Willing But Unable: Incapacity and the Incumbent

C. J. Mills, PRP and Jonathan M. Jacobs, PRP, CPP

When the news broke in 2020 that the President of the United States had contracted COVID-19, the nation became concerned with what would happen if the president could no longer serve due to illness or incapacity. There was much discussion about invoking the 25th Amendment to the United States Constitution (25th Amendment). Spurred by the assassination of President John F. Kennedy in 1963, the 25th Amendment was enacted in 1967. One of the issues it addresses is what happens to the presidency and vice-presidency when the president and/or vice-president dies, resigns, or becomes incapacitated or disabled.1

This same discussion is relevant to organized societies. The incapacity of a president raises valid concerns among the members of organizations about lack of leadership and overall anxiety about the state of the organization. The members of societies should be able to look to their bylaws for guidance on what to do if an officer, particularly the president, becomes incapacitated or disabled, potentially resulting in a vacancy in the office.

What is “incapacity”?

The dictionary defines incapacity as “the quality or state of being incapable especially: lack of physical or intellectual power or of natural or legal qualifications.” The medical definition of mental incapacity is 1: an absence of mental capacity. 2: an inability through mental illness or significant cognitive impairment to carry on the everyday affairs of life or to care for one’s person or property with reasonable discretion.2

What the framers of the Constitution meant by “incapacity”

1 National Constitution Center, https://constitutioncenter.org 2 https://www.merriam-webster.com

and how it is determined is not clear. Section 3 of the 25th Amendment allows presidents to voluntarily determine they are incapacitated, and later determine they are able to return to the duties of the office. It has been invoked by presidents three times for medical procedures.3

Section 4 addresses the case in which presidents do not themselves declare their incapacity, either because they are unable or unwilling to do so. It provides for both a decision-maker (a body to determine that the president is no longer fit to serve as president), and a procedure to fill the vacancy (vice-presidential succession). It has never been invoked, although arguably there are instances when it should have been.4

Effect on Deliberative Assemblies

Although Robert’s Rules of Order Newly Revised, 12th Edition (RONR (12th ed.)) 56:32 addresses vacancies in the office of the president, it does not explicitly cite incapacity or disability as one of the causes of a vacancy.5 Depending on the bylaws, the members or board may have to determine whether the president is incapacitated.6 Available parliamentary procedures to address a vacancy resulting from this determination include:

• Succession. “The vice-president automatically becomes the president for the remainder of the term, unless the bylaws expressly provide otherwise...” (RONR (12th ed.) 47:28-29 and 56:32).

This is not optional. If this newly seated president is unwilling or unable to remain president, the newly elected president must resign and may not remain vice-president. A vacancy would then result, both in the offices of president and vice-president.7 If

3 President Ronald Reagan invoked it when he underwent cancer surgery in 1985 and put

Vice-President George H.W. Bush in temporary charge. President George W. Bush invoked the amendment twice, in 2002 and 2007, while undergoing routine colonoscopies. 4 https://www.history.com 25th Amendment, January 2021 Update. It was considered twice under President Reagan—when an assassination attempt was made in 1981 and again in 1987 when he appeared “inattentive and distracted.” 5 This is distinguished from different rules that apply to vacancies due to incomplete elections, resignations, and disciplinary actions. 6 Bylaws of the National Association of Parliamentarians, Section 7. Vacancy in Office.

A. If there is a vacancy in the office of president created by death, resignation, or incapacity as determined by the NAP Board of Directors, the vice-president shall immediately assume the office of president. B. A vacancy in any office other than president created by death, resignation, or incapacity as determined by the NAP Board of Directors shall be filled by the

NAP Board of Directors. 7 Nothing in RONR (12th ed.) would preclude the now former president from filling the vacancy in the office of vice-president.

there are multiple vice-presidents, they each move up a level and the vacancy is created at the lowest vice-presidential position. • Special elections. If there are no vice-presidents and the bylaws do not prescribe any other method, the organization may have to conduct a special election (with previous notice) to elect a president for the remainder of the term.

• Dual offices. Unless prohibited in the bylaws, nothing in RONR (12th ed.) prevents someone from serving in more than one office.

If the only candidate for the office of president already holds an office, e.g., secretary, the candidate could still serve in both offices.

If not prohibited in the bylaws, this would also allow an appointed officer (e.g., executive director) to complete the term. This may be a necessity for small organizations where it is difficult finding members to serve as officers.

If incapacity is not determined or there is no vacancy, the question of what to do if the president is unable to serve is still open. The president may experience a short-term disability or temporary absences due to a medical condition or procedure. When faced with these types of situations, organizations can sustain the president through the end of the president’s term. Care should be taken that this balancing act is not performed to the detriment of the organization. Options available in this case can include:

• Delegation of authority. The president can authorize a member to act on the president’s behalf.

This can only be done in accordance with the bylaws and other rules of the society.

Delegation does not remove the president from office, but rather transfers certain presidential powers. • Chairman pro tempore (pro tem) positions. RONR (12th ed.) 47:11 provides for temporary occupants of the chair when neither the president nor any vice-president is present during meetings. The secretary should call the meeting to order and preside over the election of a chairman pro tem to serve for that meeting. This is done at the start of each meeting. The members may elect (with previous notice) a chairman pro tem to serve for more than one meeting.

Unless otherwise authorized by the bylaws, the chairman pro tem only covers the job of presiding at meetings and not any other duties associated with the office of president.

A long term incapacity of the president may require a permanent

solution; a society may require a president that is fully capable. A president in an irreversible coma, for example, or experiencing cognitive problems may be unable or unwilling to leave office voluntarily. This may require the assembly to create the vacancy by removing the president.

The method for removal from office, if not stipulated in the bylaws, is found at RONR (12th ed.) 62:16. If the officer serves “for ___ years or until their successors are elected,” the election could be rescinded. If the officer serves for a fixed term, or “for ___ years and until their successors are elected,” a trial becomes necessary. In either case, if the removal is in the office of president, the vice-president automatically becomes president (62:16n6).

Although drastic, removal might be a necessary action; a president may have non-procedural duties that cannot be delegated. An organization may, after removal, choose to adopt a resolution recognizing the former president for the president’s service, bestowing well wishes and expressing the organization’s regret at having to take this action.

The incapacity of the president is an unexpected and unfortunate situation. The spotlight on the 25th Amendment amid the COVID-19 crisis in 2020 reminds organizations of their vulnerability to similar circumstances. Fortunately, unless the bylaws state otherwise, RONR (12th ed.) provides relatively straightforward parliamentary guidance to organizations on how to address the effects of incapacity on the office of the president. Medical or legal guidance on incapacity should be sought from professionals. NP

C. J. Mills, PRP, is the secretary of the Pennsylvania Association of Parliamentarians and a member of the Parliamentarians of Philadelphia Pennsylvania Unit. She became a member of NAP in 2011 and PRP in 2018.

Jonathan M. Jacobs (J. J.), PRP, CPP, is the vice-president, and former president, of the Pennsylvania Association of Parliamentarians and the secretary of the Delaware Valley Unit. He became a member of NAP in 1987 and PRP in 1999.