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Dear Parliamentarian Vol. 126 Sept. 2006

Dear Parliamentarian Vol. 126  Sept. 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.


Pizztpuppy@aol.com wrote:

 I'm not sure if you can help me, I hope so, because I am totally overwhelmed by all the sites that appear when typing in "Cushing’s Manual".  I am a bartender at a private sportsmen club, and the bylaws are extremely vague and state at the end, that if certain questions had not been answered, we are to refer to the Cushing’s manual.  Unfortunately no one seems to have the foggiest notion as to what they are, where they can be found, and how they pertain to our little club.

If you could possibly take a little of your valuable time, and guide me in the right direction, I would be greatly pleased, relieved and indebted to you.

 Mary Ann Wolfe

 

Dear Mary Ann,
    I am surprised that any group is using Cushing's Manual.  I am not familiar with it at all.  However, call this number they may have it available.  It is 888-627-2929.  This is the office of the National Association of Parliamentarians. Henry Robert's book, "Robert's Rules of Order"  primarily replaced this book many, many years ago.  The perhaps the best thing for the organization to do is to amend your bylaws and and adopt another parliamentary authority.  If your organization doesn't have too many problems our book, "Robert's Rules of Order Simplified and Applied" may be useful to you.

The Parliamentarian
 

 

 

Sharon Pearce wrote:

2 questions.

 

Our bylaw amendment changes were put in a publication online which is a new format.  Members had been asked if they wanted to receive the publication via hardcopy or consent to just looking at it online.  There was no mention that the bylaw amendments for consideration were to be in the online publication.  They used to be mailed out hardcopy 30 days ahead of consideration.

 

The bylaws of the organization state:

 

 

Article XI     Amendments

These bylaws may be amended at an annual business meeting of this association by a two-thirds (2/3) vote of those present and voting, provided notice of the proposed amendment has been mailed at least thirty (30) days prior to the date thereof.

 

It seems the above is in violation of the organizations stated bylaw.  Your thoughts?

 

Also, when bylaw amendments are presented to the body, they are usually read verbatim then opened for debate.

 

For example this was the bylaw amendment:

 

Article V. Section 3

1. No member shall be eligible for the office of President-Elect or Vice-President who has not served on the Board of Directors of this association for at least

one (1) year.

1. With the exception of past Presidents, No member shall be eligible for the office of President-Elect or Vice-President who has not served on the Board of

Directors for at least one (1) year within the last 3(three) years.

Rationale: To be effective as a senior leader of an association, one must be well versed about the issues that impact the profession. To be effective as a senior

leader of an association one must also have the respect and camaraderie that often manifest as a result of working closely overtime with other members of the

Board of Directors.

 

The presenter went on for 20 minutes without the floor being opened for debate outside the scope of the stated rationale.  Is that appropriate or out of order?

Thanks so much

 

 

Sharon Pearce, CRNA

1366 Becks Nursery Road

Lexington, NC 27292

336-250-6008 (cell)

 

Dear Sharon,
    The bylaws state specifically that the proposed amendment is to be mailed to the members. It would certainly be allowed for the organization to post the bylaws on line, but the bylaws should also be mailed to the members to comply with the bylaw requirement.
    Usually the bylaw committee presents the proposed amendment and explains the reason for the changes.  When the chairman of the committee is finished with his explanation, the chair should open it up for the members to debate.  I do not know why it took twenty minutes for the person presenting the bylaw change to explain, but this is certainly allowable unless you adopt some rule that requires a precise explanation.

The Parliamentarian

 Erica Thomas wrote:

 

Dear Parliamentarian:

We are about to have our AGM, and we are accepting proxies.  One of the proxies has come to our association electronically with computer print type where the signature should be.  Along with this email they have also sent the message "Because this is an electronic version you will see my signature typed in, please accept this as if it were the written version."  My question is this an acceptable proxy or does the association require a bylaw change regarding the acceptance of electronic proxies?  Thanks for any assistance you can provide me.

 

Cheers,

 

Erica Thomas

 

Dear Erica,
    When the proxies are sent, there should be instructions for how to return them to the organization and to whom to return them.  If the organization has not provided for it to be returned electronically then it would not be a valid proxy.  In this case, I would contact the person and ask them to mail it in or hand deliver it to the proper person.  It is my opinion that the organization would first have to adopt some rules or change the bylaws to accept electronic proxies.

The Parliamentarian


 

Freda Whaley wrote:

I live in Florida and this is the first neighborhood I've lived in that

has a homeowners group.  Both our board and our management company is

abusive towards the rest of the community.  




If you call a board member with a request or problem they tell you to

call the management company.  When you call the management company they

tell you to talk to the board.




At the board meetings we are allowed to talk in open forum but not

allowed to complain or say anything bad or we get kicked out of the

meetings.  Yet when I asked about a request for a shed I was told by the

president of the board that if I caused trouble my "little white fence"

would disappear.  This threat was just out of the blue.  I had quietly

put forth my question in a non-confrontational way and got attacked.  Another

man got up and asked if the dead limbs on the trees were going to be

trimmed and the president told him if he didn't like the tree limbs to

stay out from under them.  He did apologize at the next meeting but

shouldn't have behaved that way to begin with.  




Our board is spending money like there is no tomorrow.  




Now I'm under attack again.  I'm dog sitting my sons little dog.  It

got out on me and while I was outside calling it a neighbor lady (who

the day before had grabbed a news letter from me and then thrown it at

my face) picked the dog up.  The dog squirmed to get down, scratching

her.  The dog went to the shelter for ten days and then was released.  I

agreed with that because even though she should have known not to pick

up the dog it did scratch her.




 I received a letter from our board demanding that I show the tag and

registration to both a board member and the management company.  I'm

also to show them this yearly (if I still have the dog) or any time it

comes to visit.  Not once did the management company or our board

contact me about the dog.  They decided on their own that the dog was a

problem.  Even the pound, where she spent locked up said that she was a

good dog, that if she wasn't she would have bitten the lady to get down

instead of just squirming.




To me this is unreasonable and just another form of harassment on their

part.  I was also told that if I didn't do this I would be fined daily

until I complied and then a lean would go on my property.  Can they do

this and is it time for me to see a lawyer?  I will have the dog while

my son moves and then he will be taking the dog back in November.  So

this could become a real problem.




Thanks for your help.










Freda Whaley

Dear Freda.
    You certainly have problems in this association.  Is there anyone reasonable on the board that you can talk too?  Getting an attorney sometimes causes more problems.  The other thing about hiring an attorney--in many bylaws or covenants there is a clause that if the homeowner sues and loses he also pays the attorney fees of the association.  So be careful.  Perhaps there is another way to solve this.  I know that there is an ombudsman for the state of Florida.  You might see if they can help you solve some of the things going on in your association.

The Parliamentarian


Kathy Malone wrote:

Is there any mention in Robert's Rules of Order, 10th Edition concerning members' rights to extract items from the consent agenda to be voted on separately?

Thank you!

Kathy

 

Dear Kathy,
    Yes, there is.  When the consent agenda is proposed members can object to items on the agenda and have them placed on the  regular agenda.  Any member can remove any item without a vote.  See pages 349-350.

The Parliamentarian

 

Patterson wrote:

The membership of our club voted to purchase land and completed a purchase offer which was accepted. Then there was an election and the new officers refuse to allow the attorney to complete the purchase. Can the new officers change the vote of the membership?

Thank You

James Patterson

 

Dear James,

 

  Usually they can not.  But I think the last sentence of Section 6. may give them carte blanc to do anything. An attorney I believe could argue it either way. One way to solve this problem is to adopt a bylaw that says the board can not rescind or change any decision of the members--only the members can change any decision they have adopted.

The Parliamentarian

 


In the bylaws
Section 6. Executive Committee

The Executive Committee consisting of the Officers and the Board of Directors shall have general charge of the policy, management and finances of the Organization. It may hold meetings at such times and places as they think
proper; suspend regular members; appoint committees on particular subjects from the members on the Executive Committee or Club; audit bills and disburse funds; print and circulate documents and publish articles, carry on correspondence and communicate with other organization interested in the Snowmobile; employ agents and fill vacancies in elected positions temporarily until the next meeting. they shall devise and carry into execution such other measures as they deem proper and expedient to promote the objectives and purposes of the Organization.

ARTICLE VIII

Disbursements of Funds
Section 1. Disbursements not in excess of $30.00 will require approval of two (2) members of the Executive Committee.

Section 2. Disbursements in excess of $30.00 will require membership approval by a majority vote at any duly organized meeting of this Organization

 

 

Dear Parliamentarian:

 

Back in 1991, my home owners association, which I was the Incorporator of, and first

president, became a Co op.

 

I am a former member of the National Association of Parliamentarians.  However, the members that formed the Co op, did not want me on the bylaws committee.  Bylaws were

written and never brought before the membership.  They were adopted by the Board of

Directors.  I challenged it, but no one backed me up.

 

The Co op is made up of French Canadians.  Therefore, most of the board of Directors are

French.  We now have a few interested parties who would like to correct this situation.  The

way the bylaws are written, the board of directors make all the decisions.  We cannot even

make a motion at the Annual Meeting.  The only thing the membership is allowed to do is

approve the budget and vote for the members of the board of directors.

 

Do you have any suggestions as to how to handle this situation????

 

Sincerely

Zelda Rodyn

 

 

 

 

Dear Zelda,
    The first thing that you need to find out is are there any provincial laws that pertain to the running of co-ops.  I assume that there are provincial laws that have to do with incorporating societies.  Our states have such laws.  In our state corporation laws for non-profits, they allow Board of Directors to amend bylaws unless it is written in the governing documents differently.  However, the laws pertaining to HOA's and Condo's do not allow the boards to amend governing documents.  The first thing I would recommend is that you do research about these laws and how they affect your co-op or if they do.  If there are no laws that pertain to co-ops then the only choice you have is to get your group on the board of directors and then amend the bylaws so that they favor the co-op owners instead of the board of directors.  What you are dealing with is the same thing many of us are dealing with, and that is a lack of respect for democracy itself.  Instead there is a very strong thought that only a few people should have power to govern.  Most HOA and Condo association are facing these problems today.  In fact the way they are set up encourages this undemocratic practice.

The Parliamentarian

Mark Stolarski wrote:

I am vice-president of a small club.  Our by-laws were originally written about 30 years

ago with minor changes over the years.




We are still a very active organization, but the current membership is only about one-

third of the membership when the by-laws were originally written.  Our by-laws specify a

quantity of members and officers for the quorum rather than specify a percentage of the

membership.  With the reduction in membership, we cannot meet the quorum

requirements in our by-laws.  (Unfortunately we did not foresee the membership

reduction and modify the quorum requirement before our membership dropped too much

to meet the requirement.)  We want to change the by-laws to allow for a smaller quorum

requirement, but we cannot change the requirement until we meet it.  Our by-laws

require that new members be voted into the membership at a business meeting, so we

cannot add members to reach our quorum requirements.  Our by-laws have no provision

for when we can no longer meet the requirements.




>From what I can interpret, we may be able to reference another document as

"parliamentary authority", which would allow us to void -- either temporarily or

permanently -- our by-laws' quorum requirement; however, I have not located a document

that discusses this situation.




Do you have any suggestions on how to handle this situation?




Thanks,




Mark




Dear Mark,

    A quorum was never meant to "tie the hands of the organization" or to prevent it from doing business.  Establish a bylaw committee and get going on writing new bylaws.  Set the meeting for adopting these bylaws.  Talk to each member of your organization and officers and tell them how important it is to be at this meeting so that you can establish a new quorum figure so that you can conduct meetings and vote on new members.  If you don't have your quorum requirement go ahead and vote on the bylaws.  You have no other choice unless it is to disband the club.  




The Parliamentarian




PS.  Be sure that you have at least half of the members there when you do this and record this fact in your minutes.




Steven R Foskett wrote:

My name is Steven Foskett. I live in Winston Salem, NC.

 

Two years ago I purchased a town home which is a part of a homeowners association.   The same board members have been serving for the last 20 years. During the last two years the financial situation here has gone from having a reasonable surplus to a deficit.

 

My question is this:

 

Under what laws do I have, or do not have the right to review the association books?

 

If the association is carrying a deficit, is that considered a lien upon my property?

 

Does the association have any legal responsibility concerning bookkeeping to maintain receipts and other expenses besides just a ledger in a book?

 

Thank you for your attention to this matter. If all goes well we very well might be in need of your services in the near future.

 

Dear Steven,
    Usually state laws provide that members of HOA's or any non-profit have the right to examine the books and records of the organization.  You need to find out the laws that your organization is incorporated under and get them from the Secretary of State.  Read them carefully to see what your rights are as a member.
    I don't believe the association carry a deficit is considered a lien against your property.  But find out.  Go to the place that has the record of  your deed and see if there is a lien on it.
    Usually HOA's are required to have the books audited yearly.  They should be saving receipts and their minutes should show how they are spending money.  Are the board meetings open?  Usually by law they are to be open for members to attend.
    There is a great parliamentarian/lawyer in Greensboro.  He would be the best person to contact concerning your problems.  He is very familiar with HOA's, etc.  His name is James Slaughter.  Here is his e-mail address. jim@jimslaughter.com.  I highly recommend that you contact him.

The Parliamentarian

 

Xavier

Hi The Parliamentarian:

It's Xavier . I have a few questions for you. At our church's business
meeting there was a recommendation from the church board on the
agenda. A certain member wanted to make a motion to refer the board's
recommend back to the board for further consideration. At the time
there was no motion pending. The chair did not permit the member to
make a motion. Now my questions
are:

1.      Can a member make a motion to refer a recommendation back to a
committee such as the board?

2.      If there is no motion pending, can a member can make a motion
to amend an agenda item or in this case refer back to committee ?

3. Would this qualify as an incidental main motion?


Xavier

Dear Xavier,
    A member can make a motion to refer back to a committee or board when no motion is pending and that is considered an incidental main motion.  Yes, a member can a make a motion to amend the agenda.  This too is an incidental main motion if no motion is pending to adopt the agenda.

The Parliamentarian


 

 

DORA EMERSHAW wrote:

Dear parliamentarian:  We are a nonprofit "booster" club for high school sports.  We have no by-laws governing our organization.  Are we correct in stating that, without by-laws, the elected or appointed officers of the organization are the decision makers in the best interests of and for the organization.  We are a very small club with no regular members.  On the average, we have approximately two to three persons attending our meetings, in addition to the president, vice-president, secretary and treasurer of our organization.

 

Thanks for your advice,

Football booster mom

 

Dear Dora,
    You had better get some bylaws.  In essence you really can't elect or have officers unless you have bylaws stating so.  To answer your question, the elected or appointed officers of the organization have no power at all.  The people attending the meetings have the power to make decisions.  It does not take much to draft some simple bylaws.  If you get our book, Webster's New World, Robert's Rules of Order Simplified and Applied, has a chapter about bylaws and shows a set of simple bylaws.  A few of you could draft these bylaws in a couple of hours.

The Parliamentarian

 

 

Ddwan1@aol.com wrote:

Dear Parliamentarian:

                A member of the Board of managers here at our Condo Association is an Absentee member by virtue of the fact that he has gone down south to work as he lost his job up here (where in Mass). His family is still up here but his Condo is up for sale as his family is going to join him down there once the Condo is sold. He has according to the President of our Board sent a proxy to the Board that the President has in his possession with instructions on how to cast the members vote on issues that come before the board.  My question is: shouldn't he have resigned before going to the new job knowing that he is not coming back essentially isn't going to be here much longer as an owner and thus cannot provide fair representation of the Association, Is the proxy thing proper under parliamentary rules? Can the absent member and the president of the Board make such an arrangement? It seems unethical to me and a lot of my fellow owners agree with me sentiment on this issue.

                Dave

 

 

Dear Dave,
    Proxies are used for membership meetings not board meeting.  The state codes that I am familiar with state that proxies are only for membership meetings.  There would have to be a provision in your bylaws for proxies to be used at board meetings.  If they are silent on this issue it means that they can't be used.  If the president replies, where does it say we can't do it, then go to our Web site, "parli.com" and to "Internet Newsletter, Volume 8, Issue 1" This will explain why it can't be done.

The Parliamentarian


Collyer wrote:

Please tell me the correct procedure for presenting a slate of nominees for office. Once I present a name for an office do I need to ask, "Are there any other nominees for this position" three times before declaring that the nominee is elected?

 

Thank you very much

 

Dear Friend,
    No.  The proper procedure is for the nominating committee to present the nominees for office.  IF you are the president, then you ask for further nominations from the floor.  When people are through nominating or if there are no nominations from the floor, you state, "The nominations are closed.  We will now vote for the nominees.'  Then you need to take the vote.  If your bylaws do not state how they are to be voted on, then take the vote by a voice vote.  If there are no nominees expect what the nominating committee has presented, then you can ask, "All those in favor of the slate of nominees presented, say "aye."  Those opposed say "no."  Then announce the vote, "The ayes have it and the slate of nominees are elected."    IF there are more than one person nominated for office, then take the vote on each person.  The first person to get a majority vote is elected.  The chair states, All those in favor of Mr. Jones, say "aye".  Those opposed say "no".  The ayes have it and Mr. Jones is elected.  Or the no’s have it and Mr. Jones is not elected.  Then take the vote on the next nominee if Mr. Jones is not elected.

The Parliamentarian
 
LilianeAgra@aol.com wrote:

Hi!

And thank you for responding.  I live in South Florida.  My issue is a very common one, one that I'm sure you have run into numerous times.  I had a boat that was 19 feet 11 Inches.  Our docs allow boats up to 19 feet.  We got rid of the boat, and purchased a smaller one.  we built a doc and deck behind our home with no permit and we were fined by the ACC without a hearing.  We tore down the deck because we are in violation of county codes (We never obtained a permit) and because it wasn't approved by the BOD or ACC committee.  Is the dock and deck considered grandfathered in because it's been there for over 5 years?

 

Here's my issue: There are over 400 homes in our community, and if you’re not "in" with the BOD, you're screwed. We took a ride in our boat around the lake, and found docks that are twice the size allowed per the docs, as well as numerous violations that have been let go for YEARS.  Can I sue the association?  It is only right that everyone have to obey the rules set forth in the docs, and not let certain people slide because they’re on the BOD or friends of someone on the BOD.

I took pictures of all of the violations, jet skis on slopes (not allowed) boats and jet skis with no HOA registration (Not allowed)  Docs over 20 feet wide (Not allowed)

Thanks : )

 

Dear Friend,
    I would certainly point this out to the Board of Directors.  I would write a letter asking how these people are able to have docks, etc. that are in violation to the covenants.  You will probably have to sue to get any results.  We were told (this is not official) that if one person is allowed to be in violation of the covenants it is difficult to enforce the covenants..

The Parliamentarian