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Dear Parliamentarian Vol. 135 June 2007

Dear Parliamentarian Vol. 135  June 2007
Answers to your Parliamentary Questions
drvideo@comcast.net


"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.


Fraley, Christian B wrote:

I have recently purchased a home inside an "association" in Snohomish

County.

There was a change in the managing company who collects the dues, and I

have not Received any "laws" "requirements" or stipulations from the association

as to what can be expected or required.

I would like to know where the meetings are at, get a copy of the

finical statement, and become more involved

On what is agreed upon, voted on and discussed.

Before I do, I would like to know what my rights, responsibilities, and

entitlements are.

Any information, webs sites, legal information with regards to

Associations responsibilities under Washington State law to home owners

in the membership would be appreciated.

  Thank you,

Christian B Fraley


 Dear Christian,
    When you closed, did you receive a copy of the covenants and bylaws?  If not ask your mortgage company to get a copy for you.  These should be provided at the closing.  Next you need to get a copy of the Homeowners Association Act, RCW 64.38 and the Washington Non profit Code. (This is the code your HOA is incorporated under.)  Then I would get a copy of Robert's Rules of Order, may I recommend our book, Webster's New World, Robert's Rules of Order, Simplified and Applied.  It is based upon the official book but has a few sections that apply to HOA's.
    If you are interested in getting involved, contact the new management company and let them know that you are interested in getting involved in the association.  Ask them if there are other rules and regulations that you need to be aware of and that you would like to have a copy of them.  Let them know that you would like to attend board meetings and get to know the members of the board and serve on any committees.  Hopefully this will elicit a positive response.
    An HOA is governed very different than voluntary associations.  It is important to be well informed about its governance.  If we can be of further help, please let us know.

The Parliamentarian

 

Dear Robert McConnell Productions:

I recently purchased your book "Webster's New World Robert's Rules of Order - Simplified and Applied" (second edition) and am about 1/3 through it... very well done.

I am the president of a vacation/second home Homeowners' Association.  Approximately 1/2 half of our 32 members are in-state and the other half are "from away." We meet once a year and it is usually the same ±12 owners who show up (since many are from a good distance away). We are a "new" association, so most of us (myself included) have no first-hand knowledge of the do's and don'ts of proper procedure in regards to running an association (hence, the purchase of your book).

My question is this: which issues are right and proper to be placed before the entire membership and which are the responsibility of the Board?
Our Bylaws state (in part):

"Powers and duties. The Board of Directors shall have the power and duties necessary for the administration of the affairs of the Association and may do all such acts and things as are not by law or by these Bylaws directed to be exercised and done by the Owners."

So to cite an example used in your book, is it the responsibility of the members or the Board to vote on a motion "to buy a computer and laser writer for the office?" Is this not a duty "necessary for the administration of the affairs of the Association?"

In addition, our Bylaws also state (in part):

"Rules and regulations. In order to assure the peaceful and orderly use and enjoyment of the Lots and common areas and facilities, the Board of Directors may from time to time adopt, modify, and revoke in whole or in part, such reasonable rules, and regulations, to be called Rules and Regulations, governing the conduct of persons within the subdivision as it may deem necessary, including, but not limited to, methods and procedures for enforcing compliance with the Declaration and Bylaws. Such Rules and Regulations adoption, and every amendment, modification, and revocation thereof, shall, upon adoption be delivered promptly to each Owner and shall be binding upon all members of the Association and occupants of the property."

To me, this would indicate that it is the responsibility of the Board to create policy (isn't that why Boards of Directors are hated and feared?). Should it be the members or the Board to propose a motion to ban smoking, ATVs (All Terrain Vehicles), or Speedo bathing suits on men over 40? If a member proposes such a motion, is it out of order?

I would like to do the right thing by way of the Association, but I am concerned about bringing "every little thing" before the membership. Any insight you could provide would be appreciated.

Regards,
Robert

 

 

Dear Robert,
    Thank you for writing and buying our book.  Homeowners Associations are very different that voluntary associations and non profits. These are really government entities.  If Maine has a Homeowner Association Act, please get a copy of it and include it with your governing documents.  If it has such an act, these laws will define what the board can do and what rights the association members have.  Our book has a few comments about HOA's but is really a book about parliamentary procedure applied to organizations in general.  We are working on a booklet for HOA's specifically.  If you would like to be on our mailing list, let us know and we will let you know about it when it is finished.
    Usually the Board of Directors in an HOA is charged with the daily operations and administrations of the association.  Usually the members have the right to nominate and elect board members, reject the budget, remove board members, and amend the bylaws. Depending on your covenants, most members have the right to vote on an  increase in assessments.  At annual meetings, members are allowed to bring up business.
    These are the governing documents that you need to have on hand to administer your association:
    1. Covenants, Bylaws and Rules and Regulations of the HOA
    2. The corporate charter
    3. State laws in which your are incorporated
    4. HOA act if there is one
    5. parliamentary authority to help conduct meetings, etc.
    Now, let me say this.  Our book is based on democracy.  Both my husband and I are firm believers in the democratic process where members do have a right to have a say in how they are governed.  We live in an HOA and help others in HOA with the various problems that arise.  Concerning the rules and regulations, if you want to have peace in your association, you will let members vote on this rules especially if a regulation is causing a division in the HOA.
    If you are a new association,  I recommend the following to preserve unity.
    1.  Keep members informed by an association newsletter.  This can be done by e-mail or the postal mails.
    2.  Ask members for suggestions, encourage them to be involved.
    3.  If the board decides to change the rules, send the proposed changes and the reason for the changes to the members. Let them know that the board will consider the members thoughts about the proposed changes. If a certain change brings an uproar, re-think it.  If members perceive that a small group is running things and not listening to those who live there, your association will be in constant turmoil.
    4.  Adopt a budget with everything itemized.  In most HOA state laws, the budget is adopted by the board but must be rejected by a majority vote of the association members in person or by proxy at a meeting.  (Much different that normal parliamentary procedure.)  That way the members know how the money is to be spent.  Then the board carries out the adopted budget. This also will determine assessments charged to the owners.
    I know associations can be administered harmoniously if those serving on the board understand that they are there to do what is the best for all and are willing to respect those that have elected them.  Please keep in contact with us.  We'd like to hear how your are doing.

The Parliamentarian

 

 

Robert Thompson wrote:

The Parliamentarian,

Thank you for your words of encouragement.

I do have one question regarding parliamentary procedure.... Since we are a homeowners' association, some of our "votes" are cast by a group, which is to say that 2 or 3 separate individuals (e.g., brothers, LLC partners, etc.) own one lot, which permits that group to cast one vote. Is it proper parliamentary procedure for one individual of a group to propose a motion and another individual of that same group to second that motion? Likewise, can an individual propose a motion and their spouse/domestic partner second that motion?

I would assume this is allowable, as all individuals of any given group are "members," even though that group can cast only one vote.

Thanks.
Robert

 

 

Dear Robert,
    I am so glad that you asked this question.  As you know it is the lot that has the rights, or is basically the member, instead of the people who own the lot.  So with the lot comes to the right to vote, make motions, discussion and serve in offices.  So with that in mind,  let's look at the rules of  making a motion. One member makes the motion and another member seconds the motion.  So it is not in accord with parliamentary law for a lot of owner to make a motion and his fellow co-owner to second the motion.  Since basically the maker of the motion is also seconding his own motion. In a voluntary organization this would be ruled out of order. However, I think that it is up for each association to come up with rules concerning this peculiarity.  I think I would be in favor of having a different lot owner second a motion because it might be only one lot owner that wants to discuss a motion.  I also think you need to then considered the rules of debate.  Do want the rules of voluntary associations to apply? Or do you want to have a rule which allows the lot two times to debate, which means one of the owners could discuss once and the co-owner discuss it  a second time?  Or do you want to be totally democratic and let all speak?  Let the members decide.  It will be a great education for them to see how HOA's are not established on the democratic model but based on the corporate model.
    A book that I have found helpful in understanding this is Evan McKenzie's book "Privatopia".  What an eye opener.

The Parliamentarian

 

 

 

Robert Thompson wrote:

The Parliamentarian,

Thank you for your insight.

I'm afraid that the Association is so new at this, that many would be upset if we truly implemented basic parliamentary procedure. Our upcoming annual meeting will be our fifth, and while we've adopted "Robert's Rule of Order" as our basic guidelines, I don't think anyone other than I and one or two other members are the least bit familiar with them (and I am just learning, thanks to your book). Everyone wants to have there say (which is a good thing), but to impose a "two times limit" on any member speaking to a motion may be grounds for revolt. Currently, we go through the motions (no pun intended) of using Robert's Rules of Order, but, in actuality, we really don't. I realize that it is the responsibility of the chair to "enforce" the Rules, but when I am so tentative as to their proper use and the rest of the membership is ignorant - and possibly hostile - to their enforcement (for instance, I suspect that most members would think me pompous not to refer to any member by name), adopting them will be, I suspect, a gradual process.

Because our membership is "new" (meaning that we all bought into our HOA at the same time and it had not existed prior to our making it so), we have no "history" (which could be a good or bad thing). And since our properties are as a vacation/second home, we do no have the benefit (or detriment) of knowing each other (other than the occasional meeting) in a common manner (as perhaps homeowners who put their children on the same school bus might). I suspect that most of our members have never read either the Bylaws or the Covenants & Restrictions. I suspect that most would rather the whole HOA thing just go away. But it can't... and I would like everyone to take some part in its governance. But when there is only one meeting a year, it is difficult to foster a sense of unity (and because owners are from so far away, more frequent meetings are unrealistic). I have tried to engage members into a greater participation, but most have not responded. So for now, I will try to (gradually) introduce Robert's Rule of Order to the assembly, in the hope that members will see the wisdom of structured participation.

Here's a related question (to whom can second a motion).... In regards to the election of members of the Board, our Bylaws state (in part):

Each such Director shall be the Owner or the spouse of an Owner of a Lot; or if an Owner shall be a corporation, partnership, trust or estate, then an officer, partner, trustee or beneficiary thereof.

I do not believe the above implies any prohibition against three individuals who own one lot (as in a partnership) being elected as three members of the Board (which, to me, concentrates too much power in the hands of too few). Can a motion be proposed to modify the Bylaws (e.g., "I move that only one owner of any lot or multiple lots shall be elected to the Board of Directors for any given term.") or does this require an amendment to the Bylaws (which would take considerably more "effort" than a motion)(would such a motion, if legitimate, require a majority or 2/3 affirmative vote)?

I will look into Evan McKenzie's "Privatopia" - thank you for the suggestion.

Regards,
Robert

 

 

Dear Robert.
    Keep the democracy going.  It's best that everyone has his say.  Usually with one vote per lot also comes only one person per lot to serve in a board position.  From the bylaw you quoted me it is saying that the owner is the one who is eligible to serve on the board.  This precludes a renter or someone that doesn't own the lot from serving on the board. It is saying that if an entity owns the lot, then an officer, trustee or beneficiary (a person that has authority to make decisions) can serve on the board.    I would have to see all your governing documents to give you a better answer about  only one  person per lot  serving on the board at the same time.
    Again the principle applies it is the lot that is the member.  With that lot comes one vote and one position on the board.  So if there are several owners and all want to be considered for the board, I suppose they could be nominated but only one of them could be elected.
    I recommend that you gradually introduce these ideas and procedures because it will benefit everyone. One of the things that you can begin with is to have an agenda at the meeting, train people to count the ballots, have members sign in so that you know who is present and make sure you have a quorum.  If you are the presiding officer you can certainly state the motion correcting and take the vote correctly.  These things will impress the members if the meeting is kept orderly and business is expedited in an efficient but democratic manner.
    To get to know your neighbors, why not have a summer picnic or get-together?

The Parliamentarian

 

 

Robert Thompson wrote:

The Parliamentarian,

I am sorry to bother you with another parliamentary question, but this one appears wide-reaching for our HOA.

In chapter 18, Most Frequently Asked Questions (page 281), "Robert's Rules of Order - Simplified and Applied" states:

"The Bylaws and other governing documents always take precedence over the parliamentary authority."

Our bylaws state (in part):

"At any meeting at which a quorum is present, the affirmative vote of a majority of those present shall decide any question except the election of Directors presented to the meeting, unless a greater percentage vote is required by law, by the Declaration or by these Bylaws. In the election of Directors, those receiving the greatest number of votes, though less than a majority, shall be elected."

Therefore, as the presiding officer, I would have to rule that since "...the affirmative vote of a majority of those present shall decide any question except the election of Directors...", any vote that would typically require a two-thirds vote under Robert's Rules of Order, now requires an "affirmative vote of a majority of those present." (I realize that certain votes still require a two-thirds or greater vote [such as amending the bylaws], but these are "required by law, by the Declaration or by the Bylaws.)

While I am not in favor of the above-mentioned situation (as it does not protect the rights of the minority in certain situations), I do not see that the Association has any choice in the matter (other than amending the bylaws). How do you see it?

Regards,
Robert

Dear Robert,
    I would say that the majority vote is concerning main motions.  I doubt that it would apply to closing debate which takes a two-thirds vote.  Often the attorneys writing these documents are not thinking of parliamentary procedure. Why not amend your bylaws to say "except when members’ rights are being taken away and" before "the election of directors."  Be sure your bylaws contain an article about a parliamentary authority. Then you would have that to fall back on.  Or if your bylaws do have "Robert's" as your authority you could say, "except where the parliamentary authority requires a two-thirds vote and" before "the election of directors."

The Parliamentarian