Did this person resign from Board or as Officer?

Hi,

Can you please help me parse this statement? The following e-mail was sent by a member of the board of directors who is also serving as the secretary. There was no other mention of resignation in his e-mail.

"To make it short, given all the facts that I stated above and in order, to be in harmony with myself, allow a fresh start, and protect myself from further liability by joining the current board, I hereby submit my resignation as a secretary. My resignation is based on a deep conviction. My resignation, is not a political maneuver neither a tactical move."

Did this person resign from the board of directors or just from the secretary officer position? If they just resigned from the secretary officer position, can they remain on the board of directors?

He clearly resigned as Secretary. It is not clear what his intent is with regard to his position on the board as he says he wishes to "protect myself from further liability by joining the current board."

I have to agree with JohnC46 and ask him to clarify what his intention is.

How about asking him? Maybe by voice, with a telephone.

My non-lawyerly interpretation is that he resigned only from the office of secretary. We had one director recently tell people he was going to resign from the board. He sent an email that said, "... blah blah president Roberto can tell you why I am resiging as director...". But he never wrote, "I resign". In Florida an email resignation is considered written, but he never made that clear. Thus, the board's position is that he is still a director until he delivers a written resignation (which he has refused to do thus far but that's another story).

In your case, "I hereby submit my resignation as a secretary" is pretty clear (except for the extra "a" preceding "secretary" since there is probably only one Secretary). My interpretation is that he resigned as Secretary, but not as a director and is thus still on the board.

Absolutely check your state's laws. Unlike CA, in FL a resignation is effective when delievered; it need not state an effective date.

The applicable law for this is the Virginia Nonstock Corporation Act.

Per VA § 13.1-859:

A. A director may resign at any time by delivering written notice to the board of directors, its chairman, the president, or the secretary.

B. A resignation is effective when the notice is delivered unless the notice specifies a later effective time. . .

Per VA § 13.1-874:

A. An officer may resign at any time by delivering notice to the corporation. A resignation is effective when the notice is delivered unless the notice specifies a later effective time. If a resignation is made effective at a later time, the corporation may fill the pending vacancy before the effective time if the successor does not take office until the effective time.

If, when you clarify with the individual, you no longer have a quorum (as John eluded as a possibility), per VA § 13.1-862:

A. Unless the articles of incorporation provide otherwise, if a vacancy occurs on the board of directors, including a vacancy resulting from an increase in the number of directors:

1. The members may fill the vacancy;

2. The board of directors may fill the vacancy; or

3. If the directors remaining in office constitute fewer than a quorum of the board, they may fill the vacancy by the affirmative vote of a majority of the directors remaining in office.

As they are two different positions, the answer would be no, they do not also automatically resign the director position. They either need to specify or the Board needs to ask them if they intend to resign from both.

My suggestion would be to ask the question via e-mail.

Nice citation, Tim, which concurs with many of the above opinions. The one who wants to resign must specify both the officer and director opinions if that's what s/he wants.

The date, as Geno suggested and as Tim shows, is upon delivery to certain people or when specified in the email or letter. No "acceptance" is needed.

In VA, what's new and also interesting from Tim, is the HOA members "may" fill the vacancy or the board may fill it.

But the statute says unless otherwise in the Articles. But in many states, perhaps not VA, these kinds of topics are covered in the bylaws not the articles. I'm curious to know what Tim's bylaws or articles say on this topic and also what Jon's say.

Our bylaws also say that HOA members may fill vacancies and probably CA corps codes, which our bylaws follow closely, say the same thing.

I do think, PitA, that Jon asking us makes sense. I think that since I'v been following this forum, the confusion between officers and directors is the most common misunderstanding.

Kerry,

From our Articles of Incorporation:

Any vacancy occurring in the Board of Directors shall be filled by the affirmative vote of a majority of the
remaining Directors, though less than a quorum of the Board of Directors.

Articles of Incorporation are typically written based on existing corporate law. Therefore, a smart attorney would have some language within the Articles if the statutes defer to them.

then we/you actually provided the OP with some common sense

the OP should ask the 'resigner' not us

Yep, sorry, Jon--it aears that most if not all of us think he resigned as an officer but not as a director. But based on what you just wrote, does he think he resigned from the Board (as a director)?