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Should executive director vote without being on the board?

Your Legal Questions Answered

Should executive director vote without being on the board?

The bylaws of a nonprofit corporation provide that the executive director will have a vote at meetings of the board of directors but will not be a member of the board. Is that legal? And is it wise?

This is a question of state law, but it may be possible to structure the corporation so that someone not on the board can nevertheless cast a vote in board deliberations. Whether it is wise, however, probably depends on the situation, and if you are going to give someone a vote, it probably makes more sense to make the person a member of the board so that the person’s full rights and obligations are clear.
Your situation, however, is the worst of both possible worlds. Your bylaws provide in the quorum and voting section that a majority of the members of the board constitutes a quorum and the action of a majority of the directors present constitutes action of the corporation. It doesn’t say anything about the vote of a non-board member. The executive director’s vote, according to the language of the bylaws, is irrelevant—interesting perhaps, but not measured in counting the presence of a quorum or the votes of a majority of the directors present at the meeting.
And yet, if the executive director’s vote was not to be counted, why give the executive director the right to vote? In other words, this is a perfect case for litigation if the executive director’s vote ever makes a difference. And it is an excellent example of why bylaws should be considered as a whole when drafted or amended. The bylaws are the constitution of a nonprofit organization. They should prevent litigation, not foster it. (See Ready Reference Page: "Bylaws Function as ‘Constitution’ of Nonprofit Corporations”)
Tuesday, June 24, 2014

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