Candidate not able to fulfill term

[LIH]

The Nominating Committee has nominated a member for a 2-year term. However, due to term limits, the member can only serve one more year in a board position.

Is this member eligible to appear on the ballot if they cannot, according to the bylaws, fulfill the term? There are 1-year positions he could fill.

He has not served any partial terms.

If that member, once elected, were to resign from the board (say, a forced resignation after 1 year), the Nominating Committee would appoint a successor to fulfill the remainder of the term. We do not have partial-term elections.

Thanks.

[Josh Martin]

On 5/17/2024 at 4:17 PM, LIH said:

Is this member eligible to appear on the ballot if they cannot, according to the bylaws, fulfill the term?

Yes.

Edited May 18, 2024 at 01:33 PM by Josh Martin
Ignore me. I'm not sure what I was thinking.

[Atul Kapur]

On 5/17/2024 at 5:17 PM, LIH said:

Is this member eligible to appear on the ballot if they cannot, according to the bylaws, fulfill the term?

 

On 5/17/2024 at 5:47 PM, Josh Martin said:

Yes.

Are you sure? Wouldn't that person's election to a two-year term be equivalent to a motion "that conflicts with the corporate charter, constitution, or bylaws" and, therefore, out of order by RONR (12th ed.) 10:26(1)?

[Rob Elsman]

On 5/17/2024 at 6:35 PM, Atul Kapur said:

Are you sure?

It's their rule; let them tell us. 😐

[Richard Brown]

I agree with Dr. Kapur. Someone who believes that doing this is permissible needs to explain to me why.

I do, however, understand that the answer could turn on the precise language of the bylaws, but, even if the bylaws permit this person to run for a second turn, would he be able to serve the full term or would he suddenly become disqualified and automatically removed after one year?  Or would it require a Point of Order at that time?

[Gary Novosielski]

On 5/17/2024 at 7:35 PM, Atul Kapur said:

 

Are you sure? Wouldn't that person's election to a two-year term be equivalent to a motion "that conflicts with the corporate charter, constitution, or bylaws" and, therefore, out of order by RONR (12th ed.) 10:26(1)?

It's no worse an interpretation than a half dozen others.

This whole situation is a result of poorly drafted bylaws that instead of term limits has year limits.  It should be impossible for a term limit to run out mid term, but it is what it is, and if the bylaw says a member is ineligible to serve, but not ineligible to be elected, then I say adopt the least restrictive interpretation.

Fortunately it's not up to me, and the organization will have to interpret their own bylaws, incohesive as they are.

[Josh Martin]

On 5/17/2024 at 6:35 PM, Atul Kapur said:

Are you sure? Wouldn't that person's election to a two-year term be equivalent to a motion "that conflicts with the corporate charter, constitution, or bylaws" and, therefore, out of order by RONR (12th ed.) 10:26(1)?

I think I misunderstood the original post in some fashion. Upon further reflection, I retract my initial response, and I would like to see the language of the bylaws before opining further on this subject. You may well be correct.

[LIH]

Thank you all for your feedback.

So it turns out, after some research, that he IS eligible to serve the 2 full years of the term. (It turns out he was appointed to a partial term at one point.) But he only WANTS to serve 1 year.

The Nominating Committee has put on the ballot that he will serve 1 year of the 2-year term. That's where I have an issue

It still applies that if he were to resign sometime during his term that the Nominating Committee will appoint his successor to serve out the remainder of that term. 

If you would like to further explore the original question posed (he is ineligible to serve the full term). Here is the pertinent bylaws language:

The Nominating Committee nominates candidates for Board
positions who have been voting members for at least one year at the time of the Annual
Meeting.

The President and Vice President shall be eligible to serve for a maximum of three (3)
consecutive full one-year terms.

The Secretary, Treasurer, and Members-at-Large shall be eligible to serve for a maximum of two
(2) consecutive full two-year terms.

 

Except for the President and Immediate Past President, Board membership shall not exceed
eight (8) consecutive years. These limits are not reduced by the member’s having been appointed to a partial term.

 

If any member of the Board shall die, resign, or otherwise be unable to serve, the Nominating Committee
shall appoint a member to fill the vacancy. The appointment shall be valid for the remainder of the vacated term.

The Committee shall solicit candidates for vacant positions on the Board and
committees named in these Bylaws. Members who desire to serve in positions on the Board or
committees shall notify the Committee for consideration. The Nominating Committee shall
then validate, submit, and publicize the names of all candidates. No member can be a member
of the Board and the Nominating Committee at the same time.

Edited May 18, 2024 at 10:08 PM by LIH

[Gary Novosielski]

It seems to me that a person who agrees to run is agreeing to serve the entire term, barring unforeseen circumstances.

If the candidate cannot commit to that, then the Nominating Committee should find someone else.  If they don't, the membership should instruct them to do so.

[Josh Martin]

On 5/18/2024 at 5:06 PM, LIH said:

So it turns out, after some research, that he IS eligible to serve the 2 full years of the term. (It turns out he was appointed to a partial term at one point.) But he only WANTS to serve 1 year.

The Nominating Committee has put on the ballot that he will serve 1 year of the 2-year term. That's where I have an issue

It still applies that if he were to resign sometime during his term that the Nominating Committee will appoint his successor to serve out the remainder of that term. 

Well, I would note the rule in question says as follows:

On 5/18/2024 at 5:06 PM, LIH said:

Except for the President and Immediate Past President, Board membership shall not exceed eight (8) consecutive years. These limits are not reduced by the member’s having been appointed to a partial term.

I think there is some ambiguity as to what exactly "These limits are not reduced by the member’s having been appointed to a partial term." means. So I think it would be helpful if you could clarify 1.) how many consecutive years this person has served on the board and 2.) the facts concerning the "partial term" this person served.

Depending on those facts, it may well be that the person is eligible to serve another two years. If he is, I think there is no doubt that the society can elect him if so desired. Whether the society should elect someone who has announced he intends to resign halfway through his term is a separate question, but I leave that question to the society's judgment.

On the other hand, the situation is more complicated if the person is not eligible to serve the full term. The rule in question says nothing about being "elected" to a term, or anything of that nature. It simply provides that board membership shall not exceed eight consecutive years. So it would seem to me that under this language, a person could be elected even if serving that term to completion would cause the person to hit the eight year limit, however, the person would be removed from office upon reaching the eight year limit. Again, whether the society should elect such a person is a question I leave to the society's judgment.

On 5/18/2024 at 8:43 PM, Gary Novosielski said:

If the candidate cannot commit to that, then the Nominating Committee should find someone else.  If they don't, the membership should instruct them to do so.

It seems easier to just nominate someone else from the floor.

Edited May 19, 2024 at 12:52 PM by Josh Martin

[Gary Novosielski]

On 5/19/2024 at 8:51 AM, Josh Martin said:

It seems easier to just nominate someone else from the floor.

That's certainly the backstop action.  But I think if there is time for the Nominating Committee to come up with a new name, it doesn't hurt to insist that they do their job.  I agree that there appears to be nothing to prevent a person in this situation from being elected, but surely the NomCom could do better than to report as their first choice a person who cannot complete a single term.

As it turns out, this apparently won't be an issue after all.

[LIH]

On 5/19/2024 at 5:51 AM, Josh Martin said:

I think there is some ambiguity as to what exactly "These limits are not reduced by the member’s having been appointed to a partial term." means. So I think it would be helpful if you could clarify 1.) how many consecutive years this person has served on the board and 2.) the facts concerning the "partial term" this person served.

This sentence of the bylaws seems to change meaning according to who reads it. What do you think?

The member in question served 6 years in various offices, each time he was duly elected and served the full term.  One year ago (at the conclusion of his sixth year) he was appointed to a vacated member-at-large seat that had 1 year of term remaining. Thus at the time of the June 2024 election, he will have served 7 consecutive years on the board.

He has been nominated for a member-at-large seat (a 2-year term) and will appear on the ballot in June.

If the 8 year term limit is “not reduced” by this most recent year of service, then he is eligible to be elected and serve the 2-year term in the member-at-large seat. Correct?

Thanks for helping me puzzle this through.

[Atul Kapur]

On 5/19/2024 at 10:52 PM, LIH said:

This sentence of the bylaws seems to change meaning according to who reads it. What do you think?

Doesn't matter what any of us think. Interpretation of what an ambiguous provision means is determined by the organization. 

That being said, 

On 5/19/2024 at 10:52 PM, LIH said:

he is eligible to be elected and serve the 2-year term in the member-at-large seat. Correct?

No, incorrect. I say that electing him to a 2-year term is out of order because it is

On 5/17/2024 at 7:35 PM, Atul Kapur said:

equivalent to a motion "that conflicts with the corporate charter, constitution, or bylaws" and, therefore, out of order by RONR (12th ed.) 10:26(1)

 

[LIH]

As parliamentarian, I’m trying to advise the group well.
 

“These limits are not reduced by the member’s having been appointed to a partial term."

 

@Atul Kapur it seems to be your opinion that his appointment to a partial term counts and he may only serve 1 more year. Correct?

[Josh Martin]

On 5/19/2024 at 9:52 PM, LIH said:

This sentence of the bylaws seems to change meaning according to who reads it. What do you think?

I'm not surprised, because the sentence is worded in such a manner that it can easily be read to mean either of two opposite meanings.

If forced to hazard a guess, I am inclined to think the intent of the rule is to provide that partial terms do not "count" as years of service.

In the long run, the rule should be amended for clarity.

On 5/19/2024 at 9:52 PM, LIH said:

The member in question served 6 years in various offices, each time he was duly elected and served the full term.  One year ago (at the conclusion of his sixth year) he was appointed to a vacated member-at-large seat that had 1 year of term remaining. Thus at the time of the June 2024 election, he will have served 7 consecutive years on the board.

He has been nominated for a member-at-large seat (a 2-year term) and will appear on the ballot in June.

If the 8 year term limit is “not reduced” by this most recent year of service, then he is eligible to be elected and serve the 2-year term in the member-at-large seat. Correct?

Well, for starters, he hasn't reached eight years yet, so I certainly do not see anything preventing this person from being elected to the term and, in my view, he is free to serve the full term.

But even if he cannot serve the full term, in my view, the wording of the rule in question is such that it would permit the person to be elected, although the person would need to resign partway through.

On 5/19/2024 at 10:49 PM, Atul Kapur said:

No, incorrect. I say that electing him to a 2-year term is out of order because it is

Even to the extent you are correct that the partial term counts, I still disagree. The organization's bylaws do not prevent members from election to a number of consecutive terms, but rather prevents service for a certain number of consecutive years. The conflict will not arise until the member has served halfway through his term.

Edited May 20, 2024 at 05:21 AM by Josh Martin

[Rob Elsman]

On 5/19/2024 at 11:00 PM, LIH said:

As parliamentarian, I’m trying to advise the group well.

This is quite admirable.  Nevertheless, this is not a matter pertaining to the common parliamentary law.  It pertains, instead, to the organization's own rules.  If the presiding officer requests advice on the operation of Point of Order or Appeal from the Decision of the Chair, the parliamentarian should, indeed, be at hand and ready to offer assistance.  However, as to the interpretation of the organization's own rules, I am afraid that the parliamentarian is a little out of his league.  This function belongs to the chair (in making rulings arising out of Points of Order) and the assembly.  The deliberative process is much more at work, here, than the advice of a parliamentarian.

There is a common misconception that the role of a parliamentarian includes an adjudicatory function.  It does not.  

[Atul Kapur]

On 5/20/2024 at 12:00 AM, LIH said:

@Atul Kapur it seems to be your opinion that his appointment to a partial term counts and he may only serve 1 more year. Correct?

As far as that goes, yes, but I am going further and also saying electing him to a 2-year term is not allowed. @Josh Martin disagrees with me on that point. But it doesn't matter at all what he says. 😉

 

 

(It actually doesn't matter at all what I or any of us say here, because the interpretation is done by the organization. But, hopefully, we've provided enough information for you to assist the group to have an informed discussion before they decide.)

[LIH]

On 5/19/2024 at 10:12 PM, Josh Martin said:

I'm not surprised, because the sentence is worded in such a manner that it can easily be read to mean either of two opposite meanings.

If forced to hazard a guess, I am inclined to think the intent of the rule is to provide that partial terms do not "count" as years of service.

In the long run, the rule should be amended for clarity.

This is where I am right now. Thanks.

As the option to go back to the Nominating Committee is off the table, I believe the chair will provide clear information prior to balloting.

Hypothetical: There is no option in the bylaws on what to do if no one is elected to a position during the meeting. A "No" vote option is provided for an unopposed candidate, but no write- ins. Majority required for election.

I guess I would recommend to the chair (if no one receives a majority for an open seat) that we open nominations from the floor, debate, and reballot. I will brush up on the rules on how to treat the mail-in ballots in this instance.

[Rob Elsman]

If I were parliamentarian, I would keep my mouth tightly shut. 

[LIH]

On 5/20/2024 at 5:04 AM, Rob Elsman said:

as to the interpretation of the organization's own rules, I am afraid that the parliamentarian is a little out of his league.  This function belongs to the chair (in making rulings arising out of Points of Order) and the assembly.  The deliberative process is much more at work, here, than the advice of a parliamentarian.

There is a common misconception that the role of a parliamentarian includes an adjudicatory function.  It does not.  

Thanks. I will continue to offer advice, even unsolicited, as "in my opinion." BTW and FYI I prefer the pronouns she/her.

[Gary Novosielski]

A "No" vote is improper for any candidate if the rules in RONR apply.

If a ballot vote is being held for an unopposed candidate, a blank space should be provided for a write-in vote, but voting not to fill the position is not an option.  Elections are held to decide who shall fill an office, not whether the office should be filled.

For that matter, all positions on the ballot should have room for the appropriate number of write-in votes for that office.

The chair should call for additional nominations from the floor before balloting begins, not only in the event of a first-ballot failure to elect.

Also, I don't think it has been established that the bylaws permit mail-in voting, so that may be an issue.  And it is madness to consider any voting method where mail-in votes are combined with in-person votes, so it would be wise not even to consider going down that path.

[Rob Elsman]

Unless the answer hinges on the gender of the parliamentarian (which I doubt), the masculine personal pronoun or adjective is traditionally used in all Western languages.

[Gary Novosielski]

A "No" vote is improper for any candidate if the rules in RONR apply.

If a ballot vote is being held for an unopposed candidate, a blank space should be provided for a write-in vote, but voting not to fill the position is not an option.  Elections are held to decide who shall fill an office, not whether the office should be filled.

For that matter, all positions on the ballot should have room for the appropriate number of write-in votes for that office.

The chair should call for additional nominations from the floor before balloting begins, not only in the event of a first-ballot failure to elect.

Also, I don't think it has been established that the bylaws permit mail-in voting, so that may be an issue.  And it is madness to consider any voting method where mail-in votes are combined with in-person votes, so it would be wise not even to consider going down that path.

[Josh Martin]

On 5/20/2024 at 1:02 PM, LIH said:

There is no option in the bylaws on what to do if no one is elected to a position during the meeting. A "No" vote option is provided for an unopposed candidate, but no write- ins.

Please clarify what your bylaws say on this subject.

Under the rules in RONR:

• Members vote for the candidate of their choice. They do not vote "yes" or "no."
• Nominations from the floor and write-in votes are in order.
• If a candidate is unopposed and the bylaws do not require a ballot vote, the chair simply declares the candidate elected. If the bylaws require a ballot vote, write-ins remain in order.
• Refusing to elect a candidate is not an option. To the extent the assembly is unable or unwilling the election at the present time, the assembly may postpone the election to an adjourned meeting (or the next regular meeting), within a quarterly interval. If this occurs...
  • If the bylaws provide that officers serve "until their successors are elected," the current person in that position would continue to serve until the election is completed.
  • If the bylaws have not "until their successors are elected" clause, the position is vacant until the election is completed.
    • If the bylaws contain provisions for filling vacancies, those provisions may be used to fill the vacancy, but that person would serve only until the election can be completed.

On 5/20/2024 at 1:02 PM, LIH said:

I guess I would recommend to the chair (if no one receives a majority for an open seat) that we open nominations from the floor, debate, and reballot.

I would advise the chair that this is an option, but I would not express an opinion on whether that option is preferable. It is for the assembly to decide whether to reopen nominations. The assembly could instead proceed to vote again without reopening nominations, or choose to postpone the election.

On 5/20/2024 at 1:02 PM, LIH said:

I will brush up on the rules on how to treat the mail-in ballots in this instance.

Great. Even more problems.

"An organization should never adopt a bylaw permitting a question to be decided by a voting procedure in which the votes of persons who attend a meeting are counted together with ballots mailed in by absentees. The votes of those present could be affected by debate, by amendments, and perhaps by the need for repeated balloting, while those absent would be unable to adjust their votes to reflect these factors. Consequently, the absentee ballots would in most cases be on a somewhat different question than that on which those present were voting, leading to confusion, unfairness, and inaccuracy in determining the result. If there is a possibility of any uncertainty about who will be entitled to vote, this should be spelled out unambiguously and strictly enforced to avoid unfairness in close votes." RONR (12th ed.) 45:56

[LIH]

"If the circumstances are such that the in-person votes are cast in the same manner as the absentee votes, and the rules are constructed to eliminate any possibility of debate, amendment, nominations, repeat balloting, etc., then yes, I suppose the concerns regarding the practice are eliminated." Quoting @Josh Martin from another thread.

It is the case that we all use the same paper ballot for voting absentee or in-person. (To accommodate members who may be traveling or living with a disability.) All ballots are tallied during the in-person meeting. I do not remember if the mail-in votes are kept segregated.

This has never happened, but hypothetically: if that balloting were to fail to produce a majority vote for one seat or another... We would have the option to open nominations and proceed to vote again; vote again without reopening nominations; or postpone the election for the seats in limbo.

So, would a re-ballot be a separate vote that would disregard absentee ballots? I had a resource for combining absentee votes with in-person votes when a motion had an amendment... It may have been a few RR editions ago. I will keep looking.

By tradition (not articulated in bylaws) board members are "sworn-in" and assume their duties as soon as the election results are announced.