NEW MARKETS TAX CREDIT COALITION TO: NMTC Coalition Board of Directors FROM: Edward H. Seksay, Secretary DATE: October 14, 2014 RE: Officer Term Limits / NMTC Coalition By-Laws As there have been some questions with respect to officer term limits as the NMTC Coalition begins its 2015 nomination process I have reviewed the By-Laws we approved in 2013. It is my conclusion that the term limits provisions of our By-Laws do not prohibit any current officer from serving an additional term in 2015 if they are nominated, agree to serve, and are duly elected. My conclusion is based on the following: In July of 2012 Jose Villalobos and Jim Klein first assumed, respectively, the roles of President and Treasurer. On February 26, 2013 the Coalition amended and restated its By-laws and approved committee charters. The amended by-laws state that the Coalition shall have a “President, Secretary and Treasurer” and such other officers as the Board shall designate. At the same time the Coalition, pursuant to its amended by-laws, elected Jose Villalobos to serve as President, Jim Klein to serve as Treasurer, and me to serve as Secretary. The officer term limits provision (Article VI, Section 5) of the amended By-laws enacted on February 26, 2013 states in its entirety: “All Officers shall be elected to serve a one (1) year term and no officer shall serve more than three (3) consecutive full terms in any one position. Officers continue to serve until their one-year term expires or until their successors are elected and qualified, unless they earlier die, resign, or are removed from office.” The amended Bylaws, which I helped to author, do not explicitly address either:
The status of an officer serving at the time of their adoption; or, Whether the Board intended them to have prospective (i.e., going forward) or retroactive (i.e., applying to the future and the past) effect.
As a general proposition, By-laws typically apply prospectively unless they expressly state otherwise. As best I can determine the version of our By-laws in effect prior to 2013 prohibited three years of consecutive service on the Executive Committee (stating that “no officer shall serve more 3 consecutive years in any one position on the Executive Committee”) but did not address whether 3 consecutive years of service in any given officer role was prohibited. At the end of 2014 no officer elected in 2013 will have served three consecutive full terms in accordance with the by-laws enacted in 2013. I therefore conclude that, while Jose and Jim began serving as President and Treasurer in July 2012 during an interim period before our bylaws were amended, Jose and Jim may, if they are nominated, agree to serve, and are elected, serve as President and Treasurer in 2015 because the officer term limits enacted in 2013 apply prospectively to officers elected in 2013 and in subsequent years. The term limits provision, however, would prohibit Jose and Jim from serving, respectively, as President and Treasurer in
NEW MARKETS TAX CREDIT COALITION 2016. For similar reasons term limits would preclude me from serving as Secretary in 2016 if in 2015 I am nominated, agree to serve, and am elected Secretary. I hope you find this explanation and interpretation of our by-laws useful as the Coalition begins the 2015 nomination process.
