Election of improperly qualified candidate

[Guest Kay C]

Backstory: the previous board, had a person create a mailbox at a UPS store to qualify to be a “resident” business member despite all the online information indicating the business address was outside of our boundaries. Said person was nominated and elected at the election. New president discovered this information prior to first board meeting. In my mind it’s fraudulent misrepresentation. Can the new board take a vote at their first board meeting to remove this person ?  Is it legit I’d 2/3 of BOD approve even if no notice was given?  Does this need to go before membership?  If so, is 2 weeks notice sufficient?  Or would this need to be done quietly following the rules of expelling a member?

[J. J.]

1.  Who elects persons to board positions?

2.  Do the bylaws give the board the authority to remove board members?

3.  Do they specify a method for removing board members?

Generally, absent a bylaw provision, the board cannot remove someone from an elected position.

[Guest Kay C]

He doesn’t qualify to be a member. 

[Dan Honemann]

On 4/11/2024 at 9:29 AM, Guest Kay C said:

He doesn’t qualify to be a member. 

By this do you mean that he does not meet the eligibility requirements set forth in your bylaws?

[Joshua Katz]

On 4/11/2024 at 1:18 AM, Guest Kay C said:

the previous board, had a person create a mailbox at a UPS store to qualify to be a “resident” business member despite all the online information indicating the business address was outside of our boundaries. Said person was nominated and elected at the election.

Do your bylaws state that board members must be "resident" business members? (Assuming resident business members are all the members, do they say board members must be members?)

If so, I still agree with Mr. J that the board cannot, generally, remove members, and it seems to me that the right course of action will be a point of order at a meeting of the membership. But it depends on what the powers of the board are. If the answer to the above is yes, can you please post verbatim what the bylaws say on the powers of the board?

 

[Josh Martin]

On 4/11/2024 at 3:18 AM, Guest Kay C said:

Backstory: the previous board, had a person create a mailbox at a UPS store to qualify to be a “resident” business member despite all the online information indicating the business address was outside of our boundaries.

For starters, do your bylaws have a residency requirement to serve on the board? You seem to imply this is the case, but I'd like confirmation.

On 4/11/2024 at 3:18 AM, Guest Kay C said:

In my mind it’s fraudulent misrepresentation.

Well, that's a question for an attorney, and I express no view on that matter.

On 4/11/2024 at 3:18 AM, Guest Kay C said:

Can the new board take a vote at their first board meeting to remove this person ?  Is it legit I’d 2/3 of BOD approve even if no notice was given?  Does this need to go before membership?  If so, is 2 weeks notice sufficient?  Or would this need to be done quietly following the rules of expelling a member?

We lack sufficient facts to answer these questions. Please answer J.J.'s questions.

On 4/11/2024 at 8:29 AM, Guest Kay C said:

He doesn’t qualify to be a member. 

Even supposing for the sake of argument the person is ineligible, that doesn't necessarily mean the board has the authority to remove him. If, for example, the membership elects board members, only the membership has the authority to consider a challenge to an election conducted by the membership, unless the bylaws provide otherwise.

"Because the voting body itself is the ultimate judge of election disputes, only that body has the authority to resolve them in the absence of a bylaw or special rule of order that specifically grants another body that authority. Thus, for example, when an election has been conducted at a membership meeting or in a convention of delegates, an executive board, even one that is given full power and authority over the society's affairs between meetings of the body that conducted the election, may not entertain a point of order challenging, or direct a recount concerning, the announced election result. While an election dispute is immediately pending before the voting body, however, it may vote to refer the dispute to a committee or board to which it delegates power to resolve the dispute." RONR (12th ed.) 46:50

No "notice" is required of a Point of Order concerning this matter.

But the above procedure is applicable only if the bylaws in fact provide this person is ineligible to serve on the board, and while you seem to be hinting this is the case, I'm not yet totally certain that it is. Please clarify what exactly your bylaws say concerning this matter.