Opinion of the Judge Advocates of The American Legion, Department of Michigan concerning Post holding in person elections at a meeting for the 2020-21 Legion Year.
The Judges have reviewed all relevant documents and have come to the following opinion.
In April the National Executive Committee passed Resolution No.3 which resolved that That due to these serious and sufficient reasons, the following American Legion events in Louisville, Kentucky, are cancelled: (1) the Pre-Convention National Executive Committee meeting scheduled for August 31, 2020; (2) The American Legion’s 2020 National Convention scheduled for August 28–September 3, 2020; (3) the Post-Convention National Executive Committee meeting scheduled for September 3, 2020; and (4) all regular- scheduled national commission and committee meetings that would have been held in Louisville; and,
That all nationally elected and appointed officers continue serving in their current positions until the close of the next National Convention scheduled in Phoenix, Arizona, from August 27 through September 2, 2021; and,
That all national commission and/or committee chairpersons and the current commission and committee members continue serving in their current positions until they resign or are either reassigned or reappointed at the 2021 Fall Meetings scheduled in Indianapolis, Indiana, October 12–15, 2021; and,
That due to numerous health and safety reasons and needs of our members, the American Legion National Executive Committee strongly urges that the national Sons of The American Legion, the national American Legion Auxiliary and all American Legion departments follow a similar course of action, to-wit: (1) cancel their 2020 conventions and elections; and (2) maintain the status quo of their officers until next year.
As a result of this resolution the Department of Michigan passed Department Resolution 20-8 which allowed for the creation of Emergency Constitution and Bylaws and Resolution 20-9 which cancelled the Department Convention for 2020 and rolled Department Officers over for the 2020-21 Legion year.
The Emergency Bylaws were drafted and approved by the Department Executive Committee. They were drafted in a manner that was intended to attempt to disrupt the post as little as possible while giving post directions on how to hold elections for the 2020-21 year should the post choose.
The Emergency Constitution and Bylaws provisions shall become effective upon declaration of a state of emergency by any federal, state, or local authority, pursuant to MCL 450.2261 of the nonprofit corporation act, MCL 450.2101, et seq., and Department of Michigan resolutions 20-7 and 20-8, and shall remain in effect for 60 days after the state of emergency is lifted, unless otherwise provided herein in the emergency bylaws.
These provisions supersede the Constitution and bylaws of the American Legion Department of Michigan only to the extent stated herein, and all other provisions of the Constitution and Bylaws of the American Legion Department of Michigan shall remain in full force and effect.
The Emergency Constitution Article VII Post Organization Section 10 reads:
In the event of an emergency, when Post elections cannot be held in person, the Posts may elect to not hold elections as recommended by Department Resolution 20-9 and National Resolution No. 3. Should Posts choose to hold elections, they may do so in one of the following manners. If the posts did not hold an election by one of the manners provided by the Emergency Constitution and Bylaws, they, by default, chose to not hold elections and roll officers from 2019-2020 over for the 2020-21 year.
Four options were available, Video or Conference Call election, an e-mail vote election, vote by mail or simply not hold elections and roll officers from 2019-2020 over for the 2020-21 year.
These options were not with indefinite dates. Post were expected to adhere to the requirements of the Post Bylaws and the Department Bylaws. Because of unusual circumstances allowances were made to give post addition time. All of the above options were available to the post from late April until the end of the Legion fiscal year which was July 1, 2020.
The Department of Michigan has been able to hold necessary Department Executive Committee meetings on the dates required by the Department Constitution and Bylaws by using the video and conference call option using the video and conference call option.
Nowhere in the Emergency Constitution and Bylaws was there an option to wait until the post can hold an in-person meeting to hold elections. Any post that chose this path is in violation of the Emergency Constitution and Bylaws.
Since the new fiscal Legion year has begun only one option remains for post that chose not to hold elections in one of the manners provided by the Emergency Constitution and Bylaws. That option is to roll the officers of the 2019-2020 year over to continue to hold office until the close of the 2020-21 year.
Kim Hillock Howard - Department Judge Advocate
Brett Holt - Assistant Department Judge Advocate