We are writing new bylaws and want to know whether, when doing a notice for a special meeting to recall officers and/or directors, it is required to state in the notice that the purpose of the meeting is to recall one or more specific officers or directors and name the officers or directors in that notice? —By email?
When writing bylaws, you want to remember that Courts do not want to get involved in internal disputes within nonprofit organizations and will generally allow an organization to remove whoever it wants if it follows rudimentary due process and follows whatever requirements there may be under state law. State law may have different requirements for calling a special meeting of members than for calling a special meeting of directors. The rules may also be different with respect to removal of members, directors and officers.
In Pennsylvania, for example, in the case of a special meeting of members, notice of the meeting must include a statement of “the general nature of the business to be transacted.” There is no similar requirement for a statement of purpose in the notice of a special meeting of directors under Pennsylvania law and the statute specifically says no notice of the purpose is required. But I think the notice would arguably be procedurally inadequate if the meeting is being called for the removal of a director and no notice of the purpose of the meeting is included. In our template bylaws, except for sole member corporations where the sole member can act unilaterally, we also allow the person(s) subject to the call for removal the right to be heard at the meeting to present their case against it. (See Ready Reference Page: “Bylaws Function as ‘Constitution’ of Nonprofit Corporations.”)
The Pennsylvania statute says that officers may be removed, with or without cause, by action of the Board, and without notice, at a regular meeting of the board, so that if the Board is seeking to remove an officer at a special meeting, I don’t think notice of the purpose would be required. Because removal of officers is highly unusual, and may be necessary on a moment’s notice (when you find out that your treasurer is stealing from you), I am less concerned with due process in removing an officer who could severely harm your organization with a single signature at any time than in determining sanctions against a member or a director.
Since you are now creating the Constitution of your organization, you need to think about how your procedure will look to a Court when it is being challenged as arbitrary and capricious, and how fair it will be to your colleagues who have also invested their time and energy on behalf of the group.
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