Filling a vacancy that was inappropriately left off the ballot

[Derik Dautel]

Looking for options from this group considering the following bylaw:

If a director's position is vacant, the board may appoint a member of the cooperative to fill the director's position until the next regular or special members' meeting. At the next regular or special members' meeting, the members must elect a director to fill the unexpired term of the vacant director's position.

A vacancy arose up four months before the regular member's meeting but the board "misinterpreted" the bylaw and did not run the seat in the election. A few months after that, the board decided to appoint someone to that seat. The board recognized that they erred in not running the seat, but is resisting efforts to overturn the appointment. 

The board contends that they were allowed to fill the seat with an appointment as it was still a vacancy.

I contend that the bylaws only allowed them to appoint up until the next regular members' meeting and once that date has passed, the only way to fill the seat is through a special election. I further contend that skipping the election does not extend their authority over the seat. Interpreting otherwise would infer that the board could have appointed someone, had them resign right before the election, appoint them again, have them resign right before the election, appoint them again, ad nauseum.

My questions:

1. Which interpretation is correct? (or is there a third option)

2. Is there a terminology to describe this state of limbo for a seat?

Thank you, in advance, for you thoughtful responses. 

 

 

 

 

[Gary Novosielski]

Yes, I agree with your interpretation.   The partial-term vacancy only existed until the next election.   In some societies it could be filled for the entire unexpired remainder of the original term, but your bylaws require an election at the next opportunity, whichever is sooner.  So the board is incorrect, and the appointment was not proper.  I believe this constitutes a continuing breach  and so a Point of Order would still be timely so long as the improperly appointed person remains in place.

Since an election was required but never done, what you have at this point is an "incomplete election", which should be completed at the earliest opportunity.  Fortunately, it appears that your bylaws allow this to be done at a special meeting called for this purpose.  Be sure adequate prior notice of the election meeting is given in compliance with any prior notice time frame requirements in your bylaws.

Stay tuned for other (or concurring) opinions.

Edited February 21, 2024 at 07:04 AM by Gary Novosielski

[Dan Honemann]

On 2/21/2024 at 1:39 AM, Derik Dautel said:

Looking for options from this group considering the following bylaw:

If a director's position is vacant, the board may appoint a member of the cooperative to fill the director's position until the next regular or special members' meeting. At the next regular or special members' meeting, the members must elect a director to fill the unexpired term of the vacant director's position.

A vacancy arose up four months before the regular member's meeting but the board "misinterpreted" the bylaw and did not run the seat in the election. A few months after that, the board decided to appoint someone to that seat. The board recognized that they erred in not running the seat, but is resisting efforts to overturn the appointment. 

You say that, at the regular meeting of the membership following the occurrence of the vacancy, "the board 'misinterpreted' the bylaw and did not run the seat in the election."  It would seem that it was the membership that made a mistake, since it was the membership that then had a duty to fill the vacancy.  Does your membership allow your board to have some sort of control over membership meetings?  Was there some reason why your membership had no knowledge of the existence of this vacancy?

If I understand the facts correctly, no mention of the existence of this vacancy was made at the membership meeting, and no effort was made to fill it.  If this is so, the vacancy continued to exist following adjournment of that meeting, and I see no reason why the board may not fill that vacancy until such time as the membership fulfills its duty to do so.  

 

[Derik Dautel]

Thank you Mr. Honemann,

In the interest of brevity I left out some of the details that you might need to render an opinion. The body in question is an electric cooperative and the board and staff manage all aspects of the annual member meeting.  The vacancy occurred after the 2023 Director election application deadline had passed, but before the election. The board declared the seat was vacant and that they would not put the seat up for election until 2024. Due to the timing of the board meetings the announcement that they had made this declaration went unpublished till ballots were printed. At that point, for all practical purposes the only remedy would be a rather expensive and time consuming special election for this seat. For decades this board had always declined their option to appoint, so it was only after they changed course after the election been completed did the membership cry "foul" over the action. The members were okay with the decision to not fill the seat as avoiding the special election and salary would save the cooperative over $60,000, but they are not okay with the board taking away their ability to vote on their representative. 

In short, the argument is that it was the member's seat to leave open at that point, not the board's. 

[Dan Honemann]

On 2/21/2024 at 8:42 AM, Derik Dautel said:

Thank you Mr. Honemann,

In the interest of brevity I left out some of the details that you might need to render an opinion. The body in question is an electric cooperative and the board and staff manage all aspects of the annual member meeting.  The vacancy occurred after the 2023 Director election application deadline had passed, but before the election. The board declared the seat was vacant and that they would not put the seat up for election until 2024. Due to the timing of the board meetings the announcement that they had made this declaration went unpublished till ballots were printed. At that point, for all practical purposes the only remedy would be a rather expensive and time consuming special election for this seat. For decades this board had always declined their option to appoint, so it was only after they changed course after the election been completed did the membership cry "foul" over the action. The members were okay with the decision to not fill the seat as avoiding the special election and salary would save the cooperative over $60,000, but they are not okay with the board taking away their ability to vote on their representative. 

In short, the argument is that it was the member's seat to leave open at that point, not the board's. 

I'm afraid that the only way to provide an answer to your question as to the validity of your board's appointment of a director to fill the vacancy you have referred to will require a review of all of your governing documents (charter, bylaws, applicable law), all of which supersede Robert's Rules).

You say that your board and staff "manage all aspects" of your annual member meetings, but I sincerely doubt that your governing documents actually give them the power and authority to do so.  Whether they do or don't, however, it would appear to me that the board did in fact have the authority to make this appointment. Either it was done in accordance with your governing documents or your membership was itself at fault in failing to take the action it should have taken at your annual meeting, leaving the vacancy for your board to fill.

But since I haven't read your governing documents, my take on this isn't worth much.

[Gary Novosielski]

On 2/21/2024 at 8:42 AM, Derik Dautel said:

Thank you Mr. Honemann,

In the interest of brevity I left out some of the details that you might need to render an opinion. The body in question is an electric cooperative and the board and staff manage all aspects of the annual member meeting.  The vacancy occurred after the 2023 Director election application deadline had passed, but before the election. The board declared the seat was vacant and that they would not put the seat up for election until 2024. Due to the timing of the board meetings the announcement that they had made this declaration went unpublished till ballots were printed. At that point, for all practical purposes the only remedy would be a rather expensive and time consuming special election for this seat. For decades this board had always declined their option to appoint, so it was only after they changed course after the election been completed did the membership cry "foul" over the action. The members were okay with the decision to not fill the seat as avoiding the special election and salary would save the cooperative over $60,000, but they are not okay with the board taking away their ability to vote on their representative. 

In short, the argument is that it was the member's seat to leave open at that point, not the board's. 

Well that changes things substantially, and it's unlikely that RONR's rules regarding elections and vacancies will apply in their default form.