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Dear Parliamentarian Vol. 142 Feb. 2011

Dear Parliamentarian Vol. 142  Feb. 2011

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.


Question 1:

Dear Parliamentarian,

 Our By-Laws state a presence of 1/3 of the lots in our subdivision is needed to conduct business at our annual membership meeting, but do proxies count in this 1/3 “presence”?

Thanks,

Dave

 

Dear Dave,

Usually the bylaws state: "one third of the association members in proxy or in person."  If it doesn't say that specifically, but the bylaws provide for proxies, then look in that section to see if it includes proxies in the quorum.  I have found that it usually does, but the bylaws always state whether it does.

 

The Parliamentarian

Dear Parliamentarian,

Thanks for the reply.  The problem is that our By-Laws do not state this and it is not included in the proxies section.  It only states a “presence of 1/3 members are needed for a quorum.

 Thanks,

Dave

Dear Dave,

What state are you in?

Parliamentarian

Answer:  Florida

 

 

Dear David,

If you are in a Homeowners Association, call the secretary of state and ask what the name of the law that applies to HOA's.  Then look to see what it says about quorum and proxies. State laws do govern HOA's.  If your bylaws do not address or the HOA code then it will be of those who attend the meeting in person.

If you are Condo association, there is an ombudsman for your state, I am sure they know the Condo law and would be able to tell you if the proxies count for quorum or do not count.

Do you covenants or your corporation papers have anything in them that address this issue?  Those are two other places I would look.  Some covenants that I have read have some strange things in them, including things that have to do with governance.  Your articles of incorporation might say something about quorum and proxies.  I have read such things in HOA's articles of incorporation.

Parliamentarian

 

Question  # 2:

 

Dear Parliamentarian,

I was recently at a committee meeting where a member was loudly abrasive to the co-chair and it was allowed to continue by the chair.  As a recording secretary what if anything can I do?  Or what should the chair have done?  

Eva

Dear Eva,

 

I do not know how big your committee is, but you could have raised a “point of order” and said this language is out of order and will the chair make the member cease talking.  Or you could simply state, “Point of Order.” I believe this discussion is getting out of hand and could we take a short recess?   Then someone could take the person aside and tell them if they continue in this manner they will have to leave the meeting.

 

Evidently your chairman is inexperienced and doesn’t know what to do.  This type of behavior is not permissible in meetings and people who act this way are to be removed from the meeting.  If this committee member is having a problem with the chair or what is going on with the committee, then someone needs to take the person out to lunch and discuss this or the person needs to be replaced.  If the chair is not conducting meetings correctly, then the chair needs to learn how to do this.

 

We sell a very important DVD called, “Managing Problem People.”  It can be bought separately or with our DVD “How to Conduct a Meeting.”  The principles in “How to Conduct a Meeting” can be applied to a committee or board meeting.  If the Committee is more than 12 then it should be conducted in a formal manner which this DVD shows.  If it is less than 12 members, then it can be conducted less formally, meaning people sitting around a table and not having to rise to address the chair.  However, when things get out of control, the chair should always go to formal rules.  That stops a lot of things.

 

Your organization would also find our book Webster’s New World Robert’s Rules of Order Simplified and Applied helpful, too.  There is a section in the book on handling this type of situation.

 

The Parliamentarian

 

 

Dear Parliamentarian:
Our small chapter has an appointed parliamentarian who is called upon only occasionally for a "ruling."
One of our other members has indicated that she should not be making motions if she is there in the capacity of parliamentarian.
A search of Robert's Rules was not any help, defining the position's responsibility, but not its limitations.
Thank you for your assistance.
Elaine

 

Dear Elaine,

First, a parliamentarian never makes a ruling.  The parliamentarian gives advice to the presiding officer who then makes the ruling.  In Robert’s Rules of Order Newly Revised 10th edition, page 451, states, “A member of an assembly who acts as its parliamentarian has the same duty as the presiding officer to maintain a position of impartiality, and therefore does not make motions, participate in debate, or vote on any question except in the case of a ballot vote.  He does not cast a deciding vote, even if his vote would affect the result, since that would interfere with the chair’s prerogative of doing so.  If a member feels that he cannot properly forego these rights in order to serve as parliamentarian, he should not accept that position.  Unlike the presiding officer, the parliamentarian cannot temporarily relinquish this position in order to exercise such rights on a particular motion.”

            With that now said, let’s look at the club parliamentarian.  If this person sits by the presiding officer to help him conduct the meeting, it is my opinion that this statement just quoted applies.  However, if this member is appointed as parliamentarian to advise the assembly of correct procedures in the meeting, and is occasionally called upon to do this, and sits in the assembly, I don’t see any harm with the member participating in discussion, etc.

            The best way to handle this is to have each presiding officer trained in the rules and the members, too.  If all know the rules then there is no need for an official parliamentarian.  If there is ever a mistake, then any member of the assembly can rise and point this out.

            When the presiding officer has a question about procedure, he can always take a short break in the meeting to consult the parliamentary authority or to ask help from the assembly.  Members can rise and give their advice including the ‘parliamentarian.’

            I will say this.  Although I am a registered parliamentarian, I will not take an appointment to be the club parliamentarian because of what Robert’s Rules of Order Newly Revised states.  Instead I just allow the assembly to ask me what the rules are or I will rise to a point of order and state what is wrong.  I value my right to make motions, debate and vote too much to serve as the club parliamentarian.

The Parliamentarian

Dear Mr. McConnell,
I am at my wits end with the new HOA election laws!  We held our
elections in January.  There were 5 nominees and three board openings.
 The one individual who was willing to be President did not get enough
votes to be elected.  Those of us who were elected refused the
position.  We are elected for a two year term.  Our new property
supervisor did not know what to do.  I told her, in the past, we have
appointed individuals to officer positions.  Out of 37 HOA members,
only 1 person was willing to do the job.  We appointed this individual
to a one year term and all agreed.  Did we do the right thing?  There
are no provisions for this in our governing documents.
I tried to find the information on your site and am not finding the answer.
Thanks you for your consideration,

Cori Muro

Dear Cori,

Tell me what are the new HOA election laws that you do not like.  Are they your bylaws or state laws?  If they are state laws, what state and what is it that you don't like?

Parliamentarian

 

Dear Parliamentarian

 

Thanks so much for your response.

 

Our CC&R's require us to have a 5 member board.  Then, our bylaws state we must have 4 elected officers who shall serve two year terms.  We have always elected the five members including four officers and one member-at-large.  We have always believed the member-at-large position has voting privileges and serves a two year term as is stated for the elected officers.  This year, we have a new property supervisor who argued we should not "elect" the member-at-large, nor did she think this person should have voting privileges.      

 

To add to this confusion is our newer California laws.  We have a considerable amount of apathy and getting ANYONE to file a "notice of intent to run" is like pulling teeth.  We vote by secret ballot and the ballots are opened and counted at the Annual Meeting.  This year, prior to the election, I recruited an individual who was willing to be President.  He was the ONLY HOA member who was willing to take the job.  He filed a "notice of intent to run" and his name was on the ballot.  After the ballots were counted, this person was not elected.  All those present at the annual meeting agreed to the following:  One of the newly elected individuals "stepped down" and we "appointed" the homeowner who was willing to be President to a one year term.  Can we make this type of appointment?  If so, can it be decided in an open forum without a quorum present?  It certainly gets the job done but I would love your opinion.

 

One more thing:  I do not think cumulative voting is in the best interests of the HOA.  If there are three openings and a small group of "buddies" decide they want a certain person, they throw all three votes to their "buddy".  This person may win but not be the best candidate for the job. AND, he may not be what the majority of homeowners want but wins the election because his "friends" threw all their votes his way.  Doesn't it make more sense, if there are three openings, each HOA member gets three votes that must be distributed to three candidates rather than homeowners being able to use all three votes towards one candidate? Can we amend a portion of the CC&R's without having to update the whole document?

 

Thanks again for your time.  Any help you throw our way is much appreciated.

 

Cori

 

 

Dear Cori,

I can only answer by what you have told me.  I have not seen your bylaws, covenants, or the state law.  So I am answering according to the principles of parliamentary law based on Robert's Rules of Order Newly Revised 10 edition.

First, bylaws should state the Board of Directors this way:  “The Board of Directors shall be compromised of a President, Vice President, Treasurer, Secretary and director.  They shall be elected by the members at the annual meeting and serve for a two year term." Or something similar.

 Of course the 5th board member has all the rights of office unless the bylaws preclude him from that.  To not have the right to vote or make motions, etc. has to be stated in the bylaws.  Your new property supervisor needs training in parliamentary law.  What has happened is that the bylaws have not been brought into agreement with the covenants.  I recommend that you hire a parliamentarian to review your bylaws and tell you what you need to have in them according to Robert's Rules.  Then have an attorney that knows all the state laws concerning HOA's put in that information.  I get a newsletter from a Beth Grimm who is an HOA attorney in CA, so I am somewhat familiar with what is going on with the laws there. I will give you her e-mail address at the end of this e-mail.

According to Robert's Rules, ‘cumulative voting’ must be in the bylaws if voting is to take place this way.  Is that in your bylaws?  Usually state law provides for it but states it must be in the bylaws.  If it is, then I would amend your bylaws to strike out this provision and insert “that officers and directors are elected by a plurality vote.”  If it doesn't say to elect by 'cumulative voting’ then those three votes each one has must be used to vote on each office that is up for election. Again I would have to read your documents to really help you.

Did the newly elected person resign at the first board meeting or before it?  If it was at the first board meeting then it is a vacancy, if not you must have another election. To fill a vacancy you have to follow the bylaws.  The board probably has the power to fill vacancies and the members do not.  Nothing can be done without a quorum.  See our new web site http://www.robertsrulessimplified.com/.  There is a power point called "The Parliamentary Minute,"  See the one on quorums.

Any document can be amended without revising the entire document.  Depending on where the election information is written, bylaws or covenants, that is the document that needs to be amended.  Your HOA really needs to work with a parliamentarian on this. Our company can help you with this.

Beth Grimm's e-mail address is:  califcondoguru@aol.com.  I would contact her to see if she can help you straighten this out.

I also recommend that you buy our book Webster's New World Robert's Rules of Order Simplified and Applied.  This book is very easy to read and will help you with knowing how to amend the bylaws and with voting.  Our web site www.parli.com, where you found us originally, has a link that has many articles about bylaws and governing documents.

Please educate yourself and the property management person in basic meeting and election procedures. This will prevent many problems.  We also have other  books and DVD's on this subject that can help you all.  See our bookstore at www.parli.com for more books and for a few of our products go http://www.robertsrulessimplified.com/.

Thank you for contacting us.

Parliamentarian

 

Dear Parliamentarian,

I serve on a school board and recently we passed a motion to advertise for Insurance.  Well, one of the good ole boys has a friend in the business. So without advertising, the item was placed on the agenda the next month to award him the insurance. I brought it to the attention of the president that we didn't advertise.  The president pull the item looked at the superintendent and told him to send out the packets. Well, once again the item was placed on the next month agenda, not being advertised again and the president pretty much ignore me when I object on the same grounds as before. He told me he was moving on and called for a vote. Which of course, passed?  Is there anything I can do about this?  This boards the pits!

Darlene

Dear Darlene,
I am surprised that the school board doesn't have an attorney at the meetings or one for the board to consult.  First, every motion adopted needs to be carried out unless it is rescinded or amended.  This is what I would do.  If they have indeed awarded this man the insurance deal, then make a motion at the next meeting to rescind the action about advertising.  You need to state that since this was not done and the motion was not carried out, then it needs to be rescinded.  This keeps the board in line with its practice and upholds the integrity of the board.

Parliamentarian


 

[i] Roll Call, December 22, 2010

[ii] Robert’s Rules of Order Simplified and Applied, page 39

[iii] Imprimis, Volume 39, Number 11, page2