Bylaws Interpretation

[Guest Derik Dautel]

I’m hoping a few of the great minds on this forum might be able to weigh in on a bylaws interpretation dispute. A vacancy was created on a board for a seat that would have been up for election in 2025. The board chose to appoint someone to fill the vacancy. The bylaws state: “A director appointed to fill a vacancy shall hold office until the next regular members meeting or election date or until a successor shall have been elected and qualified.” The dispute is over the last 9 words of the sentence (“or until a successor shall have been elected and qualified”).  One faction believes this wording gives the board the option to extend the term of the appointee to the original term ending date of 2025, the other faction believes that the term should be up for election in conjunction with the 2024 meeting and that the last 9 words are in recognition that a new person wouldn’t necessarily take office the instant the election was final.  Which interpretation is correct? Or are they both wrong?

[Rob Elsman]

What has the general membership assembly decided? It is the body that has the authority to interpret ambiguous bylaws.

[Derik Dautel]

The question has not been given to the general membership. The only way that I know to ask the question is though the annual election process and by then the point is somewhat moot. 

[Dan Honemann]

On 11/5/2023 at 1:10 AM, Guest Derik Dautel said:

I’m hoping a few of the great minds on this forum might be able to weigh in on a bylaws interpretation dispute. A vacancy was created on a board for a seat that would have been up for election in 2025. The board chose to appoint someone to fill the vacancy. The bylaws state: “A director appointed to fill a vacancy shall hold office until the next regular members meeting or election date or until a successor shall have been elected and qualified.” The dispute is over the last 9 words of the sentence (“or until a successor shall have been elected and qualified”).  One faction believes this wording gives the board the option to extend the term of the appointee to the original term ending date of 2025, the other faction believes that the term should be up for election in conjunction with the 2024 meeting and that the last 9 words are in recognition that a new person wouldn’t necessarily take office the instant the election was final.  Which interpretation is correct? Or are they both wrong?

I can find no rational basis whatsoever for concluding that the phrase "or until a successor shall have been elected and qualified" gives the board the option to extend the term of the appointee to the end the original term ending in 2025.  

[Josh Martin]

On 11/5/2023 at 12:10 AM, Guest Derik Dautel said:

I’m hoping a few of the great minds on this forum might be able to weigh in on a bylaws interpretation dispute. A vacancy was created on a board for a seat that would have been up for election in 2025. The board chose to appoint someone to fill the vacancy. The bylaws state: “A director appointed to fill a vacancy shall hold office until the next regular members meeting or election date or until a successor shall have been elected and qualified.” The dispute is over the last 9 words of the sentence (“or until a successor shall have been elected and qualified”).  One faction believes this wording gives the board the option to extend the term of the appointee to the original term ending date of 2025, the other faction believes that the term should be up for election in conjunction with the 2024 meeting and that the last 9 words are in recognition that a new person wouldn’t necessarily take office the instant the election was final.  Which interpretation is correct? Or are they both wrong?

I think the interpretation that "the term should be up for election in conjunction with the 2024 meeting" is clearly the correct one (assuming the 2024 meeting is "the next regular members meeting"). The bylaws provide that "A director appointed to fill a vacancy shall hold office until the next regular members meeting or election date." That's that.

The meaning of the phrase "or until a successor shall have been elected" is to provide a "failsafe" if, for whatever reason, the assembly fails to complete the election at the assigned time, so that the position does not simply become vacant in that scenario. It doesn't grant the society (let alone the society's subordinate board) the option of just skipping the election. This phrase is covered in RONR and is a recommended provision to include in an organization's bylaws.

"If, for any reason, the assembly does not complete an election at the time for which it was scheduled, it should do so as soon as possible and may do so at any time until the expiration of the term the election is to fill. In the meantime, if the term of office extends until a successor is elected (see 56:28–30) failure to complete an election leaves the incumbent, if any, in office. Otherwise, a vacancy in office arises (see 47:57–58 for procedures for filling vacancies). Once the election is completed, however, the person elected replaces anyone who filled the vacancy. Failure to hold or to complete an election at the scheduled time does not deprive the membership of its right to elect an officer of its choice." RONR (12th ed.) 46:45

"To ensure the continued services of officers in the event, for example, of public emergency or of difficulty in obtaining a nominee for an office, the unqualified wording “for a term of… year(s)” should be avoided, because at the end of that time there would be no officers if new ones had not been elected." RONR (12th ed.) 56:28

I'm not entirely certain what the meaning of the additional words "and qualified" is, but the idea that it means "that a new person wouldn’t necessarily take office the instant the election was final" may well be a reasonable interpretation. You will need to check your bylaws to determine whether they provide that elected officers take office at a later time. (So far as RONR is concerned, officers do, in fact, take office the instant the election is final.)

"An officer-elect takes possession of his office immediately upon his election's becoming final, unless the bylaws or other rules specify a later time (see 56:27). If a formal installation ceremony is prescribed, failure to hold it does not affect the time at which the new officers assume office." RONR (12th ed.) 46:47

Edited November 5, 2023 at 02:35 PM by Josh Martin

[Gary Novosielski]

The logical meaning of terms connected by an -or- operation is that the result is True if any of the conditions are true.

So following that logic the term ends whenever any of the terminating conditions becomes True.  In other words as if the phrase "...whichever occurs first" had been appended.

[Derik Dautel]

Thank you all for your time and consideration of this question. I'll impose on you more by asking you to weigh in on remedies. Since the appointment was via a vote on a motion made with the term ending in 2025, is the motion (and as a result the appointment) invalidated? A motion to modify the appointment motion seems problematic in that people may not have voted to appoint for an 8 month tenure vs the 20 month in the motion.  Since this board position has a paid stipend attached to it, a motion to rescind may have legal consequences as well. 

[Atul Kapur]

It appears that the motion, to the extent that it presumed to fill a vacancy until 2025, was in violation of the bylaws. This is a continuing breach so a point of order can be raised at any time. Whether this invalidates the entire election is a decision to be made by the organization (FWIW, I believe the election is still valid, but only until the 2024 meeting).