Nominating members for election in absentia -- two clarification questions

[Jan Cunningham]

Hi there!  I hope you can help me with these two questions.

(1) It is my understanding that unless an organization's Bylaws state otherwise, there is nothing in Robert's Rules that prohibit someone from being nominated during elections in absentia.  My Q:  Is there anything in RONR that explicitly permits it?  (That would be easier to explain to others)  

(NOTE:  I have found references that can be extrapolated, such as page 444: "An election to an office becomes final immediately if the candidate is present and does not decline, or if he is absent but has consented to his candidacy. If he is absent and has not consented to his candidacy, the election becomes final when he is notified of his election, provided that he does not immediately decline. If he does decline, the election is incomplete, and another vote can be taken immediately or at the next meeting without further notice. After an election has become final as stated in this paragraph, it is too late to reconsider (37) the vote on the election.")

(2) Our Board of Directors is proposing an Amendment to our Bylaws that would explicitly permit nominations in absentia -- but ONLY for sitting Board Members seeking re-election, and not for Members seeking election for the first time.  My initial reaction is that this is not fair, and would not be legally defensible.  My Q:  Is there anything in RONR that would speak to this?

Thanks for your time.

[Gary Novosielski]

That sounds like a self-serving bylaws provision, designed by board members for board members, and I'd certainly vote against it.

The nomination process is actually simpler than most people think:  If a member nominates an eligible person, then that person is nominated.  It doesn't matter if that person is present, or wants to be nominated, or even is a member.  As long as the eligibility requirements in the bylaws are met, the nomination is valid.  It doesn't even require a second.

As a practical matter, it's best to nominate people who, if elected, would agree to serve, so when nominating someone who will not be present, it is a good idea to be able to state that you have been assured (perhaps in writing) by the nominee that, if elected, they would serve.  It doesn't affect the nomination process per se, but it might reassure people who would otherwise be hesitant give their vote to that nominee.

But if you want to, you can nominate someone who does not want to be nominated, and in the extreme, even someone who explicitly says "I decline the nomination" cannot force you to withdraw it.  As you have seen, the only time declining becomes a thing it is if someone has been elected.  So it is possible for someone to be nominated and elected completely without their knowledge, and it's all valid, as long as they don't decline when informed of their "victory".

Edited March 29, 2024 at 07:10 PM by Gary Novosielski

[Richard Brown]

On 3/29/2024 at 11:23 AM, Jan Cunningham said:

2) Our Board of Directors is proposing an Amendment to our Bylaws that would explicitly permit nominations in absentia -- but ONLY for sitting Board Members seeking re-election, and not for Members seeking election for the first time.  My initial reaction is that this is not fair, and would not be legally defensible.  My Q:  Is there anything in RONR that would speak to this?

There is nothing in RONR which would prohibit such a bylaw provision. Even if there was such provision in RONR, your bylaws would still Trump any such provision. You can put pretty much anything you want to in your bylaws, regardless, of how unwise the provision might be. 

I agree with @Gary Novosielski that the proposed bylaw amendment sounds like a rather self-serving provision designed to benefit current board members who are seeking reelection. Like Mr. Novosielski, I would be strongly inclined to vote against such a provision. I think it is not only unneeded, but unwise.
 

[Josh Martin]

On 3/29/2024 at 11:23 AM, Jan Cunningham said:

It is my understanding that unless an organization's Bylaws state otherwise, there is nothing in Robert's Rules that prohibit someone from being nominated during elections in absentia. 

Correct.

On 3/29/2024 at 11:23 AM, Jan Cunningham said:

My Q:  Is there anything in RONR that explicitly permits it?  (That would be easier to explain to others)  

(NOTE:  I have found references that can be extrapolated, such as page 444: "An election to an office becomes final immediately if the candidate is present and does not decline, or if he is absent but has consented to his candidacy. If he is absent and has not consented to his candidacy, the election becomes final when he is notified of his election, provided that he does not immediately decline. If he does decline, the election is incomplete, and another vote can be taken immediately or at the next meeting without further notice. After an election has become final as stated in this paragraph, it is too late to reconsider (37) the vote on the election.")

As you say, this citation answers your question. There would be no need for this paragraph if an absent candidate could not be elected.

On 3/29/2024 at 11:23 AM, Jan Cunningham said:

(2) Our Board of Directors is proposing an Amendment to our Bylaws that would explicitly permit nominations in absentia -- but ONLY for sitting Board Members seeking re-election, and not for Members seeking election for the first time.  My initial reaction is that this is not fair, and would not be legally defensible.

I'm inclined to agree that it is not fair. Nonetheless, the organization is free to adopt such rules in its bylaws as it wishes, so long as the rules do not conflict with an even higher-level rule, such as the bylaws of a parent organization or rules in applicable law.

I have no idea whether it is legally defensible. That would be a question for an attorney.

On 3/29/2024 at 11:23 AM, Jan Cunningham said:

My Q:  Is there anything in RONR that would speak to this?

"Within this framework under the general parliamentary law, an assembly or society is free to adopt any rules it may wish (even rules deviating from parliamentary law) provided that, in the procedure of adopting them, it conforms to parliamentary law or its own existing rules. The only limitations upon the rules that such a body can thus adopt might arise from the rules of a parent body (as those of a national society restricting its state or local branches), or from national, state, or local law affecting the particular type of organization." RONR (12th ed.) 2:2

"Except for the corporate charter in an incorporated society, the bylaws (as the single, combination-type instrument is called in this book) comprise the highest body of rules in societies as normally established today. Such an instrument supersedes all other rules of the society, except the corporate charter, if there is one. In organizations that have both a constitution and bylaws as separate documents, however, the constitution is the higher of the two bodies of rules and supersedes the bylaws." RONR (12th ed.) 2:12