[Linux-aus] Presidential Succession

[James Polley]

On Fri, May 7, 2010 at 1:00 AM, David Newall <davidn at davidnewall.com> wrote:
>
> James Polley wrote:
> > No; if that was intended, 14(4) would refer to "a casual vacancy in
> > the ordinary member positions of the council" or somesuch.
>
> You are confusing replacing a member of council, which the council is
> permitted to do, with filling a vacancy in the office of president,
> vice-president, secretary or treasurer, for which no provision is made
> in the constitution nor Act.

Later in this email, you repeatedly assert that the phrase "member of
the council" refers both to office bearers and to ordinary members.
Given this, I see no reason why when section 18 refers to "a casual
vacancy in the office of a member of the council", it should be
interpreted as applying only to ordinary members; nor any reason why
section 14(4)'s phrase "membership of the council" would apply only to
ordinary members and not to office bearers.

I'd be willing to consider reasons for thinking this, but I haven't
seen you provide any.

>
> > Inside Section 15, constant reference is made to "office-bearers of
> > the association or ordinary members of the council" - yet section 15
> > is entitled "Election of members". Clearly "members" in this case
> > refers to "office-bearers of the association or ordinary members of
> > the council"
>
> I'm not sure how section fifteen is relevant to the discussion, seeing
> how it refers to election of office bearers and members of council at
> the AGM, and not to the filling of any casual vacancy.  Rules for the
> latter are in sections 14(4) and 18.

Section 15 is relevant because the Constitution hangs together as a
whole. "members" should mean the same thing in all sections.

>  Further, consider that "election
> of members" refers to election of ordinary members of the association to
> the council (including office-bearers.)

I don't understand this sentence; you seem to be implying that the
office-bearers are a subset of the ordinary members of the
association. Section 1 explicitly defines ordinary member as "a member
of the council who is not an office-bearer of the association".

>  I suggest that the observation
> you made, namely repeated references to "office-bearers of the
> association or ordinary members of the council," indicates that where
> the constitution merely mentions "member of council", it means nothing
> more than member of council.  Please keep in mind that office-bearers
> have three, distinct roles within the association: that of office
> bearers; ordinary member; and member of council.

No, an office bearer is explicitly *not* an ordinary member; again,
see section 1.

> A reference to member
> of council means just that: not the role of member of the association
> nor of office-bearer.

So in summary:
 - Office bearers are also members of the council
 - The phrase "member of council" should be interpreted as referring
to *all* members of the council, not merely the ordinary members or
the office holders.

Then we're all agreed that in section 18 "a casual vacancy in the
office of a member of the council", the phrase "a member of the
council" applies to all members of the council, including
office-bearers.

>
> Perhaps a fourth ordinary member could be appointed to fill the position
> on council that the president vacated, but not to fill the position of
> president itself.

Again, have you read the constitution?

You got this right in your last email when you said that the council
"already has it's required three ordinary members"[1][2]. 14(1)(b)
explicitly says that the council is to have 3 ordinary members. Four
would be a clear violation of the constitution.

>
> > - if "members" meant "ordinary members" only, it would be nonsensical
> > to refer to "office-bearers of the association" in section 15.
> I don't see why.  Could you explain the nonsense?

Because if the section head prescribes that we're only talking about
the election of ordinary members, talking about the election of
office-bearers wouldn't make sense.

> > Section 19 describes the procedure for removing "a council member"
> > from office. If your definition were to hold, it would mean that
> > Ordinary Members were subject to removal from office at the whim of a
> > majority of the membership, but Office Bearers could not be removed
> > even after a unanimous vote from the entirety of the membership.
> Yes, that would seem to be true.  It may mean that the president's
> membership de jure of council can be revoked, leaving the president with
> (almost) no power.  I expect the vice president would preside if that
> occurred.  But let's keep on topic.

No; if Section 19 is used to remove a council member, Section 18(1)(e)
kicks in; the position is a casual vacancy, the remaining members of
the council can appoint any member of the association to fill the
vacancy.

This is entirely on topic, as it relates to your strangely variable
definition of "council member".

>
> > Arguing that we should just limp along for now on the reduced capacity
> > because it's technically sufficient and nothing has blown up yet is
> > insane. Arguing that we should run with a reduced membership of the
> > committee just because we're not obligated to fill the vacancy makes
> > no more sense.
> So appoint a fourth ordinary member.

Again, as you stated in your previous email, this would be a clear and
direct violation of the constitution.

>
> >     other than for the public officer, thus the rules seem to require that
> >     the vice-president act as president until completion of the next AGM.
> >
> >
> > The rules require no such thing.
> >
> > The rules (in particular, 20(7) ) require that if the president is
> > present at a council meeting, the president be the first person
> > presented the option of presiding over the meeting. Should the
> > president be absent, or not willing preside, the vice-president is
> > next offered the chance to preside. Should the vice-president also
> > decline to preside, any other council member (subject to approval from
> > the other members) may preside.
> >
> > The rules do not require that the vice-president to preside over
> > anything; the rules do require that under certain circumstances the
> > vice-president be offered the chance to do certain things.
> Arguing semantics achieves little.  I say act, you say option to
> preside.  We mean the same thing.  Absent a president and the rules do
> require the vice president to act in that role (i.e. be given first
> right of refusal, if you insist.)

Sure. The VP has in this case turned down the offer, so your point is moot.

> > Please note that, if we're to accept your idea that "members" refers
> > only to the ordinary members, 20(7)(b) would have to be interpreted as
> > saying that, should both the president and vice-president be absent or
> > unwilling to preside over the meeting, the (maximum of) three ordinary
> > members should decide amongst themselves which of them was to preside
> > - the secretary and treasurer would neither get a say, nor be offered
> > the chance to to preside.
> Incorrect, because office bearers are also members of council.

... If office bearers are members of council (which I've been arguing
they are all along), then sections 18 and 19 apply to them.

>
> > If the VP is not willing or able to take on the load, it's entirely
> > appropriate that the council look to someone else to fill the vacancy.
>
> Is this the problem?  Is the V.P. unwilling to take on the work-load of
> presiding at meetings, onerous or not?

Once you've done reading the constitution, take a gander at
http://lists.linux.org.au/pipermail/linux-aus/2010-May/018069.html,
sent a little over 5 hours prior to your email.

Yes, the VP has decline the opportunity to be appointed as president.

> Rather than make up rules ad hoc, the council might consult the
> associations legal representative.

This is not ad hoc. This is standard procedure in every association
that operates under the NSW Model Rules.

Randomly deciding that "a member of the council" applies only to
ordinary members in section 18, but to both ordinary members and
office bearers throughout the rest of the constitution - that's ad
hoc.

[1] http://lists.linux.org.au/pipermail/linux-aus/2010-May/018068.html
[2] Well, mostly right. You used "it's" when you should have used
"its", but that's just a minor grammatical error. You were also wrong
to use the word *required* - the council has three ordinary member
positions, but the council can still function even if those positions
are unfilled.