Legal Question in Civil Litigation in South Dakota

ex officio

When the president of a club is not an elected director on the Board of Directors but attends meetings in an ex officio capacity is he eligible to vote on matters before the board? The by laws are as follows:

The Board of Directors shall be nine (9) in number or eight (8) in number if the club president is already an elected director. The club president shall be an ex officio of the Board of Directors.

Asked on 1/07/04, 9:56 am

2 Answers from Attorneys

Jim Craig Craig Law Office

Re: ex officio

the term means: From office; by virtue of the office; without any other warrant or appointment than that resulting from the holding of the particular office. In the context of your club's bylaws, a reasonable interpretation would be that you would be a voting member, the 9th member, capable of breaking a tie in an other wise even number of votes.

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Answered on 1/09/04, 10:53 am

Scott Sumner Sumner Law Office, P.C.

Re: ex officio

I take it that this revised question is an attempt to clarify some uncertainties I pointed out in response to a recent similar question. This question still cannot be answered by general principles of law. The concept of a ex officio member of a board includes the possibility that the ex officio member is a voting member and the possibility that the ex officio member is a non-voting member, serving in an advisory capacity only. The brief statement provided from the bylaws is, in my opinion, inherently ambiguous as quoted. Further, you do not indicate whether there are nine members of the board besides the president or only 9. An answer to this question, based upon this limited information, is necessarily a guess. My guess is that there should be nine elected members of the board of directors. If one of the elected members to the board is the president, then the board of directors will have nine voting members, including the president. If there are nine elected members of the board and the president is not one of them, then my interpretation would be that, in thatat circumstance, the president serves as a non-voting ex officio member of the board in an advisory capacity only.

Is this type of fact specific question really the type of thing that should be handled through this web service?

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Answered on 1/08/04, 1:36 pm

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