Eligibility to be elected to additional term as independent director

[Guest Curious Director]

I am on a non-profit board that has 3 Independent Directors, each of which is elected to serve a 3 year term.  The NFP's bylaws state that: "No person may serve as an independent director on the Board for more than 9 years."  The Independent Director whose term expires at the next annual meeting will have served for 6.5 years as of the time of that election, so if elected to another 3 year term would violate the term limit provision in the bylaws.  Is that person eligible to be nominated for that position under Robert's since that person is not eligible to complete that term on the board.   

[Dan Honemann]

On 10/6/2023 at 3:25 PM, Guest Curious Director said:

I am on a non-profit board that has 3 Independent Directors, each of which is elected to serve a 3 year term.  The NFP's bylaws state that: "No person may serve as an independent director on the Board for more than 9 years."  The Independent Director whose term expires at the next annual meeting will have served for 6.5 years as of the time of that election, so if elected to another 3 year term would violate the term limit provision in the bylaws.  Is that person eligible to be nominated for that position under Robert's since that person is not eligible to complete that term on the board.   

You have answered your question yourself.  Your bylaws seem rather clear in this regard.  Since this Director will have served for 6.5 years at the time when the next election takes place, he will not be eligible to serve for another 3 year term.  

[Guest Curious Director]

Thank you.  I thought that was the answer but was not able to identify a provision directly on point in Robert's.  Is there one?  Thank you again.  

[Josh Martin]

On 10/6/2023 at 2:48 PM, Guest Curious Director said:

I thought that was the answer but was not able to identify a provision directly on point in Robert's.  Is there one?

I don't think there is a provision in Robert's, but there does not need to be, since your bylaws answer the question and supersede Robert's.

Robert's Rules of Order does have a provision defining how the rules work when a term limit defines the number of terms a member can serve. But your rules provide instead for a number of years a member can serve, and last I checked, "years" is a word with an ordinary, dictionary meaning.

[Guest Curious Director]

Thank you.  What is the proper objection/procedure if the Nominating Committee puts forward this person for which the person is ineligible?  (It has indicated that it plans to nominate this person who is ineligible.)

With respect to the powers of the Nominating Committee, the bylaws state: "The Nominating Committee shall oversee the selection and nomination of independent directors, including ensuring that members meet eligibility requirements, independence criteria, and qualifications that may be required from the Board from time to time."

Clearly, the Nominating Committee cannot change the bylaws, nor can it ignore them.  They have missed the term limit issue, however, so will be erroneously putting this person forward.  

Typically the Nominating Committee recommendation will go to the full Board before it goes to the annual meeting of the members.  It would be nice to resolve the issue before it hits the floor of the assembly to avoid the messy situation and so there is time to identify a qualified candidate.

Thanks.

[Josh Martin]

On 10/6/2023 at 3:25 PM, Guest Curious Director said:

What is the proper objection/procedure if the Nominating Committee puts forward this person for which the person is ineligible?

A member would raise a Point of Order that the person in question is ineligible to serve. The chair would rule this point "well taken," meaning he agrees, or "not well taken," meaning he disagrees. In either case, he would explain his reasoning. If a member disagrees with the chair's ruling, he may Appeal, which would then place the question in the hands of the assembly.

On 10/6/2023 at 3:25 PM, Guest Curious Director said:

Typically the Nominating Committee recommendation will go to the full Board before it goes to the annual meeting of the members.  It would be nice to resolve the issue before it hits the floor of the assembly to avoid the messy situation and so there is time to identify a qualified candidate.

What exactly do your bylaws say concerning the board's role in this matter?

I am generally doubtful that the board can require the Nominating Committee to fix this error, or that a Point of Order could be raised at a board meeting, as generally the Nominating Committee reports to and serves under the direction of the general membership, not the board.

Certainly, however, the board could politely point out this error, in the hopes that the committee will correct its own mistake.

Edited October 7, 2023 at 12:19 AM by Josh Martin

[Gary Novosielski]

On 10/6/2023 at 8:19 PM, Josh Martin said:

If a member disagrees with the chair's ruling, he may Appeal, which would then place the question in the hands of the assembly.

Presuming the Appeal is seconded (where seconds are required).

[Atul Kapur]

On 10/6/2023 at 4:25 PM, Guest Curious Director said:

.  What is the proper objection/procedure if the Nominating Committee puts forward this person for which the person is ineligible?  (It has indicated that it plans to nominate this person who is ineligible.)

You could, informally, bring this potential error to the nominating committee’s attention prior to them making their decision and report.