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More about Nominations & Elections

Roberts Rules of Order

If you are in an organization and need to know more about Robert's rules click here. There is a new chapter in the book especially for HOA's.

drvideo@comcast.net
Volume 7, Issue 1, January, 2001

MORE ABOUT NOMINATIONS AND ELECTIONS

 

By Robert McConnell Productions

 

The last newsletter of 2000 talked about the nominations and election process from the standpoint of the presidential elections and how to avoid mistakes and fraud in the election process. Since then we have received a letter concerning the mistakes made in the accepting of proxy ballots and re-opening the polls. We felt that this was such an important question that we wanted to answer it in the form of a newsletter instead of just one of the many questions asked in our "Dear Parliamentarian" monthly column.

So let’s first read the letter that was sent to us:

 

 

Dear Parliamentarian,

We have corresponded in the past re Parliamentary Law and Homeowner Associations and I would appreciate your assistance once again.  At our Homeowner Association Annual Meeting/Election of Directors, I believe That a gross violation of Parliamentary Law took effect. Data is listed below:

1. This meeting was officially a membership meeting rather than a board meeting.

2. The chair for this meeting was the Vice President of our management company.

3. Parliamentary Law/Robert’s Rules was followed up to a point.

4. The chair made final calls for ballots and upon seeing no more, called for a motion to close the polls/ballots. This motion was made, seconded, and approved by more than 2/3rds vote required to close the polls. The polls were announced closed.

5. The tellers opened the ballot boxes and began counting the ballots.

6. After a period of time and counting had elapsed, the secretary of the Board of Directors, who had left the room in order to complete 17 general proxy ballots for this election of directors re-entered the room. 

7. This secretary requested that the polls be reopened and that his 17 general proxies be accepted.

8. The chair, who had been following Parliamentary Law up to this point, asked the tellers, who were in the process of counting ballots, to vote on reopening the polls in order to accept these 17 ballots.

9. The tellers voted to reopen the polls and these 17 ballots were accepted.

10. The chair physically co-mingled these 17 ballots with the other remaining to-be-counted ballots.

11. The final vote included those 17 proxy ballots.

12. The assembly was not informed of this action until the tellers completed their task, returned to their seats, and informed the other members. Some tellers were upset at being asked to make this decision, but they did not know what to do.

Based upon the above data, I would appreciate your evaluation of what I believe to be a violation of parliamentary law. I believe that:

1. The tellers should not have been asked to reopen the polls.

2. A majority vote by the members is required to reopen the polls, BUT

3. It is too late to reopen the polls once the ballot boxes have been opened and/or the counting had begun.

4. Neither the members nor the tellers should have been asked to reopen the polls and that the chair should have ruled that it was too late to reopen the polls.

5. These proxy ballots should not have been accepted nor included in the total vote.  Homeowners in our association are not familiar with proper Parliamentary procedure which the chair should have both known and employed.  Therefore, if I am correct in my interpretation of Parliamentary Law, and if you would confirm the proper procedure for reopening the polls, I will provide an educational format for our homeowners.

As an additional note, I am not advocating any legal action nor am I requesting a second election. However, the election for the seven directors resulted in the eighth candidate losing by 16 votes. Therefore, it is mathematically possible for these 17 proxy ballots to have made a difference in the outcome of this election.  My purpose in writing is to be able to provide homeowners and the Board  of Directors and the management company with the knowledge of parliamentary law and the importance of adhering to it.  As an additional note, the new Board of Directors has voted unanimously to continue the policy of the prior board to comply with Parliamentary Law/Robert's Rules of Order. As such, they too await your response.

As a further note, I have been unable to locate any reference to parliamentary procedure with regard to reopening the polls after the ballot boxes have been opened and counting has begun in your Robert's Rules of Order, Simplified and Applied, 1999 edition. Is there a section or page that I have missed?

I thank you very much for your consideration of this very important matter and I eagerly await your response.

Signed,
I.K.

We then proceeded to respond that we were looking into the matter and wondered what Florida State law said about proxy voting for board members. This was his reply:

Dear Parliamentarian,

Thank you for your replies re the election problem.  However, my request was not with regard to the proxy voting, but rather dealt  with, what I believe, was a wrongful reopening of the polls after the ballot boxes were opened and counting had begun.  I believe that Parliamentary Law prohibits the reopening of the polls under these circumstances.  I believe that the members can by majority vote reopen the polls after they are closed but before ballot boxes are open and counting has begun.   In our case the ballot boxes had been opened and counting was in process when the chair reopened the polls by asking the tellers to interrupt their counting and to vote on reopening the polls.  I believe that the chair should have ruled that under Parliamentary Law it was too late to reopen the polls and that no ballots should have been accepted, and that no entity, neither tellers nor members, should have been asked by the chair to vote on this issue.

This has no relationship to Florida law as this should be a ruling based on Parliamentary Law.  At some point under Parliamentary Law polls cannot be reopened and ballots cannot be accepted.

At some point it is too late to reopen the polls. I believe that our election had reached and exceeded that point.  I would appreciate your review of Parliamentary Law related to reopening the polls after ballot boxes have been opened and counting had begun and please let me know.

Re proxy voting in Florida. This is a separate issue and, in retrospect, our association should have used a limited proxy wherein the homeowner completes the ballot and the proxy holder merely delivers it rather than a general proxy wherein the proxy holder completes the ballot as the proxy holder determines. This was a mistake and will not happen again. In answer to your question regarding the secretary filling out the proxy votes, under Florida law homeowner associations are considered to be not-for-profit corporations and under corporate law the secretary of the corporation is generally authorized to receive the proxies whether limited or general. On our proxy form the secretary's name was listed and provision was also made for a member to use either another director of the board or another member of the association to receive the proxy. However, this proxy issue is not my real concern, as the same violation would have occurred had 17 individual members arrived late to deliver 17 individual ballots.  I believe that under Parliamentary Law the factor of when these ballots were presented is important. It should have been ruled that it was too late to accept these ballots. I would appreciate it if you review my original data plus this data.  If a parliamentarian had been present and had been asked to rule on the reopening of the polls after ballot boxes were opened and counting had begun, how should that parliamentarian been expected to rule?   Please check Parliamentary Law re proper procedure so that I can inform my fellow association members.

I.K.

Now our answer:

Dear I.K.,

Thank you for answering our questions and for submitting a thought provoking question. After this election, you and your organization will handle the next election differently.

The first issue that must be addressed is the proxy votes in this election. Because it was in the hands of the secretary before the ballots were cast and I assume before the meeting was called to order, these votes were already considered cast by the members who turned in their general proxy to the secretary. The problem was how the Secretary handled it. These voters therefore should not be penalized because of a mistake in procedure.

Since the ballots were already cast there was no need to open the polls to accept them. First, the Secretary should have alerted the president that he/she held 17 proxy votes that needed to be filled out before they were cast. As the tellers were collecting the ballots of the other members, the secretary should have been filling out the proxies. However, these votes should not have been put in the same receptacle with those ballots cast by those present. The proxies are kept separate and given to the teller’s committee after all the other ballots are collected. When counting the votes, the tellers’ committee should put on its teller’s form, how many ballots were cast of those present, how many proxies were cast (and kept separate from the rest of the ballots), the total of votes cast, the vote required to be elected, and then the number of votes each candidate received which include both the ballots of those present and the proxy votes. When tally the votes for each candidate, the tellers’ committee does not say John Jones received 20 votes and 3 proxies. The tellers’ committee would just say John Jones received 23 votes. (The reason the proxy votes are kept separate is in the case that the members have to revote because no one received a majority vote or the members vote to re-take the votes. The proxy votes remain the same. Only those who are present and voting will be able to change their vote, if they want to, on a re-ballot.)

So if I had been the parliamentarian at your meeting, I would have advised the president when the secretary returned with the seventeen proxy votes:

First, to tell the assembly that the secretary was giving him/her the 17 proxy votes.

Second, to ask the chairman of the Teller’s Committee to stop counting and accept the proxy votes since they had been received prior to the meeting. Then to proceed with the counting as described in the above paragraph.

Now, to answer your question about who can re-open the polls and what would happen if 17 members came in while the ballots were being counted and wanted to vote.

In the motion to re-open the polls, Robert’s only states that it must be done with a majority vote of the assembly. It is out of order for the Teller’s Committee to vote to re-open the polls. However, he does not state that the polls can’t be re-opened when the ballots are being counted. He states that a member may change his vote up to the time the chair announces the vote. He can change his vote only by permission of the assembly after the presiding officer announces the vote. So from this information, it is possible for a member or members arriving late, after the ballots have been collected, the teller’s are counting the vote, for the polls by a majority vote to be re-opened for these members to vote. I would recommend if this were to happen that the secretary or someone appointed by the chair, inform the tellers that the members have re-opened the polls for late members to vote. The tellers could be instructed to stop counting and send several tellers to collect the ballots. After the ballots are collected, the tellers would take them into the counting room and put them aside until they finished counting the first set of ballots. Our book that you have shows how the tellers fill out a form and the procedure for counting the ballots. (We also show this in detail in our new video Nominations and Elections. Perhaps your organization would find it helpful.) I would then recommend that they take out a second teller’s sheet and fill that out concerning the seventeen ballots cast when the polls were re-opened. Then I would get out a new teller’s sheet and fill it out adding the first two tellers report for a final total on all the votes. I would attach the two sheets to the finally report and give to the chair to declare those who were elected to office. By doing it this way, if there were a question about having a recount there is a record of each group of votes cast.

It is important not to put hurdles in the way of members who wish to vote. If members come in after the election has been announced, then it is too late to re-open the polls.

And finally, a word about the proxies. In Joyce Stephen’s book, Guide to Voting, (published in 1993) she says this about proxy votes for elections. "When the bylaws state that a ballot vote shall be taken on a matter, and proxies are legal, the absentees should be sent a ballot along with the proxy." That way when they return the ballot and proxy it will be filled out and the secretary won’t have to fill out the ballot.

She also states on page 54, "State statutes are very complicated and complex regarding voting in corporations. For example, Florida’s statutes provide for the election of condominium and homeowners association directors by ballot, with all other matters voted by limited proxy, with general proxies used if necessary to establish a quorum. This particular statue also establishes a much lower quorum for an election at the annual meeting than for the annual meeting itself. Organizations using proxy voting should be thoroughly familiar with their state statutes regarding this method of voting."

If we have any recommendations for you, it would be to thoroughly learn the procedures for elections and train your tellers well. If necessary, adopt some rules of order concerning the handling of the election procedure. If the organization does not want to allow people to vote after the ballots are counted, for this rule to be considered by the membership it needs previous notice and is adopted by a two-thirds vote. See our WEB Site <parli.com>, Internet Newsletters from the year 2000 where we explain rules of order.