Waiving board election by majority vote of membership

[Guest CMBperc]

Due to declining interest in being on our BOD, I have had members ask if we can by a vote of the membership simply declare that the 8 or 9 members who are interested in being on the Board are the Board.  Bylaws call for both a primary to get from however many sign up down to 20. And then a general election to get to 10 which would be the Board for the next calendar year. We have tried to amend this section of the bylaws but cannot reach consensus on what it should say.   The general membership has become very vocal about changing the voting process but has provided no ideas of what they want.   Any advice would be appreciated.

[Weldon Merritt]

Until you can amend your bylaws to say what you want them to day, you must follow what the currently say. So unless the bylaws themselves give you the option to do whet you are describing, you can't do it.

[Josh Martin]

On 9/25/2023 at 10:14 AM, Guest CMBperc said:

Due to declining interest in being on our BOD, I have had members ask if we can by a vote of the membership simply declare that the 8 or 9 members who are interested in being on the Board are the Board.

No.

Your bylaws, apparently, call for a rather detailed procedure in this matter, which seems to require two ballot votes, and do not provide an exception in the event that the number of candidates is equal to (or less than) the number of board positions. Those rules must be followed, unless and until they are amended.

"Rules contained in the bylaws (or constitution) cannot be suspended—no matter how large the vote in favor of doing so or how inconvenient the rule in question may be—unless the particular rule specifically provides for its own suspension, or unless the rule properly is in the nature of a rule of order as described in 2:14. However, a rule in the bylaws requiring that a vote—such as, for example, on the election of officers—be taken by (secret) ballot cannot be suspended so as to violate the secrecy of the members' votes unless the bylaws so provide (see also Voting by Ballot, 45:18–24). Nothing in a corporate charter can be suspended unless the charter or applicable law so provides." RONR (12th ed.) 25:7

On 9/25/2023 at 10:14 AM, Guest CMBperc said:

We have tried to amend this section of the bylaws but cannot reach consensus on what it should say.   The general membership has become very vocal about changing the voting process but has provided no ideas of what they want.

I might suggest that you propose to the membership that, in the interim, you adopt amendments to the bylaws providing that the primary may be waived by a majority vote (or whatever vote is preferred) if there are 20 or fewer declared candidates by such and such date, and that the general election may be waived by a majority vote (or whatever vote is preferred) if there are fewer than 10 declared candidates by such and such date. I don't think I can get any more specific than that, since I have not seen the exact wording of the rules in question.

This would allow for the waiver process which at least some members seem to desire, and would provide an "out" for circumstances like this unless and until the membership can find sufficient agreement on a new election procedure for a long-term solution.

Edited September 25, 2023 at 03:46 PM by Josh Martin

[Atul Kapur]

On 9/25/2023 at 11:42 AM, Josh Martin said:

seems to require two ballot votes

Do their bylaws actually require ballot votes? 

I don't see that in the OP. If this is not actually a requirement, there are more options available to the organization.

[Guest CMBperc]

The two subsections that are in question are as follows

[c]The primary ballot shall state that the CMB member may vote for up to twenty [20] members to appear on the general election ballot. 

[e]The ten [10] members receiving the largest number of votes on the general election ballot shall constitute the Board of Directors for the next calendar year

[Josh Martin]

On 9/25/2023 at 4:02 PM, Guest CMBperc said:

The two subsections that are in question are as follows

[c]The primary ballot shall state that the CMB member may vote for up to twenty [20] members to appear on the general election ballot. 

[e]The ten [10] members receiving the largest number of votes on the general election ballot shall constitute the Board of Directors for the next calendar year

Based on these additional facts, it continues to be my view that the organization may not "simply declare that the 8 or 9 members who are interested in being on the Board are the Board," unless the organization amends the bylaws to create such a provision. As RONR notes, "However, a rule in the bylaws requiring that a vote—such as, for example, on the election of officers—be taken by (secret) ballot cannot be suspended so as to violate the secrecy of the members' votes unless the bylaws so provide (see also Voting by Ballot, 45:18–24)." RONR (12th ed.) 25:7

I assume somewhere there is a requirement for people to apply by such and such date in order to be placed on the ballot?

[Guest CMBperc]

The date to apply has come and gone.  We haven't had more than 10-12 people put their names up for vote in over 10 years & have been trying to amend the Bylaws for almost that long.  Given that we have to amend to make the election process easier I was wondering if we could just hold both elections at the same meeting?

[Josh Martin]

On 9/26/2023 at 11:02 AM, Guest CMBperc said:

The date to apply has come and gone.  We haven't had more than 10-12 people put their names up for vote in over 10 years & have been trying to amend the Bylaws for almost that long.

Well, based on this, my advice would be to try to amend the bylaws as follows:

[c]The primary ballot shall state that the CMB member may vote for up to twenty [20] members to appear on the general election ballot.  

[e][d] The ten [10] members receiving the largest number of votes on the general election ballot shall constitute the Board of Directors for the next calendar year.

[e] If no more than ten members have applied to serve on the board by [INSERT DEADLINE DATE], the membership may, by majority vote, choose to waive a ballot vote and declare that those members shall constitute the Board of Directors for the next calendar year.

Since apparently the assembly never has more than 20 candidates (or anything approaching that) keeping the “primary” seems pointless. It may also be desirable to create a mechanism to waive the ballot vote entirely if there are ten or fewer candidates.

Unless such a waiver provision exists, however, if the bylaws require a ballot vote, then a ballot vote must be held.

On 9/26/2023 at 11:02 AM, Guest CMBperc said:

Given that we have to amend to make the election process easier I was wondering if we could just hold both elections at the same meeting?

That’s an interesting question. Nothing in the rules cited above appears to prevent this. So to the extent this is all the bylaws say on this matter, that seems permissible.

But is that all the bylaws say on this matter? Or are there other provisions pertaining to the timing of these two elections?

[Guest CMBperc]

The pertinent sections relating to your last question follow.

The deadline for placement of completed primary ballots in the ballot box, and for the return of completed ballots via US Mail, is October 15.

The general election shall be held at the Band's Annual Meeting, the date of which shall be determined by the Board.  The meeting shall be no later than December 1.

[Josh Martin]

On 9/27/2023 at 9:45 AM, Guest CMBperc said:

The pertinent sections relating to your last question follow.

The deadline for placement of completed primary ballots in the ballot box, and for the return of completed ballots via US Mail, is October 15.

The general election shall be held at the Band's Annual Meeting, the date of which shall be determined by the Board.  The meeting shall be no later than December 1.

Well, this seems to answer your question. The rules in question prescribe that primary ballots must be returned by October 15. There's no wiggle room there. There's more flexibility in the general election, since the rules prescribe that the annual meeting shall be on a date determined by the board and shall be no later than December 1. There is, however, no limitation on how early this meeting shall be held.

So theoretically, the annual meeting could be held on October 15, and this would allow for the general election to be held immediately following the primary election. This may be difficult as a practical matter, however, since October 15 is not that far away, so it may not be possible to provide sufficient notice for such a meeting, and it may not be feasible to arrange an annual meeting for such an early date.

[Guest CMBperc]

Thanks for the info Josh.  I will push to amend the bylaws using your suggestion as soon as we get this last 2 session election over with.