URGENT: Removal of Elected Officer

[Shear70]

I  would truly appreciate the opinions of any of you on this forum regarding whether, based on the below bylaw provisions, we are subject to the requirements of Article XX, Chapter 63, including an extensive evidentiary trial. 

Term provisions in our Bylaws: 

Article I Section 2:

BL1.2: "All leadership positions shall be elected to serve a 2-year term, unless the position is vacated for other reasons (see Article III Section 3). NOTE: Article III, Section 3 provides how vacancies will be filled.

BL1.2.4: "Those elected in the above positions begin their terms immediately after Elections until the next set of Leadership elections unless removed from office per Article III, Section 4."

Removal language: 

"SECTION4. REMOVAL BL3.4.1 Elected Leadership Officers or Members may be removed for cause by a two-thirds (⅔) affirmative vote of the Members when a quorum of two-thirds (⅔) is present."

(For cause is not defined in our bylaws)

Also here is section related to RROO:

"SECTION5. ROBERT’SRULESOFORDER BL3.5.1 Unless otherwise provided for these Bylaws, Robert's Rules of Order (latest edition) shall govern the conduct of all meetings."

If your answer is no, Section 62.16 doesn't require a Section 63 procedure: does the fact that we didn't define "for cause" change your analysis?

If your answer to that is no, do you have a suggested procedure we should follow?

Thank you in advance.

[Rob Elsman]

Because "... until the next set of elections..." is so vague, I think I can assure the readers of this topic that the responses will be all over the place.

There seems to be some words missing. These might be "...is scheduled" or "...is completed". At any rate, the expiration of the terms of office are not determinable with certainty; and, for this reason, any attempt to answer the question is hopeless.

[Dan Honemann]

On 4/17/2024 at 3:11 PM, Shear70 said:

"SECTION4. REMOVAL BL3.4.1 Elected Leadership Officers or Members may be removed for cause by a two-thirds (⅔) affirmative vote of the Members when a quorum of two-thirds (⅔) is present."

There may well be other provisions in your bylaws which will shed light on this, but based solely on what is said here it would appear that all that is required for removal is the affirmative vote of two-thirds of your entire membership.  Presumably, this vote must take place at a regular or properly called meeting of your membership.  The "cause" for removal will presumably be set forth in the motion or resolution calling for removal.

[Rob Elsman]

But, I think the crux of the question is whether a "an extensive evidentiary trial" is required.

[Dan Honemann]

On 4/17/2024 at 4:07 PM, Rob Elsman said:

But, I think the crux of the question is whether a "an extensive evidentiary trial" is required.

And I am saying, based solely upon what has been posted, the answer is no.

[J. J.]

Absent anything else in the bylaws on how to remove an officer, I would say a trial is necessary.  The bylaw is silent on how the person is removed; the RONR default (62:16) would be controlling.   They bylaws do not "provide otherwise."  

The assembly could adopt a special rule modifying that. 

[Gary Novosielski]

On 4/17/2024 at 4:19 PM, Dan Honemann said:

And I am saying, based solely upon what has been posted, the answer is no.

I agree that a full trial is not required.  I would, however, say that two-thirds of those present and voting would be sufficient, so long as a quorum of two-thirds of the members were present.

For cause is whatever the membership deems to be a serious enough offense to vote for removal.

Edited April 18, 2024 at 01:21 PM by Gary Novosielski

[Josh Martin]

On 4/17/2024 at 2:11 PM, Shear70 said:

I  would truly appreciate the opinions of any of you on this forum regarding whether, based on the below bylaw provisions, we are subject to the requirements of Article XX, Chapter 63, including an extensive evidentiary trial. 

....

"SECTION5. ROBERT’SRULESOFORDER BL3.5.1 Unless otherwise provided for these Bylaws, Robert's Rules of Order (latest edition) shall govern the conduct of all meetings."

No.

On 4/17/2024 at 2:11 PM, Shear70 said:

If your answer is no, Section 62.16 doesn't require a Section 63 procedure: does the fact that we didn't define "for cause" change your analysis?

If your answer to that is no, do you have a suggested procedure we should follow?

I don't think what 62:16 says matters. Your bylaws themselves provide their own (very brief) procedure for discipline, which is:

"Elected Leadership Officers or Members may be removed for cause by a two-thirds (⅔) affirmative vote of the Members when a quorum of two-thirds (⅔) is present."

The fact that the provision includes the words "for cause," in and of itself, does not mean that formal disciplinary procedures are required.

It would seem to me that the procedure in this matter would be the same as any other main motion, except that a higher vote threshold (and apparently a higher quorum) is required.

Edited April 18, 2024 at 07:25 PM by Josh Martin

[J. J.]

On 4/18/2024 at 3:25 PM, Josh Martin said:

No.

I don't think what 62:16 says matters. Your bylaws themselves provide their own (very brief) procedure for discipline, which is:

"Elected Leadership Officers or Members may be removed for cause by a two-thirds (⅔) affirmative vote of the Members when a quorum of two-thirds (⅔) is present."

The fact that the provision includes the words "for cause," in and of itself, does not mean that formal disciplinary procedures are required.

It would seem to me that the procedure in this matter would be the same as any other main motion, except that a higher vote threshold (and apparently a higher quorum) is required.

While "for cause" is not the issue, I disagree that the clause provides a process for disciplinary action. 

[Dan Honemann]

On 4/18/2024 at 10:16 PM, J. J. said:

While "for cause" is not the issue, I disagree that the clause provides a process for disciplinary action. 

Here's what it says:

"SECTION4. REMOVAL BL3.4.1 Elected Leadership Officers or Members may be removed for cause by a two-thirds (⅔) affirmative vote of the Members when a quorum of two-thirds (⅔) is present."

What more do you need?  Do you need it to say "... may be removed for cause simply by a two-thirds (⅔) affirmative vote ..."?

[J. J.]

On 4/19/2024 at 6:17 AM, Dan Honemann said:

Here's what it says:

"SECTION4. REMOVAL BL3.4.1 Elected Leadership Officers or Members may be removed for cause by a two-thirds (⅔) affirmative vote of the Members when a quorum of two-thirds (⅔) is present."

What more do you need?  Do you need it to say "... may be removed for cause simply by a two-thirds (⅔) affirmative vote ..."?

I would say, nothing, if the term clause is "or until a successor is elected."  If it is "and until" or just had a fixed term, I would say a trial.  In the latter case, the bylaw could say "may be removed by motion... ."

With the cited bylaw, would you say that any member could demand a secret ballot on a vote to remove? 

[Rob Elsman]

If there are elections to fill vacancies, are they the "...next set of elections..."?  You can see that this phrase is completely beyond interpretation, as I said earlier.

[Josh Martin]

On 4/19/2024 at 7:35 AM, J. J. said:

I would say, nothing, if the term clause is "or until a successor is elected."  If it is "and until" or just had a fixed term, I would say a trial.  In the latter case, the bylaw could say "may be removed by motion... ."

With the cited bylaw, would you say that any member could demand a secret ballot on a vote to remove? 

But the bylaws do not simply say that the officers serve for a fixed term. Rather, they that officers serve "until the next set of Leadership elections unless removed from office per Article III, Section 4."

Article III, Section 4 then provides "Elected Leadership Officers or Members may be removed for cause by a two-thirds (⅔) affirmative vote of the Members when a quorum of two-thirds (⅔) is present."

So based upon these facts - while ultimately the organization is free to interpret its own bylaws in this matter - it remains my view that formal disciplinary procedures are not needed to remove an officer.

As to your more recent question, no, I do not think that under the rules in the organization's bylaws, any member could demand a secret ballot on a vote to remove.

Edited April 19, 2024 at 02:26 PM by Josh Martin

[Shear70]

Thank you all for your responses.

[Guest Zev]

Greetings:

I have no problem with any of the expert analysis. What bothers me, and perhaps I am overthinking this issue, is the expression "...when a quorum of two-thirds (⅔) is present." Without this expression it appears that the opponents of the impeachment will need to be present as many as possible and make the most vigorous defense of the defendant as possible. But with this expression, they may discover that by staying absent from the proceedings the two-thirds vote becomes irrelevant because they can cause the two-third attendance to not take place. And the absent members that favor the impeachment are kicking themselves for having other business on that day because they would have made the quorum the required two-thirds. Have I missed something?

[Dan Honemann]

On 4/25/2024 at 6:04 PM, Guest Zev said:

Greetings:

I have no problem with any of the expert analysis. What bothers me, and perhaps I am overthinking this issue, is the expression "...when a quorum of two-thirds (⅔) is present." Without this expression it appears that the opponents of the impeachment will need to be present as many as possible and make the most vigorous defense of the defendant as possible. But with this expression, they may discover that by staying absent from the proceedings the two-thirds vote becomes irrelevant because they can cause the two-third attendance to not take place. And the absent members that favor the impeachment are kicking themselves for having other business on that day because they would have made the quorum the required two-thirds. Have I missed something?

If you interpret the bylaws as requiring a vote of two-thirds of the members, as I did in my response, it becomes clear why a quorum of two-thirds of the members is required, but I appear to be in the minority as to the proper interpretation of the bylaws in this respect.

[Josh Martin]

On 4/25/2024 at 5:04 PM, Guest Zev said:

Greetings:

I have no problem with any of the expert analysis. What bothers me, and perhaps I am overthinking this issue, is the expression "...when a quorum of two-thirds (⅔) is present." Without this expression it appears that the opponents of the impeachment will need to be present as many as possible and make the most vigorous defense of the defendant as possible. But with this expression, they may discover that by staying absent from the proceedings the two-thirds vote becomes irrelevant because they can cause the two-third attendance to not take place. And the absent members that favor the impeachment are kicking themselves for having other business on that day because they would have made the quorum the required two-thirds. Have I missed something?

I don't think you're missing anything. It appears the rule does indeed set a very high bar for removal, which is not unusual.

On 4/25/2024 at 5:27 PM, Dan Honemann said:

If you interpret the bylaws as requiring a vote of two-thirds of the members, as I did in my response, it becomes clear why a quorum of two-thirds of the members is required, but I appear to be in the minority as to the proper interpretation of the bylaws in this respect.

I overlooked this issue initially, but it appears you may very well be right.