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Dear Parliamentarian Vol. 121 April 2006

Dear Parliamentarian Vol. 121  April 2006
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.


Nancy LaFontaine wrote:

Dear Sir:

 

We have a serious problem with a very hostile neighbor.  The Home Owners Association tells us to call the police.  The police say to call the Home Owners and when if involves loose or barking dogs we are told by both the Home Owners Association and the police to call the local SPCA and the local SPCA says to call the police.  HELP!!!!  Now we are being told by the police and the Home Owners Association that we are the nuisance.

 

The problem started when we moved in was that the neighbors’ dog barked ALL day and ALL night keeping us up for the first 2 months when we moved in.  We had lost so much sleep and it was affecting our work and almost started to put a wear on our relationship.  When we asked them to shut him up (and we did try in the beginning to ask as nicely as one can even with the dog s still barking over raised voices), the got worse, tried harder to annoy us.  They became very hostile, loud, belligerent and even threatened us, me.  She threatened that she was going to 'hurt me' and that was a 'promise!'   With all this happening we have 2 police reports on them for harassment and she got arrested for threatening me which we got on tape.  The police was happy to take her in.  However, the boyfriend continues to be loud, he drinks just about all his waking hours and says profane language constantly to us or indirectly towards us just about every time we step out of our house.  She has a no contact order but the police say that I have to go the other way since she lives next to us.  How can we get justice in this?  We have put in a request for the Home Owners to change the covenants but they or the president claims it can't be done.  That we need 100% participation from all the homeowners who don't even live here year around.

 

So we do what the police tell us to do and the SPCA and the Home Owners Association and now we are the nuisance.  Even though every one of them says that these neighbors have always been trouble.  Can you help us?

 

Nancy LaFontaine

 

Dear Nancy,
   The members don't have to change covenants to solve this problem.  All the board has to do is come up with rules and regulations concerning dogs, mowing of lawns, keeping up of the property, etc.  This usually only takes a majority vote of the members present at a meeting.  Many HOA's have such rules and fines associated with the rules.  To be fair the board could appoint a committee to draw up the rules, the board would then review them, and then give the members notice in a call to the meeting letter stating that these rules will be adopted at a set meeting.  Then the board has something backing them to enforce rules about barking dogs.

 

Mr. McConnell:

  Thank you for your response.  No one else had responded in my cry for help.

  You see this is what my husband and I have found out in our research about what the Home Owners Association can do to help us.  This is exactly what the police keep saying to us, that the Home Owners Assoc. is 'there' precisely for these issues.  However, the president claims otherwise.  I even offered my time in one of my letters to the Association, not just a complaint but my time and possibly suggestions how to approach the problem.

  I had forwarded your response to one of the board members who agrees with us, my husband and I, that the president is interpreting the 'covenants' on her terms.  We believe that she just doesn't want to get involved.  These neighbors of ours have been a problem with the people who have lived in our house prior to us and also to the neighbors up and down our street and others throughout the community claim this as well.  Thus, even if we sell the house as the police suggested us to do, the problem will not go away by us moving since we are considered to be the problem only because we insist that they resolve this problem.

  Thank you. I hope that this board member will respond positively to your email and that we can draw up true rules and regulations which will help all of us to enjoy our homes and keep the property values rising.

  Once again, thank you for your time.  You have given me some hope.   Bless you!

 

Nancy LaFontaine

 

Alyce Sato wrote:

I am forwarding my email to this address since the info@parli.com address did not go through.
I hope you can answer my question.  Thanks!!!
 

I would appreciate clarification regarding the following.
I belong to one organization that allows the secretary to put
attachments at the end of minutes, for example, at the meeting, each
chapter makes a report. Rather then copy everything the chapter says,
the secretary puts in the minutes, Chapter A reported on the year's
activities. (See Attachment A).

I belong to another organization that does not allow attachments; rather
the secretary has to put the chapter report in the minutes almost verbatim.

Both organizations list Roberts’s rules of order as their parliamentary guide.

Which is correct?

 

alyce sato      

 

 

Dear Alyce,
    We have a new e-mail address:  <robert@parli.com>.  We had too much spam coming from Asia so we had to close down the "<info@parli.com>" address.
    To answer your question, I am giving you information from our "McMinutes: A Training Manual for Secretaries."  This is from the section about writing Committee Reports in the minutes.  If the secretaries of these organizations would like to learn how to be a good minute taker and writer of minutes, and learn basic parliamentary procedure at the same time, I  recommend this very helpful and instructive training manual.  First, parliamentary authorities can only give an overview about what should go into the minutes.  For secretaries to be informed on this subject they need to seek out specific information about "minutes".  There are just a few books on this subject being published, and we have the only comprehensive training manual.  See our web site parli.com.  There is a complete description of it on the opening page.
    To answer your question: neither organization is doing it correctly.  The following tells how to do it.

"Committee Reports.  Reports of committees and officers are important documents of the organization.  These reports need to be accounted for in the minutes and should be carefully filed for future reference.  The various parliamentary authorities and resource books on writing minutes have different ways of handling committee reports.

            Robert’s Rules of Order Newly Revised, 10th edition, says this:  “When reports are received from committees, the secretary should record on them the date they were received and what further action was taken on them, and preserve them among his records.   It is not necessary for an assembly to vote that a committee report be ‘placed on file,’ as that should be done without a vote.”

            Another parliamentary authority says this:  “Each report should be recorded with the name of the member presenting it, the action taken on the report, and reference to the file where the report may be found.  An important report is sometimes summarized briefly in the minutes and the file reference given for the complete report.  The statements of business transacted should be specific.  A statement such as ‘letters were read’ or ‘reports were given’ is of no value.  Each letter read should be identified or summarized briefly and the action on it, if any, recorded.”

            From a book about secretaries and minutes taking, it says this:  “As a minutes taker, you must summarize any reports or other documents presented at the meeting and then either attach them to the minutes as an appendix or refer to them in the minutes as filed.”

            As you can see, it is important how each committee report is presented in the minutes and how it is filed.  Each organization should decide how to preserve the report of the activities of the committees.  The secretary should confer with the Board of Directors and officers which of the above procedures concerning committee reports they want to use for recording committee reports in the minutes.

Here is another suggestion concerning what to do with the committee reports.  Instead of attaching the material to the minutes, you could give a good description about the report in the minutes and then state that it was filed. Give the name of the file where the report can be found.  If the organization has standing committees, each of these should have a file.  After each meeting the secretary should file the reports.  If it is an unusual report concerning a certain project at hand, then a file could be made for that project, and everything concerning the project put in that file.

 When recording committee reports in the minutes, the secretary states the name of each committee and a brief statement about what each committee reported. If it is an annual report of the committee’s work, then the minutes should reflect the highlights of the committee’s work.  For example, if the fundraising committee has several projects a year, the minutes can reflect that the fundraising committee reported that is two projects, (state what they were) raised so much money (and the amount each project raised), and the report was filed.   If the members need to go back and see what projects raised the most money, they can find that information in the minutes or in the committee reports.

 If a motion is made at the end of the report, write a brief explanation telling the reason for the motion, and then state the motion that was made.  If several committees report and present motions, each committee should have a separate paragraph under this heading.

Often committee chairman will give a verbal report, instead of a written report, like the one in our meeting from the Budget Committee.  In this case, write down the committee’s recommendation to include in the minutes.  It is not as important to get it word for word as to get the essence of the report.

            Sometimes when a committee report is of great importance the assembly will order it to be entered in the minutes.  In this case the secretary copies it word for word into the minutes.  (To order means to adopt a motion that enters it into the minutes.)

Robert, Henry,III, Evans, William J., Honemann, Daniel H., and Balch, Thomas J., Robert’s Rule’s of Order Newly Revised 10th edition, (Cambridge: Perseus Publishing)  443-444

Sturgis, Alice, American Institute of Parliamentarians, The Standard Code of Parliamentary Procedure, 4th edition, (New York: McGraw-Hill) 201

Watson, Jane, The Minute Taker’s Handbook, (Bellingham: Self-Counsel Press) 32"






 


Walworth County Auditor wrote:

How many votes are required to adopt a motion by a two-thirds vote when there are five members present?

 

Thanks for your assistance.

It would be four.  A majority is three.

The Parliamentarian

 

Allen Smith wrote:

What does the phrase "for the good of the order" mean and how is it applied in meetings? Thanks

J. Allen Smith

 

Dear Mr. Smith,
    It usually comes towards the end of the meeting.  It allows members to speak to what is going on the organization either for the good or for what needs to be improved with out making a motion.  It also allows members to praise people for their work, make suggestions for improvements, or alert members of something coming up that affects the organization and for them to think about.  Usually no motions are made during this time, but since the meeting is still in progress a member could make a motion after hearing something that another member has said.
    Our book Webster's New World, Robert's Rules of Order Simplified and Applied, which you can find on our web site, parli.com, at the book store, explains this on page 18.  The motion to censure an officer or member can be done under good of the order  (see page 212).

The Parliamentarian

 

 

 


Ken Gross wrote:

Dear Sir or Madam:

 

For the past year, I have served as one of nine Board members at an HOA in central Florida.  I am writing to ask your help in resolving a parliamentary question that has been raised regarding the election of Board members at our upcoming annual meeting of homeowners.

 

The proxy form we are using this year for the election of Board members offers three alternative choices:  (1) to designate a specific proxy by name, (2) to designate the “Secretary” as the proxy for all purposes, and (3) to designate the “Secretary” as the proxy for quorum purposes only.

 

The concern arises from the second choice.  The Secretary has received no direction on how to vote her proxies.  If the Secretary is permitted to vote all of those proxies according to her own personal preferences, she may have enough votes to control the outcome of the election.  In the interest of preserving the fairness of the election, a number of homeowners will present a motion for the homeowners to direct the Secretary to cast her "Secretary" proxies equally for all candidates.

 

Our President has stated his intention to declare such a motion out-of-order and to prevent such a vote from going forward. This raises a procedural question -- Do the homeowners at an Annual Meeting have the right, by majority vote, to direct the Secretary to cast all of the “Secretary” proxies equally for all candidates?  If the answer is yes, then the motion would not be out-of-order.  Instead, the motion would be heard, debated, and voted upon in accordance with Robert's Rules of Order.  Proponents argue that since the Secretary is an officer of the Board, and the Board represents the interests of the homeowners, the homeowners should have the right to direct the actions of the Secretary in the way she casts her “Secretary” proxies in the Board election.

 

Thank you for any assistance you can provide with this question.

 

Very truly yours,

Ken Gross

Dear Ken,
    The members have a right to make a motion to direct the secretary how to cast the ballots for the proxies that she holds.  If the president rules the motion out of order, raise a point of order and explain the reason why the motion is in order.
    Here are the reasons for the motion to be in order. First, all officers are officers of the association and not just of the board.  I assume that you don't have a board secretary and then a secretary of the association.  I assume in the bylaws there is just one secretary--the secretary of the association who also might happen to be a board member. Therefore the secretary is to represent all the members not just the board's wishes. At an annual meeting of an HOA, the members have a right to make motions concerning election procedures.  This is an election procedure--how the secretary will cast the ballots for the proxies.  So the members have a right to make this motion and decide by a vote.
    If the president does not allow the point of order, then the members can appeal from the decision of the chair.  If you have a Robert's Rules book look how to handle points of order and appeal from the decision of the chair.  Please as a board director remember that you represent the interests of all the members and not just the board members. The best principle under all circumstances is: "let the members decide."  This gets many an officer and board member off the hook and out side of the range of criticism.

The Parliamentarian

 

The president of the association responded to our e-mail reply.

 

Dear Parliamentarian,

As president of the homeowners association that Ken Gross is a member of the Board, I am forwarding to you for your consideration our attorney's opinion regarding this matter.  I am curious how you read our documents and come up with just the opposite answer?

I am attaching the actual proxy for your review.

 

 

Larry

 

 

Dear Readers:

 

            The proxy form that was sent to us was in a format that can’t be copied and pasted into this column.  But this is how the proxy read for the secretary voting:

            The undersigned hereby appoints the Secretary of the Association to act as his/her Proxy for the purposes of establishing a quorum AND for purposes of casting a vote in connection with the election of Board members and in connection with any other business which is transacted pursuant to a vote of the members present at the Annual Meeting.

 

Dear Larry,
    Thank you for sending me the proxy form.  In some parliamentary authorities there is a motion that allows the secretary to cast "the ballot" for the membership and this is practiced in some organizations.  In other authorities this not allowed. After reading the proxy that you sent me, it is very clear the proxy form is giving the secretary the right to cast the ballot on all issues for the member.
    But let me say this in fairness to the members and the board member who first wrote me.  In Homeowner's Associations there is a feeling among the members that the association is controlled by a few and that often board of directors do not listening to the membership.  I am not saying that your board is doing that but I am just relaying the sentiments of many who write to us.  In the state of Arizona a new law has been adopted that prevents proxy voting.  Instead members not able to attend meetings are allowed to vote by absentee ballot.  The organization that got this law enacted contacted me and discussed the reason why they proposed this law.  It was to prevent one person or a small group of people controlling the proxies and electing their candidates to the board of directors. It also allows the members to actively participate in the election process instead of relegating it to someone else.
    In all forms of government today, there is a fear that the people are not being heard by their representatives and that those elected to office only respond to special interests groups. In HOA'S many who are nominated to the board have their own "agenda" that they want to see enacted.  If this person gets elected by one proxy holder, members think the election was rigged. This then causes ill will among the association.
    I also know that most homeowners take the path of least resistance and may just check the box of letting the secretary vote on all matters because they are not thinking of the consequences or that they are putting power into the hand of one person which we know is very undemocratic.
     I don't know how long you have used this proxy. Perhaps this is the first time.  But I can make two suggestions to relieve the pressure on the board and the thought of an officer controlling the votes.
    1.  In the next proxy, do not allow an officer of the board to cast ballots for members.  This keeps the board members impartial and representing all the members.  It also doesn't look like a board member is controlling the outcome of the election.
    2.  Our association sends out a proxy that is called a limited proxy for elections.  This proxy tells the proxy holder how to vote when casting the owner’s ballot.  This form was taken from a book written by a professional registered parliamentary who happens to live in Florida and is involved with HOAs.   This way the person who can't attend the meeting has not given up his right to have his say in the election as long as the proxy holder votes as directed by the lot owner.  This proxy also includes a general proxy that allows the proxy holder to vote any way he sees fit on other business that comes before the annual meeting.  We have found this to be a fair way to handle issues.  It takes the burden from the secretary and keeps the board and officers impartial.
       But again, I want to reiterate this important point.  When we let the members decide, there will be peace and harmony in the association.  The board will have the support of the members.  There also won't be any grumbling after the meeting about how "the secretary swung the election."  I do not know the state of affairs in your association, but I do know human nature.  Perhaps the board and your attorney can get together and reason this out that will end up benefiting everyone and stop any problems before they begin.
    Again, thank you for writing to me and sending the complete information.  Our purpose here is to help preserve order and democracy and that can only be done when we have all the facts.  I hope all goes well with your election.

 The Parliamentarian

PS.  I am also going to give you the same advice that I gave Ken.  Please read in Robert's Rules how to handle a point of order and an appeal from the decision of the chair if it should come up. A well informed presiding officer helps all concerned.  How the chair presides determines the tone of a meeting.
 

Dear Readers,

            I then sent the following e-mail to Ken:

 

Dear Ken,
    I just sent you an e-mail answer that I sent to your president.  I am afraid I had to reverse the answer after seeing the proxy but you will see that I did try to appeal to his fairness and sense of justice.  HOA's are horses of different colors and I think they need their own parliamentary authority.    
     This is what I recommend.  Go around the neighborhood, unless all the proxies are already sent in, and encourage members not to check the secretary box.  Most owners don't understand proxies or the ramifications of filling them out.
     I would recommend that you begin an education process.  If you have a club house, why don't you find a local parliamentarian to come in and give classes on basic rights and obligations of being a member of an HOA.  I also suggest that you design a different proxy form as I stated in the e-mail.
    I have a suggestion that might help avert this controversy again, but you will need to check with Florida law to see if  this will be allowed. Here is my suggestion:   you could solve the proxy problem in electing board members by amending the bylaws to state that the vote will be taken by a mail ballot.  This would be some expense to the association because the ballots would have to be mailed out.  There is a specific procedure on how to prepare the ballot, mail it out, and accept the member's ballots and count them.  The procedure for handling this would have to be carefully written in "election rules."
    I hope that your members will keep their cool at the meeting so that this does not turn into a big fight about procedures.  This certainly is a good learning experience for all involved.  IF there is a problem, I hope someone from the board will be able to educate the members about the choices that they made.  If you have an election every year, you can assure the members that all is not lost and next year for them to be more proactive themselves.

The Parliamentarian

 

 

Ken Gross wrote:

Dear The Parliamentarian -

Thank you very much for your help with our current parliamentary issue. Your guidance and thoughts are extremely helpful to me and many other homeowners.  Unfortunately, our President picked up on your one sentence about the proxy form but then dismissed the remainder of your second email by informing everyone as follows:  "Her other remarks about feelings with regard to other homeowner associations are not relevant and other remarks do not apply to this election."

In your latest email to me, you said that you are reversing your previous answer after seeing the proxy form.  I apologize, but I am having trouble understanding what about the proxy form would cause you to think differently than your original response.  The second box on the proxy form states that the homeowner appoints the Secretary of the Association Board of Directors to use this proxy for purposes of quorum and election of Board members and transacting other business.  I have been puzzling over why you feel this is different than my original description which described the middle box as (2) to designate the “Secretary” as the proxy for all purposes.  If you were thinking that the Secretary is the Secretary of the Board and not the Secretary of the Association that would be incorrect.  I checked our Bylaws on this distinction and found the following:  "The officers of the Association shall be a President, Vice President, Secretary, and Treasurer to be elected from among the members of the Board."  Thus, the language of our proxy is misleading in this respect.  The only Secretary we have is the Secretary of the Association.  There is no Secretary of the Board.  Does this help bolster your first opinion?  If this is not the language you were focusing on, please help me understand why you feel you should back away from your first opinion which I thought was so well stated.

Ken Gross

 

Dear Ken,
    First, I want to say that I do want to help you solve this problem and have a democratic election.  But my duty to the field of parliamentary procedure is to uphold the rules of an organization.  These rules may be unfair but they are the rules until they are changed by the members.  So let's look at the reason why I changed my statement.  I really should have asked you for all the information of up front.  I got a little to hasty in my answer because I hate tyranny in any form.  Please accept my apologies.
    Ken in reading governing documents and resolving conflicts like these we can't focus on one thing or trying to prove our point by focusing on the wrong thing.  You are focusing on the secretary casting the ballots and not on the purpose of the proxy itself.  The purpose of a proxy is to allow an absent member to have someone represent him at the meeting and vote for him. So let's understand what a proxy is.  I am quoting from a book called a Guide to Voting by Joyce L. Stephens. (If you can get a copy of this, it would really help you folks.)  "The word proxy has two meanings.  One meaning is the power of attorney given to another person to act in one's stead.  The other meaning designates the person who holds the power of attorney."  The problem is that a member has assigned his specific right to vote to the secretary.  It is up to the member to change his mind of who shall vote for him and not the assembly to that.  Because a proxy, the way it is worded in your document, states that the secretary shall cast the vote for him, the assembly can't change that at this meeting.  Why aren't you concerned with the first statement of a member holding another member's proxy and voting for him?  It is the same wording as that given to the secretary.  Would you be concerned if a member of your association came in with 20 proxies and swung the election?  It would have the same results as that of the secretary.  The problem is the way your proxy is written and that your lot owners do not understand what that they are signing their right to vote to another person—the secretary or another member.  Your rules state that the members must come to the meeting to withdraw the proxy.  Remember a proxy is given in the state statues and in your bylaws. I believe it is a legal document. You need to handle this by amending your documents.  It is now time to focus on changing the proxy and the rules concerning them.  Why don't your members work to get a new proxy form and new procedures concerning the proxy form and try to get it adopted at a meeting?  Why don't you take the suggestions that I put in the letter to the president and have the members vote on them?  To solve this problem about voting for board members, have a limited proxy where the member instructs the proxy holder how to vote.  If you need an example of that, let me know and I will either mail or fax it to you.  It is from the Joyce L. Stephens book.
    Ken, as a registered parliamentarian, I have to uphold the rules of the organization.  I can help you challenge these rules in proper ways and even give suggestions to change the rules, but unless you can find some legal way to rescind this proxy I don't see how it can be done.
    Ken give me your fax number or mailing address, and I will photocopy and send you pages from this book about proxies and proxy voting.  I think it will really help you and the members.

The Parliamentarian

I later sent this e-mail to ken as an after thought.

Dear Ken,
    I just had another thought.  If this is really a question of whether the board can tell the secretary how to vote or the members, it is not up for either to decide.  It is for the secretary to decide how to vote.   So if the real issue is who is to instruct the secretary how to vote,  then bring this point out at the meeting or before the meeting.
    Now, here is an idea.  How good of terms are you with the secretary?  Is there a way to appeal to the secretary's sense of justice and fairness?  Perhaps you can share these e-mails with the secretary and show how important it is to have a democratic election.  Perhaps this person will then just cast the ballots the way the members would like with out there being a vote.

The Parliamentarian

 

 PS. In further reading this book, Mrs. Stephens has something about Florida State statues. The book states that all other issues, other than elections, that come up before the annual meeting must be voted on by limited proxy. Her book is several years old and this statement may not still apply today because state legislatures do change their codes.  You really need to get informed about how business is to be conducted in the state of Florida at HOA annual meetings.  Get a copy of the state statues and study them. I would also suggest that you employ a registered parliamentarian in your area to help your HOA with all these matters.

Ken’s reply:


Ken Gross wrote:

Hi The Parliamentarian - Thank you again for your thoughts.  Here are a few facts that you may find interesting.  We have 520 homes in our development.  The quorum requirement for the annual meeting is 30%.  We can expect to be close to that percentage when you add together the folks who attend and all the proxies.  That means that the number of ballots to be cast will be about 160.  Last year our property manager sent out election materials which permitted homeowners to mail in a ballot that was provided or use a proxy form fairly similar to the one we are using this year.  Last year the Secretary ended up casting about 50 votes using those proxies.  The result was that one person, who was voting their own personal preferences, controlled the election and decided single-handedly who would be elected to the Board.  Many homeowners were very upset and the Board members promised to change the proxy form to prevent the problem from recurring.  The proxy form was changed somewhat, but still has the same problem arising from the middle box option.  Unfortunately, this year, our property manager neglected to enclose ballots with the election materials mailed to homeowners.  As a result of that oversight, we expect to receive many more proxies this year and the perceived unfairness will be even greater than last year.  The bottom line is that by using the proxy form we are using, the Secretary becomes the single most powerful person in the Association.  You asked if I am offended by the first box on our proxy form.  I see your point, but I feel that if a proxy holder is specifically named, then the homeowner has made a deliberate decision to entrust that person with their vote.  The second box is different in my mind because most folks do not know who the Secretary is or how she is going to vote.  She was appointed basically to keep the minutes of Board meetings and then, because there is a lack of other good choices on the proxy form, she becomes the one to decide the election.  (In commercial corporations, I believe the Secretary frequently votes proxies from shareholders, but is directed by the Board or an election committee.  I see the Secretary as an officeholder, not a specific person. Consequently it made sense to me that the Secretary should vote the interests of the Association as those interests are defined by the Association.  If the majority of the Association wants the Secretary to divide her votes equally, I thought she should follow that direction.)  Here she will be casting about 30% or the total ballots, and will be voting her own personal views, which to me makes no sense at all.  I suggested to our Secretary that she voluntarily divide her votes equally among all candidates to preserve the fairness of the election process, and she has refused.  If I were in that position, I certainly would have divided my votes equally.  In any case, we definitely need a better system and a new form which will encourage fairness in the future.  I would greatly appreciate your sending me alternative forms that you may have.  Thank you for offering.  My address is ….I will try to remember to let you know how this whole thing turns out.  Our annual meeting is tomorrow, and I'm heading out today to try to collect as many proxies as I can!

Thanks again,
Ken Gross

 

 

Dear Ken,
    I wish you well.  Thank you for sharing all this.  Perhaps it is time to get a new secretary and work more closely with the management company.  I think they need to be informed that their negligence cause such a problem.  

The Parliamentarian

 

 

Dear Readers,

            Here is the result of Ken’s election.

 


Ken Gross wrote:

Dear The Parliamentarian - Last night was our Annual Meeting.  With no ballots sent to the homeowners in their packages of election materials, the election turned into nothing but a huge proxy battle.  As anticipated, the Secretary had many proxies and voted them all for candidates other than myself.  As a result, I lost the election and I am no longer a member of the Board.  As you suggested I did make one last ditch effort to appeal to the Secretary's sense of fairness, but I am afraid it fell on deaf ears.  For your information, I am including below my last email to her.  (I saw this train coming, but just couldn't get out of the way!)  Thanks again for all of your help.   Ken

 

 

Dear Secretary -

 

At the outset of this extended debate over the "Secretary" proxies, I suggested to you that you consider casting all of those votes equally for all candidates.  This can be done through fractional voting even if the number of candidates exceeds the number of votes you have.  For example, if there are 9 candidates for 8 slots, and you are permitted to cast 8 votes per proxy, you can give each candidate 8/9 of a vote.

 

As a matter of courtesy, I would like to let you know that I will not be raising the issue of whether you can vote your own personal preferences.  I have accepted the opinion letter that we finally received from Robert Taylor.

 

However, I believe there is still an issue regarding the fact that ballots were not included in the election package sent to each homeowner, and the unfortunate result that there will now be many more proxies than would otherwise have been the case.  This elevates the significance of how you decide to cast your proxies.

 

In the interest of fairness to all candidates, and assuring an appearance of impartiality by the Secretary, I urge you once again to cast the "Secretary" proxies equally for all candidates.  I honestly believe it is the best way to serve the interests of our community.

 

Ken

 

 

Dear Ken,
    I am truly sorry to hear that you lost the election, but take heart its not over until right reigns.  Several years ago I was unelected from the board by proxies and it turned out by people that hadn't paid their assessments.  But it looks like I will again be elected to the board.  I never gave up.  I stood firm for principle and the right enforcement of the rules.  I defended the member's rights on all occasions and right won.  It is time to gather the troops and educate them so that this doesn't happen again. If members were sharp they would have checked the last box and then only those  members present would have decided the election.

The Parliamentarian

 

 

missykendrick@bellsouth.net wrote:

Dear The Parliamentarian,

 

            I have searched Roberts Rules of Order and the internet but have not found an answer.  Is it proper to take minutes at a meeting without a quorum and then are the minutes approved at the next meeting?  By law, our organization must meet quarterly, but we do not always have a quorum.  However, I always take notes and summarize the meeting and the discussion (tradition, I guess!).  If there is no quorum, we do not transact business, but wait for the next meeting with a quorum to approve the minutes (sometimes for more than one meeting).  We were challenged at the last meeting.  We had a quorum and when we went to approve the minutes, we were challenged and told that we could not approve minutes for an unofficial meeting.  Help!!  Since we must meet quarterly by law, I feel like we need something to verify that we had a meeting, even if we could not transact business.  What do we do?

 

Missy Kendrick, EDFP

Barnesville Lamar County Industrial Development Authority

Dear Missy,
    All that needs to be said to fulfill your meeting requirement is:  The meeting for the ____meeting was called to order by the president at ____pm.  The chair announced that there was no quorum and the meeting was adjourned.  That satisfies the bylaw requirement for a meeting.  I suppose you could approve these as minutes. Perhaps the better way is just put a note in the minutes book that the regular meeting for such a date was not held because there was no quorum.  I hope that if there is no quorum everyone goes home--there should not be an informal meeting.  This sets a very bad precedence.  It then appears like there is a small group meeting privately and outside the meeting, making decisions and then coming to the next meeting ready to push things through.

The Parliamentarian

Irene Tsutsui wrote:

Just read an interesting article that you wrote. Our HOA in San Diego, California ousted the

board of directors and elected a new board of 5 members.

 

We have 142 members.  There is a serious question now as to the actual vote count to

remove the board. It appears that one of the inspectors of election (management's employee)

may not have counted one of the ballots which represented 20 votes to remove the board.

The final vote count was 74 in favor of removing the board vs. 11 against removing the board.

Since it took 72 votes to remove the board, this leaves a very small margin to declare a

victory whereas adding another 20 votes to the 74 for a total of 94 votes clearly makes it a

landslide which it was and less vulnerable to challenge.

 

The management employee has admitted (via e-mail to one of the board members) that she made

a mistake but she has not explained exactly what that mistake was. The proxy holders all know there

is something seriously wrong with the vote count since they submitted close to 100 proxies to the

management company, all in favor of removing the board.

 

The management company unfortunately prior to the election demonstrated a clear bias to the

old board, thus there is mistrust and suspicion that an effort was made to toss out those 20 votes.

If the employee admitted she made a mistake, it seems it would be unacceptable for the board

to accept her position that the count was "accurate" when, in fact, it could not be if 20 votes

were not counted.

 

What is the best course of action for the new board to ensure that an accurate vote count is

reported to the membership? Reporting 94 votes instead of 74 votes to remove the board is a

big difference in the total even though the employee is stating the "result is the same."

Would having an executive session with all of the 3 inspectors be appropriate followed by the

board's instructing them to re-examine the ballots and proxies witnessed by an outside

parliamentarian or CPA?

 

The risk is that challenging the election formally opens up a can of worms, and there was

enough contention between old board and new board that the new board doesn't want to

jeopardize their being voted in. But, on the other hand accepting an inaccurate vote count and possible

misdoing by the management company is not an acceptable situation either so the question is

how do you have a recount without challenging the election and how do you conduct the recount?

 

Would highly appreciate your input.

 

Irene

 

Dear Irene,
    From what you have written and told me by phone (about receiving a receipt for 95 votes from the management company) I have the following remarks.
    In research my parliamentary authorities, I found only three authorities that had to do with handling an illegal election. The authorities were Demeter's Manual of Parliamentary Law and procedure, The Standard Code of Parliamentary Procedure,  and our book Webster's New World: Robert's Rules of Order Simplified and Applied.  (our book took its information from the Demeter's book).  Why I am mentioning this, is because Demeter and The Standard Code take the opposite stand on an illegal election when the officers have assumed their office. Demeter says if officers have assumed their office then the election can not be challenged at that time.  The Standard Code says that the board should appoint a committee to investigate the matter.  "If it is challenged after it is completed, the officers chosen at the election take office and remain in office until a decision on the challenge is reached."   The writer then states, "If it can be proved that enough illegal votes were cast so that the results of the election could have been changed, the election should be voided.  If illegal votes cast or illegal practices engaged in could not have changed the results of the election, the fact that there were illegal votes or practices does not void the election."  (This is quoted from page 152 of the 3rd edition of the book) You have told me that the votes would not have changed the results but made the vote 95 to 11.  So approach this matter carefully.
     What your board members need to do first, is adopt a parliamentary authority.  This can be a big help in times like this.  But since you have no authority I recommend the following:.
    1.  Since no one is challenging the election,  but the person from the management company stated that she made a mistake, I would definitely find out what the mistake is.  The new board should request the ballots.  Usually the ballots are kept for a period of time unless the members vote to have them destroyed immediately.  I assume no motion was made that stated this and the ballots are still in the hands of the management company.
    2.  After the board receives the ballots, the board should carefully go over the ballots and teller's report to see what happened. The person at the management company should write a statement to what happened and this should be put in a file and kept for a period of time.  When this is all sorted out, the members should be told the truth about what happened and it should be recorded in the minutes.
       The next time an election happens or any vote taken of this magnitude those witnessing the counting of the votes should be thoroughly informed about the procedures and what to look out for.  Someone on "your" side should have been given the information about the receipt for 95 votes.  With that information the person could have challenged the count at the time it was being counted and then there would not be the problem that you are having today.
    So before anything else happens and rumors get started, tempers flare and emotions run rampant, contact the management company for the ballots.   After you get the ballots and talk to the person who sent the e-mail, then you will know what to do next.  
       You know your community better than I do.  If you think there is going to be a big uproar about this, then by all means bring in someone impartial to help sort this out. I am sure that removing the entire board has been very hard on the community and those who have been removed.  I think now is the time to go forward and solve whatever problems that you are having.

The Parliamentarian


 

 

Dear Parliamentarian,




Thanks so much for your advice which will be a big help to the Board.

Your suggestion about giving the total proxy count to "our side" really

makes sense. You have no idea how we strategized and spent hours and hours

studying the codes and statutes on proxies and elections and yet we didn't

think to do that one thing that would have safeguarded us. At what point is

it

OK to disclose the number of proxy votes to the inspector on "our side"?

We did not know who the inspectors were going to be prior to the meeting so

we only found out at the last minute at the meeting. Would it then be OK to

just speak to the inspector on our side and give them the total proxy count?




Irene

 

 

Dear Irene,
    Why do you want to disclose to the inspector the number of proxies on your side?
    I am really interested in your problem.   I am always interested how organizations get into these problems to begin with.  If you would take the time to answer the following questions, I would really appreciate it.
    1.  why did the members want to remove the board members and not wait until the next election?
    2.  how did you go about trying to remove these board members?  what was the procedure?
    3.  did you make a motion at a meeting to remove?
    4.  why were all the votes by proxy and not done at a meeting where members were to present to discuss this and then vote?
    5.  who presided over this entire event the board or the management company?
    6.  why doesn't your group have a trained teller's committee who knows how to count and report the ballots?
    7.  why did the management company appoint inspectors instead of each side appointing their own inspector?
    8.  did the management company have any written formal procedures on how this was going to be handled?

The Parliamentarian

Dear The Parliamentarian,

Here are my answers:

  1. Why did the members want to remove the board members and not

Wait until the next election?

        They were in their 5th year of service and would have served until 2007 which was unacceptable to the members considering they were not doing what the majority wanted, i.e. reduce costs and decrease overall activity in enforcement.




 2. How did you go about trying to remove these board members?  what

was the procedure?

        Via Request for Special Meeting as provided in the corporate codes, which Request was specified 2 conditions...board removal and

subsequent election of successor directors.



 3. Did you make a motion at a meeting to remove?

        No, the board acted upon the Request and set a date for the special meeting that complied with the 90 day maximum allowed time to do so per the corp. code.

 4.  Why were all the votes by proxy and not done at a meeting where

members were to present to discuss this and then vote?

        Too many members were not able to attend the meeting so the proxies were given to the candidates. Only 30 members attended the meeting which was less than one half needed for a quorum.




 5.  Who presided over this entire event?  Was it the board or the management company?

 

        The owner of the management company presided.



 6. Why doesn't your group have a trained teller's committee who

knows how to count and report the ballots?

 

        I suggested hiring an outside party like a parliamentarian, but the candidates did not feel that was necessary so they relied on the committee of 3 which they thought was a reasonably balanced committee including an employee from the management company.



 7. Why did the management company appoint inspectors instead of each side appointing its own inspector?

 

        Each side did appoint their own inspector (at the meeting) and the mgt employee was the third inspector.



 8. Did the management company have any written formal procedures on how this was going to be handled?

 

        No. The management company was in our opinion not experienced in this kind of recall situation.  She was not well organized, and that is one of the reasons that probably caused the mishap with one of the missing ballots.




 

Irene

 

 

Joel Hakam wrote:

 

Robert,




I have lived in my home in Sammamish, WA since 1988.  When we moved here there was no home owners association but the developer had put in place CC&R's that governed the development.  Nine months after we moved here an association formed because we had several little problems dealing with builders leaving there trash all over the place.  Unfortunately, things soured rather quickly.  I won't bore you with those details.




Fast forward to the mid 1990's and the neighborhood got caught up in a

lawsuit trying to protect common property that they thought they owned.

$75,000 later the neighborhood last its case.  Prior to this we had a lawyer move to the neighborhood that led the way on this lawsuit and was eventually elected president of the association.  By the end of 1996 the association for the most part was defunct.




This neighborhood has always had a problem gathering enough people to even hold a meeting yet alone electing officers.  Our by-laws require us to hold a meeting twice a year and vote on budgets that have a detailed explanation.  This almost never happens.  For the past eight years the lawyer and five other house holds have decided that they are the ACC and have the right to tell you what color you house can be and what roof you can have.  During this same period of time there hasn't been a homeowners meeting to even vote on officers and a budget.




When I put a new roof on my house, I told them to drop dead because I don't recognize their authority.  And I will do the same when I paint my house.  Due to apathy and ignorance most of the residents don't seem to know or care who is in charge.  So my question here is: Are these people breaking any laws by pretending to be something there not?




Thanks,




Joel Hakam



Dear Joel,

    You have asked a good question.  I don't know the answer.  I can say this:  A board or ACC can only do what the governing documents allow them to do or in your case what the members allow them to do.  As far as painting the color of your house or other building requirements, only those stated in the covenants can be enforced.  

    If your association is still incorporated, the one thing that state law says is that directors hold office until a successor is elected and qualified.  So if there is no election then those people can stay in office forever.  What I recommend is that you organize your neighborhood.  Start talking up how important it is for people to get involved and serve on the board.  Get a list of interested members to run for office and have an election.  Apathy certainly is the friend of tyranny.  When people don't care then a small group can get away with anything they want.  




The Parliamentarian




 
Joel Hakam wrote:

Dear Parliamentarian,




Are you telling me that our bylaws have no meaning when it comes to ruling our association.  These people have violated almost every bylaw we have.  Are you saying that state law takes precedence over our bylaws?  Our bylaws require that they hold a meeting to elect new officers.  They haven't even attempted to hold a meeting to elect new officers.  And I'm pretty certain that they haven't filed a tax return in years.  Of course, we haven't had any budgetary requirements.  But these people will find something worthless to spend money on.  They always do.




I'm also not sure if we are incorporated.  Were would I go to find out?




Joel

 

Dear Joel,
    Call the Secretary of State, corporate office, and ask them if they have on record the name of your association.  If they are not incorporated, then they are not under the state laws.  Most HOA are incorporated if the covenants state that there is to be an association.  However, some let the association lapse because they haven't paid the state renewal fee.  That happened in our association.  Yes, I am telling you that if an organization is incorporated, that the state laws state takes precedence over bylaws and even corporation papers.  I am currently bringing a church's bylaws into agreement with the state codes.  (This church is incorporated.)  Did you know that there is a state code concerning HOA's?  And HOA boards are to follow it?
    What you haven't told me is how much money are you paying for assessments every year?
    What I was trying to impress upon you in my first reply was that officers can get away with anything and everything if the members allow this to happen.  If you want to change things, you must become active and get the rest of your members active.  Another point of information is this. In this year's state legislature, someone has proposed a committee comprise of different groups and individuals to study this entire HOA situation.  Many groups are having the same problems that you are. This committee I believe will have hearings and make suggestions or propose new legislation to correct these problems.

The Parliamentarian

 


Joel Hakam wrote:

Dear The Parliamentarian,




We pay nothing in regular dues. However, recently they asked the home

owners to anti up $250 for new mailboxes.  We had an instance in which

somebody's mail was stolen.  They used it as an excuse to hold a meeting to

determine what kind of mailbox was appropriate.  I did not attend and

refused to pay it along with a few other individuals.  In my case, I was

already looking for a locking box so I went along with their choice and

purchased/installed my own box for $145.  It turned out that the box is not

acceptable to the Post Office, so all of the locking mechanisms are being

removed.  The people who picked out the box assured us that the post office

was on board.  The truth of the matter is that the Post Office never gave

them permission to use this box and actually warned the individuals managing

the project that the box didn't meet postal regulations.  This fact was

hidden from the neighborhood.  This resulted in wasting about $8000.




Other than what I just described we haven't had any dues for close to eight

years or more.  I also looked at the state law governing HOA's.  They do

re