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Dear Parliamentarian Vol. 129 Dec. 2006

Dear Parliamentarian Vol. 129  Dec. 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.


IFISHPAUL@aol.com wrote:

Dear Parliamentarian,

If an elected board votes 6-0 (one missing 1of the 7 member board - he did not vote but sent a letter of support) to authorize staff to take action.  3 of the voters lost election and are off the board beginning Jan.  Can the vote be undone by three incoming newly elected members - if so how - if not why.  Also what are the rules to restart debate on this topic - must it be a member of the group who originally voted Y or can the new members bring it up?

 

Hello,
    First, could you tell me what the issue is and why a new board would want to change it?  Has the motion been carried out and if so could it be undone?

The Parliamentarian


Claire Sterlinski wrote:

I am a member of a Homeowner's Association, and need some clarification. We have Board Members who refuse to meet on anything other than an annual basis (the annual meeting which all unit owners can attend) plus one meeting directly thereafter. All decisions about Association projects are decided by e-mail discussion. They insist that these are just Officer discussions/conversations, as they serve as both Directors and Officers, and that a formal Board Meeting is not necessary.  I was under the impression that all discussions and decisions about Association business should be conducted in  face-to-face formal Board Meetings of the Directors/Officers, and be held on a regular basis (such as once a month). Also, if there are private matters which need to be discussed concerning a specific problematic owner or a specific problematic unit, should this not be kept confidential?  Our bylaws state that any unit owner is entitled to read all Minutes of Board Meetings.  At a former Association,  this was not allowed.  Unit owners could request and were allowed to see excerpts only - the private information was held in confidence. Is there a difference between officer discussions and Executive Sessions of Board

Meetings?   Thank you for your assistance - please let me know if there is a fee for your answer.

 

Dear Claire,

            Unless the laws of your state provide for e-mail meetings or your bylaws provide for them this is not allowed.  Usually state laws allow for homeowners to attend board meetings.  How can they attend an e-mail meeting?  If the board members have just “discussing”  and having conversations by e-mail, then how are decisions made?  There must be a motion and vote.  This should be recorded in the minutes.  This can’t be done without a formal meeting.  Your board members are out of line.

            There are certain issues that state laws allow to be kept confidential.  Boards are allowed to go into executive session to discuss such issues.  This would be kept confidential from the members.

            If your bylaws state (and often state codes also allow) members to read the minutes of the board meetings, then this should be allowed.  Homeowners should be able to contact the secretary to set a convenient time to see the minutes.

            Usually discussion is not put into the minutes.  Executive session should be for discussion only.  Any action taken should be done out of executive session so that the members of the HOA could know what action was taken.

 

The Parliamentarian

 


Donna Swanson wrote:

Hi,

 

I found your site on line and thought maybe you could give me some advice.

 

I live in a condo, which I own, in a development with a HO Assoc. , CC&R’s etc. We have board of directors and a property manager. I have lived here for 12 years.

 

I try my best to be very quiet and follow the rules and be a good neighbor. This is the problem. If I point out a problem that I would like corrected, like having the gutters cleaned, or a cc and r violation more often than not the response is very slow or ignored.

 

The board of directors has been acting in a very condescending manner toward me. They even emailed eachother very nastly emails pertaining to me and my concerns, which they sent me a copy of .

 

I am having a problem with a neighbor that I share a common wall with. When I try to talk to her she swears and screams at me. She opens and closes her kitchen cabinets so loudly it wakes me up or prevents me from going to sleep some times. If I complain, I'm afraid she will do it more and louder. She is a member of the homeowners board, so they don't want to do anything to help me. I have called the Sheriff, but they can only cite her after 10pm and before 8 am.

 

I feel I am being discriminated against.

 

What can I do ?

 

Any advice would be appreciated.

 

Thank you,

 

D. Swanson

 

Dear Donna,

    Is there anyone in the association that everyone respects that could be an advocate for you?  Perhaps you can find someone in the association that everyone respects.  Tell that person your situation and then have him or her approach the board to ee how this can be resolved.  




The Parliamentarian



Thomas S. Crum wrote:

Dear Sir,




Yesterday we had a special meeting of the homeowners to vote whether or

not to pay a special assessment for the installation of security

cameras.




Proxies were mailed out in advance to every homeowner allowing them to

vote yes or no.




At the special meeting a quorum by way of proxy and attendees was not

present, it was short by 4.  The President acknowledged the lack of a

quorum and then proceeded to call the meeting to order and take votes.




The votes were counted and a simple majority of the votes were in favor

of the proposal.  The board then said they were going to recess the

meeting for 2 weeks to canvass the neighborhood to find 4 "no" votes,

which would give them quorum and "hold onto" all of the in-person votes

that evening until such time they have quorum by proxy and then count

the votes and pass the proposal.




I thought that if a quorum was not present that no business could be

conducted and no-one could vote, and certainly those votes couldn't be

"held" to then later try to attain a quorum by proxy.




Am I wrong?




Thank you,




-Tom Crum



 

Dear Thomas,
    You are right.  You can't have a meeting without a quorum.  The only legitimate action without a quorum is to try to recess to try to get a quorum or set the time for an adjourned meeting which is a legal continuation of the meeting.  Did anyone raise objections at the time to this procedure?  What the board needs to do is to set the time for another meeting and start all over again.  This time they need to go door to door before the meeting asking members to come or send in their proxies so that that this decision on assessments can be resolved one way or the other.

The Parliamentarian
 
Thomas S. Crum wrote:

Hi The Parliamentarian,




Thank you for your reply.




Yes, objections were raised. But, the management company said it (the

proceedings) was not out of order.




The meeting was recessed for two weeks in the future.  The other problem

the management company has with its handling of this matter is that all

proxies must be in before the designated time of the meeting, per the

bylaws.  I read this to mean that you cannot canvas for proxies after

the time of the initial meeting.  You can canvass for bodies, but not

proxies.




Either way, the way I understand this is that any proxies received prior

to the time of the original meeting are valid, any votes taken during

the invalid meeting should be thrown out, and now the only way to get

quorum is to have more bodies attend the next meeting.




The other problem is that I saw the management company co-mingling the

valid proxies with the invalid votes (they were all on the same form

paper), so now one cannot know with certainty which were valid or not.

And if there is even the slightest hint of uncertainty or impropriety,

then the meeting should be done over from scratch.




I've never seen such a bungled meeting.  To think we actually pay a

management company to get these things right... yikes.




Your thoughts?




Thank you,




-Tom

Dear Thomas,
    I totally agree with you.  Where is this management company getting its training?  Perhaps you can recommend our web site to them and our books and videos about conducting a meeting.  Let me say this.  It is totally inappropriate to "recess for two weeks."  A recess means a short intermission.  What they should have done is to set the time for an adjourned meeting.  This allows them to gather proxies and bodies because an adjourned meeting is a continuation of that meeting and new people can always come in late to a meeting.  I am with you.  They really need to start all over again because taking a vote without a quorum is illegal.  They could end up being sued for not following correct procedures.
    Are you a member of the association or a board member?

The Parliamentarian


 

STELLASIMS7@aol.com wrote:

Dear Parliamentarian
I am in a fairly new community (2 Yrs)  We have written covenants, And a yearly HOA fee,  We have a new Board who I am told is new to HOAs  and we go through a management co to discuss problem,   When trying to find out the telephone numbers and addresses of our Board members we are told they cannot give them,  I have been on boards and member of HOA  several times and have never know  the Board members not to be given along with a list of all members of the homeowners .
We were given a copy of the HOA rules upon asking at the time we bought the home and the HOA fee  You have to pay .   My concern is the Secret  of our Board and their not being apart of the neighbor members,  we know their names but not everyone has a listed number and we cannot discuss  any issues  as a neighbor , It has caused a bit of concern  among some of us older  owners.   As we have never seen a HOA as this.   Do we not have a right to a list of our Board & members  being that we have to be a member have to pay the dues or  they will put lien on the property.
thank you
Ella

 

Dear Ella,
    You need to check with your state laws.  Usually under state laws members have a right to know their officers, addresses and telephone numbers.  Perhaps why these are not being given out is because the management company does not want HOA members to contact the board members individually but instead to contact the management company.  The other thing that you need to find out is if board meetings are required by state law to be open to the HOA members.  If they are then you need to contact the management company and ask when the meetings are held. Then go to them.  This will allow you to see what is going on in the association.  You are right.  A HOA board can't operate in secrecy.

The Parliamentarian


 

 


Joel Ringer wrote:

Robert,

 

I recently was reviewing your newsletters on the removal of officers under Robert’s and found them very useful.

 

I am the parliamentarian for a citizens association and there is a move to remove the president for political reasons. Our bylaws say “and until their successors” and nothing specific about removal or basis for removal.

 

I was hoping you can help me with gaps in the RONR.

 

Can the bylaws be changed by a 2/3 vote at a meeting and then the election be rescinded by a 2/3 vote at the same meeting?

 

The president was recently re-elected (514 votes to 502). If the election is rolled back does the president still remain in place until a new one is chosen? The bylaws do not have any rules for interim elections. What would prevent the president from running again. Membership cannot be denied to the president because membership is only based on residency.

 

I have been doing a lot of research but have not found a source for answers. Can you suggest any sources for resolving future issues.

 

Thanking you in advance for any light you can shed on this issue.

 

Joel

 

 

Dear Joel,
    Is your citizens association incorporated?

The Parliamentarian

 

Joel Ringer wrote:

The Parliamentarian,

Thank you for responding.

We have a form of a "Common Asset Organization" (I am not sure if that is
the exact title) that is a corporation with a "closed" board of directors.
There is a Citizens Association within the organization bylaws which acts as
a social organization and advises the Board of community wishes.The
President of the Citizens Association, who is elected by members of the
community sits on the Board of Directors.

Joel Ringer

 

Dear Joel,

    Your corporation papers should state what law you are incorporated under.  This law should tell the way to remove an officer.  Corporate law takes precedence over your bylaws unless the law itself states that removal can be stated in the bylaws. In that case, the bylaws would take precedence over the state law.  Right now the way your bylaws are written, the only way you can remove is by having an investigating committee and a trial.  The March 1999 Internet Newsletter has the procedure for removing from office when there needs to be a trial.  You didn't say what kinds of problems that you are having with this president.  Is there another way of resolving the issue?  If you do remove the person, you need to have someone ready to fill the vacancy.  If your bylaws don't put term limits on a person, or address the situation if of someone being removed from office,

the person could be nominated again and elected.

    Another question.  If this person resigned how would you fill the vacancy? Would you need another election or would the Vice President take over?  

    I am great proponent of solving these problems without having to put the organization through a trial unless the person is involved in fraud or some other criminal act.  The other thing that you need to ask is "will this divide and polarize the organization?” This person evidently has more than half of the people supporting him.




The Parliamentarian






 

 

Debra Vasquez wrote:

According to Robert's Rule's of Order, is it permissibl,as a board member and clerk, to take minutes of an executive session - provided that the minutes are not made public?

 

Thank you,

Debra Vasquez

Dear Debra,
    Can you give me an example of what would be in the minutes?  Usually decisions are not made in executive session.  It is used mainly for discussion.

The Parliamentarian

wayne jo wrote:

Hi,

 

I am the President of a Homeowners Association.

 

Our by laws provide for secret ballot voting for maintenance fees and election of Officers.  They also provide for absentee voting.  Would e-mail absentee ballots be considered proper?  The by laws are silent regarding e-mail voting or balloting.

 

Your reply will be appreciated.

 

Wayne Park

Dear Wayne,
    There are not considered to be a valid vote unless this is written into the bylaws.  You also need to consider any state non profit laws about e-mail procedures.

The Parliamentarian

tesfaye yeshanew wrote:

Dear Sir/Madam

 

In a meeting two distinct ideas were voted for. 5 of the meeting members voted for the first idea, 2 voted for the second and 4 abstained.What should be the decision of the meeting?

 

Thank you

 

Sincerely

Tesfaye Yeshanew

 

 

Dear Tesfaye,
    If your bylaws state that a motion is adopted by a majority vote, then abstentions do not count and these motions were adopted if there were no "no" votes. If your bylaws qualify the majority, by saying a majority of those present, then neither of those motions may not have been adopted depending on the number of those present.

The Parliamentarian

Patricia A Bailey wrote:

Hello,

I am a board member of a teacher's union.  I presented a motion to the

board and a motion was made to move my motion to the representative

assembly.  Is that proper?

Thank you.

P. B.

 

 

Dear Patricia,
    Yes, it is.  Your motion was a "main motion".  Then someone made a subsidiary motion "to refer it to the representative assembly".  So what will happen now is that instead of the board making the decision the entire membership will make the decision.

The Parliamentarian

Marri Sarmiento wrote:

We are a new booster club for a high school cheer

squad of 52 girls.  At the first meeting of the year

held by the principal he moved to have a booster club

exist and for all the parents to help create bylaws.

We only voted on creating a booster club.  No

elections were held with the general membership as the

new acting president decided who would hold an executive

position and only had those executive board members

vote on the bylaws at a later meeting.  The executive

board has meet four times now.  The first general

membership meeting we only had 10 out of 108 parents

attend, due to a lack of communication by the

president.  There was no formal notice given to the

parents.  The president has the 10 of us vote on the

bylaws at that meeting.  She then advised who was to

hold what position and had the 10 parents who attended

vote to accept them.  In the new bylaws it states "The

control and management of the affairs, funds and

property of this organization shall be vesting in the

executive board, consisting of 9 voting members of the

organization in good standing.  The executive board members

of this organization as so constituted, shall hold

office for a one year term ending in May or until

their successors are elected and qualified".  In one of

the articles of our bylaws it states "Rules of

procedure not otherwise provided for in these bylaws

shall be governed by Roberts Rules of Order, Revised.




The president is trying to have a motion passed to

reallocate money raised by all 52 squad members that

was placed in the general account to pay for a end of

year banquet & unforeseen expenses to now be

reconfigured to pay for an out of state trip for 20

girls to attend a competition.  Last month was one of

our 3 general meetings and she tried to pass a motion

that all 52 girls to pay $96 each toward the trip to

offset the cost of each girl attending.  The motion

was not passed.  The president became very hostile to

everyone and ended the meeting.  Now she is trying to

get it passed using different language.  I found this

online last night searching through Robert's Rule Of

Order Websites.




 Under Robert’s Rules of Order RONR, 10th ed., p.

466, l. 7-17, it states in short, although the

membership can reverse its own decisions and decisions

made by its board, the board cannot reverse decisions

made by the membership.




In situations in which an organizations bylaws confer

upon its executive board full power and authority over

the affairs of the organization between membership

meetings, any motion adopted by the board pursuant to

such authority may later be countermanded - that is,

rescinded or amended - by the membership at a later

membership meeting (RONR [10th ed.], p. 466, l.

11-14), but such rescission or amendment will require

adoption by the membership of a motion to Rescind or

Amend Something Previously Adopted in accordance with

the rules in Section 35, just as if the motion had

originally been adopted by the membership itself. The

same is true whenever a board or committee takes

action in behalf of the membership pursuant to

authority conferred upon it (for example, when the

board or a committee is authorized to approve the

minutes of a membership meeting, as discussed on p.

457, l. 21-32).




Would this apply to our situation?




Marri

 

Dear Marri,
     Yes, what you found applies to this situation.  If the members voted to allocate the money to a banquet, then only the members can reverse this decision.  If the board adopted the motion then the board can reverse the decision.  In reading your e-mail, I am wondering if the bylaws were really adopted the correct way.  Please read "Organization of a Permanent Society", beginning on page 536.  It sounds to me like this group is on slippery footing because it may not have been founded on the right principles to begin with. After you read those pages you can determine if it was done correctly.   You will also see that after the organization has adopted bylaws it should elect permanent officers.   It is important in these types of organizations to have the members complete support.  If you do things correctly, protecting all the rights of all the members, you will have a successful organization.  It is also important that officers and board members have a working knowledge of parliamentary procedure.

The Parliamentarian

 


Nancy LaFontaine wrote:

Dear Mr. McConnell:

I live in a small community that when we were looking 'looked' peaceful HOWEVER, we just so happen to move beside some very not happy people who are harrassing us by first letting their dog bark 24/7 (yes, it had been kept out all day and all night).  And the boyfriend stays outside banging, yelling, cursing, and drinking all through the night. And whoever is with him (his drinking buddies), chimes in on his 'party' to make as much noise as possible to keep us up at nights.  And the girlfriend, who is the property owner, has been arrested for threatening to 'hurt me' with a 'promise' that she will do it. (I do believe that she does want to 'hurt me' if not if she has had a bad day, I believe that she will try to kill me.)

I, now as the vice president, have finally gotten a very professional letter sent to her that she is responsible for all guests, and people who visit or reside within her lot (and it also states that it includes her dog).  It states that she has violated (which they have) the covenants.  No lot owner shall be a menace or a nuisance to any other lot owner within the community.  I have a copy of this letter too.  I have had to still call the police because he (and sometimes she is out too) is still out there at nights waking us up or keeping us up.  This is another violation to the covenants.  It has brought my property value down.  And she is still, at times, running out to yell that she is 'warning' me to stop in her words 'playing games'.  All they have to do is shut up and stop waking us up.  I/we have lost over a years worth of sleep.

Okay, every time this happens, I document it and even start recording them.  I email my president of the homeowners association however, he had not been doing well and I have not gotten a response from him except the letter was sent from the homeowners association for me/us to get them to stop.  Again, they haven't and I/we still are being harassed and kept up at nights. And I still have to call the police.

So, how do we, I get the homeowners association to follow through with their responsibility to enforce the violation of the covenants?  Loss of property value and a lot owner being a menace and a nuisance to the neighbors (another lot owner).

Thank you for your time.

Nancy M. LaFontaine

Dear Nancy,
    The next step is for the board of directors to meet and decide what to do about this.  Surely you have adopted some penalties when the covenants aren't being obey.

The Parliamentarian

Debbie Seigel wrote:

Our homeowners' association Board of Directors scheduled all of its general monthly meetings on the third Thursday of the month at 7:00 pm. in advance so that 30 days notice for all meetings would then have been given  for our one year term. We then rotate the meetings at a different home each month which is decided before adjournment. One month a member that volunteered their home was unable to do so a few days from the scheduled meeting so we changed it to someone else's home which caused a dilemma again so we settled on the Community Center a mile or so away. A majority came to the meeting and a quorum was present to conduct business.  A member has now brought up that since we didn't have 30 days notice of the place that the meeting was to be we didn't follow the rules.  Is all action taken at that particular meeting  basically void?  Please comment.

 

In a separate matter, three members have followed our By-Laws in requesting a Special Meeting.  The call is to discuss halting of construction of a pavilion until all members of the association have an opportunity to view the plans and give input on the matter.  I understand that this is all that can be discussed; halt of construction, giving all members of the association the building plans and allowing input (I assume a time frame can be set for this).  If the discussion then tries to go further as in 'obtaining a vote of all homeowners' to see if we proceed or not with the pavilion is brought up, is this allowable?  The pavilion was approved along with other improvements to our entrance by the Board at a previous meeting with one motion/second/unanimous vote. We have accumulated the money over the years to pay for these projects and a special assessment is not necessary.  A vote of all members of the association is not required in our By-Laws or Deed of Restrictive Covenants since no assessment is necessary.  However, letting them have input would obviously be the courteous thing to do since it is at our association's private park.  Our regularly scheduled meeting is then 30 minutes after this special meeting.

 

In another separate matter, one Board member questions the legality of the Board since they weren't elected by ballot vote.  Our association requires a minimum of 3 and maximun of 11 Board members.  There were 9 people that volunteered to serve on the Board therefore not necessitating a vote.  He believes we were not elected and may not be able to conduct business.  We have tried to let him know that we are a legal Board.  Is there a better way to explain this?

 

 

Dear Debbie,
    A few questions before I answer.
    1. Who is questioning the validity of the board meeting?  Is it a member of the board or a member of the association?  Are your board meetings open to the members of the association?  Do your bylaws provide for an emergency change of location?  (If not, you might want to amend your bylaws so that this could be accommodated).
    3.  When you say you volunteered to be on the board, was this at an annual association meeting?   Did the members present agree with this? And what do the minutes say about this?

The Parliamentarian

 

 


Debbie Seigel wrote:



Robert McConnell <drvideo@comcast.net> wrote:

Dear Debbie,
A few questions before I answer.
1. Who is questioning the validity of the board meeting? A Board member is a member
of the board or a member of the association? Are your Board meetings
open to the members of the association?  Members of the Association can come as a guest to our monthly meetings and may speak at the meeting if on the agenda.  Our By-Laws only say the Board must meet 2 times per year.  We have these semi-annual meetings with the entire association invited and welcome to speak at these.  Do your bylaws provide for an
emergency change of location? (If not you might want to amend your
bylaws so that this could be accommodated). Not currently, but a good idea.
3. When you say you volunteered to be on the board, was this at an
annual association meeting? Did the members present agree with this?
And what do the minutes say about this? This may get bogged down with details.  Our By-Laws require a min. of  3 max. of 11 Board members.  However they were amended to require only 2 officers, Pres. and V. Pres. which are the only stated members to have a term of 1 year or until replaced.  All other members’ terms expire after 1 year which is July 31.  At the August semi-annual meeting called it was realized at that meeting that they could do no business because they didn't meet the minimum of 3.  At that point the President and four other expired members who had said they were going to run for re-election (making it a total of 14 running for the Board ~ which would have necessitated an election by ballot) then said they weren't interested any longer in running. It was then stated by the President that the 9 of us still stating that we wanted to be on the Board were the new Board. No member of the Association attending said no.  At an already scheduled upcoming Board meeting later in August, the Pres. and V. Pres. opened the meeting and went through the procedures to set the new Board.

 

 

Dear Debbie.
    Were all board members notified of the meeting place change?  Were the homeowners notified of the change?  Why is the board member questioning the validity of the meeting?
    There may be a point about you being a legally constituted board because no election was held.  However, if any of your were on the previous board, under most state laws, board members stay in the position until someone else is elected.  I really wouldn't be able to address this issue unless I saw all the governing documents concerning your association.

The Parliamentarian