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Dear Parliamentarian Vol. 123 June 2006

Dear Parliamentarian Vol. 123  June  2006
Answers to your Parliamentary Questions
hoa@parli.com


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


Dear Parliamentarian,   

I have recently been elected to a Board of Directors.  The Parliamentarian made a motion and also voted.  Is that correct?

Thank you,

Mona Flindall



Is the parliamentarian a member of the board? How big is the board?

The Parliamentarian

The Parliamentarian,
 Thank you so much for your response.  There are 12 members of the Board.  He is last years president.  All other boards that I have been on, the President only votes in the even of ties and the Parliamentarian only insures we follow the "rules.
Again, thank you for taking the time.
Mona

 

Dear Mona,

Does that mean last year's president is a member of the board?

The Parliamentarian

 

:

The Parliamentarian,
  He stays on as Parliamentarian.  I guess that's what I'm asking.  Does that make him a voting member.
Again, thank you so much for responding.
Mona

 

 

Dear Mona,
    Go to your bylaws and see what the duties of the parliamentarian, or past president of the board is.  If he is only in an advisory position then he can't make motions, debate or vote.  However, some organizations make the past president an actual member of the board. If that is the case, then he has the full rights of a board member even though he is acting as parliamentarian. This is all I can tell you unless I saw your bylaws.

The Parliamentarian

 

 

   Terri Buscemi wrote:

Hi,

I hope you can answer a few simple questions regarding voting protocol in homeowners associations.

1) We have a homeowner disputing the election because proxy ballots were not delivered with the meeting notice.  Those homeowners who called to advise they were unable to attend the meeting were encourage to send in a proxy ballot.  Many asked for the ballot and then completed it.  This one homeowner (out of 54) feels that she was "denied" the right to vote because she was not "offered" a proxy ballot. No where in our by-laws does it dictate that a proxy ballot must be provided as an option.  It does indicate we can accept proxy ballots.

2) This same homeowner is questioning the authenticity of the proxies.  She is asking to see them and make copies.  Is this allowable?  Aren't these confidential?  We have given her a list of homeowners that submitted their proxy ballots, but that is not satisfactory.

3) finally, does it really matter if we had a quorum or not since the nominees were unchallenged?  It's hard enough to get homeowners to volunteer for this position, they shouldn't have to deal with this controversy for no good reason!

Thanks for your help.

Terri Buscemi
Dear Terri,

1.  If you are a homeowners association incorporated in a state that requires proxy voting, then you are obligated to send proxies with your ballot.  It is not optional.  If your bylaws state that it accepts "proxy ballots", then you have to provide them to all members.  It is not the responsibility of the members to ask for them.  It is your obligation as a board to send them out with the call to the meeting.
    2.  The owner has a right to question your entire election process because you played favorites.  You allowed some to vote by proxy and another not to vote by proxy.  Her vote may not have made any difference about the out come of the election but she could challenge the procedure of the election because it was not handled correctly.  However, I don't think she can see the proxies or how the proxies voted if the vote is taken by ballot.  Giving her the names of the people is probably sufficient.
    3.  If you had no quorum you have no election and therefore no officers.  Nomination does not mean election.  A nominee has to be elected to take office.
    If there is a question about a quorum not being present then let us help you have another election with proxies.  Usually proxies are counted in the quorum.  If you need to have another election, then I have information that I can send you to help you conduct it properly.

The Parliamentarian


 

Terri Buscemi

 

 

 

Mr. McConnell,

 

I am a former board member of an out-of-control & fairly young (less than 4 years old) homeowners association.  The builder, here, built condominiums, with quite a few building code violations with clauses in the by-laws that the board cannot lead any lawsuit against him, or his corporation.  

 

With all of the issues we have had, the newly elected board felt it was necessary to raise the homeowners’ association fee, by some fifty percent!  They have done this, however, outside of the scope of what the general consensus of members feel is within their authority.  They rescheduled our annual meeting, the by-laws are clear about when it should be held & as well as the fact that this meeting is to be mandatory.  They (the board of directors) approved a budget without a vote of the homeowners, or a mandatory review by the general association of members, prior to the non-existing vote regarding said budget.  They have since been attempting to charge late fees for homeowners refusing to pay the increase.  Immediately following the notification of the increase, a petition was started to ask for a meeting to discuss and possibly vote regarding the increase.  The board didn’t respond to the petition within the thirty day time limit specified in the by-laws.  I was told by a board member that at our upcoming association meeting, June 24th, that there would be a discussion of several issues… I do not know however if there is to be a discussion of this issue in particularly, and in its entirety.

 

Secondly, information that has been requested by homeowners, is according to the by-laws, supposed to be returned within five 5 days- the board has not responded to any of those inquiries, which puts homeowners at a disadvantage in adequately preparing for upcoming meetings.

 

We have several issues, and the honest homeowners do not know where to begin in order to handle them all!  Please help.

 

Please let me know too, what your assistance may cost us.  

 

Signed,

 

A Sincerely Concerned Homeowner

 

Dear Concerned HOA Member,
    Your board needs to hire an attorney.  There is a new class of attorneys specializing in HOA and condo construction building defects.  If it is in the bylaws that the board can't sue the builder, state laws and codes may supersede the bylaws.  I would recommend that the board contact someone who knows this area of the law.  I was told several years ago that this was a new area of litigation because of so many construction defects by developers.
    Instead of the members fighting each other over this, you need to unite and not allow this developer to get away with his mistakes.  IF there are many things to be fixed, I can understand the position that the board is in and also the members not wanting to pay higher fees.
    Can you be the voice of reason at the meeting?  Can your group come to this meeting wanting to solve problems instead of as an antagonist of the board?  What I suggest is that a committee be established to work with the board to help solve this serious problem.  The board needs to find capable people to help them solve this problem with the builder and have him fix it or pay up.  The members need to unite on this issue and not accept that your hands are tied.  I find it remarkable that a builder would put in governing documents that he couldn't be sued.  That to me would be a very big warning not to buy in his development.
    Now about the board not responding to your requests.  I have found that many who serve on the board do not understand the importance of obeying the laws of the land or the rules.  They are basically operating under ignorance.  Since you have a board person that you can talk with, why not talk with him about these issues and see if some things can be solved before this meeting so that it can be orderly and constructive.


The Parliamentarian



Dear Parliamentarian,

I have a question which I hope you can answer for me; can my

association raise its dues by a 30% with just a few votes form a

single meeting?




 




Your response will be greatly appreciated.  




 Dear Ed,

Please give a more concrete example.  Did the association members vote

or the board?  Was there a quorum present and were proxies allowed?  Did




you attend the meeting?




The Parliamentarian







 

Dear Parliamentarian,

Unfortunately I was not present on the last meeting were supposedly this
issue was addressed, I do not believe there was a quorum present,
according to information I received from my tenant there was only
fifteen to twenty people present which is less than 20%. Proxies were
issued among the present but there was no previous notification to the
owners.
According to the Civil Code 1366 the association board completely
disregard this Act responding to whatever economic situation they have
in a foolishly way, raising the dues from $175 to $225 puts a heavy
burden on the owners and depreciates the properties. This complex is
located in downtown Santa Ana, the association fees are way over too
high in comparison with other middle class complexes.

Ed Prado

 

Dear Ed,
     The first thing I suggest is that you find out if there was a quorum present.  Then look in your bylaws for the procedure for raising assessments.  Then ask for the minutes of the meeting to see what happened.  If there was no quorum present in person or by proxy, you probably have a recourse to have the dues increased rescinded.  Since I don't have any other information on your association this is all I can tell you.  If  in your research you find discrepancies, write back and I will try to find a parliamentarian in your area that you can contact to help you resolve this.

The Parliamentarian
 
Susan Olsen wrote:

Hello,

A motion was passed in 1984 and now they want to rescind this motion. They have sent out a ballot with the exact same wording... is this the only way to rescind this motion?

 

At a recent meeting it was made very, very clear that this vote would be to "lift the gag order" only. Not to do anything else other than to allow discussion.

 

Now the ballot comes out with totally different wording. "I am in favor of continuing the testing and breeding" etc. or "I am not in favor", etc.

To me this is not the same as discussion only.

 

What are the real rules?

Susan

Dear Susan,
      Who is the "they"?  Why was a mail ballot sent out?  Will the members submit the ballot at a meeting or is the ballot to be mailed back to the organization?  If this is the case then do your bylaws provide for a mail ballot?  Who decided what the motion was to be at the meeting?  Who made a motion to rescind?  Is it the same person or persons sending it out to the members (for example a board of directors)?  More information would be appreciated.

The Parliamentarian

 

   

Susan Olsen wrote:

The board has mailed a ballot to the membership to rescind the motion made back in 1984. Yes, the bylaws allow a mail ballot. The board decided that the motion on the ballot had to be exactly as it was in 1984. It is the board, but not the same board members from 1984.
Does this help?
Susan

 

Dear Susan,
    Evidently your board decided, by a vote, to send out the motion, and let the members decided whether to let it stay or to rescind it.  IF the board has power in the bylaws to do this, then they are able to do this. If you want to do something else with the motion, for example change it in some  other way, then you must find a way to get that to a vote before the members.  I do not know your organization and how it is set up so I am afraid I can't be of any extra help unless I saw the bylaws and other governing documents.

The Parliamentarian

PS.  Are you a board member or were you at a board meeting where this discussion took place?

Nancy LaFontaine wrote:

Mr. Robert McConnell:

About a month or so ago I wrote to you and asked how the homeowners can help me with nuisance neighbors.  Your response was extremely helpful and since that time I implored the homeowners to utilize you suggestion by forming a committee to draw up rules and regulations with a 3/4 vote from those who come to the meeting.  It was very hard at the annual meeting to 'educate' the people there about the 'power' they had as the homeowners association.  Also at that meeting new officers, president and v.p. had been elected.  (Seemed like a lame way to do what they did but we have new people in.)  I am the vp of the homeowners association.

The president is working to get educated as to what and how he can do to improve the hostile situation I am experiencing.  Now my question to you is how do we enforce these rules, laws, and/or state ordinances in order for us (my husband and I) especially to enjoy our new home?  What can we do to get these people to turn their radios down, shut their dog up, and stop being a nuisance to us by taunting us all hours of the day and night.  They talked to them this past weekend to no avail, they just get worse the next day.  We are meeting this weekend to write them an official letter.  But they will get ugly and try to get me to respond in a negative manner.  What can we as the homeowners association do to enforce this childish behavior?   I'd (my husband and I) would like some rest, sleep and the enjoyment of our place as well?

Thank you for you time.

Nancy LaFontaine

Dear Nancy,
    If the association has rules and these people aren't obeying them, I wonder in this case with the association behind you, if you now can't call the sheriff and get results.  I have also heard of an organization who is into solving problems like these through a peace making process.  I was given a brochure about them last year at a parliamentary seminar.  It is Biblical based and it is called Peacemakers ministries.  The web site is "Hispeace.org."  I have read parts of their book, and the principles for resolution conflict are sound.  A person may or may not agree with their religious beliefs but they do have some helpful ideas.  I am wondering if you pursue the legal way if things won't continue to escalate. There needs to be a de-escalation of this conflict.  Please give this some thought.

The Parliamentarian

:

Dear Parliamentarian....You were so helpful a few weeks back that I have another question for you:




We sent out the Call for our Annual Meeting two weeks ago, as required by our Bylaws.  It included the recommended slate from the Nominating

Committee.  Now our problem is that two positions have become "unfilled" due to the decision by that person (who is filling both positions) that he will not serve (Treasurer and Co-Chair of Religious Education).




Is it o.k. for the Nominating Committee to meet, fill those two spots and then go into the annual meeting on Sunday with an updated Nom. Comm. report?




We're beside ourselves wanting to do the right thing.




Hope you can help us.




Thanks,




Helen Kennedy

 Church Administrator


Dear Helen,
    Yes, you can and should do that--meet and come up with another nomination.  You have the blessing of Robert's Rules of Order to do that.  :-)

Parliamentarian

 

Dear Parliamentarian,

 

Thank you so very much for responding....that person which I mentioned in my last Email hasn't stepped down as Religious Education Co-Chair, as we expected, and now we are confronted with a request from our Religious Education Committee to remove his name from the slate inasmuch as "The committee is concerned that his lack of understanding of the RE program and the adversarial relationship that he has created with the DRE and other committee members would adversely affect the quality of the RE program."

 

Are we able to remove his name and replace it with another?  Or would we be better in letting further nominations for that post come from the floor?  We have been trying to reach this person to ask him to remove his name or to find out if that is what he intended but he has made himself incommunicado.

 

Again, we want to be proper but need a little guidance.  So sorry to pester you -- you are our guardian angel.

 

Helen Kennedy

 

 

 

Dear Helen,
    Think of the dynamics of your church first.  What would cause the least turmoil?  If the man is not responding to calls, and he originally said he would fill the office if elected, then perhaps the best way to handle it is to let others be nominated from the floor. However, it looks like the church needs to solve this problem asap before it blows up into something bigger.

The Parliamentarian

 

Dear Parliamentarian,

 

We live in a non profit PUD in Spokane Washington. The association is governed by 4 older women who serve as officers and the board. Some of us have issues with the amount of money they keep in the bank. We have close to $23,000.00 in savings, checking and CD's. Our fees are $65.00 per month. We are attempting to install new fencing and the "four" are not allowing it without getting another $500.00 from each of 18 home owners. We need to know how much money that can be held in the bank accounts and why they will not use that money. The fencing would leave about $6,000 in the accounts. Is there any reason that we cannot spend down to that level without jeopardy to our association. The monthly fees pay the obligations and several are wondering why we need to have so much money in the bank, other associations in this area don't have that kind of money. Others just charge the fees to cover the expenses. Therefore why are we funding savings for this place. Thank you for your answer.

Pat Turnbough

 

 

Dear Pat,

    Is a PUD like a condo association?

 

Parliamentarian

 

Dear Parliamentarian,

 

It is a Planned Unit Development, and yes it is like a condo association.

 

 Pat

 

Dear Pat,

    Let me do some research and see what I can find out for you.  When

do you need to know an answer?

 

Parliamentarian

 

Dear Parliamentarian,

 

Not in a hurry, Just a few of us are rebelling about assessments that we feel are not necessary in lieu of the fact that we have so much money in the bank. We have a bill for a new fence for 16,000 and they say we cannot afford if without charging each of 18 houses 500.00 This seems a little stupid to me, that is why I am checking it out. Thank you

 

 

Pat

 

 

Dear Pat,

            I am not acquainted with the financial affairs of your association.  I do know that when property is owned in common, the board is responsible for having a reserved fund where there should be enough money set aside for repairs and replacement of the common areas.  If you are like a condo association, then I assume that you have roofing, out side painting of all the buildings and other capital expenses to plan for.  Your board members may have a schedule for these things to be done and the money in your account may already be allocated for such things.  What I suggest is that you attend board meetings and become more familiar with the operations of your association. You certainly have a right to ask to see association financial records.  You also have the right to ask questions of the board.

            Usually a board presents a yearly budget for the members to review, discuss and vote on.  These types of expenses should be included in a yearly budget or in their long range planning schedule.  We all hate to put out money for big expenses especially when it looks like we have plenty money in reserve.  It sounds to me like you have some very fiscally responsible people on your board.  Why not give them an opportunity to tell you and the other homeowners their reasons for doing this.

 

Parliamentarian

 

Dear Parliamentarian,

 I need to know where I can find in Robert's Rules how disciplinary

actions should be taken?




Anita V Owens

Dear Anita,


Which Robert's Rules book do you have?

Parliamentarian

 

Dear Parliamentarian,

I need to get a Robert's Rules book but I was trying to find the chapter
which would give me information on How a association can ask for a
resignation of an officer.
Anita

 

Dear Anita,
    Could you give me a few more details.  For example, why does the association want to remove the officer? Do you have in your bylaws a way to remove the officer?  Often bylaws will state how to do this.  Are you incorporated?  If so, most corporate codes provide for a way to remove officers.

Parliamentarian

 

 

Dear Ladies and Gentlemen:  Please, advise me with the answer to the following question:

Since my church's Bylaws are silent on this issue, is it legally possible for a member of the board of directors to cast his vote by telephone during a non-emergency board meeting???

Please help me to serve my church (as a volunteer) in strict accordance with Robert's Rules of Order.   A million thanks and may the Lord Bless you!

George A. Varelas, Retired Police Lieutenant   

Dear George,

            Were all the Board members present except one person who then voted by phone?

Parliamentarian

Dear Parliamentarian,

Thank you for your fast response!  The answer to your question is as follows:

All members of the board were present at the meeting except the one who voted on an issue by telephone.  The issue was not an emergency meeting, and our church's Bylaws have no provision that permits voting by phone.  Yes we are incorporated.

A million thanks and may the Lord Bless you!

                                      George A. Varelas

 

Dear George,
    Under Robert's Rules this is certainly not allowed unless their is a provision in your bylaws about it.  However, this is not your final answer.  Since your are incorporated, you must look at your state laws.  Many state non profit codes allow for this if the bylaws do not make an exception.  This is true in the state of Washington. Because of all the modern technology, states are allowing members to participate by phone.  But they do have certain requirements to do this.  So you need to check your state codes and see if they cover this.  If they allow this, this code supersedes both your bylaws and Robert's Rules of Order.

The Parliamentarian


 
georgos1@juno.com wrote:

Dear Ms. The Parliamentarian:  This is a supplemental reply to my previous one.

There are Fifteen (15) members in the board of directors of my church.  During a regular meeting there were nine (9) present.  One of the 6 who were absent voted on a non-emergency issue by phone.  I emphasize: our Bylaws contain no provision for voting by phone.

Question:   Under these circumstances is that vote by phone correct according to Robert's Rules of Order????

                   Thank you for your the inestimable assistance!    George A. Varelas

Dear George,
    I have an amendment to my previous response.  If corporate code allows telephone voting, and only this one absent member was allowed to vote by phone and the others were not, then that would certainly have a bearing on this procedure.  I take it that this one vote affected the result in some way.
    The first thing that you need to do is find out what your state codes say telephone conferencing--that is what this was.  Then you need to find out if other members absent were given the opportunity to participate in the meeting by phone like this one person. Then write back to me and I can give a more definite answer.

The Parliamentarian

June 9, 2005

 

To: Ms. The Parliamentarian (excellent young lady)

From: George A.Varelas

 

Dear The Parliamentarian:

 

I visualize you as my daughter Elaine; she, too, is a very nice lady.

 

Please accept this brief note with a complete explanation of my inquiry.

 

My church, Saint George Greek Orthodox Cathedral of Western Massachusetts, is incorporated under the laws of the Commonwealth of Massachusetts, and it’s governed by a 15 member board of directors under the provisions of Bylaws.  One of those provisions states that   “All meetings shall be conducted in accordance with Robert’s Rules of Order.”   Further, another provision states that    “...To the extent permitted by applicable law, in the event of an emergency, a special telephonic meeting may be called by the Priest and Board President.”

 

Several days ago there was a regularly scheduled meeting.  All members received notices to attend.  At that meeting, there were 9 persons present (quorum is 8).  However, to my surprise, there was a setup for telephonic attendance for one of the members who was out of town.  Nothing had been communicated to the other absent members, and there was NO EMERGENCY that could require the participation of all or most members.  The outcome of the vote is of no importance.    The important question   – under the above stated facts is – can one legally cast his vote by telephone?

 

The reason for my question is this:  Suppose that there were 7 persons physically present. Could the telephone participant be the 8th person in order to have quorum?   I say “NO” What do you think, Dear The Parliamentarian?

 

Please accept my genuine appreciation for your kind attention to my question.

 

 Most Sincerely,

 

George A. Varelas

(A Greek immigrant who loves the language and its proper use)

 

 

Dear George,

 

            You have a genuine concern.  You need to see what a telephone meeting means by state law, how it is to be conducted and  how it effects the quorum.  Many state laws provide that members can attend meetings by a telephone conference.  When state codes allow this, it means that all absent members may be there by telephone conference and should be informed that such action is to take place.  Since only one board member was allowed to participate by telephone conference and not the others, this would be prohibited by state laws.  I realized that you sent me something about emergencies in the state law.  You may need to look further to see if it addresses telephone conferencing at all.  Also in the case of an emergency telephone meeting referred to in this law, you should read further to see if the law states how this telephone meeting is to take place.  In any event, the church should establish written rules of procedure for a telephone meeting.

            Now for what happened at this meeting. It certainly was not done according to Robert’s Rules or any other laws because members not were informed that this was going to happen.  If only the out of town member was able to call in his vote, and not the other absent members, then this was showing preference to one member.  I hope your members will consider this carefully.  Any show of favoritism could cause problems in the organization.

 

The Parliamentarian