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Dear Parliamentarian Vol. 113 August 2005

Dear Parliamentarian Vol. 113  August 2005
Answers to your Parliamentary Questions
drvideo@comcast.net


"Dear Parlimentarian" is written by the author of Parliamentary Procedures Made Simple: The Basics, an 80 minute video that tells how to have better meetings.


Strum, Dennis wrote:

I serve on a small non profit board that is undergoing some organizational

and board development.  Currently the same person serves as the President

and the Chair of the board.  We are interested in outlining the pro's and

con's of having the same person fill both positions in a new organization

that is beginning to "take-off".  Could you please advise and/or direct me

to some resources to inform this question?




Thanks

Dennis Strum

 

 

Dear Dennis,

   Let me qualify my answer.  If the organization has meetings of the membership, where the President/Board

Chairman presides, then I don't have any "pros" for this.  My reason is that the board chairman often has a

great deal of knowledge about the organization and items on the agenda.  By having that person serve as president

the organization is preventing this knowledge from coming out if the rules are strictly enforced about the president

not entering into discussion.  If you do let the president enter into discussion then you are harming the members with

a biased presiding officer.  In this case I think it is wise to have a president whose sole duty is just to conduct meetings

of the assembly.  That way the board chairman can give information and participate in the debate freely without influencing

the members from the presiding position.  

    If there are no meetings of the members then I see no harm in combining the offices.



 

The Parliamentarian

 


 

Dear Parliamentarian,

 

1.  If a motion is made and seconded, does the chairman have the authority  to send it to committee against the wishes of the person who made the motion?

 

2.  Can a chairman make a motion or does it need to come from someone who is not the acting chairman?

 

Thank you for your help.

 

 

Dear Mike,
    When you refer to "chairman" are you speaking of the chairman of the board or someone who is presiding at a meeting of the general membership?
Parliamentarian

 

Dear Parliamentarian,

I am referring to someone who is presiding at a meeting of the general membership.

 

Mike

 

Dear Mike.  
    Thank you for clarifying it for me.  When a member makes a motion and another member seconds it, the chairman is to place the motion to the membership for discussion.  Only the membership can determine whether it should go to a committee by adopting the motion to refer it to committee.  The only time that there may be an exception to this rule is if your bylaws or other rules state that any motion made concerning certain topics are referred automatically to standing committees.  So you will have to see if that is anywhere in your governing documents.
    The president should not make a main motion while he is in the chair.  He should either have someone else make it for him or step down from the chair, make the motion, debate it, and return to the chair AFTER the motion has been disposed of.   However, he can assume such motions as adopting the auditors report,  or some other minor motions.  For example, if he sees that a motion is very controversial and members might feel more comfortable voting by ballot, the chair could ask, "Is there any objection to taking this vote by ballot?"  Or if the agenda needs to be taken out of order, the chair could ask, "Is there any objection to suspending the rules and taking up agenda item # 10?"  Sometimes the chair sees that it would be more helpful to discuss something informally, and could state:  "Is there any objection to discussing this informally?''  Some parliamentarians might not agree with the for mentioned, but I have seen these practices helpful in meetings where the members do not understanding parliamentary procedure and it expedites the business.
    When the chair asks "Is there any objection to...?",  if one person objects, that does not mean it can't be done.  It just means the chair needs to take a formal vote on whatever he is presenting.  Hope this helps.

The Parliamentarian


 Dear Parliamentarian,

 

I am requesting information regarding Proxy voting for a special general meeting that has been adjourned to a fixed date.

 

My first question is can a shareholder attend a meeting and give his own proxy to someone else, and at the same time use another shareholders proxy at the meeting? In other words can he be in attendance physically and still be able to give his proxy away to someone else?

 

The second question I have is, do all proxy votes carry forward to the reconvened meeting of a fixed date? And what happens to the proxy and the votes if the holder of the proxy does not attend the reconvened meeting?

 

A speedy reply would be greatly appreciated

Thank you,

Joseph

 

Dear Joseph,
    To answer you first question, I would say no, because a proxy is a method for those who can't attend meetings to still have their voice heard through an agent.  I don't understand why this member wants to do this, since he can still carry a proxy for another person and vote the way he wants to vote, also.
    To answer your second question,  in my research I found that there are state laws that usually address this issue.  So you would have to look into your state laws to see if it carries over.  In the book that I am using for this research, "Guide to Voting", by Joyce L. Stephens, it states that usually the proxy is valid until ninety days after the meeting which enables the proxy to be valid for an adjourned meeting [reconvened meeting of a fixed date].  But check the laws.

The Parliamentarian

 

Dear Parliamentarian;

Sincere thanks for a speedy answer to my question on whether you can be in attendance yet still give your proxy to someone else. I believe that the purpose of doing this was to allow an uninvited guest to attend the meeting and be able to address  the meeting. By using the proxy of yet another shareholder, both of these people were able to address the meeting. If that changes your previous response  I would appreciate knowing. Another fact has just come to light and I am hoping you can answer this question also.

When a proxy vote sheet with an affixed label stating the shareholder's name, address and number of votes represented is mailed out  to a shareholder, is that the vote sheet that must be signed and returned or can the label be blocked out and a photocopies made ?

Thanks,

Joseph

 

Dear Joseph,
    I take it this has already happened and you are trying to correct this.  Does your organization have an attorney that it can consult on this issues?  It would seem to me that a proxy holder is just there to vote for the person and that to debate on an issue would be out of line.  It would also seem that the proxy with the affixed label is an official document and could not be altered.  Because I don't know all the facts, circumstances and the type of organization,  it would be best to bring these questions to your officers and have them consult with an attorney on these matters.

The Parliamentarian


 


HOehler@aol.com wrote:

 

Dear Parliamentarian,

 

Because of Hurricane Katrina, we (three elected officers) cancelled a scheduled quarterly meeting of our organization.

 

We want to reschedule it two weeks later. Our by-laws and standing rules are silent on that matter.

 

Can the same three officers reschedule it?

 

Thanks.

Bill

 

Dear Bill,
    Usually under such circumstances a meeting can be cancelled and then rescheduled.  Do your bylaws provide for the elected officers to call a special meeting?

The Parliamentarian

 

General Inquiry wrote:

 

I came across your website through a Google search.

I found it interesting, as I do all on that and related topics.

I live in Minnesota.  Our laws, as is true for all states, are probably different than in WA.  In fact, I am learning that states that have had far more experience with common-interest ownership properties have much more experience to draw from than we do here.

Anyway, the reason I am writing to you, and taking up your time, is that I have started a grassroots group to research for changes to our CIO statutes in the state.  In doing so, I am seeking input from anyone and everyone with something to say about townhouse, condo and association living.
To that end, I am hoping you might include a reference to our website in any future and appropriate articles you may publish.

I am using more 'viral' marketing, due to the fact that our budget at this time ranks right up there with bus fare.  I would seek outside donations, but want to keep our efforts untainted and more-than-arms-length for all who may scrutinize our results.

The goal for all this is to arrive at recommendations for revisions of our MN Statutes 515A and 515B.

Let me know if you can help spread the word.

Thanks in advance,

Richard Carter

 

 

 

Dear Richard,
    Thank you for writing us.    Arizona has just passed a new law about mail balloting on issues and getting rid of proxies.  This will cause some problems concerning nominations and elections.  I think the important thing for state legislatures to remember is :
    1.  laws adopted should conform to general parliamentary practice
    2.  even though homeowners and condo owners don't like to participate in meetings, it is still important to keep them in mind when writing the laws, because power in the hands of  a few uneducated members can cause a lot of problems.  I would love to see some statute include associations adopting a parliamentary authority and the requirement for officers to have some training in basic information about running meetings and protecting the rights of all the members
    3.  the law should insure that board meetings are open to members and that members are informed about all board meetings
    4.  laws should also allow members to amend documents and budgets.  Right now our state has this weird statue that the budget is reject by the members by a majority vote instead of having it adopted.  The reasoning is that people won't come and out and vote so they don't want to tie the board's hands to spend money.  I haven't thought a viable alternative, but there must be one.
    5.  there also should be a law to prevent boards in these associations from foreclosing on people for not paying their dues.  There have been some terrible stories where older people have had their house sold out from under them by an eager board of directors.  I know within the last few years Texas passed a law protecting home owners after a widow woman who was quite elderly didn't realized that she was to pay her association dues.  When the members of the association heard that the board was foreclosing they tried to pay the dues but the board refused to accept the money.  Some one literally bought her property for a song.  The Texas state legislature addressed the issue after the fact.  I know California has also addressed this issue.
    I will be writing an article for our web site concerning the Arizona changes in the law.  When it is posted I will let you know.


The Parliamentarian

 

 

General Inquiry wrote:

First off, thank you so much for writing.  This is exactly the nature of content I was hoping for.  What's important is that all with ideas are heard.

I certainly would be interested in a reciprocal.  Let me know how close you can come to a jpg image near 120px x 50px, and 400x120, or, whatever you would like for a link.  Likewise, let me know what size you prefer to have and I'll make one up.

I found your comments very appropriate.  They are just the type that could spur on further dialogue.

Any way I can talk you into visiting our discussion board (http://www.mn515revisited.org/board) and registering, going through the email confirmation and then cut-n-pasting the content of your email into one or more of the discussion areas?  If it's too much work, let me know if you are open to having the content posted.  (It's a new discussion board, and I could use all the participation I can garner.)

We don't have the experience here that other states such as yours, TX, CA, WA, and FL have.  However, we certainly are having problems that are emerging as more and more townhouse communities are being developed.  Whereas in Phoenix you had the Sun Cities to get you started, here we had the occasional suburban condos, urban hi-rises, and then the quad-style town homes beginning in the seventies.  In the last couple years, with increasing home prices, urban sprawl, and a housing boon, associations began popping up like weeds.  A number of the outlying communities hadn't the experience to plan by, nor the resources for all the infrastructure needed.  We have seen more and more families with more and more children, moving into high density associations, with little to no recreational areas.  Most of those purchasing are first-time homeowners, who haven't had the benefit of learning what home ownership entails, even in common-interest properties; and assume far too much about far too little.  There are growing issues.  And as can be expected, few at best, read their By-Laws or Rules and Regulations.  These don't seem like significant issues but they snowball continuously due to lacking and inexperienced management and boards many times needing direction in a number of cases.

I agree with your statements that owners need to be protected from over-zealous boards and management companies.  (Therein are many subjects I could go on for hours about.)  In addition, I have also been trying to develop options or solutions for 'getting everyone on the same page'; i.e., getting all owners and residents to read, sign-off on, and live by the R&R's.  I don't know how much depth yours have, but our association documents here are pretty much boilerplate and are very 'course' in requirements.  Unfortunately, it's nearly always a war to get the owners to read them.  We do have a 10-day cool-down provision at the time of purchase, established for the buyer to read the documents and understand they will be held accountable.  Unfortunately, there is nothing to confirm or even guarantee that the incoming owner will understand, less know the requirements.  I am not suggesting harsh enforcement; I am suggesting a need for steps that will with all likelihood reduce, if not eliminate, many subsequent problems, only if everyone will read the docs.  It sounds so simple and presumptive, but rarely is it accomplished.  I just don't get it; but I do know we need to generate some options.

Hope you will join us, and that we can be of mutual benefit to each other.

Anyway, hope to hear from you frequently, and nice to meet you.

Richard Carter

 

Dear Richard,
    I will let my husband tell you what kind of a link to do on the page.  But I want to recommend a book, ( I should have thought about it first)  entitled, "Privatopia" by Evan McKenzie.  It is about the rise of HOA which are private governments.  It gives a very good history and problems with these developments.  It also tells why they are on the rise.  It is almost impossible in the state of Washington (or let's say the western corridor from Seattle to the south) to buy a new house that is NOT in an association.  The problem that we find is that the developer has boiler plate CC& R's and terrible bylaws that are drawn up by some attorney that does not understand anything about basic parliamentary procedure that inhibits the members from making any decisions at all.  I have worked with one HOA where the developer put in that a quorum be 2/3's of the members.  We have bought land recently where the quorum is 2/3's.  The state law only requires 34%.  It is impossible to get 2/3's of the owners, even by proxy, to a meeting.  So nothing is decided by the full membership but usually by a board of 3 or 4 people.
    I would really encourage you to read Mr. McKenzie's book.  It was very helpful to me and what an eye opener!  This is way of developing certainly is taking over America and I hate to see it happen.  So it is important for everyone to be up on this and certainly for homeowners to learn the basic elements of democratic procedures to protect themselves from the many abuses that go on in these associations.  We will look at your sight and try to participate.

The Parliamentarian

 


Peterg21@aol.com wrote:

 

Do the shareholders of a corporation have to vote on the by laws of a corporation?



 

Are these new bylaws or are these amendments to existing bylaws?




The Parliamentarian




 

Dear Parliamentarian,

I am a Community Association Manager in Arizona. Recently a new law was

passed which prohibits the use of proxies and allows for mail-in ballots.

As is common for the State of Arizona, policy has changed, but we receive no guidance as far as procedure. Most CC&R's state that you must hold an AnnualMeeting and that nominations from the floor must be accepted. My general question is how do we combine these policies with that of the mail-in balloting? My specific question pertains to mail-in ballots, which are irrevocable, received after the cut off date, but prior to the annual meeting, where ballots will be handed out and voting will take place. If we receive a mail-in ballot after the cut off date, and the member shows up at the Annual Meeting, what do we do? Do we tell them their ballot was void because we received it after the cut off date? Do we give their ballot back to them? Do we keep the mail in ballot marked as void and provide them with a ballot they can complete at the meeting?




How is this handled in other associations?




Thank you in advance for your assistance.




Lori Bahrman, CMCA, PCAM

 

Dear Lori,

    What exactly does the law state. I would like to start with that first.




The Parliamentarian

 

Dear Parliamentarian,

Thanks for your quick response. Here is the additional information you
requested. Both of these items are from the Arizona Revised Statutes.

33-1812. Proxies; absentee ballots; definition
A. Notwithstanding any provision in the community documents, after
termination of the period of declarant control, votes allocated to a unit
may not be cast pursuant to a proxy. The association shall provide for votes
to be cast in person and by absentee ballot and may provide for voting by
some other form of delivery. Notwithstanding section 10-3708 or the
provisions of the community documents, any action taken at an annual,
regular or special meeting of the members shall comply with all of the
following if absentee ballots are used:
1. The absentee ballot shall set forth each proposed action.
2. The absentee ballot shall provide an opportunity to vote for or against
each proposed action.
3. The absentee ballot is valid for only one specified election or meeting
of the members and expires automatically after the completion of the
election or meeting.
4. The absentee ballot specifies the time and date by which the ballot must
be delivered to the board of directors in order to be counted, which shall
be at least seven days after the date that the board delivers the un-voted
absentee ballot to the member.
5. The absentee ballot does not authorize another person to cast votes on
behalf of the member.
B. Votes cast by absentee ballot or other form of delivery are valid for the
purpose of establishing a quorum.
C. Notwithstanding subsection A of this section, an association for a
timeshare plan as defined in section 32-2197 may permit votes by a proxy
that is duly executed by a unit owner.
D. For the purposes of this section, "period of declarant control" means the
time during which the declarant or persons designated by the declarant may
elect or appoint the members of the board of directors pursuant to the
community documents or by virtue of superior voting power.

10-3708. Action by written ballot A:  Unless prohibited or limited by the
articles of incorporation or bylaws, any action that the corporation may
take at any annual, regular or special meeting of members may be taken
without a meeting if the corporation delivers a written ballot to every
member entitled to vote on the matter. B. A written ballot shall: 1. Set
forth each proposed action. 2. Provide an opportunity to vote for or against
each proposed action. C. Approval by written ballot pursuant to this section
is valid only if both: 1. The number of votes cast by ballot equals or
exceeds the quorum required to be present at a meeting authorizing the
action. 2. The number of approvals equals or exceeds the number of votes
that would be required to approve the matter at a meeting at which the total
number of votes cast was the same as the number of votes cast by ballot. D.
All solicitations for votes by written ballot shall: 1. Indicate the number
of responses needed to meet the quorum requirements. 2. State the percentage
of approvals necessary to approve each matter other than election of
directors. 3. Specify the time by which a ballot must be delivered to the
corporation in order to be counted, which time shall not be less than three
days after the date that the corporation delivers the ballot. E. Except as
otherwise provided in the articles of incorporation or bylaws, a written
ballot shall not be revoked.      




Lori Bahrman, CMCA, PCAM

 

Dear Lori,

            Thank you for sending me the state code.  As you know associations are going to have to amend their governing documents to conform to the new law.  But to solve your dilemma for the upcoming meeting, I recommend the following:

1.      If members come who sent in the late ballots, let them know this and allow them to vote with the other members present since their mail in ballots are void.

2.      Be certain that this is recorded in the minutes.  If they do not come, these late ballots should be also recorded in the minutes in case someone questions the vote.

 

After you amend your governing documents, I also recommend adopting Rules of Order that state the procedure for nominations and elections, including the handling the mail ballots, the ballots  from those present and voting,  and the counting and tallying of each class of ballots.

Since it is difficult to vote by mail for people who have not yet been nominated,, that procedure will also have to be changed.  There are various ways of nominating besides those from the floor:  by ballot, by committee, by petition.  Or the association could have a special meeting where nominations are taken from the floor and then added to the ballot.

The most important thing is to have well thought out rules and then have the members vote on them.

If you need any help with this, our company can help you with this.  We do charge a fee for this service.

 

The Parliamentarian

 

 

Dear Parliamentarian:

 

Could you please help with information on a matter of meeting procedure.

 

I am a Governance Committee Member of the Wainuiomata Community Centre.  At the last meeting, held Friday 19th August we had a procedural problem relating to the meeting agenda, namely "Apologies."

 

In our constitution it is written that any member who is absent from three meetings during his/her term of office will be deemed to be no longer a member of the committee. The question has been asked: " Is a member who has indicated to the secretary that they will be absent ie, has sent an apology, said to be absent in the terms of the constitution.

 

Any help in this matter would be appreciated.

 

Bill Penn

 

Dear Bill,
      Without seeing the exact wording of your Constitution, I can only give you a general answer.  If you e-mail that section of the constitution, I would be more than happy to review it.
     Here is the general answer:  A provision like this is usually put in the constitution so that it takes away hard feelings when someone has to be removed from a committee for extended absences.  By stating that after three meetings the member is removed,  it takes away an recrimination from the other members for removing the one who has been absent.  Unless your constitution gives an out--like "unexcused absences:" or "may be removed after missing three meetings" (keep word is "may") then the person is automatically removed.  The reason this clause is put in the constitution is so that the organization can depend on those appointed to seriously fulfill their commitments in serving.  It also means that there has been a problem with people taking committee assignments and then not doing the work or attending the meetings.  It should be a policy that when the committee first organizes that all the members agree to a meeting date,  then they can write it on their calendars  and make the arrangements to be their each time.

Parliamentarian

 

Dear Parliamentarian:

What is the proper procedure if the majority of a committee wants the  chairperson/president to step down?
Does he have to be present at the meeting?

 

Dear Tracy,
    The committee may not have the power to remove the chairman.  The appointing body or electing body has only the power to remove.  If the committee has selected its own chairman then the committee members have the right to remove the chairman.  Please give me more information about your committee.  Is it a standing committee of the organization?  How are the members and chairman selected?

Parliamentarian

 

Dear Parliamentarian,

 

This is a stand alone committee sanctioned and authorized through the Official Board of my church. The members were selected by the church, however, we in turn chose the chairman.



 

Dear Tracey,
    I assume that you want to remove this person because he/she is not fulfilling the requirements of the office of chairman.  So have you considered first asking the chairman to resign so that you can get someone else to do the job?
    If you need to officially remove the chairman, then the procedure is to "rescind" the election.  If you give previous notice, meaning that you let the committee members, including the chairman, know that the motion will be made at the next meeting, then it will only take a majority vote to adopt.  If no previous notice is given then it will take a two thirds vote to adopt.  The chairman does not have to be present at the meeting for this to be done, but it would be kind to let the chairman know that this is going to happen.

The Parliamentarian

 
 Dear Parliamentarian:

My mother is president of the Potters Guild of Baltimore, and follows Roberts Rules of Order, when ever they hold their Board and member meetings.  They are currently a sub-chapter S corporation. Her question is they have the past-president on the Board and should they be allowed to vote with the Board or are they suppose to be in an advisory capacity?  Hope you can help with this matter!

 

 

Dear Frank,
    Your mother needs to look at the bylaws.  If the past president is a member of the board, then he/she has all the rights of  the other board members.  If it says the past president serves "ex officio",  the past president also has all the rights of the other board members.  If the rights of the past president are limited, they should be stated in the bylaws.  So that is where you mother will find her answer.

The Parliamentarian