Duly Elected and Qualified

Being a corporate transactional paralegal put me into the interesting responsibility of creating businesses for my clients and installing directors and officers to run them. In fact, among my responsibilities were creating the formation and governing documents for the entities.

No matter whether it was a director of the corporation or an officer, no matter whether it was a for profit or a not for profit entity, installation of the ones who had the power of governance over it were the same. They needed to be duly elected in addition to being found qualified to serve.

There comes a time when a corporate officer, or even a corporate director, does things that reflect so poorly on the organization that they need to be asked to step down. It's good to have the right protocols in place to start the conversations about leaving voluntarily or face removal.

Michael Peregrine considered such an instance when he wrote about removal of an 'unfit' officer in 2012.

Removal isn't always an easy task. Some of the directors may go into their roles with open minds and self sufficiency. But there are times when many who serve on the Board are of the same ilk as the one who needs to be removed or are receiving favors from that "governor" that tend to cloud their judgment and motivation to act in the best interests of the corporation. The requirements for making the move - the red flag situations - get clouded by these background "noises." They should not. Action needs to be taken. If it needs to be done on a one-by-one basis (as far as more than one of the officials of the entity), so be it.

How is removal of an officer or director done? Well, the first place to look is sometimes the most obvious. Check the bylaws. As with creating the formation documents, corporate rules are pretty universal. The rules governing removal are also essentially universal.

What constitutes incapacity or being unfit to serve becomes one of the compelling issues when making the determination to remove a person from office. Sometimes it's a simple matter of their violating the rules of the organization. Sometimes we can exercise some leniency and allow them to retain their position after there's been some counseling and a warning. But if the behavior continues, there aren't too many options left except removal.

Presidential Qualification

During the last ten years, the matter of being qualified to run for (and hold) office was raised a number of times. Details of what it takes to have the qualification to run for and hold the office of President can be found in the U.S. Constitution, Article II, Section 1. It says,

Qualifications for the Office of President

Age and Citizenship requirements - US Constitution, Article II, Section 1

No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States.

After FDR ran for a third term, the Constitution was amended to put in place term limits under the 22d Amendment.

Term limit amendment - US Constitution, Amendment XXII, Section 1 - ratified February 27, 1951

No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once.

One writer explains the concept of being eligible to run for the office of President in layman's terms.

So we have two rules with regard to being qualified to hold office. But that still brings us back to the question of whether or not a President can, like a corporate officer, be removed and what constitutes grounds for removal. The answer, just as with the corporate bylaws, is contained in the Constitution.

Just as a court of law does not decide whether an official of a corporation is qualified for office, so it is with a President. It is not a legal question for the office of President; it does not go to the Judicial branch for adjudication. The checks and balances provide for the Electoral College with is part of the Legislative branch. It is Congress that determines eligibility for office. It is Congress that determines if the President is unfit to serve.

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected. ARTICLE 2, SECTION 1, CLAUSE 6

This election season has been very vicious. It's difficult at this writing to find U.S. authority or enlightenment on what constitutes "unfit to hold office" or what would be considered misconduct while in public office. However, just as with corporate law, it appears the issue of fitness for office is also close to being universal. And because we derive much of our law based on British jurisprudence, perhaps for this writing we should look to Crown Prosecution Service for their interpretation of misconduct in public office.

We can simplify this analysis. If the person violates the rules of the Constitution, the law of the land, there is misconduct. Creating situations that tip the scales of Justice toward finding conflicts of interest (causing undue debt for the citizens while the one or the one and their close allies benefit from being exempt from the burdens is one example). Failure to pay debts, or to pay them in a timely fashion. Exhibiting consistent behavior that signifies lack of discretion and reasonableness; in need of rational response to situations would also call into question whether a high office holder is fit to continue in office.

Some argue that President Wilson should have been removed from office because of his stroke. His wife protected him from removal. However, a compelling health issue would also be grounds for having the Vice President step into the shoes of President, or whoever the Congress determines should hold the office instead of the sitting President.

There are several books that cover this country's history with Presidents being impeached as well as actions for their removal. To name a few, consider: The Impeachment of George W. Bush: A Practical Guide for Concerned Citizens or The History, Law, and Politics of Federal Impeachment, Second Edition.

For now, know who the people are who you propose to run your business. If they show they aren't the right fit or are veering toward taking the ship in the wrong direction, step in to take corrective actions early on, before there's drastic damage that could sink the ship.

Resources:

• How to Remove an 'Unfit' Director
  
• Voter and Officeholder Qualifications
  
• How to Remove a Corporate Officer
  
• Changing Directors and Officers of Corporations
  
• Saving Face
  
• Qualifications for the Office of President
  
• Presidential Eligibility
  
• Lessons in History - Conflicts of Interest
  
• Heritage Guide to the Constitution
  
• Recall of Legislators and the Removal of Members of Congress from Office
  

Consider signing and sharing a petition to evaluate the fitness to serve before confirmation of the President-elect.

Sponsored Links:

• Conflicts of Interest: Challenges and Solutions in Business, Law, Medicine, and Public Policy
  
• The Heritage Guide to the Constitution: Fully Revised Second Edition
  
• Conflict of Interest in American Public Life
  

Facing the Facts

It's been more than 20 years since the revelatory incident happened. It drastically changed my opinion about me and the way I perceive things.

As I approached a store entrance, an attractive young man who appeared to be in his early to mid 20s pulled into a handicapped parking space. He was driving a new sports model car. By virtue of the fact that he killed the engine and readied himself to exit the vehicle, it was apparent he planned to remain in the spot and was not using it to gain access to another space.

I stopped as I passed him to share some information. "Excuse me. This is a handicapped parking space. You may want to park somewhere else," I advised.

"But I am handicapped," he replied.

It was an indelible experience. In that instant, it was obvious to both of us that I had a major prejudice that needed to be overcome; it was an attitude about those with handicaps that needed to be altered in a major way.

Other Views

Since then, I've encountered others who have not yet had that type of revelatory life experience and speak of the handicapped or disabled in condescending terms and judgmentally dismiss them as not capable of filling some type of vacancy because of their "handicap."

It was interesting to listen to the executive recruiter who met a manager who is a Thalydamide survivor. "He only has one hand," the recruiter exclaimed, "But he can do all the things I can with his one arm. He can drive a car. He can type faster than I do ..." and he went on to describe the "adaptations" the manager has developed in order to do all of the tasks that others do with two limbs.

Considering this recruiter's amazement with the novelty that one with a "disability" can actually be hired for a management position and successfully function on the same level with their peers, the next question was who had recruited and hired this manager. After all, the manager was working for the recruiter's client. This recruiter, it appeared, would have passed on the manager; he would have considered the man as not qualified. However, the manager has all of the qualities one could want in an essential member of your corporate executive team.

The Right Question

Having assistive devices is not a red-flag situation that your candidate is not qualified for the position. It's only an observable signal that the person has a different way of doing the things that many other candidates manage. The interviewing question that should be put to all candidates is not, "Does your handicap require any special accommodations?" Nor should the first thought be the additional costs of having the person on your team because of major modifications to the workplace in order to have them there. Instead, the appropriate question for all candidates who are under serious consideration is, "Do you need any accommodations in order to fulfill the requirements of the position?"

What Isn't Seen

What's interesting is there are many invisible "disabilities" that are never addressed nor accommodated. The only reason a person with a prosthetic eye, for example, is never "accommodated" is because it isn't immediately obvious. If it never comes up in the interview and if the candidate has reached a means of dealing with doing the same work as their peers with a minor, unobtrusive adjustment, no one is the wiser unless the medical records search discloses the matter.

Other conditions that are not obvious yet may be legally termed a disability are emphysema, pregnancy, anemia or heart murmur. They are "invisible" conditions (in the case of pregnancy, short-term invisible) but are not carte blanche total disqualifications of an otherwise qualified candidate. These conditions may require some accommodation provided by the company or, in greater likelihood, an adjustment of some sort by the person with the condition so that they are able to do the same work in the same amount of time (or less time with better results) as their peers.

Changed Perceptions

That was more than 20 years ago. My perception of what having a disability means and how people who are classified as such appear has drastically changed. My idea of entitlement for a person with a disability has also drastically changed.

The pivotal lesson here is to take stock of what you believe a person with a disability means and to what they are entitled. If you believe they are just as entitled to a marketable wage, advancement, and access, if you believe they are just as capable of producing cost-saving and quantifiable positive results for your company, you deserve the opportunity to have them on your team or present them to your client.

Yvonne LaRose was recently selected to serve on the Los Angeles Metro Accessibility Advisory Committee. She was a Disabilities Accommodation Provider in the Bay Area of California from 1993 to 1997. From 1993 to 1996, she was a news reader for Broadcast Services for the Blind (BSB). The service is a private band radio station based in the Rose Resnick Lighthouse for the Blind that reaches 13,000 listeners in 13 counties). From the BSB studio, she produced and hosted her very popular bi-weekly radio newscast, "Legally Speaking" that aired from 1994 to 1996.

Hospital Recommendations Upheld

The impact of the announcement left a humming chill in the air that resonated for several minutes. It made the listener want to stop and wait for the next sounds, the syllables that would unfold the remainder of the story, reveal the inevitable. Then the realization came that the suspense would have to wait until July 31 or later.

It was the morning of July 23. Radio news announced that U.S. inspectors had just arrived at King-Drew Hospital for a surprise evaluation visit. The hospital has a long history of troubles, poor performance by the workers, lack of discretion, and a nickname that sends shudders down the spine -- Killer King.

Earlier this week, the outcome of the inspection was announced. The hospital will be closed. In fact, one reporter stood in front of the empty building yesterday and spoke of the falling action of this drama. No emergency patients were being accepted. Ambulances were being redirected to other hospitals. Existing patients in the various specialty wings were transferred throughout this week to other facilities.

It was not the equipment that failed. It was not the integrity of the building that lacked. It was not 100 percent of the staff. But there were too many who were charged with the welfare of individuals who could not perform their duties. One reporter cited the fact that a worker could not accurately calculate the dosage that was to be dispensed to a patient. Another could not read the indicators provided by their equipment. Another left things unattended and problems arose.

This does not account for the tales of people being summarily lumped together as stereotypical entities rather than unique individuals. This does not include condescending statements that belittled the patients, making them feel less than human. And the fact that the hospital personnel would provide directions to one part of the hospital campus to another that on any occasion could be accurate or not is also not in the measures of credibility.

This last issue is important because if a person is seeking treatment for a health condition, it is highly likely that navigating two or more blocks to go from one part of the plant to the outlying bungalows on the campus may not be an easy task. Although there was a shuttle, it was difficult to actually catch it because it did not show up at the intervals that were supposed to be its rounds.

It was the screening and testing of personnel that caused the fall. The measures that were too low. The lack of taking charge of a situation that was not acceptable and letting it "slide" because the person in question needed a break. But a hospital, the health and welfare of people striving to live and care for theirselves, is not a place where people should let things slide. An individual's integrity at that point is one of the most critical issues and of paramount importance.

Let this second failure and ultimate closure be a lesson to Human Resource and recruiting professionals. Let this be a lesson to schools and universities. In preparing the people who will work in these environs, there should be care to make certain that their grades accurately reflect ability. Attention to detail is premium and should be part of the main concerns of the candidates. A first mistake can be forgiven but it needs to be attended with remediation. A second mistake needs more drastic measures.

In a previous post, there was an observation that some of the personnel showed signs of being heavily medicated on anti-depressants. Yet they were still on full duty in critical areas and managing records and documents. We will not speculate on whether the records always got into the correct files or not. The sins of the overall facility make that thought to terrifying to consider. But again, management and Human Resources should have worked together to find some means of providing time off until the reason for the medication was resolved and then return the worker to their position.

But that brings me to yet another observation about the personnel. So much reliance on using pills to cure anything and everything, from the least to the greatest. Again, there was no screening with regard to whether that medication was appropriate. In fact, some medications that have been found to be contra-indicated for use were still being prescribed. Other medications created physical dependency on the drugs (not addiction) that cause the condition to worsen and require higher doses. But the patient was still seen as the stereotype who would be suseptible to the family of related maladies. Indeed, the medications being prescribed would become the precipitants of the related conditions and add to the number of issues with which the patient contended rather than actually healing and freeing them from dependence on artificial remedies. Perhaps this last indictment is a failing of the training rather than the practice or the hospital. I will invalidate it -- for now.

We say in the recruiting industry that we are in pursuit of the "qualified talent." King-Drew shows us where things can go when we do not hold our standards as high as possible and settle for less than qualified. But King-Drew's Personnel department, no doubt, was attempting to give these "D" and "F" performers (according to Yaroslavsky) another chance at making it in a reputable facility. Unfortunately, they were given the chance to make it but not the support and supervision necessary to actualize it.

TAGS: organizational development, staffing, screening, qualified, competency, King-Drew Hospital,