Dear Parliamentarian Vol. 117 Dec. 2005
Dear Parliamentarian Vol. 117 Dec. 2005
Answers to your Parliamentary Questions
"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.
I have found your website to be quite informative, and I thank you for the service you provide. I have found some questions that skirt the issue I am writing you regarding, yet do not squarely address it. This is my situation:
I am a Board member for a Home Owners Association in Las Vegas, Nevada and our annual election is coming up next month. There are 4 offices up for election, voting is cumulative, and nomination forms have been sent out to all eligible members. The deadline for return is set for January 8, and part of the nomination process is to declare any potential conflicts of interest, as well as whether the candidate is a member in good standing. Once the January 8th deadline is passed, secret mail-in ballots will be sent out to all homeowners. The election is being held on January 26th.
The language in our governing documents (which is mirrored by the Nevada Revised Statutes, Section 116.31034.3 states: "Not less than 30 days before the preparation of a ballot for the election of members of the executive board, the secretary shall cause notice to be given to each unit's owner of his eligibility to serve as a member of the executive board. Each unit's owner who is qualified to serve as a member of the executive board may have his name placed on the ballot along with the names of the nominees selected by the members of the executive board or a nominating committee established by the association."
There is no nominating committee and the Board has not put forth any candidates (Board members up for re-election follow the same methods as those self-nominating for the first time--that is, they must fill out the candidate application form and declare any potential conflicts of interest and that they are members in good standing).
My question is this: Does opening up the nomination to all homeowners constitute nominations from the floor? There is some confusion over this. Some homeowners believe that taking nominations from the floor means at the beginning of the election meeting, or being allowed to write in a candidate's name, whereas others (myself included) feel that nominations from the floor simply means not limiting the pool of candidates, and that all homeowners must abide by the January 8th deadline and the requirement to sign off on the required disclosure statements. By allowing candidates to be nominated immediately prior to tallying the vote, it bypasses the need to announce publicly their candidacy and whether or not they are in good standing.
Please clarify this issue for me, if you would be so kind.
Thank you in advance,
Often times it helps members to understand the ideas behind nominations and elections. Because a process is done one way in clubs and non profits, members assume that these procedures carry through in other organizations. Robert's Rules of Order provides for six ways to nominate. Nominations from the floor are included only in the procedure where there is a nominating committee or the actual procedure is to just open the floor to nominations. It is possible for any organization to write its own procedures for the nominating and election process. When these rules are adopted by the members then that is the rules that must be followed.
In your HOA you have both state law and your bylaws to follow. Now what your bylaws have done is provide for open nominations or "from the floor" by nomination forms. Instead of members being present at a meeting, they receive it in the mail and can either send it in or choose not to return it. They can either nominate themselves or others. In essence this is nominations from the floor. What nominations from the floor provides is that it prevents a small group from only nominating themselves and perpetuating their own self interests. That is what you are doing with your nominating process. But because your are also an HOA, names have to be screened to see if the member nominated has paid assessments and that only one person from each lot is nominated.
The second reason you can't have nominations from the floor is because at your election meeting the ballot began before the meeting was called to order (if you even call it to order) When an election has begun, in this case when the first mail in ballot arrived in the office, you can't have nominations when an election is in process. Nominations are always closed before the election.
I think the easiest way to explain this to your members is that the process you now have is "nominations from the floor" only in a written instead of a verbal manner. Even if it was done verbally a nominee can't be elected unless he fulfills all the requirements for election.
Regarding the ability to write in names, this could be possible, but if someone was elected that didn't fill the requirements for election then that person's election would be null and void and the members would have to have another election. So what you are doing is seeing that the official names given to the members are accurate. So if someone is elected they are both willing to serve and have fulfilled the requirements of office. The members have been saved time and expense in electing their officers.
Under Robert Rules of Order, does accepting the minutes of an executive board meeting by the membership body mean that all decisions made at that board meeting were accepted or approved by the membership body as well? i.e. The executive board voted to raise membership dues at a meeting and the minutes of that meeting were read correctly and approved as read. In the Bylaws, it states that the executive board establishes membership dues with the approval of the membership. By the minutes of that meeting being approved does that mean that the membership also approved the increase in membership dues?
The approval of the minutes means that the members agree that what is recorded in the minutes is what happened at the meeting. In the case of your membership dues increase, the board approved it. Now to make it in effect the members must vote to approve the increase. The next step of your bylaws must be followed. At a membership meeting, a member must make a motion to approve the increase. It must be debated and then voted upon. Without being able to read your bylaws and by what you have written to me, the members would have to adopt the motion for the increase to go into effect.
Dear Parliamentarian -
I am one of nine Board members of a HOA in Florida. At a recent Board meeting, one of our members presented a motion to adopt a new set of Rules of Order for our Board. The proposed new Rules of Order comprised a lengthy document which substantially changed a number of procedures that we had adopted over the previous year.
Apparently, the member who proposed the motion had cleared his ideas with a majority of the Board members before the meeting and wished to avoid any discussion of individual issues presented by the Rules of Order. After receiving a second to his motion, he immediately presented a second motion to Call the Question, and received a second to that motion. When I raised an objection and requested discussion on the first motion, he insisted that the motion to Call the Question was not debatable and that we should proceed with a vote on his first motion without any discussion.
As a Board member seeking a fair discussion of the merits, I feel I was short changed. Can you comment on the procedural legitimacy of these events?
The Board member was completely out of line. It is a rule and parliamentary principle that motions are to be discussed. The correct procedure would be in this case to raise a point of order. At that time you can state your point or your reasons for raising it. If the chair rules against you then you can appeal from the decision of the chair. Since the appeal concerns a non-debatable motion, it also is not debatable, but the members can certainly vote on whether to uphold the ruling of the chair or overturn it.
Now there is something you can do. IF you do not like some of the rules adopted, you can give notice that you are going to bring those rules to the next board meeting. You can either propose to amend them or rescind specific rules. This is the motion to "Amend Something Previously Adopted" which allows you to either strike out an entire rule, add something to the rules or strike out something and insert something else.
It is unfortunate that members don't understand the democratic process.
The below e-mail from you has been circulated by Mr. ____ to the Board of Directors and various members of the community. It is unfortunate that you have decided to memorialize in writing your opinion that our Board members do not understand the democratic process without first contacting us to determine what really happened at the Board meeting in question. I trust that you did not decide to do so with the knowledge that your e-mail would be circulated in what appears to me to be an attempt by a Board member who was on the wrong side of a vote to discredit the Board. (I also trust that it is not the policy of Robert McConnell Productions to take sides in disputes between Board members.)
What is curiously missing from Mr. ____’s e-mail to you is the fact that Mr. ____ was allowed to speak for at least one hour on the Rules before a vote was taken on the motion to call the question. Under Section 43 of Robert's Rules, isn't a member of a Board such as ours, which does not have special rules regarding the length of speeches, normally precluded from speaking for more than 10 minutes on a motion? Even if this rule does not apply, I trust that you will agree that providing Mr. ____ one hour to speak on the motion to adopt the Rules was sufficient. (From a purely academic standpoint, and for our future reference, can you point to any provision in Robert's Rules that would prohibit the Board from voting on a motion for the previous question prior to a member being given his/her full 10 minutes to speak?)
I also see no mention of the fact that the draft of the proposed Rules were circulated to Mr. _____ and the other Board members in advance of the meeting, and that Mr. _____had provided the Board members, prior to the Board meeting, with his proposed deletions and additions to the Rules (some of which were ultimately adopted by the Board). As such, Mr. _____ had already informed his fellow Board members, at least in part, of his position on the proposed Rules. (Regarding Mr. _____ statement that "the member who proposed the motion had cleared his ideas with a majority of the Board members before the meeting," Mr._____ received the same drafts of the Rules to review prior to the Board meeting as the other Board members.) While I recognize that this does not substitute for debate, it does stand contrary to the implication of Mr. ____'s e-mail that he was denied to opportunity to provide the Board with his input.
Given that Mr. _____ had presented his mark-up of the proposed Rules to the Board members prior to the meeting, and spent at least one hour stating his position regarding the Rules prior to the question being called, I fail to see how anyone could conclude that Mr. ____ was short-changed.
While this may seem to you and your Company to be a trivial dispute, to me and many of my fellow Board members this appears to be another in a series of attempts to discredit the Board. Moreover, on a personal note, as an attorney who has been providing legal advice to, and appearing before, boards and commissions that employ rules of parliamentary procedure for the last 20 years, I am offended by the implication that I do not understand the democratic process (and I consider the allegation to be defamatory.) I hope that you will reconsider your opinion in light of the foregoing and retract your allegation.
Thank you for writing and telling your side of the story. Being in a Homeowners Association myself, I know how challenging these organizations are and how conflict divides neighborhoods. When I stated that the board did not understand the democratic process it was not directed at any one person nor was it intended to insult those who are earnestly trying to uphold the democratic process. If the statement was true which claims board members were not allowing discussion, then that is an indication that the board members don't understand at least the part of the democratic process which guarantees members the right to speak. I am happy to hear that you are using Robert's Rules and trying to uphold the democratic process.
The answer to the question about closing debate is found on page 470 of Robert's Rules of Order Newly Revised, 10th edition. It gives the procedure for small boards. Point three states the rules of debate in small boards. It states that "generally" the motion to close or limit debate should not be used. If Mr. _____ was allowed to speak to the issue for one hour, I would concur that certainly is sufficient time to speak.
I have found in working with HOA's that the problems arise because of other things going on--for example, people pushing their own agendas instead of working for the best interest of the association. The other underlying problem is not following state statues, not obeying the covenants and other rules, or people elected to the board who believe they now have the right to rule instead of being servants to the organization.
From reading Mr. _____s' e-mail and yours, it seems to me that there is an underlying problem of distrust. Is there perchance a small group within the board having meetings outside the board and making decisions? Or just meeting informally and talking about things together without the others present? They may be doing this innocently without any intend to harm, but it gives the appearance of things being already decided before the board meets. So when the full board meets the small group has already made up its mind about something and just goes through the motions of 'hearing" others out. Or is there a problem of not really listening to each other and really hearing what each other is saying?
Our purpose here at Robert McConnell Productions is to not just teach Robert's Rules but teach the principles of democracy that underlie the rules. A very import principle in debate is that it is to be conducted fairly and with courtesy. In discussing issues no one should ever resort to name calling or to questioning the motives of others. It should be done with courtesy and the utmost respect for each other. Remarks are always kept to the issues not to the personality of others. So many times at HOA meetings these principles are ignored and it turns into a name calling brawl. That certainly doesn’t help the organization or the neighborhood. The reason for debating a motion, or discussing it, is that it provides the opportunity to hear all ideas. Its purpose is to get information so that the members can make the right decision. We like to use the word "discuss" instead of "debate" because discuss does not have such an adversarial tone as the word debate. Wouldn't it be wonderful if your approach could be "come let us reason together?"
What a statement to conflict resolution it would be to have your board members sit down and resolve your differences. This would also be a great example to other HOA’s having the same problems.
PS. Since my first e-mail was so liberally shared, I hope that you send this e-mail to all concerned. Again, our purpose here is to help people solve problems not to cause more problems. Our purpose is also to help members see their mistakes and correct them.
We do offer workshops in proper procedure, or your members might want to purchase our video tapes or our book on this subject.
I then sent a letter to Ken, (Mr. _____ referred to in the previous e-mail) telling him about the above e-mail and that I didn’t appreciate my e-mail being shared without my consent. Here is his reply.
Thank you for being so helpful. Your response to Jeff is very constructive and well stated. It has not been circulated to the Board so I would like to ask if I may circulate it. By way of explanation for the two different versions of events, I feel that I should explain so that you do not feel that you were misled in any way. My version relates to the parliamentary question that was raised at the beginning of the discussion on Jeff's motion to adopt a new set of "Rules of Order". The facts I gave you were 100% correct. Jeff attempted to avoid any discussion on his main motion by moving to call the question and then claiming that that motion was not debatable. The propriety of this action was the question I raised, and your response was, in my view, entirely appropriate and instructive. From your email, I reached the following conclusion which I emailed to all board members: "Let me repeat the principle once again -- It is out of order for a Board member to present a main motion and then present a second motion to call the question on the main motion before there has been fair discussion on the main motion. This principle is true even though Jeff was correct that the motion to call the question is not a debatable motion."
Jeff's version of the facts ignores entirely this parliamentary question, but argues instead that the subsequent events at that particular meeting were legitimate. I did not include any description of those subsequent events in my question to you because I consider them to be irrelevant to the parliamentary issue raised at the outset of the discussion. However, now that they have been raised, let me provide my brief version which is confirmed by the tape recording of the meeting. (I now tape every meeting to prevent creative reconstruction.) I hate to drag you into the nitty gritty, and I apologize for that, but perhaps you will find it interesting.
We argued about the parliamentary question raised by Jeff's motion to call the question, and I stated that it would be "outrageous" for the Board to vote on the main motion to adopt a 7-page detailed set of rules without any substantive discussion whatsoever. Jeff responded that the motion to call the question cut off the discussion on the main motion and the motion to call the question was itself not debatable. Thus, he concluded, we were ready to proceed with a vote on the main motion. After further objections on my part, the Chairman suggested as a compromise that I be given "3 to 5 minutes" to say my piece and then we could proceed with the vote on the main motion. I was given an opportunity to raise only two substantive issues with the proposed Rules of Order, and my speaking time was only a few minutes. As I raised these issues, other Board members jumped into the discussion of those issues (consistent with our normal practice) and the entire discussion went on for about 30 minutes. Jeff's claim that I was permitted to speak for an hour is incorrect and grossly misleading. Although I had a number of other important points to make, I was never permitted to raise them. The "3 to 5 minute" limitation was enforced after I raised my two questions, the vote was taken, the Rules were adopted, and I left the meeting in protest.
I continue to believe that these subsequent facts, although colorful, are irrelevant to the parliamentary question that was raised at the outset of this matter, and I did not mention them to you for that reason. I certainly hope you do not feel misled in any way. My inquiry to you was about the parliamentary issue, not about the legitimacy of the remainder of the meeting.
Finally, I want to ask about another question I sent you by email on December 8. I wrote:
I am one of 9 Board members of a HOA located in Orlando, FL. We have had some controversial issues, and I have been critical of some of the Board's decisions. Recently, the Board has proposed to adopt a rule to prevent any Board member from criticizing the Board. Specifically it states "While Board members may voice disagreement with actions taken or not taken by the Board, Board members shall not make any statements, either verbally or in writing, either at Board meetings or elsewhere, disparaging or demeaning the Board." There is no support in our governing documents for imposing any such restriction on Board members conduct. Please let me know whether such a proposal exceeds the normal bounds of Board authority. Ken
I never received your response to that question which is coincidentally another question I had about the same set of "Rules of Order". Jeff is now attempting to use that new rule against me and has asked that the Board take disciplinary action against me at our next meeting scheduled for January 12. Without pointing fingers, I think it is fair to say that we are a very troubled Board.
Thanks again for your assistance.
Your principle about debate is correct.
I can tell by your e-mails and Jeff's e-mails, that there are some very big problems in your Association, and these are personality problems. I have been in organizations where the members "agree to disagree" but they do not have this kind of disunity and bickering going on. They are able to debate issues and leave meetings as friends, and are still willing to work for good even though their side lost. The reason they are able to do this is because they respect one another and want to preserve unity in the organization. In fact the goals of the organization and the unity of the organization is more important than their own personal opinions.
I do not know what is being said or done at your HOA board meetings that would prompt the adoption of the rule about criticism and then discipline. This rule is not out of line unless it is to punish dissent. Let me quote something that General Henry Robert (the author of the famous work "Robert's Rules of Order")wrote: "Where there is radical difference of opinion in an organization, one side must yield. The great lesson for democracies to learn is for the majority to give to the minority a full, free opportunity to present their side of the case, and then for the minority, having failed to win a majority to their views, gracefully to submit and to recognize the action as that of the entire organization, and cheerfully to assist in carrying it out, until they can secure its repeal." (You can find this quote in our book, Webster's New World: Robert's Rules of Order Simplified and Applied, page 103)
As I said in my e-mail to Jeff, that our company here is to promote the true meaning of democracy which includes courtesy and respect for one another. May I recommend that your board members each get a copy of our book and read it. It is very different from other books because we are trying to teach the concepts of democracy as well as the rules. We are trying to uphold fairness, equality, courtesy and promote brotherly love.
Again, I have no idea what is going on in your meetings or after your meetings. So my response to your question will be based on some general principles. First, if something is done at a meeting and a board member is unhappy about the result, he can try to rescind or change the action at either next board meeting, or, if it applies to the membership in general, and rules of the HOA allow it, he can call a special meeting and present the idea to the general membership for a vote. If you go to our web site parli.com, you will find a series of events where this happened in our HOA. Our board members did not follow the proper procedures. I wrote a letter and in it I called for a special meeting. I then went door to door getting enough signatures to have that meeting. I sent it to the board and suggested that they have their attorney review it. The attorney reviewed it and the meeting was called. The points that were in the letter were all taken up. I then sent fliers around the neighborhood inviting all members to my home to review the covenants, and state laws concerning the HOA. I invited the board members, and the president did come who was the main problem because he didn't understand how the state laws require the association to be governed, he mis-read the covenants, and was generally ignorant of all basis procedures including Robert's Rules of Order. What happened from that special meeting was that everything the board had decided at a previous membership meeting (they did not allow us to vote --they just told us what was going to happen) was reversed by the members when they were completely informed. Now that is the correct way to handle this kind of situation. This could not be considered criticism and dissent because it followed proper procedures. It was a way to correct many wrongs.
Now the wrong way is to gossip, to slander, to tell HOA members the problems on the board and then get everyone riled up. To me this would be a reason to begin disciplinary action. If there is an extreme problem on the board, then I suggest that you bring in someone to mediate and try to resolve these differences. Attacking people verbally and trying to prevent discussion, is wrong. It only increases hostility and brings a warfare on the board and in the HOA association that can take years to heal. Even though my side "won" it didn't solve the problems in the association. They continue to go on. So if we want to preserve peace and harmony in our neighborhood associations we all need to find a better way. We need to find a better way to communicate with each other and to listen. And then trust the democratic process.