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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Business Law
Satisfied Customers: 88647
Experience:  All corporate law, including non-profits and charitable fraternal organizations.
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anyone out there that knows law regarding board members of

Resolved Question:

anyone out there that knows law regarding board members of non profit agencies? I have a board member who has been on the board for 7 years the bylaws claim he is only allowed to serve 2 yrs does this mean 2 yrs each position or 2 yrs total? if 2 yrs total how can we legally remove him?
Submitted: 2 years ago.
Category: Business Law
Expert:  Law Educator, Esq. replied 2 years ago.
In these cases, the bylaws of the non-profit are the law as to how long a board member can serve and if the bylaws are silent, then they may serve as many terms as they can get elected for. If the bylaws state a board member is only allowed to serve two years then you need to look to the specific wording to see if he can serve at different positions for 2 years and if there is nothing to indicate differently and there is ambiguity regarding serving 2 years in each position, then you have a legal issue that you would have to either change the bylaw on or sue the non-profit for a declaratory judgment. The common legal interpretation where a board has different level positions (President, Vice President etc) is that a person can serve in each position for the time specified in the bylaws as each position is a different position with different duties.

If there is a violation of the bylaws, the members would call for a meeting for removal in accordance with the bylaws and vote to remove him from the board.


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Customer: replied 2 years ago.

from the bylaws it states... Section 4 TERMS OF OFFICE- each director shall hold office for a two year term and until the next annual meeting for election of the board of directors as specified in these bylaws and until his or her successor is elected and qualifies

Customer: replied 2 years ago.
one other section and Im unsure if this is related but its section one determination of members- this corporation shall make no provisions for members however pursuant to section 5310(b) of the Non profit public benefit corp law of the state of cali any action which would otherwise under law or the provisions of articles of Incorp or bylaws of this corp req approval by a majority of all members or approval by the members shall only req the approval of the board of directors?
Expert:  Law Educator, Esq. replied 2 years ago.
If it says "each director shall hold office for two years," that is not setting term limits, it is setting the time limit for the officer at which time they may be reelected, the bylaws do not state that they are limited to only 2 years on the board, it just says the term is 2 years long and until the next election.

The other section about members does not have anything to do with board member elections.
Customer: replied 2 years ago.
ahahh... I do thank you for your responses... my concerns today are that we are a nonprofit foster family agency with a board of directors who has dwindled from 12 to 3 lots resigned due to this pres. this pres works for Bof A in the merging department he now wants to merge our little nonprofit with a bigger corp non profit he brought in an interm director from the other agency he wants to merge with to snoop through our agencies daily operation the employees were not aware this director was the interm director it was told she was a consultant observing our agency to ensure we our in compliance the news came in a letter and than stated she was the interm director for our agency as well as the director for the agency we were merging with we feel some self intrest here but cant seem to find a way to stop this merger we also feel that the 6-7 digit reserve is going to this new agency and that money is what is drivng this we want to legally stop this but dont know how we feel conflict of interest self intrest and some finacial gain is learking here but dont know how to stop it
Expert:  Law Educator, Esq. replied 2 years ago.
You need to read the bylaws regarding a "quorum" required, since 3 board members is generally not even sufficient for a quorum to carry out any business. As far as the merger, this has to be approved by the BoD and if it is approved, I am afraid that it would be legal. Board members on a non-profit are prohibited from self-dealing without full disclosure to the board and if that is not done, then the board member can be sued and removed for breach of fiduciary duty to the non-profit.

If you do not have a quorum of board members, then you can stop the merger as not properly voted on without a quorum and as such it is an unlawful action of the board.
Customer: replied 2 years ago.

okay since you know the legal stuff here is sect 13 Quorum for meetings a quorum shall consist of a majority of the directors except otherwise provided in these bylaws or in the articles of Incorp of this corp or by law no business shall be considered by the board at any meeting at which a quorum, as hereinafter defiend is not present and the only motion which the chair shall entertain at such meeting ia a motion to adjourn. However a majority of the directors present at such meeting may adjourn from time to time until the time fixed for the next regular meeting of the board.when a meeting is adjourned for lack of a quorum it shall not be necessary to give any notice of the time and place of the adjourned meeting or of the business to be transacted at such meeting other than by announcing at the meeting at which the adjournment is taken except as provided in Section 10 the directors present at the duly called and held meetingat which a quorum is initially present may continue to do business notwithstanding the loss of a quorum at the meeting due to a withdrawal of directors from the meeting, provided that any action therafter taken must be approved by at least a majority of the req quorum for such a meeting or such greater percentage as may be req by law or the articles of incorp or bylaws of this corp.


 


now I did go back to sect 1 numbers it states that the corp shall have no less than three and no more than twelve directors and collectively they shall be known as the board of directors the number may be changed by amendment of this bylaw or by repeal of this bylaw and adoption of a new bylaw as provided in these bylaws.

Expert:  Law Educator, Esq. replied 2 years ago.
If you have 12 directors that have been approved and they have resigned such that you have vacancy and only 3 out of 12 are remaining, then until the bylaws are changed 3 out of 12 would not be a majority because you have 9 vacancies. Now if they changed the bylaws to provide for 3 directors again, then those 3 directors can take a vote and there would be nothing you could do except prove the president is making personal gain on this transaction and did not make disclosure of this self dealing to the board and as such is in breach of their fiduciary duty to the board.
Customer: replied 2 years ago.
you are awesome!... I promise to leave you alone ... after this... so I get the facts correct since the board had 12 directors filled and most left the current bylaws go off the 12 slots but if they change the bylaws to 3 slots and fill 3 they would be okay? so currently they are violating there own bylaws.... I did find one last sect. regarding vacancies it states vacancies on the board may be filled by a majority of directors then in office whether or not less than a quorum or by a sole remaining director...just want to make sure this does not affect the prev facts.. again thanks for the help it is truley appreciated!
Expert:  Law Educator, Esq. replied 2 years ago.
You have understood me correctly, if the bylaws call for 12 currently and they did not modify the bylaws they cannot have 3. He can fill the vacancies though pursuant to the other bylaw allowing him to fill the positions (that makes a difference, as the board can fill the vacancies).
Customer: replied 2 years ago.
but 3 cannot fill all 12 correct? or can they? and I file my complaint where with the board? attorney general? or courts? and under what filing and I sooooo promise Im done... I have to go to work anyways....
Expert:  Law Educator, Esq. replied 2 years ago.
No, they need to name separate individuals to fill the positions. You start with your complaint with the board, if they do not comply, then I am afraid you have to file suit against the board for violating the bylaws.
Law Educator, Esq., Attorney
Category: Business Law
Satisfied Customers: 88647
Experience: All corporate law, including non-profits and charitable fraternal organizations.
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