Removal of recently appointed director

[Guest Mimi Klein]

At the annual meeting the President announced he was stepping down, effective in 2weeks.  One week later he reported he was stepping down immediately. Within minutes, there was a vote to bring in his spouse. Clearly a game because every director voting was ending their term within 7 days. She won the appointment 4 to 2 (all 4 yes’ are leaving their post in 3 days). Now the new Board is expected to put up with her for a full year. My question: the newly elected board recognizes this action was done in spite and does not want to recognize this appointment. How can they rescind the appointment of this person? Thank you 

[J. J.]

1.  Who elects directors?

2.  Quote exactly the term of office clause for directors in your bylaws. 

[Gary Novosielski]

Was the vote taken to "bring in his spouse" taken immediately without previous notice?  See 47:58

 

 

[Guest Mimi Klein]

On 4/2/2024 at 2:40 AM, Gary Novosielski said:

Was the vote taken to "bring in his spouse" taken immediately without previous notice?  See 47:58

 

 

 The president sent an email to the vice president, alerting him that he could not continue his remaining term (of 5 more days! )and  immediately stepped down. Within minutes, The vice president forwarded this email to the remaining members of the board here by acknowledging his immediate resignation. The next email was a motion by a board member to appoint the spouse to the open seat, immediately following the treasure seconded the motion.  Our by-laws allow an appointed position by the current board in the event of a resignation or dismissal. However. It does not stipulate that this appointment needs to be unanimous (unfortunately). Since the spouse was appointed by the old board ( after losing in the annual election by the entire neighborhood only one week prior)  it would seem that she could be un-appointed by the new board since the decision to bring her on was not a neighborhood vote the decision to take her off should not need to be either. 

On 4/1/2024 at 6:39 PM, J. J. said:

1.  Who elects directors?

2.  Quote exactly the term of office clause for directors in your bylaws. 

Hi, the Directors are voted upon at the first meeting of each newly elected board. His Spouse will not become the president, she will just become a member of the board for the remainder of his seated term, which is one remaining year. When the new board comes together in a few days, the directors meaning President, vice president, secretary, and treasurer will be determined then.

[Josh Martin]

On 4/5/2024 at 10:27 AM, Guest Mimi Klein said:

 The president sent an email to the vice president, alerting him that he could not continue his remaining term (of 5 more days! )and  immediately stepped down. Within minutes, The vice president forwarded this email to the remaining members of the board here by acknowledging his immediate resignation. The next email was a motion by a board member to appoint the spouse to the open seat, immediately following the treasure seconded the motion.  Our by-laws allow an appointed position by the current board in the event of a resignation or dismissal. However. It does not stipulate that this appointment needs to be unanimous (unfortunately). Since the spouse was appointed by the old board ( after losing in the annual election by the entire neighborhood only one week prior)  it would seem that she could be un-appointed by the new board since the decision to bring her on was not a neighborhood vote the decision to take her off should not need to be either. 

Hi, the Directors are voted upon at the first meeting of each newly elected board. His Spouse will not become the president, she will just become a member of the board for the remainder of his seated term, which is one remaining year. When the new board comes together in a few days, the directors meaning President, vice president, secretary, and treasurer will be determined then.

Thank you for all these additional facts. To clarify, my understanding is that this board member had only five days left in his term as President, but had one year left on his term as a board member. Additionally, the bylaws authorize the board to fill vacancies.

I think there is some ambiguity as to whether this appointment was legitimate. Specifically:

• Do your bylaws authorize the board to conduct business via email? If not, then it would seem the appointment was not valid.
• Further, RONR provides that notice must be given of an election to fill a vacancy. It does not appear to me that any such notice was given. 

So it may be that the board may rule the appointment invalid on one or both of these grounds.

In the alternative, supposing the appointment is valid, the question then arises as to how the board member may be removed. I am inclined to agree with you that because this director was elected by the board, the director may be removed by the board. But I don't yet know how the director may be removed, because we lack the facts needed to answer that question.

First, if your bylaws have their own rules pertaining to removal of directors, those rules must be followed.

If your bylaws are silent on this matter, then I reiterate J.J.'s request to quote exactly what your bylaws say regarding the term of office for board members. You have ignored this request and provided a paraphrase. The reason we need an exact quote is because there are two different procedures in RONR for removal of board members, depending on the exact wording the bylaws use to define the term of office.

"Except as the bylaws may provide otherwise, any regularly elected officer of a permanent society can be removed from office by the society's assembly as follows:

• If the bylaws provide that officers shall serve “for __ years or until their successors are elected,” the officer in question can be removed from office by adoption of a motion to do so. The vote required for adoption of this incidental main motion is (a) a two-thirds vote, (b) a majority vote when previous notice (as defined in 10:44) has been given, or (c) a vote of a majority of the entire membership—any one of which will suffice. A motion to remove an officer from office is a question of privilege (19) affecting the organization of the assembly, and so also is the filling of any vacancy created by the adoption of such a motion.

• If, however, the bylaws provide that officers shall serve only a fixed term, such as “for two years” (which is not a recommended wording; see 56:28), or if they provide that officers shall serve “for __ years and until their successors are elected,” an officer can be removed from office only for cause—that is, neglect of duty in office or misconduct—in accordance with the procedures described in 63; that is, an investigating committee must be appointed, charges must be preferred, and a formal trial must be held." RONR (12th ed.) 62:16

Edited April 5, 2024 at 04:19 PM by Josh Martin

[Gary Novosielski]

On 4/5/2024 at 10:27 AM, Guest Mimi Klein said:

Our by-laws allow an appointed position by the current board in the event of a resignation or dismissal. However. It does not stipulate that this appointment needs to be unanimous (unfortunately). Since the spouse was appointed by the old board ( after losing in the annual election by the entire neighborhood only one week prior)  it would seem that she could be un-appointed by the new board since the decision to bring her on was not a neighborhood vote the decision to take her off should not need to be either. 

Well, it would be highly unusual to require a unanimous vote on filling a vacancy.  A majority vote is what's typical.  But the reason I asked about previous notice is that 47:58 says:

47:58
Notice of filling a vacancy in an office (including a vacancy in an executive board or executive committee) must always be given to the members of the body that will elect the person to fill it, unless the bylaws or special rules of order clearly provide otherwise.

And from your answer it appears that the bylaws do not clearly provide otherwise.  Now, an email, a few minutes ahead of time is rather short notice.  If your bylaws do not specify an advance time period for previous notice, then here's what RONR says:

Under certain circumstances, whatever the vote required, there may be an additional requirement of previous notice, which means that notice of the proposal to be brought up—at least briefly describing its substance—must be announced at the preceding meeting or must be included in the “call” of the meeting at which it is to be considered (see also 10:44–51). The call of a meeting is a written notice of its time and place that is sent to all members of the organization a reasonable time in advance.  [RONR (12th ed.) 1:7]

The meaning of "a reasonable time in advance" is left up to the members of the body.  If a majority of the board believes that an email a few minutes ahead of time is not a reasonable time in advance, then have someone raise a Point of Order that the vacancy was not properly noticed, and therefore was not validly filled.  If the chair rules the point well taken, the appointment is null and void.  If the chair does not agree, the question can be placed before the board to decide by a majority vote, by a motion to Appeal From the Decision of the Chair.  

See:  RONR (12th ed.) §23. POINT OF ORDER; §24. APPEAL

 

 

[Guest Mimi Klein]

On 4/5/2024 at 12:17 PM, Josh Martin said:

Thank you for all these additional facts. To clarify, my understanding is that this board member had only five days left in his term as President, but had one year left on his term as a board member. Additionally, the bylaws authorize the board to fill vacancies.

I think there is some ambiguity as to whether this appointment was legitimate. Specifically:

• Do your bylaws authorize the board to conduct business via email? If not, then it would seem the appointment was not valid.
• Further, RONR provides that notice must be given of an election to fill a vacancy. It does not appear to me that any such notice was given. 

So it may be that the board may rule the appointment invalid on one or both of these grounds.

In the alternative, supposing the appointment is valid, the question then arises as to how the board member may be removed. I am inclined to agree with you that because this director was elected by the board, the director may be removed by the board. But I don't yet know how the director may be removed, because we lack the facts needed to answer that question.

First, if your bylaws have their own rules pertaining to removal of directors, those rules must be followed.

If your bylaws are silent on this matter, then I reiterate J.J.'s request to quote exactly what your bylaws say regarding the term of office for board members. You have ignored this request and provided a paraphrase. The reason we need an exact quote is because there are two different procedures in RONR for removal of board members, depending on the exact wording the bylaws use to define the term of office.

"Except as the bylaws may provide otherwise, any regularly elected officer of a permanent society can be removed from office by the society's assembly as follows:

• If the bylaws provide that officers shall serve “for __ years or until their successors are elected,” the officer in question can be removed from office by adoption of a motion to do so. The vote required for adoption of this incidental main motion is (a) a two-thirds vote, (b) a majority vote when previous notice (as defined in 10:44) has been given, or (c) a vote of a majority of the entire membership—any one of which will suffice. A motion to remove an officer from office is a question of privilege (19) affecting the organization of the assembly, and so also is the filling of any vacancy created by the adoption of such a motion.

• If, however, the bylaws provide that officers shall serve only a fixed term, such as “for two years” (which is not a recommended wording; see 56:28), or if they provide that officers shall serve “for __ years and until their successors are elected,” an officer can be removed from office only for cause—that is, neglect of duty in office or misconduct—in accordance with the procedures described in 63; that is, an investigating committee must be appointed, charges must be preferred, and a formal trial must be held." RONR (12th ed.) 62:16

My apologies for not replying exactly. I did not have the bylaws in front of me. The term of office reads.:

At each annual meeting or immediately thereafter, members shall elect the number of directors needed to fill director seats that have become vacant due to expiration of term or additional seats that have been added by amendment to the bylaws. Such election may be held at the annual meeting, or may be held by written or electronic ballot, consistent with the requirements of the south Carolina nonprofit corporation act. all directors elected, shall serve a term of two years. The two additional directors, which have been added pursuant to this amendment, Shelby elected in the year 2021 to serve a term of two years or until the election of directors is held in 2023.  in the year 2022, five directors Shelby, elected to serve a term of two years or until the election of directors is held in 2024,  there, after, there shall be an election of directors each year of either two or five directors for a term of two years.

On 4/5/2024 at 11:27 AM, Guest Mimi Klein said:

 The president sent an email to the vice president, alerting him that he could not continue his remaining term (of 5 more days! )and  immediately stepped down. Within minutes, The vice president forwarded this email to the remaining members of the board here by acknowledging his immediate resignation. The next email was a motion by a board member to appoint the spouse to the open seat, immediately following the treasure seconded the motion.  Our by-laws allow an appointed position by the current board in the event of a resignation or dismissal. However. It does not stipulate that this appointment needs to be unanimous (unfortunately). Since the spouse was appointed by the old board ( after losing in the annual election by the entire neighborhood only one week prior)  it would seem that she could be un-appointed by the new board since the decision to bring her on was not a neighborhood vote the decision to take her off should not need to be either. 

Hi, the Directors are voted upon at the first meeting of each newly elected board. His Spouse will not become the president, she will just become a member of the board for the remainder of his seated term, which is one remaining year. When the new board comes together in a few days, the directors meaning President, vice president, secretary, and treasurer will be determined then.

 

[Guest Mimi Klein]

On 4/5/2024 at 7:27 PM, Gary Novosielski said:

Well, it would be highly unusual to require a unanimous vote on filling a vacancy.  A majority vote is what's typical.  But the reason I asked about previous notice is that 47:58 says:

47:58
Notice of filling a vacancy in an office (including a vacancy in an executive board or executive committee) must always be given to the members of the body that will elect the person to fill it, unless the bylaws or special rules of order clearly provide otherwise.

And from your answer it appears that the bylaws do not clearly provide otherwise.  Now, an email, a few minutes ahead of time is rather short notice.  If your bylaws do not specify an advance time period for previous notice, then here's what RONR says:

Under certain circumstances, whatever the vote required, there may be an additional requirement of previous notice, which means that notice of the proposal to be brought up—at least briefly describing its substance—must be announced at the preceding meeting or must be included in the “call” of the meeting at which it is to be considered (see also 10:44–51). The call of a meeting is a written notice of its time and place that is sent to all members of the organization a reasonable time in advance.  [RONR (12th ed.) 1:7]

The meaning of "a reasonable time in advance" is left up to the members of the body.  If a majority of the board believes that an email a few minutes ahead of time is not a reasonable time in advance, then have someone raise a Point of Order that the vacancy was not properly noticed, and therefore was not validly filled.  If the chair rules the point well taken, the appointment is null and void.  If the chair does not agree, the question can be placed before the board to decide by a majority vote, by a motion to Appeal From the Decision of the Chair.  

See:  RONR (12th ed.) §23. POINT OF ORDER; §24. APPEAL

 

 

Please allow me to give you the removal and appointment section of our bylaws. They read, any Director may be removed from the board, with or without cause, by a vote of the members, holding at least a majority of the votes in the association. Any Director, who has become in eligible to serve because they no longer qualify as a member of the association, and or because they are not in good standing with the association, as determined in the sole discretion of the remaining directors, May be removed from the board by a unanimous vote of the remaining directors in the event of removal of a director by the membership, a new Director shall be elected at the same meeting at which such Director has been removed, or in an election immediately thereafter. In the event of removal of a Director, by the board, the remaining directors shall appoint a member in good standing to fill the vacancy for the remainder of the removed directors unexpired term. In the event of death, or resignation of a Director prior to the expiration of the Directors term. The board may appoint a member in good standing to fill the vacancy for the the remainder of such directors unexpired term. 

[Gary Novosielski]

Well, your bylaws supersede any conflicting rule in RONR, so you may have answered your own question.

But nothing in that paragraph seems to "clearly provide" that previous notice isn't required when filling vacancies, so 47:58 would still appear to apply.

[Guest Mimi Klein]

On 4/6/2024 at 1:11 PM, Gary Novosielski said:

Well, your bylaws supersede any conflicting rule in RONR, so you may have answered your own question.

But nothing in that paragraph seems to "clearly provide" that previous notice isn't required when filling vacancies, so 47:58 would still appear to apply.

Ok. Thank you. If you think of anything else, I’ll keep checking back. 

[Bruce Lages]

On 4/6/2024 at 1:11 PM, Gary Novosielski said:

Well, your bylaws supersede any conflicting rule in RONR, so you may have answered your own question.

But nothing in that paragraph seems to "clearly provide" that previous notice isn't required when filling vacancies, so 47:58 would still appear to apply.

Why do you feel that "in the event of removal of a director by the membership, a new Director shall be elected at the same meeting at which such Director has been removed..." does not provide for filling a vacancy without requiring previous notice? (Assuming that previous notice for removing a director is not stipulated somewhere else in the bylaws).

[Atul Kapur]

On 4/6/2024 at 2:28 PM, Bruce Lages said:

Why do you feel that "in the event of removal of a director by the membership, a new Director shall be elected at the same meeting at which such Director has been removed..." does not provide for filling a vacancy without requiring previous notice?

It does, in that particular situation (director removed by the membership). I do not believe that this applies to the other two situations, removal by the board or desth/resignation of a director. The wording makes clear that the non-requirement of notice only applies to the first situation (removal by membership).

[Josh Martin]

On 4/6/2024 at 7:52 AM, Guest Mimi Klein said:

...any Director may be removed from the board, with or without cause, by a vote of the members, holding at least a majority of the votes in the association. 

Thank you. Based upon these additional facts, if the appointment to fill the vacancy is legitimate, then the director may be removed only "by a vote of the members, holding at least a majority of the votes in the association." If your bylaws contain their own rules concerning removal, those rules take precedence over RONR. Your bylaws that a director may only be removed by a vote of the members, and the bylaws make no distinction in this regard between a director elected by the membership or a director elected by the board to fill a vacancy.

I think it still may well be that the appointment was invalid to begin with, however, because it does not appear to me that previous notice was given, and because I still have not seen anything suggesting the board is authorized to vote by email.

On 4/6/2024 at 1:28 PM, Bruce Lages said:

Why do you feel that "in the event of removal of a director by the membership, a new Director shall be elected at the same meeting at which such Director has been removed..." does not provide for filling a vacancy without requiring previous notice? (Assuming that previous notice for removing a director is not stipulated somewhere else in the bylaws).

A provision relating to "removal of a director by the membership" is not applicable in the present instance, because the vacancy in question was caused by a resignation, not by removal of a director by the membership.

Edited April 7, 2024 at 12:43 PM by Josh Martin

[Gary Novosielski]

On 4/6/2024 at 1:28 PM, Bruce Lages said:

Why do you feel that "in the event of removal of a director by the membership, a new Director shall be elected at the same meeting at which such Director has been removed..." does not provide for filling a vacancy without requiring previous notice? (Assuming that previous notice for removing a director is not stipulated somewhere else in the bylaws).

Because in this case the Director apparently resigned, and was not removed by the membership.

[Rob Elsman]

It is something of a misnomer to say that the wife was "appointed".  A better description would be "elected".  An election to fill a vacancy requires previous notice, which is a protection of the rights of members who might otherwise be absent.  This requirement for previous notice cannot be suspended, and the failure to give proper notice has the effect of nullifying the result of the election.  The original post leaves me with the impression that previous notice was not properly given, so I have to wonder whether there were absentees to protect; if so, the election is null and void.

The vacancy to be filled is for the remainder of the term of office of the person who resigned.  We are not told in the original post what the remainder of the term is.  It is not clear to me that the board must suffer the appointment for a full year.  The term of the elected wife-president will expire at the same time the term of the husband-president would have naturally expired had he not resigned.

Depending on the wording of the bylaw defining the term of office of the president, It may be possible for the "new" board to rid itself of the wife-president without a disciplinary procedure involving a trial.  Check those bylaws.

[Josh Martin]

On 4/7/2024 at 8:48 AM, Rob Elsman said:

The original post leaves me with the impression that previous notice was not properly given, so I have to wonder whether there were absentees to protect; if so, the election is null and void.

Well, as I understand the facts, the election was conducted by email. For starters, this raises its own problems.

On 4/5/2024 at 10:27 AM, Guest Mimi Klein said:

The president sent an email to the vice president, alerting him that he could not continue his remaining term (of 5 more days! )and  immediately stepped down. Within minutes, The vice president forwarded this email to the remaining members of the board here by acknowledging his immediate resignation. The next email was a motion by a board member to appoint the spouse to the open seat, immediately following the treasure seconded the motion.

But supposing that email voting is permissible under the organization's bylaws or applicable law, that raises interesting questions about what would constitute "previous notice" for an email vote and how rules pertaining to "protecting absentees" apply.

On 4/7/2024 at 8:48 AM, Rob Elsman said:

The vacancy to be filled is for the remainder of the term of office of the person who resigned.  We are not told in the original post what the remainder of the term is.  It is not clear to me that the board must suffer the appointment for a full year.  The term of the elected wife-president will expire at the same time the term of the husband-president would have naturally expired had he not resigned.

As I understand the facts, which have been provided in subsequent posts, the remaining term is one year. So if the appointment is legitimate (which is in serious doubt), the board will indeed have to "suffer the appointment for a full year", unless the director is removed.

On 4/5/2024 at 10:27 AM, Guest Mimi Klein said:

Hi, the Directors are voted upon at the first meeting of each newly elected board. His Spouse will not become the president, she will just become a member of the board for the remainder of his seated term, which is one remaining year.

On 4/7/2024 at 8:48 AM, Rob Elsman said:

Depending on the wording of the bylaw defining the term of office of the president, It may be possible for the "new" board to rid itself of the wife-president without a disciplinary procedure involving a trial.  Check those bylaws.

The additional facts provided in subsequent posts do indeed provide that a director may be removed by without a disciplinary procedure involving a trial, however, the bylaws reserve this power for the membership, not the board.

On 4/6/2024 at 7:52 AM, Guest Mimi Klein said:

Please allow me to give you the removal and appointment section of our bylaws. They read, any Director may be removed from the board, with or without cause, by a vote of the members, holding at least a majority of the votes in the association.