President also hold office of director

[Guest Andie M]

A current nonprofit director who is in the first year of a 2-year term, will be running for president.  If the director is successful in bid for president, can the individual serve as president at the same time as serving as director?

 

It’s contentious so a citation would be helpful.

 

Thank you from Texas!

Andie

[Joshua Katz]

Well, this much is clear - even if he wears two hats, he will have only one head. As a result, he will have only one vote. 

That said, nothing in RONR says you can't hold two *different* positions, and these seem to be two different positions. Unfortunately, I can't cite the lack of a rule. Any rule making the offices incompatible would need to be found in your rules or (more likely) applicable law. (The only advantage to continuing to hold onto a director seat that I can see, if certain assumptions based on usual practice, i.e. that the president is a board member, hold true, is to reduce the number of votes on the board.) 

Edited December 19, 2023 at 09:59 PM by Joshua Katz
To add qualifier

[Richard Brown]

On 12/19/2023 at 3:50 PM, Guest Andie M said:

A current nonprofit director who is in the first year of a 2-year term, will be running for president.  If the director is successful in bid for president, can the individual serve as president at the same time as serving as director?

 

It’s contentious so a citation would be helpful.

 

On 12/19/2023 at 3:57 PM, Joshua Katz said:

That said, nothing in RONR says you can't hold two *different* positions, and these seem to be two different positions. Unfortunately, I can't cite the lack of a rule. Any rule making the offices incompatible would need to be found in your rules or (more likely) applicable law.

Actually, the last sentence of 46:31(1) of RONR (12th ed.) does provide that an individual may hold two offices simultaneously unless the bylaws provide otherwise.  The sentence states: "The assembly is free, however, to elect the same person to another office on a subsequent ballot, unless the bylaws prohibit a person from holding both offices simultaneously".  

[Joshua Katz]

On 12/20/2023 at 1:48 AM, Richard Brown said:

Actually, the last sentence of 46:31(1) of RONR (12th ed.) does provide that an individual may hold two offices simultaneously unless the bylaws provide otherwise.  The sentence states: "The assembly is free, however, to elect the same person to another office on a subsequent ballot, unless the bylaws prohibit a person from holding both offices simultaneously".  

Ah, thank you.

[Josh Martin]

On 12/19/2023 at 3:50 PM, Guest Andie M said:

A current nonprofit director who is in the first year of a 2-year term, will be running for president.  If the director is successful in bid for president, can the individual serve as president at the same time as serving as director?

It’s contentious so a citation would be helpful.

I suppose there is ultimately nothing in RONR which would prevent this, but assuming that the President serves ex officio as a member of the board (as is generally the case), it is not clear to me what purpose there would be in doing so. I feel like we are missing something.

Why exactly is it that the director wishes to do continue serving as director while serving as President, and why exactly is it so contentious?

Edited December 20, 2023 at 02:26 PM by Josh Martin

[Joshua Katz]

On 12/20/2023 at 9:25 AM, Josh Martin said:

it is not clear to me what purpose there would be in doing so.

To reduce the voting membership of the board by 1.

[Josh Martin]

On 12/20/2023 at 8:26 AM, Joshua Katz said:

To reduce the voting membership of the board by 1.

Yes, I understand this is your theory, and it is a reasonable one, but I am curious to hear what the OP has to say on this subject.

[Joshua Katz]

OP, while we're at it, (out of curiosity) what is the usual size of the board?

[Gary Novosielski]

On 12/20/2023 at 9:26 AM, Joshua Katz said:

To reduce the voting membership of the board by 1.

It would, but it's not clear what the perceived benefit would be.  Depending on the quorum requirement, it could also cause unintended side effects--or intended ones, perhaps.  

So while I agree it violates no rule, I also believe it makes no sense.

[Joshua Katz]

Suppose you knew who would be elected if you gave up your seat. Then might it make sense?

[Gary Novosielski]

It might. But if I knew, I don't think I'd come down on that side.

I think Josh is on point with the question of whether the president is ex-officio a board member.   If so then I'd argue that it constitutes holding two board-member positions, one of which must be vacated.  And since it's not possible to vacate an ex-officio position, it's got to be the other one. 

It could even be argued that this workaround to reduce the board size would violate a bylaw provision that the board "shall consist of n members".  That is presumably the rationale behind the no-duplicates rule in the first place.

 

[Richard Brown]

On 12/20/2023 at 10:16 AM, Gary Novosielski said:

 . . .  I'd argue that it constitutes holding two board-member positions, one of which must be vacated. 

Why do you say one of the two positions must be vacated? RONR is clear that a member may hold two elected positions unless the bylaws prohibit it and there appears to be no prohibition in this organization’s bylaws.

[Josh Martin]

On 12/20/2023 at 1:36 PM, Richard Brown said:

Why do you say one of the two positions must be vacated? RONR is clear that a member may hold two elected positions unless the bylaws prohibit it and there appears to be no prohibition in this organization’s bylaws.

What I understand Mr. Novosielski to be getting at is this:

The ordinary purpose of having person serve in two positions is for the person to perform the duties of both positions.

However, in the case where a board consists of various officers who serve ex officio as members of the board, as well as other persons who serve as members of the board, there are no additional duties for the President to perform by also serving in a director position. 

I do not recall that we have discussed this precise question before. We have certainly discussed that (unless the bylaws provide otherwise) there is no doubt that a person may serve in two distinct positions (e.g. Secretary and Treasurer), and we have also discussed that it is not appropriate for a person to simultaneously hold multiple identical positions (for example, if the bylaws provide for five directors, a single person cannot serve as two of these directors). Mr. Novosielski appears to be arguing that such a principle would also apply in a situation like this. I am not yet certain that I agree, but this does not appear to be an unreasonable position.

But I think we may wish to wait for additional facts from the OP before continuing this speculative argument much further, for two main reasons:

First, "that the President serves as an ex officio member of the board" was an assumption I made, not a statement by the OP. While this is a very common arrangement, we do not know for certain this is the arrangement here.

Second, even assuming my assumption was correct, the idea that the member's intent behind wishing to serve in two positions was to, essentially, prevent the election of another director was speculation by Mr. Katz. This is fairly reasonable speculation. After all, assuming a person has a full understanding of the rules on this matter, there does not appear to be any other logical reason to do this. But it may be that the director does not have a full understanding of the rules on this matter, and has some other idea in mind as to why it makes sense to serve in both of these positions.

Edited December 20, 2023 at 08:11 PM by Josh Martin

[Gary Novosielski]

On 12/20/2023 at 2:36 PM, Richard Brown said:

Why do you say one of the two positions must be vacated? RONR is clear that a member may hold two elected positions unless the bylaws prohibit it and there appears to be no prohibition in this organization’s bylaws.

That applies to non-identical offices.  In a case where the president is ex-officio a board member, and was also previously a board member (we don't know if this is the case here), we are dealing in that scenario with three offices:

• President
• Board member (ex officio praesidis)
• Board member (previous)

It is the two board member positions that are effectively identical and so cannot be held by one person.  The ex-officio office can't be the separated but the previously occupied Board Member seat can and should be deemed vacated.