It seems to me that if the entire board was agreeable to this arrangement, including the Past President, I am inclined to think the new President remains President, because the board could have still accomplished this by taking the following steps:

• The Vice President could have also resigned, and the board could have accepted this resignation
• The board could then have elected the person of its choice as President
• The board could then have elected the (very recently) former Vice President back to the office of Vice President

So I am inclined to think that it is too late to raise a Point of Order concerning this matter at this point.

Even to the extent, however, that the election of the President is viewed as invalid, then the board can conduct the election again and properly follow the steps above, so it will be the same end result when all is said and done. I certainly do not think there is any reason to question the validity of the business the board has been conducting over the past few months.

[Gary Novosielski]

On 8/16/2023 at 3:01 PM, Guest Guest said:

A non-profit organization's President resigned due to medical issues in May. At the June meeting, an election was held to accept the resignation as well as elect a new officer to replace the President.  This month (August) the previous President returned to a meeting, stated the organization has been operating illegally.  All business that has been conducted since the new President was elected should be disregarded, as the bylaws currently state: The Vice President - assumes the office of the President in the event of President’s resignation, absence or inability to serve.  The new President was not able to be elected until annual elections occur. 

There is no mention in the bylaws on how to handle a mid-year resignation or election process, other than the yearly elections, and terms.

Everyone but the past president is in agreeance that the election was okay, including the Vice President.  How should we proceed? If the new president can not be president- what happens with all the business that was conducted over the course of the past two months.  The past President sat on this information for months, and withheld it purposely from the organization. 

It is true that the VP automatically succeeds to the office of president upon resignation or other vacancy that occurs in the presidency.  So it's apparent that you got things somewhat messed up. 

So the question is, does the fact that one person was presiding over meetings instead of some other person cause everything that was decided at those meetings to be thrown out.  And that's just absurd.   Sure, there are things that could cause the actions taken at a meeting to be declared null and void, but this doesn't come close. 

As long as a quorum was present in those meetings, and that votes were cast by people entitled to cast them, the decisions were properly made, and would not even need to be Ratified (which they could be, if it came to that). 

It could be argued that having the wrong person in the wrong office is something that should be repaired, and as @Josh Martin suggests, there are ways that could be finessed, but given  that what happened was what the board intended, and that the board would have had the power to do it that way, and no Point of Order was raised at the time, that it's just water under the bridge at this point.  You can work to remedy the roster if you feel the need to, but the larger question of whether all the business done needs to be thrown out is a definite No.

 

[Atul Kapur]

On 8/16/2023 at 11:09 PM, Josh Martin said:

the board could have still accomplished this by taking the following steps

 

On 8/17/2023 at 3:00 AM, Gary Novosielski said:

what happened was what the board intended, and that the board would have had the power to do it that way

I didn't include this in my response because it is not clear from the OP whether the board actually has the power to fill vacancies, which is assumed in the responses above

On 8/16/2023 at 3:01 PM, Guest Guest said:

There is no mention in the bylaws on how to handle a mid-year resignation or election process, other than the yearly elections, and terms.

 

[Josh Martin]

On 8/17/2023 at 6:31 AM, Atul Kapur said:

I didn't include this in my response because it is not clear from the OP whether the board actually has the power to fill vacancies, which is assumed in the responses above

Ah. Well, that certainly does complicate matters. If the bylaws are silent on filling vacancies, than RONR (12th ed.) 47:57 is the relevant rule in determining which body may fill the vacancies, although the question cannot be conclusively answered without reviewing the authority of the board in the bylaws.

"The power to appoint or elect persons to any office or board carries with it the power to accept their resignations, and also the power to fill any vacancy occurring in it, unless the bylaws expressly provide otherwise. In the case of a society whose bylaws confer upon its executive board full power and authority over the society's affairs between meetings of the society's assembly (as in the example in 56:43) without reserving to the society itself the exclusive right to fill vacancies, the executive board is empowered to accept resignations and fill vacancies between meetings of the society's assembly. For particular vacancies, see 47:22 (president-elect), and 47:28–30 and 56:32 (president and vice-presidents). See also 13:23 (vacancies in a committee)." RONR (12th ed.) 47:57

If the board lacks the authority to fill vacancies and that power rests with the general membership, that will change how to proceed.

[Gary Novosielski]

On 8/17/2023 at 7:31 AM, Atul Kapur said:

 

I didn't include this in my response because it is not clear from the OP whether the board actually has the power to fill vacancies, which is assumed in the responses above

 

Fair point, although I want to stress at the outset that even if the board doesn't have any power in this regard, I still maintain that it would not invalidate any business conducted at regular or properly called board meetings at which a quorum was present.

The question of whether the board may fill vacancies would be governed by three possible bylaws provisions:

• An explicit provision that the board shall have that power or, alternatively, one that reserves that power exclusively to the membership.  We are told that neither of these appear in the bylaws.
• Second, In the absence of either of the above, a provision that the board has authority over the society’s affairs between meetings of the membership would suffice. I think this is highly likely. We don't know for certain that there is such a provision, but we are told that the board conducts regular business meetings at which substantial business is conducted (which is the core the original question).  It's difficult to imagine that this would be taking place by custom alone.
• The third, and most problematic by its absence, is a provision regarding the method of filling a vacancy in the office of president in particular.  Without this, RONR says that the VP became president at the moment the president's resignation took effect. And we are told that if this rule did apply, the board certainly didn't follow it.

So the only real question at this point is whether this created a continuing breach.  But I think that, even if it did, the worst case would require dealing with the current officers' roster in some manner, but that it still would not invalidate the board's other business conducted since that time.

[Josh Martin]

On 8/17/2023 at 9:38 AM, Gary Novosielski said:

• Second, In the absence of either of the above, a provision that the board has authority over the society’s affairs between meetings of the membership would suffice. I think this is highly likely. We don't know for certain that there is such a provision, but we are told that the board conducts regular business meetings at which substantial business is conducted (which is the core the original question).  It's difficult to imagine that this would be taking place by custom alone.

Specifically, what RONR says on this matter is that if the bylaws are silent on filling vacancies, the board may fill vacancies if the "bylaws confer upon its executive board full power and authority over the society's affairs between meetings of the society's assembly".

[Gary Novosielski]

On 8/17/2023 at 3:54 PM, Josh Martin said:

Specifically, what RONR says on this matter is that if the bylaws are silent on filling vacancies, the board may fill vacancies if the "bylaws confer upon its executive board full power and authority over the society's affairs between meetings of the society's assembly".

I concede that is the verbatim quote.

Would you say that if a society had a bylaws provision to the effect that The executive board shall have authority over the society's affairs between meetings of the society's assembly, that this would imply the authority is abridged?  By how much? Could the board not fill vacancies?  Assume that no affairs are singled out anywhere else.

Edited August 17, 2023 at 10:30 PM by Gary Novosielski

[Josh Martin]

On 8/17/2023 at 5:29 PM, Gary Novosielski said:

I concede that is the verbatim quote.

Would you say that if a society had a bylaws provision to the effect that The executive board shall have authority over the society's affairs between meetings of the society's assembly, that this would imply the authority is abridged?  By how much? Could the board not fill vacancies?  Assume that no affairs are singled out anywhere else.

RONR says the following concerning the authority of a subordinate Board of Directors:

"Article VI, Section 2 of the Sample Bylaws (56:64) shows an appropriate wording for defining the board's powers so that the board's authority will be limited to the power to supervise, and to determine the details of, implementation of the decisions of the society's assembly and, in a manner not inconsistent with such decisions, to attend to any business of the society that cannot wait until the next meeting.

If the organization desires to leave the entire administrative authority of the society to the board between the society's meetings—as may occur, for example, in organizations that meet infrequently or whose main purpose is other than to transact business—the same section might read:

The Executive Board [or “Board of Directors,” etc.] shall have full power and authority over the affairs of the Society except… [specifying classes of business over which the assembly of the society is to retain sole authority]." RONR (12th ed.) 56:42-43

"Section 2. Board's Duties and Powers. The Executive Board shall have general supervision of the affairs of the Society between its business meetings, fix the hour and place of meetings, make recommendations to the Society, and perform such other duties as are specified in these bylaws." RONR (12th ed.) 56:64

Based on these facts, it seems clear to me that a board which has "general supervision of the affairs of the Society between its business meetings" does not have the authority to fill vacancies, unless the bylaws so provide. Conversely, a board which has "full power and authority over the affairs of the Society" certainly has the authority to fill vacancies unless the bylaws provide otherwise.

While this will ultimately be a question of bylaws interpretation, if the organization has wording which is identical to the wording in 56:43 except that the word "full" is omitted, and there are no other provisions in the bylaws on this matter, I am generally inclined to think that the wording should still be interpreted as equivalent to the language found in 56:43.

[Gary Novosielski]

On 8/17/2023 at 11:35 PM, Josh Martin said:

RONR says the following concerning the authority of a subordinate Board of Directors:

"Article VI, Section 2 of the Sample Bylaws (56:64) shows an appropriate wording for defining the board's powers so that the board's authority will be limited to the power to supervise, and to determine the details of, implementation of the decisions of the society's assembly and, in a manner not inconsistent with such decisions, to attend to any business of the society that cannot wait until the next meeting.

If the organization desires to leave the entire administrative authority of the society to the board between the society's meetings—as may occur, for example, in organizations that meet infrequently or whose main purpose is other than to transact business—the same section might read:

The Executive Board [or “Board of Directors,” etc.] shall have full power and authority over the affairs of the Society except… [specifying classes of business over which the assembly of the society is to retain sole authority]." RONR (12th ed.) 56:42-43

"Section 2. Board's Duties and Powers. The Executive Board shall have general supervision of the affairs of the Society between its business meetings, fix the hour and place of meetings, make recommendations to the Society, and perform such other duties as are specified in these bylaws." RONR (12th ed.) 56:64

Based on these facts, it seems clear to me that a board which has "general supervision of the affairs of the Society between its business meetings" does not have the authority to fill vacancies, unless the bylaws so provide. Conversely, a board which has "full power and authority over the affairs of the Society" certainly has the authority to fill vacancies unless the bylaws provide otherwise.

While this will ultimately be a question of bylaws interpretation, if the organization has wording which is identical to the wording in 56:43 except that the word "full" is omitted, and there are no other provisions in the bylaws on this matter, I am generally inclined to think that the wording should still be interpreted as equivalent to the language found in 56:43.

Thank you.  I agree.