Q&A #34 – What does it mean to have ex officio Board members?
Question: My nonprofit’s Bylaws state that certain Board members are “ex officio,” and the Board is not sure exactly what this means. The confusion is mainly about whether ex officio Board members have a vote, and the Bylaws do not specify. What does it mean to have ex officio Board members, and do they have a vote?
Answer: The term “ex officio” is widely misunderstood and misapplied in the nonprofit community. Many people understand “ex officio” to be synonymous with “non-voting,” but this is not accurate. “Ex officio” is a Latin term that basically means “by virtue of office or position.” This means that “ex officio” Board members get a seat on the Board automatically because they hold some other specific position. “Ex officio” does not mean “non-voting.” While ex officio Board members often serve in a non-voting role, this is not the case by definition. If these Board seats are intended to be non-voting, this must be set forth in the Bylaws.
For example, the Bylaws might provide that the organization’s Executive Director and/or the Chief Financial Officer of a related organization are ex officio Board members. In other words, in accordance with the true meaning of “ex officio,” these persons automatically join the Board by virtue of these other positions and stay on the Board for as long as they hold these positions. These ex officio Board members may or may not have a vote, depending on the language of the Bylaws. In fact, contrary to popular assumption it is common for ex officio Board members to have voting rights.
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To avoid any confusion about the issue, I generally recommend that nonprofits use the term “ex officio voting Directors” or “ex officio non-voting Directors” in their Bylaws, depending on what is intended.
Planning Tip – Having ex officio Board members raises potentially tricky issues that nonprofit organizations should clarify in their Bylaws (and perhaps Articles of Incorporation). In addition to the issue of whether ex officio Board members have a vote, you should examine whether your Bylaws adequately address how ex officio Board positions are treated with respect to matters such as Board and Officer term length and term limits, removal of Board members and Officers prior to the end of their term, and quorum requirements. Give careful consideration to how these actions have been interpreted and applied in the past. In addition to clarifying these key concepts, you may be faced with a choice of whether to amend the Bylaws to reflect current governance practices or align your practices to be consistent with the Bylaws.
In the absence of specific language in the Bylaws (or provisions of the applicable state nonprofit corporation law) to the contrary, you should generally assume that ex officio Board members have the same rights and powers as other Board members, including the power to vote.
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