Solution to fill balance of an elected Executive Board vacancy?

[Guest JimM]

Our Constitution states that our organization shall have a 12 member Executive Board. Each member of our Board is elected for a term, and all positions are voted on at the same time (there are no staggered terms).

Our EB is strongly divided into two distinct alliances ("parties", if you will). We are a labor union were one alliance believes in a strong "government", where the EB is elected to run the organization for its term, and the other fighting for a more democratic (involve the members) organization. Those believeing in a "strong government" style Board held a small simple majority (not enough for a two-thirds majority).

Recently, our President resigned after being badgered by the "strong government" minority types and the seat is vacant. There are a number of a more democratic organization asking to fill that seat, but those individuals are not allies of the small majority. The small majority Executive Board is ignoring them volunteering and is soliciting other volunteers.

Our Constitution states the following:

In the event any vacancy is created by the resignation or removal of an official of the Union, the Executive Board shall be empowered to appoint a successor to fill the balance of the unexpired term, and such appointee shall hold office until the next regular election for that office.

Our Constitution also states the following:

Except as otherwise provided in this Constitution and Bylaws, the latest edition of Robert’s Rules of Order currently entitled Robert's

Rules of Order Newly Revised shall apply at all meetings of this Union.

Finally, our Constititon also states this:

It shall be the aim of the Union to elect to the Executive Board the most capable members comprising the membership of the Union.

On page 466 of RONR, it discusses Executive Boards and how sits subordinate to the members.

Thank you for your considerations.

Questions: Can the Members rescind an appointement made by the Executive Board? Can the Members issue an order to the Executive Board?

What would be the ideal parliamentary solution to this situation?

We are a labor union who's members meet only twice a year, and not in person (by conference call as authorized by our Constitution).

What should be the best way for our organization to handle this situation, especially when there is a growing number of members who are expressing

[Guest JimM]

To further clarify, each Executive Board member is elected for a three-year (3) term.

[David A Foulkes]

Recently, our President resigned after being badgered by the "strong government" minority types and the seat is vacant. There are a number of a more democratic organization asking to fill that seat, but those individuals are not allies of the small majority. The small majority Executive Board is ignoring them volunteering and is soliciting other volunteers.

Our Constitution states the following:

In the event any vacancy is created by the resignation or removal of an official of the Union, the Executive Board shall be empowered to appoint a successor to fill the balance of the unexpired term, and such appointee shall hold office until the next regular election for that office.

Our Constitution also states the following:

Except as otherwise provided in this Constitution and Bylaws, the latest edition of Robert’s Rules of Order currently entitled Robert's

Rules of Order Newly Revised shall apply at all meetings of this Union.

"If the bylaws are silent as to the method of filling a vacancy in the specific case of the presidency, the vice-president or first vice-president automatically becomes the president for the remainder of the term, and the vacancy arises in the vice-presidency or lowest-ranking vice-presidency; if another method of filling a vacancy in the presidency is desired, it must be prescribed and specified as applying to the office of president in particular." {emphasis added} (RONR 10th Ed., p. 557 ll. 19-26)

So, that nasty little "any vacancy" in your bylaws notwithstanding, whoever is/was the (first) vice-president is now the president. This has been debated here before, so other viewpoints may be offered.

[hmtcastle]

So, that nasty little "any vacancy" in your bylaws notwithstanding, whoever is/was the (first) vice-president is now the president. This has been debated here before, so other viewpoints may be offered.

One could argue that the resignation of a president doesn't create a vacancy because the office immediately transfers to the vice-president. Or, more precisely, the resignation of a president creates a vacancy in the office of vice-president.

Indeed, the primary reason for having a vice-president in the first place is so that there will not be a vacancy in the presidency.

[David A Foulkes]

One could argue that the resignation of a president doesn't create a vacancy because the office immediately transfers to the vice-president. Or, more precisely, the resignation of a president creates a vacancy in the office of vice-president.

Indeed, the primary reason for having a vice-president in the first place is so that there will not be a vacancy in the presidency.

I think more than one could argue that point. As I read page 557, if the bylaws address filling the position of the president, upon his departure, in some manner other than the immediate ascension by the VP, then a vacancy could exist until filled as prescribed by the bylaws. Lacking that, upon the chair announcing the affirmative results of a vote to accept the resignation, the VP would (in the proverbial blink) would be the president, thus no vacancy truly existing.

[Josh Martin]

First of all, your Vice President became President the moment the President's resignation was accepted, so it's really the vacancy in the Vice Presidency you need to fight over.

Can the Members rescind an appointement made by the Executive Board? Can the Members issue an order to the Executive Board?

No and no, because the Bylaws grant the Executive Board the exclusive authority to fill vacancies.

What would be the ideal parliamentary solution to this situation?

I don't see an ideal parliamentary solution to this situation (except from the perspective of the faction which comprises a majority of the board). I believe the members will have to seek a political solution, such as communicating their preferences to the board members, and perhaps suggesting that the board members' decisions on this matter will be an important issue in the next regular election.

[Guest JimM]

I think more than one could argue that point. As I read page 557, if the bylaws address filling the position of the president, upon his departure, in some manner other than the immediate ascension by the VP, then a vacancy could exist until filled as prescribed by the bylaws. Lacking that, upon the chair announcing the affirmative results of a vote to accept the resignation, the VP would (in the proverbial blink) would be the president, thus no vacancy truly existing.

All,

I am not referring to who fills the office of President. Just an open seat on the Executive Board in general. The Executive Board will be appointing one soon, and one the majority of board members want (the majority being in a "party" the previous president sat in opposition to on many parliamentary issues). If the Executive Board appoints a new member they find a proponent of their positions, can the members themselves later rescind that appointment at a membership meeting?

Some are claiming that the Members cannot, as the Constitution gives the EB exclusive power to appoint.

But, if a motion comes up at a subsequent membership meeting to rescind the Executive Board's appointment, is that in order?

And, if the President rules the motion to rescind "out-of-order", can a member then appeal that decision, thus causing overruling the president's "intepretation" of the constitution if they vote to not sustain his ruling?

In a nutshell, since our constitution states the EB can appoint for the balance of the term (2 years in this case), can the assembly itself subsequently change that appointement? Does the EB have superior rights over the members to force an executive board member onto the assembly, or can the members themselves supercede the Executive Board?

thanks,

JimM

[tctheatc]

What does your constitution say about that specifically? I know that in our labor union, it's earlier in the text, the high-falutin' flowery stuff that people often gloss over, which specifically states that the gathered convention body is the supreme authority in the union and governs its affairs. The National Executive Board (NEB) handles business in between conventions. So I know that in our case the membership 'rules" over the NEB.

[Josh Martin]

If the Executive Board appoints a new member they find a proponent of their positions, can the members themselves later rescind that appointment at a membership meeting?

No.

Some are claiming that the Members cannot, as the Constitution gives the EB exclusive power to appoint.

They are correct, unless there are other relevant portions of your Constitution you aren't telling us about.

But, if a motion comes up at a subsequent membership meeting to rescind the Executive Board's appointment, is that in order?

No.

And, if the President rules the motion to rescind "out-of-order", can a member then appeal that decision, thus causing overruling the president's "intepretation" of the constitution if they vote to not sustain his ruling?

Yes. Although it is my personal opinion that, based upon the facts provided, the chair's ruling would be correct, the membership always has the final say in interpreting its Constitution (unless someone decides to take this to court).

In a nutshell, since our constitution states the EB can appoint for the balance of the term (2 years in this case), can the assembly itself subsequently change that appointement?

No.

Does the EB have superior rights over the members to force an executive board member onto the assembly,

Yes.

or can the members themselves supercede the Executive Board?

No.

What does your constitution say about that specifically? I know that in our labor union, it's earlier in the text, the high-falutin' flowery stuff that people often gloss over, which specifically states that the gathered convention body is the supreme authority in the union and governs its affairs.

But we aren't talking about the general authority of the general membership vs. the general authority of the board to act between meetings. This is a question about a specific authority granted to the Executive Board, and specific statements trump general ones. If anything was to change the interpretation of the specific statement which has been provided, it would need to be another specific statement regarding the filling of vacancies.

[tctheatc]

Yes, excellent point.

[Guest JimM]

JimM, on 16 December 2010 - 11:38 AM, said:

And, if the President rules the motion to rescind "out-of-order", can a member then appeal that decision, thus causing overruling the president's "intepretation" of the constitution if they vote to not sustain his ruling?

Josh Martin said:

Yes. Although it is my personal opinion that, based upon the facts provided, the chair's ruling would be correct, the membership always has the final say in interpreting its Constitution (unless someone decides to take this to court).

So, if I understand you correctly, in essence, the Members themselves DO have the ultimate saying when they either sustain or reverse the decision of the chair if that decision was appealed.....

Thank you,

JimM

[Josh Martin]

Yes. Although it is my personal opinion that, based upon the facts provided, the chair's ruling would be correct, the membership always has the final say in interpreting its Constitution (unless someone decides to take this to court).

So, if I understand you correctly, in essence, the Members themselves DO have the ultimate saying when they either sustain or reverse the decision of the chair if that decision was appealed.....

I'm disappointed that this is the piece of my advice you're taking away from all this, but yes, the members have the final say, even if they're wrong.

[Guest JimM]

I'm disappointed that this is the piece of my advice you're taking away from all this, but yes, the members have the final say, even if they're wrong.

Josh, I think, in this case, it would really be the Members telling the Board that it was wrong to appoint a person the Members really didn't like.

Boards can avoid this by turning to the members first and appointing the person the Members prefer, and not appointing the person the Members might distain.

That is the issue here, really. The Board has the authority, but is not turning to the members for recommdations and advice (polls). And, there seems to be great contention among the ranks for not doing so that can be resolved by the members themselves making ultimately making the decision.

Thank you Josh.

JimM

[Josh Martin]

Josh, I think, in this case, it would really be the Members telling the Board that it was wrong to appoint a person the Members really didn't like.

Boards can avoid this by turning to the members first and appointing the person the Members prefer, and not appointing the person the Members might distain.

That is the issue here, really. The Board has the authority, but is not turning to the members for recommdations and advice (polls). And, there seems to be great contention among the ranks for not doing so that can be resolved by the members themselves making ultimately making the decision.

Apparently I have not made myself sufficiently clear. I do not have a high opinion of an assembly which ignores its own rules, no matter how inconvenient those rules might be. A proper solution to the current problem (if the board does not yield to pressure from the membership) would be to elect new board members or to amend the Bylaws so that the board does not have the exclusive authority to fill vacancies.

[Gary c Tesser]

JimM, do you get it? Mr Martin replied to your question about appealing with rigid precision. I think he did so imprudently. He did not warn you that what he was telling you was that, technically, the membership has the authority to pervert reality, and to lie about what the bylaws mean, by a successful appeal of the chair’s ruling.

The membership decided that the board fill vacancies, beyond the reach of the membership to overrule, by adopting a bylaw provision that says so. The membership determined that that’s what they want, and they codified that determination by putting it into the bylaws.

THAT’s democracy. That’s what the union decided. What you are proposing is thinly-disguised mob rule. The only honest way to allow the membership to override the decision of the board is to change the bylaws so that the membership then has that power to override. Right now, the membership does not.

By this perverse technicality – appealing a ruling of the chair -- the membership can vote to declare that up is down, that black is white, that Buffy was poorly written … and that your membership can override the Board’s decision on filling vacancies. It is not true that the membership can override the board’s decision on this, but this falsehood will be binding on your union: it will be the delusional reality that your union takes as its official position.

Is that really what you want?

Yes, I see that perhaps the majority of the membership now might disagree with the board’s decision. But the membership decided, democratically, to give away any right to overrule the board on this. Democratically, the membership chose this. I’ll allow that this is an unintended consequence of a provision that was originally intended to do something else. But that means that the union has bumped its nose against the Law of Unintended Consequences. As Mr Martin (and probably others, boy I’m tired) pointed out, it’s the union’s democratic right to change the bylaws to say what the membership wants the bylaws to say. And until the membership changes the bylaws, the bylaws govern as they are – because that’s what the membership determined will govern.

[hmtcastle]

Boards can avoid this by turning to the members first and appointing the person the Members prefer, and not appointing the person the Members might distain.

That is the issue here, really. The Board has the authority, but is not turning to the members for recommdations and advice (polls). And, there seems to be great contention among the ranks for not doing so that can be resolved by the members themselves making ultimately making the decision.

If you think the board should poll the membership every time it has to make a decision (or every time it has to make a decision that you think is important), you might as well eliminate the board altogether and have what is referred to as a "direct democracy".

However in many instances this is not only not practical, but not good governance.