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Removing President from the Board

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Removing President from the Board

The bylaws of our nonprofit corporation, a chamber of commerce, do not specify how to remove a board member, in this case the President. We have 7 members of the Board. At a meeting, we voted 4-0 to dismiss her. We also drafted a letter for her removal that 5 directors signed and one did not. What are the rules regarding this matter?

If your bylaws are silent, this is a question governed by your state nonprofit corporation law. In general, it may be difficult for other directors to remove her as a director on the board if you don’t have serious cause, such as specific malfeasance in office. The rules are generally much less stringent to remove an officer, however, and you may be able to remove her from her position as President merely because you believe it is in the best interests of the corporation to do so. That action would change the top leadership of the organization, and might cause her to resign from the board itself.
 
Your “unanimous written consent” letter would not be effective without the signature of all of the directors.
 
As a chamber of commerce, you probably have voting members of the corporation who have the right to remove any or all of the directors without cause if they follow certain procedures.
 
Once you get the current situation resolved, you ought to amend your bylaws to make clear how the directors and members can deal with a situation such as this in the future. The bylaws ought to be clear so that you don’t have to struggle to understand how to resolve the issues. (See Ready Reference Page: “Bylaws Function as Constitution for Nonprofit Corporations.”)
Sunday, April 13, 2008
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Comments

I have a couple of curiosities about this exchange.
 
The first is about "unanimous written consent". From the query, it sounds like there was a board meeting with at least 5 (of 7) members present. If it was a properly called meeting -- which isn't clear -- then the 4 affirmative votes on the motion to remove should be all that's required -- a majority of a quorum.
 
The second is the interaction with state law. There's a (possible) further wrinkle that you might have mentioned. In many states, the default provision is that only the body that elects a director or officer has the power to remove. So if the membership elected the president -- and the bylaws are silent -- in such states the membership would have to unelect. It's also not clear whether the President is an officer of the board or of the association. The rules might differ.
 
Your advice to get a better set of bylaws is excellent!
I agree that the 4-0 vote sounds like it would be effective (assuming nothing unusual in the voting provisions of the bylaws). If the Board does not have the power or authority to remove a person from the Board, however, the action is ineffective no matter what the vote. 
 
Your second comment is a very helpful elaboration on the need to check the state law to determine how officers and directors may be removed when the bylaws are silent. It is impossible to generalize about these issues with assurance, since state nonprofit corporation laws can differ significantly. 
 
The answer for clarity, I think we both agree, is a set of clear bylaws that comply with the state law.

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