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Dear Parliamentarian Vol. 89 July 2003

Dear Parliamentarian Vol. 89  July 2003
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.


Gyroj4b@aol.com wrote:

 

Dear Parliamentarian, our club operates on the Sturgis Rules. Our bylaws require the treasurer to give an accounting of our books at each meeting. Currently, she has been angry at the club and for the last two months has not responded to any requests for information. Our club is at a stand still until we know where we stand financially. Per the rules, can the Board of directors vote her out? Our club only has eight members and five of us are on the Board. WE NEED HELP! Thanks R. Lewis



 

Dear R. Lewis,
    The first thing you need to do is to look at your bylaws and see what it says about removal of an officer for not fulfilling the duties. STurgis 4th edition has the procedure for removing from office on pages 173 to 174.

The Parliamentarian

 


Hazelhurst Inn wrote:

 

We are a small condo association (50 units/38 owners).  We need to remove the President as soon as possible.  Our annual meeting is in November, many out of town owners do not attend. By-laws allow voting by mail.

Don't see a problem in getting majority of the votes.  What would be the best way to begin?  Thank You

Gladys Goode

 

Dear Gladys,
    I don't know your bylaws or state laws, but a good way to begin is to find our how many signatures are needed to call a special meeting to recall the president.  Then write a letter asking for a special meeting, set the date, the time and place, and the purpose of the meeting to remove the president from office.  Get the required signatures and then give it to the secretary.  If all the requirements are met, then the secretary should send a letter out to the members with that information.

The Parliamentarian

 

Triston216@aol.com wrote:

 

Are HOA required by law to enforce their CC&R's. Can they arbitrarily enforce one and ignore another, using the good of the association as a reason? Im in one in Arizona. Due to the fact that home owners do not want to spend money on a law suit the principals, who hold the majority vote right now, have allowed several violations of the CC&R's to go unpunished. They have told the violators that I am the one pushing to have the violations corrected. This has caused a lot of ill feeling between myself and the other homeowners. One of which has actually tried to run me over with her car. Court Case Pending. I purchased my lot, and constructed at considerable expense, a beautiful home. Now the homeowners are content to have everyone do whatever they want with their property so as to save money. Where do I stand legally if I file a lawsuit for non enforcement of CC&Rs?


Dear Triston,
    You will have to ask an attorney this question.  If the courts in Arizona uphold CC& R's then I 'm sure you have a good case. But an attorney who specializes in this would be the one to ask.

The Parliamentarian


 

 

 

Ernest_Hunter@dcwasa.com wrote:

 

I HAD PURCHASED A HOME IN DECEMBER 1993, IT WAS A FORCLOSED HOME THAT HAD
BEEN VACANT FOR OVER TWO YEARS. IT WAS A END UNIT TOWN HOME THAT HAD
ACCUMULATED SO MUCH TRASH IN THE COMMON AREAS THAT IT TOOK ME TWO MONTHS
AND SCORES OF PLASTIC BAGS TO REMOVE TI ALL. FROM EVERY APPEARANCE YOU
WOULD NEVER THINK THAT AN ASSOCIATION WAS IN THE AREA.  I WAS NEVER TOLD OF
MY RIGHTS OR RESPONSIBILITES RELATING TO AN HOME OWNERS ASSOCIATION. I HAD
BEEN LIVING IN THE COMMUNITY FOR APPROXIMATELY 8 YEARS BEFORE ANYONE EVER
INFORMED ME OF ANY ASSOCIATION AND THEY WERE TRYING TO GET ME TO PAY
RETROACTIVE FEES FROM THE TIME I MOVED IN EVEN THOUGH THEY DID NOT KNOW
WHEN THAT WAS, OR WHO I WAS UNTIL I INFORMED THEM. WHAT ARE MY CHANCES IN
DISPUTING CLAIMS.

 

Dear Ernest,
    I would certainly ask to attend a board meeting and see what is going on.  Usually state law allows members to see
all the records of the association at a reasonable time.  I would ask to see if the association was operating when you moved
in and why they didn't contact you then, or send assessments until just recently.  I would also ask if they are doing the same
thing to other members.  After you begin to investigate and get your information then e-mail me back.   In our state, I have been told that all assessments over three years outstanding can't be collected.  It sounds like you have an association whose officers do not know what they are doing.

The Parliamentarian


Joan Caly wrote:

 

Dear Parliamentarian,

 

We are a church of 300# members.  We will be holding a special congragational meeting to elect a committee to search for a new minister.  The nominating commitee has put forth a slate of seven nominees (the number called for by the bylaws to be on the committee).  There have been three nominees by petition (allowed by the bylaws).  We have distributed some absentee ballots already (allowed by the bylaws).  One of the nominating committee nominees died suddenly a few days ago.  My questions:

 

1.  Can the nominee (now deceased) be removed from the ballot?  If yes, what happens with the absentee ballots?

 

2.  Can another nomination be made?  From the floor?  Again what about the absentee ballots?  Our bylaws allow nomination by petition with a date by which they must be received.  There is nothing stated about nominations from the floor.  We also allow proxy voting which I don't think is affected in this case.

 

Thank you,

Joan in Huntington, NY



 

 

Dear Joan,
    Help me to understand what is going on.  Are you getting nominees for a nominating committee? Or do you have a nominating committee that is presenting nominees  to serve on a committee to find a pastor?  And if it is the latter, then one of the nominees for the committee to find a pastor has recently died, is that correct?

the Parliamentarian
 Joan Caly wrote:

 

Greetings,

 

Thanks for the prompt response.  Your last two sentences are correct.  Our nominating committee has come up with a slate of seven nominees to run for the seven slots on a Ministerial Search Committee.  One of these nominees died.  There are an additional three nominees by petition - for a total of ten nominees for the seven slots.  Ten nominees are on the ballot but one is now deceased.  Hope you understand.  Thanks.  We really need some guidance here.  The Board (actually one member would do it) is considering nominating someone to take the place of the deceased nominee if this is legal.  You have all the rest of the pertinent information.  Thanks again............Joan

 

Dear Joan,
    If someone thinks they need another nominee, then the nominating committee should find some one to replace the person who has  died.  At the meeting the nominating committee should strike the name of the deceased member and insert  another member's name.  Members can then cross out the name of the deceased person on the ballot and write in the new name.

the Parliamentarian

 
Joan Caly wrote:

 

Another question.  The Nominating Committee that put together the original slate of 7 nominees ended its term on July 1.  I am assuming it should be the new Nominating Committee (3 carryovers and 3 new members) that should replace the deceased candidate.  Or should it be the old (original) committee?

 

Dear Joan,
    The original committee that nominated is revived and finds another nomination.  This is what the official book says about this process:  "A nominating committee is automatically discharged when its report is formally presented to the assembly, although if one of the nominees withdraws (or in your case dies) before the election, the committee is revived and should meet immediately to agree upon another nomination if there is time. "  page 421 Robert's Rules of Order Newly Revised, 10th edition.

the Parliamentarian

 


 
Joan Caly wrote:

 

Hi

 

Thanks for your help so far.  I just want to bring you up to date.  The Board decided to reconvene the Nominating Committee after learning of your response.  They had an inquiry from someone (Frances) wanting to take Hank (the deceased nominee's) place.  We (the NC) met yesterday and after several hours voted (with uneasiness) to replace Hank with Frances.  We also said that if the Board couldn't come up with logistics that would work they could choose not to follow through with Frances.

 

Last night the Board (both old and new as the changeover was just on July 1), the Nominating Committees (both old and new), and the interim minister, who doesn't officially start until August 15, met to see where we go from here.  It was a looooong meeting.  It finally ended up that Hank will be replaced by Frances.  The absentee ballots that have been submitted will be counted.  There will be new ballots prepared for Friday night with Frances' name on and Hanks name deleted.  Candidate order will be alphabetical which moves Frances two down from where Hank was.  The thinking was that we CAN'T ask the congregation to cross out Hank's name and write in Frances'.  It would be emotionally upsetting so say the least.  There was much talk about putting Hank's name in parentheses and then something like "replaced" by Frances but I and many felt that was confusing.  Since it seemed that we were not in any way going to go with your recommendation we finally decided on the new ballot as I described above.  If it was "illegal" we felt it was better to be simple and clear rather than confusing.  Everyone is prepared to defend all decisions, though not terribly rationally - from counting the absentees (with the old ballot) to using a new and different ballot.  Can you give your blessing to this?

 

Also, our bylaws state nominees' names, bio info etc. must be publicized/sent to every member.  A special mailing is going out today/more likely tomorrow.  It may not reach everyone.  But, we did try so we hope that this covers it.

 

I'll let you know what happens.  We have a rowdy (for lack of a better word) bunch and this election is hotly contested.  I expect our process will be challenged.  That's kind of why I would like your "blessing."  I am the parlimentarian and don't really know what I am doing.

 

Cheers,

Joan

 

Dear Joan,
    What you are doing is right.  Preparing a new ballot is a good way to go.  When I suggested crossing out Hank's name on the ballot and putting in Frances' name is because I thought your ballots had already gone out and that you couldn't redo them.  When counting the absentee ballots, don't count any votes for Hank.  You can not count a Hank vote for a Frances vote because those absent may not have voted for Frances if they knew she was nominated.  If someone challenges the procedure ask them to show you in the official Robert's Rules book where you are wrong in the the procedure.  In fact get a copy of the book for yourself so that you can read up on the nominating and electing process.  Then you will be well armed.
    Is there anyway you can get new ballots to those who voted absentee?  If you can't then you can still count the votes for the other nominees.  I don't see why the absentee voters should be penalized because of Hanks decease.  His decease does not invalidate the rest of the ballot.  When you get your book read the section concerning illegal votes versus illegal ballots.

The Parliamentarian

 

 

Thomas Ruter wrote:

 

Dear Parliamentarian:

 

Recently, the Board of a Non-profit Community Organization voted in favor of a motion that effectively renders the use of "abstentions" as a "not in favor" vote.  The motion said that for a board member to abstain from voting they must indicate that they had a conflict of interest with a particular motion/decision.  The motion also indicated that this was the only time that a board member could use "abstention" as a voting tool.

 

Also, the board was concerned about a case where a quorum was present to vote on a matter.  7 people voted for the matter, 5 people voted against the matter, and 3 people abstained from voting.  The board felt that the 3 people who abstained should have voted against the matter until the time when they could vote in favor of the matter.  Concern is that a majority of the board voted against the matter or the chose not to vote; so a minority of the board members voting in favor of the matter actually carried the vote.

 

Can a board just change Robert's Rules of Order as they did, effectively forcing a board member to not be able to use an "abstention" vote?  There is nothing related to this in the by-laws and the Organization uses Carver's model of governance.

 

Thanks for your assistance.

 

Tom Ruter

 

 

for a requirement that requires board members to pass agenda items through a majority of the board membership organization needed to vote

Dear Thomas,
    It is a parliamentary principle that you can't force someone to vote.  I assume that you are incorporated.  Before going any further,  I suggest
that you  look at your state non profit code to see if it says anything about voting.  The state codes in Washington tell what it takes to adopt a motion.  So therefore
non profit  bylaws must conform to the state codes  on this issue.  State codes take precedence over the organization's bylaws.
    Now an organization can't change the number of votes by a regular motion.  It either has to be in the bylaws or in what are called rules of order.  This means that such a motion proposed has to have previous notice and a two thirds vote.  If  members of the board were not given previous notice, and if it was not adopted by a two thirds vote, then the motion adopted is null and void.  Any time that rights are changed, it always takes a two thirds vote.  In a case like this, it takes previous notice and a two thirds vote.
    So first see what the state codes say about voting. If the code addresses this issue, then point out to the board that it must follow what the code states about voting.   If the code does not address this issue, then let the board know the the motion  will have to be presented as  a bylaw amendment or rule of order.
    Voting requirements are usually put in the bylaws.  This is considered a right of the members.  So it is addressed there.  Another way for the board to handle this situation is to state in the bylaws that "all motions will be adopted by a majority of the entire board."   So if the board is fifteen members seven people would have to vote at all times for something for it to be adopted.  This would ensure that a majority of the entire board,  which would always be eight people, supported the motion.  It also protects the organization if only 8 people are present because in this case all would have to agree, thus protecting the absent board members.  In the Washington Non profit code it states that all business must be adopted by a majority of board members present unless a greater number is required in the articles of incorporation or the bylaws.
    If you have our book, Robert's Rules of Order Simplified and Applied,  I would recommend reading our chapter on voting.  It will help you understand the various ways votes are qualified.  The official book would help you too.

Parliamentarian

GK1040@aol.com wrote:

 

The Parliamentarian:
In October of last year I purchased a copy of Robert's Rule from you and  you answered a question on parliamentary procedure for me at that time.
I would appreciate it if you would answer another for me.
On a  5 member government body, operating under Robert's Rule, is a 3-2 vote a majority vote.
3 vote for and 2 against a motion. Does the motion carry as a Majority vote and the motion is adopted?
Thanks again.

George Keller
1040 Cliftwood Circle
Clifton Forge,Va 24422
Tel:540-862-3778

 

Dear George,
    If your board adopts motions by a majority vote, then a majority is more than half of those voting.  If your board adopts motions by a majority of the board, then for any motion to adopt, the vote must be three in the affirmative.  What you need to look at in your rules, other than Robert's, is if the vote is qualified in any way.
That is the deciding factor.
    If it is qualified it should say something like this:  "All motions shall be adopted by a majority of the board."  or it could say,
"All motions shall be adopted by a majority of those present."
    If it says,  "All motions shall be adopted by a majority vote," or "by a majority of those present and voting."  Then is it considered unqualified and the majority is of those who vote.

Dear George,
    If your board adopts motions by a majority vote, then a majority is more than half of those voting.
If your board adopts motions by a majority of the board, then for any motion to adopt, the vote must be three in the
affirmative.  What you need to look at in your rules, other than Robert's, is if the vote is qualified in any way.
That is the deciding factor.
    If it is qualified it should say something like this:  "All motions shall be adopted by a majority of the board."  or it could say,
"All motions shall be adopted by a majority of those present."
    If it says,  "All motions shall be adopted by a majority vote," or "by a majority of those present and voting."  Then is it considered unqualified and the majority is of those who vote.  Your vote meets all the above requirements and is a majority vote.

The Parliamentarian


The Parliamentarian


Bobysox@aol.com wrote:

 

Dear Parliamentarian:

Our organization (a local boat club) is experiencing a somewhat difficult problem.

Our Board of Directors nomination process has been such that the Board themselves select the nomination committee.  In addition, the Board Chairman and the immediate past chairman (who is a Board member) also sit on the nomination committee.  This has not been a problem in the past.  However, over the last few years we have seen the Board evolve to where they now think they are not subordinate anymore to the body that appoints them and now disregard the wishes of the membership and do whatever they want to, even if it is against the wishes of the membership.

When new elections come up, they select a nomination committee that simply nominates the names given to them by the current Board.  This results in the Board re-electing themselves.

The membership has proposed an amendment to the by-laws that will change this arrangement and closely follows RONR where the membership will now select the nomination committee, and no board member shall be a member of the nomination committee, for the obvious reasons.

Without boring you with the details, the Board has fought this every step of the way to include intimidation of the members over this vote.   In spite of this, the proposal is on its way to being approved, much to the surprise of the Board.

We have a multi-step process in our by-laws regarding amendments that include two meetings to discuss the proposal.  The proposal passed at the first meeting despite efforts of the Board.

Now you have to understand that out of 375 members about 40 turned out to debate the merits of this change and voted for it after debate.  Everyone else has no clue as to the merits since they were not present to hear the pros and cons.


In a last-ditch effort to sabotage this by-law change, the Board took out a full-blown add in our newsletter urging all members to vote against this change at the final meeting and provided proxy voting forms that the membership can return.  The Board has called a Special Meeting for this vote on a Saturday at 4:00pm (ten day from now)  A time that most members will probably not attend, since proxy forms are available.  The Board is hoping this will be the case and that since most of the membership was not present at the initial debate, the Board hopes the many uninformed members will simply vote the wishes and urging of the Board, whose power base is now being threatened.

Our by-laws read:

"Proxy voting forms  when appropriate, will be made available in the Club Newsletter and must be received no later that the last business day before a scheduled meeting for which that particular vote applies."

However, in the section dealing with by-law changes, our by-laws read:

"A two-thirds (2/3) concurring vote of the Members present  is required for the adoption of the proposal."

All of the members who know what's going on will be present at this next meeting and will be enough to pass the proposal.

The big question that I'm asking your advice on is: If our by-laws specifically state that in matters of by-law changes, the votes counted must be made by the members present, can proxies be used.

I'm sure you can see what is happening here.

A quick response would be appreciated as time is running out.


Thanks

R. J. Russell

 

Dear R J,
    You have in your bylaws an ambiguity which allows for interpretation.  Let me put it this way.  When writing bylaws, it usually states that vote to be taken is "in proxy or in person."  Your bylaws state specifically in person which I believe precludes proxies.
    The ambiguity about proxies is the word "when appropriate".   Who decides what is appropriate?  The bylaws should address this.
    I can see two arguments concerning this situation.  
    The board could argue since a bylaw change is so important and that all the members should have an opportunity to vote on a bylaw change that the board deems this an appropriate time to provide for proxies.
    The counter argument is that the bylaws are very specific about the members being present to vote on bylaws.  Because it specifically says "a two thirds vote...of Members present" to vote on bylaws,  this precludes proxy votes in voting on the bylaws.
    If you can get a copy of the official book Robert's Rules of Order Newly Revised 10th edition you can find a section on interpreting bylaws. It has specific points to use in interpretation of bylaws.  If you can't get one, call us immediately and I can fax a copy of the pages that you need to help you with this situation.

The Parliamentarian

 

 

a1t2 wrote:

 

Our deed restrictions read ",that each parcel share equal cost in maintaining road".The first members agreed among themselves in the begining 1990 that they only pay on one parcel,even if they owned more.There is nothing in writing that states any such agreement in our minutes from that year or any year. .It does state that "if a person owned two parcels of land they should be considered one land owner.however, if a landowner sub-divided his or her parcel,they should be considered two landowners or multiple landowners,as the case may be,that no parcel of land be divided into less than one acre parcels.i moved here in 1994 and only found out about this verbal agreement 6 months ago,when one of the non-paying members split and sold those parcels to the members already not paying on parcels.the association knows of at least 3or4 parcels not being paid on. our deed restrictions say we can put a lien on parcel. but nothing about collecting or going to court.what can we do .      

 

                                                                                                         arnold elwood

Dear Arnold,
    If you are on the board of directors of your association, I suggest that you contact an attorney about this.  There may be some legal provision if convenants have not been enforced for so many years that they are not in enforceable now.  When it comes to assessments and enforcing them, you are entering a very interesting legal realm.  We are not lawyers here, but parliamentarians.  We do have experience in our own association.  However, each association, and state laws governing them, are all different.  Again,  I suggest that your association contact a lawyer to see how this can all be straightened out.

The Parliamentarian