Question : Several of my nonprofit’s Board members had their terms expire recently and we have not been able to elect people to replace them. Are these individuals still considered Board members and can we continue to include them in meetings? Our Bylaws do not seem to address the issue.
Answer : The status of Board members whose terms have expired depends on the organization’s Bylaws and the applicable state nonprofit corporation statute. The law in many states is that unless the organization’s Articles of Incorporation or Bylaws provide otherwise, Directors continue to serve past the expiration of their term until a successor is elected and takes office. This often applies to Officer positions as well.
If the state nonprofit corporation statute applicable to your organization has a similar provision, and your organization’s Articles and Bylaws are truly silent on the issue, then these individuals will continue to be deemed Board members and any meetings or actions taken since the expiration of their term will be unaffected.
Planning Tip – As recommended in our article “Supercharge Your Nominations Committee,” consider taking a fresh look at your organization’s nominations committee and practices for recruiting future Board members. Expanding the role of the nominations committee will help the organization to stay focused on expiring Board terms and, more importantly, will enhance the long-term sustainability of your nonprofit organization.
Regardless, formally replacing or re-electing these Board members should be a high priority. Amending the Bylaws to include language specifically adopting this “holdover” rule would help to avoid confusion in the future, as many people are not aware of the intricate details of state law on matters like these.
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