Electing Directors

[Guest russbrown445@gmail.com]

When a Director decides not to complete his term of office, can a replacement be elected prior to completion of term, or must he resign in order  to create a vacancy for nominations and election purposes ? Must there be a vacancy?

[Joshua Katz]

I think the question is whether a replacement can be chosen while a resigning director is still in office. If so, the answer is yes. If he resigns effective a certain date, you can accept the resignation and then choose a replacement. Or he may resign effective when a replacement has been chosen. Obviously, if he resigns effective immediately, you will not be able to choose a replacement while he's in office.

[Josh Martin]

On 2/27/2024 at 11:21 AM, Guest russbrown445@gmail.com said:

When a Director decides not to complete his term of office, can a replacement be elected prior to completion of term, or must he resign in order  to create a vacancy for nominations and election purposes ? Must there be a vacancy?

I guess I’m a little confused. If a director “decides not to complete his term of office,” that sounds like a resignation to me, and accepting that resignation will create a vacancy.

I concur with Mr. Katz that a resignation could have an effective date in the future. In such a case, the vacancy can be filled prior to the effective date, but the person appointed to fill the vacancy will not take office until the effective date.

Could you explain the situation in more detail?

Edited February 27, 2024 at 06:16 PM by Josh Martin

[Rob Elsman]

The director should submit his resignation in writing, and the electing body should accept it. Thereafter, the electing body should proceed to elect a replacement, previous notice of the election being required.

[Gary Novosielski]

I think that if the body has a good-faith belief that there will be a vacancy in an office, they can give prior notice that they intend to elect a replacement to fill that vacancy in anticipation of its occurrence. The election could be conducted subject to a proviso that the replacement would not take office until the vacancy actually existed (which would be the case even if not stated) and if a formal resignation was subsequently received that was different in some detail from the original belief, I don't foresee a difficulty in making appropriate adjustments.  If the resignation was never forthcoming then the person designated as a replacement would not take office. 

I'm familiar with a number of situations where interviews were conducted in anticipation of a vacancy, and I don't think that choosing one applicant/nominee, contingent upon the vacancy actually occurring, violates any rule.

[Rob Elsman]

On 2/27/2024 at 1:48 PM, Gary Novosielski said:

I think that if the body has a good-faith belief that there will be a vacancy in an office, they can give prior notice that they intend to elect a replacement to fill that vacancy in anticipation of its occurrence. The election could be conducted subject to a proviso that the replacement would not take office until the vacancy actually existed (which would be the case even if not stated) and if a formal resignation was subsequently received that was different in some detail from the original belief, I don't foresee a difficulty in making appropriate adjustments.  If the resignation was never forthcoming then the person designated as a replacement would not take office. 

I'm familiar with a number of situations where interviews were conducted in anticipation of a vacancy, and I don't think that choosing one applicant/nominee, contingent upon the vacancy actually occurring, violates any rule.

Did you want to cite RONR (12th ed.)?

[Gary Novosielski]

On 2/27/2024 at 2:51 PM, Rob Elsman said:

Did you want to cite RONR (12th ed.)?

I'm asserting that it does not violate any rule to adopt a motion that is contingent upon a future event.  What would you like me to cite?

 

 

[Rob Elsman]

I disagree with you, Mr. Novosielski.

By definition, previous notice must be given at the "...the preceding meeting or must be included in the call of the meeting...". RONR (12th ed.) 1:7. Notice that there might be an election at some indefinite future time is not previous notice.

[Atul Kapur]

What about a notice of a special meeting which includes

1) an election to fill the vacant office of vice-president, and

2) should a currently serving director be elected to the vice-presidency, an election to fill the resulting vacant director position?

(There is a rule that 1 individual may not concurrently hold a director position and the office of vice president.)

[Russ Brown]

My thanks for the insights...appreciated.

 

[Gary Novosielski]

On 2/27/2024 at 3:33 PM, Rob Elsman said:

I disagree with you, Mr. Novosielski.

By definition, previous notice must be given at the "...the preceding meeting or must be included in the call of the meeting...". RONR (12th ed.) 1:7. Notice that there might be an election at some indefinite future time is not previous notice.

But it would not be an election at some indefinite time.  It would be previous notice of intent to hold an election at a particular meeting to elect a person to fill an anticipated vacancy.  

I also note that virtually every rule in RONR is written in anticipation of some future situation, and every special rule of order is written the same way, to decide in advance  what will happen in the event that some specified set of facts is met in the future.  I would wager that the word if occurs in RONR on the order of thousands of times.

Edited February 28, 2024 at 03:31 AM by Gary Novosielski

[Rob Elsman]

It seems frivolous to me to give previous notice when there is no reasonable basis to anticipate that an election will occur or at what meeting it will occur, if one does occur at all. Without the actual acceptance of the resignation, the certainty of a vacancy and the timing of an election to fill it cannot be reasonably ascertained; thus, previous notice should not be given. I say wait until there is certainly a vacancy and will be an election to fill it before giving the required notice.

[Gary Novosielski]

I might agree that waiting for certainty would be a good way to proceed.  But I can also envision sets of circumstances where there would be a very reasonable basis to anticipate a vacancy although no resignation has yet been received, and where a decision on who should fill that vacancy, if and when it occurs, needs to be made quickly.  For example, if summer is approaching, and the society normally has trouble obtaining a quorum, or when some likely candidates to fill the vacancy might be unavailable.  It's not hard to propose other scenarios.

What I am saying is that the absolute certainty of the vacancy may not be possible to ascertain, but the timing of the election to fill it, contingent on a formal resignation, can nevertheless be fixed.   

It may not be the best recommended course of action, and if it's not, I trust the membership will not go down this path.  But I assert that if there is a perceived benefit to get the replacement locked and loaded in advance, then holding an election in anticipation of the vacancy does not violate any rule I can find. 

Suppose the assembly wishes to appoint Jed's Landscaping to plow the parking lot in the event of a winter storm.  If no snow occurs, and Jed is never called upon to serve, no harm is done.  But the assembly need not wait until the snow is on the ground before even considering who should get the job.

[Josh Martin]

On 2/27/2024 at 1:48 PM, Gary Novosielski said:

I think that if the body has a good-faith belief that there will be a vacancy in an office, they can give prior notice that they intend to elect a replacement to fill that vacancy in anticipation of its occurrence. The election could be conducted subject to a proviso that the replacement would not take office until the vacancy actually existed (which would be the case even if not stated) and if a formal resignation was subsequently received that was different in some detail from the original belief, I don't foresee a difficulty in making appropriate adjustments.  If the resignation was never forthcoming then the person designated as a replacement would not take office. 

On 2/27/2024 at 10:35 PM, Rob Elsman said:

It seems frivolous to me to give previous notice when there is no reasonable basis to anticipate that an election will occur or at what meeting it will occur, if one does occur at all. Without the actual acceptance of the resignation, the certainty of a vacancy and the timing of an election to fill it cannot be reasonably ascertained; thus, previous notice should not be given. I say wait until there is certainly a vacancy and will be an election to fill it before giving the required notice.

I fall somewhere between the positions of Mr. Elsman and Mr. Novosielski on this matter. I think "actual acceptance of the resignation" is too strict of a standard, but I think "a good faith belief that there will be a vacancy" is too lax of a standard.

Certainly, there is no doubt that if a resignation has already been accepted, but the resignation is not effective until a future date, notice may be given of the intent to fill the vacancy. I think we are all in agreement on that point.

Failing that, I think that there needs to be some formal submission of a resignation or a motion which, if approved, would cause a vacancy. Further, it would be desirable for the notice to specify that the election to fill the vacancy is conditional.

For example, if an officer has formally submitted a resignation, I think it would be proper to give notice that, pending acceptance of the resignation, the assembly will proceed to fill the resulting vacancy.

I do not think, however, that mere speculation that a resignation will be submitted - no matter how well-founded that speculation may be - is sufficient to give proper notice of an election to fill that vacancy.

On 2/27/2024 at 4:58 PM, Atul Kapur said:

What about a notice of a special meeting which includes

1) an election to fill the vacant office of vice-president, and

2) should a currently serving director be elected to the vice-presidency, an election to fill the resulting vacant director position?

(There is a rule that 1 individual may not concurrently hold a director position and the office of vice president.)

That seems fine to me, and it seems like another good example of where this strategy would be appropriate.

Edited February 28, 2024 at 04:36 PM by Josh Martin

[Rob Elsman]

The giving of previous notice when a resignation has merely been "formally submitted" (but not yet accepted) may cause members to make expensive and disruptive accommodations to attend the meeting for the purpose of participating in the election, when, in fact, the request to accept the resignation might be postponed or rejected.  I do not favor this.

[Josh Martin]

On 2/28/2024 at 10:58 AM, Rob Elsman said:

The giving of previous notice when a resignation has merely been "formally submitted" (but not yet accepted) may cause members to make expensive and disruptive accommodations to attend the meeting for the purpose of participating in the election, when, in fact, the request to accept the resignation might be postponed or rejected.  I do not favor this.

Okay, but are you saying you just don't care for it personally, or that you think it is prohibited?

[Atul Kapur]

On 2/27/2024 at 5:58 PM, Atul Kapur said:

What about a notice of a special meeting which includes

1) an election to fill the vacant office of vice-president, and

2) should a currently serving director be elected to the vice-presidency, an election to fill the resulting vacant director position?

 

On 2/28/2024 at 11:32 AM, Josh Martin said:

That seems fine to me, and it seems like another good example of where this strategy would be appropriate.

Yes, I also believe it's fine, but was using it as an example that was similar to the one that Mr. Elsman believes is not proper.

[Rob Elsman]

On 2/28/2024 at 12:06 PM, Josh Martin said:

Okay, but are you saying you just don't care for it personally, or that you think it is prohibited?

I'm saying to wait until the resignation is accepted so that there is a vacancy to fill before giving previous notice of the election to fill it.

[Gary Novosielski]

On 2/28/2024 at 4:24 PM, Rob Elsman said:

I'm saying to wait until the resignation is accepted so that there is a vacancy to fill before giving previous notice of the election to fill it.

And that would be my recommendation too, in the absence of compelling reasons not to, and it think it would be improper if it were based on nothing more than a suspicion that a vacancy might someday occur, but if there is good reason to believe that the resignation is forthcoming, and especially if it has been received but not yet acted upon, with no reason to believe it will not be accepted, then I think previous notice with full disclosure that the vacancy is an anticipated one, and the results would be contingent upon actions as yet not taken, would be in order.

Another good reason to wish to shorten the process might be if a candidate to fill the vacancy could be lost to another position if not snagged now.

Edited February 28, 2024 at 09:54 PM by Gary Novosielski

[Rob Elsman]

I'm not going around in circles.

[Gary Novosielski]

On 2/28/2024 at 5:05 PM, Rob Elsman said:

I'm not going around in circles.

Fair enough, but we still don't know whether you think it's strictly not in order, or simply a bad idea.