Our bylaws state that someone can be removed by a 2/3 vote. My question is, can the person being voted off vote?
Good question. Assuming that your bylaws don’t answer the question for you, it isn’t entirely clear whether a person may vote on his or her own removal. You may have a conflict of interest policy that would require recusal, but in the absence of such a policy, the state nonprofit corporation law may not be clear. State laws often talk about a contract being void or voidable when someone with a conflict votes to approve the contract and it wouldn’t pass without the conflicted person’s vote. Those provisions don’t really contemplate this situation. To avoid litigation if the director wants to fight it and the vote might be close, you should amend your bylaws in advance to clarify the vote that is required.
We try to avoid the issue by providing in the bylaws that a person may be removed by the vote of a majority of all board members in office, or a majority of “the other” directors, or some similar language that makes it clear that it doesn’t make any difference whether the person being removed votes or not. (See Ready Reference Page: “Bylaws Function as ‘Constitution’ of Nonprofit Corporations”) That type of language also avoids the question of whether the person counts toward a quorum. We don’t particularly like a bylaw that says a person may be removed by a 2/3 vote, because that usually means 2/3 of those voting when a quorum is present. Although it seems to require a “super-majority,” if a quorum is a majority of the board, a 2/3 vote of a majority will allow removal with only about 1/3 of the directors agreeing. Removal is a serious remedy and we think it ought to be agreed upon by at least a majority of the board.