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Voting Requirement greater than Quorum


Guest Hunt68

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I am a member in an HOA.  We are taking action to remove the board under a removal provision in our Bylaws.  Under the QUORUM requirement, our bylaws read "The presence at the meeting of Members entitled to cast, or of proxies entitled to cast, one-fifth (1/5th) of the votes shall constitute quorum for any action except as otherwise provided."  Clear enough in my opinion.  We have 170 homes, so quorum is 34 members.  

Under the REMOVAL requirement, the bylaws read, "Any director may be removed from the Board, with or without cause, by a majority vote of the Members of the Association."  No other quorum requirement is stated in this section.  So, I interpret the removal requirement to be an affirmative vote of Members at a properly called meeting where at least 34 members are present.

However, the board's position is that the removal language means a majority vote of all members of the association, or at least 86 affirmative votes.  I challenged this.  They went to our HOA attorney, and the attorney confirmed that "in order to transact business, a quorum of 1/5 of the votes must be present in person or by proxy" but then he went on to say that the "majority vote is the total votes of the entire membership, not a majority of those members who constitute a quorum."

Now, I am not a parliamentary nor RONR expert, but is what this attorney is saying nonsensical?  In other words, it doesn't make sense or it is contradictory to say that you need a quorum of 34 members to transact business at a special meeting where the only business is removal of a director, and then say you need 86 votes to pass.  

Am I missing something or is this attorney wrong in the advise he is giving our HOA?  

If the requirement was in fact a majority of the entire membership, this would be greater than the requirement to amend the bylaws.  The bylaw amendment language reads: "By-Laws may be amended at a regular or special meeting of the Members by a vote of a majority of a quorum of Members, present in person or by proxy."  Why the removal language didn't read the same way is part of the reason people are confused.  Nonetheless, I don't think this changes anything.  Removal should be a majority vote of a quorum of members.  The same required to elect new directors and the same requirement to amend our bylaws.  An 86 affirmative vote threshold is absurd (in my opinion).

Please confirm that you can never have a voting requirement that is greater than the quorum requirement.

Thank you! 

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Everyone needs to disabuse themselves of the notion that a quorum and the vote required to adopt a motion are somehow tied together.  Rarely happens and it's usually because of some horrible bylaw wording.

I agree with your interpretation but it is possible to have a very high voting requirement to remove someone from office....for example, a vote of a majority of the entire membership, or some other very high number.

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It is possible for the bylaws to have a quorum requirement of 20%, yet require a vote of a majority of the entire membership (or some other high number) to remove someone from office or membership.  Of course it's the bylaws that make this possible.  There may be good reason to not let a small number decide drastic actions such as removal.

That said, I still agree with your initial interpretation.....but my opinion means nothing.  Your society decides what its bylaws mean.

 

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57 minutes ago, Guest Hunt68 said:

Under the QUORUM requirement, our bylaws read

"The presence at the meeting of Members entitled to cast, or of proxies entitled to cast,

one-fifth (1/5th) of the votes shall constitute quorum for any action except as otherwise provided."  

We have 170 homes, so quorum is 34 members.  

Under the REMOVAL requirement, the bylaws read,

"Any director may be removed from the Board, with or without cause, by a majority vote of the Members of the Association."  

However, the board's position is that the removal language means a majority vote of all members of the association, or at least 86 affirmative votes.  I challenged this.  They went to our HOA attorney, and the attorney confirmed that "in order to transact business, a quorum of 1/5 of the votes must be present in person or by proxy" but then he went on to say that the "majority vote is the total votes of the entire membership, not a majority of those members who constitute a quorum."

 

The interpretation of your board is in error.

The interpretation of your board is equating two different concepts.

     • S1. "Majority of all members."

     • S2. "Majority vote of all members."

Statement S1 refers to "more than half of the entire membership."

Statement S2 refers only to "more than half of all votes cast, coming from the membership."

What is the difference between "majority of ..." and "majority vote of ..."? -- One refers to a body's membership total as the baseline for calculation, and one refers only to ballots cast as the baseline for calculation, irrespective of the total membership of the body doing the casting of ballots.

Under plain-vanillia Robert's Rules of Order, in a room of 100 members, assuming all are entitled to vote, if 99 members abstain on a given motion, then the vote will be either 1-0 or 0-1. In either case, the baseline is "1", i.e., the number of votes cast, as the baseline. -- And "1-0" represents legitimate adoption. And "0-1" represents legitimate rejection.

 

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The basic problem is one of English language syntax.  Note that Hunt68's bylaws requirement for removal reads

"...by a majority vote of the Members of the Association."

But George rephrased the requirement to read:

"for example, a vote of a majority of the entire membership,"

Hunt68's phrasing is (unfortunately) ambiguous:  does it "really" mean a "majority vote" (i.e,, more than half of those actually voting, all of whom are members of the association) or does it mean, as George phrases it, the vote count in favor must exceed the number calculated as 1/2 of the association membership.  One can generate reasonable arguments either way  --  that is the nature of ambiguity.  In all cases the presence of a quorum is assumed but, as George noted, the quorum number requirement has no bearing on the vote requirement.

It will be up to Hunt86's association (NOT the Board alone, nor the Attorney) to resolve the ambiguity, and then rewrite the bylaws using George's (and RONR's, see p. 400ff.) unambiguous phrasing.  See p. 580 for the "how-to" to resolve the problem in the short term.

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1 hour ago, Guest Hunt68 said:

If the requirement was in fact a majority of the entire membership, this would be greater than the requirement to amend the bylaws.  The bylaw amendment language reads: "By-Laws may be amended at a regular or special meeting of the Members by a vote of a majority of a quorum of Members, present in person or by proxy."  Why the removal language didn't read the same way is part of the reason people are confused.  Nonetheless, I don't think this changes anything.  Removal should be a majority vote of a quorum of members.  The same required to elect new directors and the same requirement to amend our bylaws.  An 86 affirmative vote threshold is absurd (in my opinion).

What a mess this is.

First of all, why do you think that "a vote of a majority of a quorum of Members" means the same thing as "a majority vote of a quorum of members"? I'm not sure I know what either one means, but they don't appear to be the same thing to me.

1 hour ago, Guest Hunt68 said:

Please confirm that you can never have a voting requirement that is greater than the quorum requirement.

Can't, I'm afraid, because you can have a voting requirement that is greater than the quorum requirement, as I think has already been noted.

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ALL - I greatly appreciate the responses.  I think I get it.  Yes, our bylaws are worded poorly and this has led to ambiguity.  I'm amazed as this is my first time getting involved in something like this that the attorneys, both the firm who drafted the bylaws and the firm who just issued the legal opinion, are so inept in their language.  One thing in my favor is that our state statutes read: " a director may be removed only if the number of votes cast to remove the director would be sufficient to elect the director at a meeting to elect directors."  No one argues that to elect a director you need a quorum of 20% of the membership and a voting requirement of a majority of all votes cast.

I think Potzbie hit the nail on the head, and along with other comments, I believe the correct way I need to state my interpretation on removal is:

    "At a properly called special meeting where quorum is present, a director may only be removed by a majority of the votes cast by all Members of the Association."

I appreciate ultimately our association may need to decide this matter, but is this statement sound as one possibility?

Thanks again!

 

 

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1 hour ago, Guest Hunt68 said:

    "At a properly called special meeting where quorum is present, a director may only be removed by a majority of the votes cast by all Members of the Association."

NO, no, no.   Do you mean...

1.  All members must cast votes, and a majority (for removal) will do the job?

2.  Do you "really" mean  to include (implicitly) the words "present and voting" after "members of the Association"?

3.  Something else?  What?

Please go read p. 400ff. in RONR and get the wording precise!

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Wow, now I know why I'm not an attorney.  I mean what you suggest jstackpo in 2.  Specifically, 170 total members.  Quorum of 20% or minimum 34 members present in person or by proxy.  Vote requirement is a majority of those present in person or by proxy and voting.  I've reread the RORN pages you suggested yet again.  Hopefully this correctly represents the intent:

    "At a properly called special meeting where quorum is present, a director may only be removed by a majority vote of Members of the Association present and voting in person or by proxy ."

I appreciate per RONR, that the last few words ("... present and voting in person or by proxy") aren't necessary because of the definition of majority vote on pg. 400, but it will help clarify this for members of the association who don't understand RONR at this level (such as me when I started this string).  

 

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You're still putting quorum requirements in the same breath as voting requirements.  That makes what should be simple into a mess.

Your quorum tells you how many warm bodied voting members must be present in the room (or in your case by proxy) when conducting business.  That's all.  It affects no voting requirement, and no voting outcome.  The the actual number and how it is arrived at (whether by a formula, such as 1/5, 27%, a majority, or a fixed number, makes no difference) The quorum question simply boils down to a one-bit True/False answer: Either a quorum is present, or it is not.

Voting thresholds for motions do not relate to the quorum (unless the drafters of your bylaws were foolish enough to conflate the two), which they should not.  Any motion that does not have a specified threshold requires a majority vote.  Other motions may require more, such as your Removal motion.  

The question is whether  a majority vote of the Members of the Association means the same thing as a vote of the majority of the entire membership of the Association.  If that's what they meant, they did a poor job of showing it.  But note well that neither of those statements is a quorum requirement. (See above.)  They are voting thresholds.

But the latter statement is clear and unambiguous, the former (from your bylaws) is the opposite.  First, it has the words majority and vote  right next to each other.  RONR tells us that majority vote  means "majority of those present and voting".  Also the language doesn't contain the words entire membership, which would be clear.  It merely says that it is a vote of the members of the association.  On the one hand, Duh!   There's no point in even saying that; where else would the votes come from, if not from the members?  But it is a basic principle of interpretation that language in the bylaws should be assumed to be there for a reason.  Was the reason for that language to specify the entire membership?  Maybe.  I have no idea, and if I did it would not matter since I am not a member of the Association.  But that's something you need to figure out, probably by a Point of Order, subject to Appeal.

Now you may say that it makes no sense to have a lower quorum than the voting requirement.  And if this is a special meeting, you have a point, but it's still best not to confuse the two.  You must have a quorum present before the motion can be made.  Whatever the quorum number, it doesn't matter, as long as it's met.

Now just suppose someone makes a motion that would require approval of a majority of the entire membership.  Suddenly you need to know the number of people in the room, not for quorum purposes, but to determine whether it's even possible to pass the motion, presuming everyone voted, and that everyone voted Aye.  If a majority of the entire membership is not present, the motion is not in order.  

This is not a quorum requirement, it is just a way to test if it would be frivolous to consider the motion since it cannot be passed with less than a majority of the entire membership present.  The problem doesn't arise with majority votes, since a majority vote can pass with a single Aye vote, as long as everyone else abstains.  Of course, if the only purpose of the meeting is to consider a high-threshold motion, and an insufficient number show up, you're not going to get much done, but if at least a quorum is present, you could make the motion, and when it's ruled out of order, you could Appeal From the Decision of the Chair if you can get a second, and make your case that the proper interpretation of the bylaws is what you think it is.  Or if you're against the motion being allowed, and the chair allows it, you can raise a point of order, also subject to appeal.

In any case, you should amend the bylaws to clearly say what is really intended.

 

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11 hours ago, Gary Novosielski said:

It merely says that it is a vote of the members of the association.  On the one hand, Duh!   There's no point in even saying that; where else would the votes come from, if not from the members?

The board. Statements such as this are often intended to mean that only the membership of the society, not the board, has the authority to take the action in question - not necessarily to modify the voting threshold required. I am not saying that this is or is not the case here, and I am certainly not saying that this language is the best way to express that intent.

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Update:  Armed with ammunition from above which has been of immense help, I've gone back and forth with our HOA attorney on this matter and his final position is that Robert's Rules is not binding, and that "... one need not go beyond the four corners of the document [our Bylaws] to discern the intent of this sentence".  I.e., he believes that a "majority vote of the Members of the Association" means the same thing as "a vote of a majority of the entire membership".  Our Bylaws and state statutes are silent parliamentary authority.

I appreciate that ultimately the membership can decide upon the interpretation.  The problem is that the petition drive for removal is complete, the special meeting date has been set, and now would not be the time to call a separate special meeting to amend the bylaws.   

On 1/13/2016 at 2:09 AM, Gary Novosielski said:

you could Appeal From the Decision of the Chair if you can get a second, and make your case that the proper interpretation of the bylaws is what you think it is.

Great input not previously considered.  I see (I think) where RONR, p. 93, ll. 5-12, would support doing this at a special meeting called for the purpose of removal.  Our bylaws state that the quorum for a special meeting is the same as to amend the bylaws, so this base is covered.  The vote requirement to amend our bylaws is horribly written as Mr. Honemann points out above, but am I correct in assuming that the vote requirement to pass a motion at the special meeting for the "proper interpretion of the bylaws" would be the same vote requirement that we would need to amend the bylaws?  Namely, we would now need to make sense out of what "  "By-Laws may be amended at a regular or special meeting of the Members by a vote of a majority of a quorum of Members, present in person or by proxy."

Any other ideas, thoughts, or suggestions are appreciated!

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There is no such thing as a motion "for the proper interpretation of the bylaws".   If your goal is to nail down exactly what the bylaws say, there are two possible routes.

  1. Amend the bylaws to say precisely what you want them to say, once and for all.  Obviously this would be the same voting requirement as an amendment because it is an amendment.
  2. Assert that the bylaws as written are being improperly interpreted.  This is done using the Point of Order and Appeal process either by:
    1. Raising a point of order if something is done that you believe is incorrect (If the point is ruled well taken, you've succeeded and if not, be prepared to Appeal from the Decision of he Chair); or,
    2. Just move to do something you believe is correct but that you anticipate may draw an unfavorable ruling, and again be prepared to appeal.

Appeals require only a majority vote, and favorable rulings require no vote at all, except of course that someone else may appeal a ruling you think is correct.

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3 hours ago, Guest Hunt68 said:

Update:  Armed with ammunition from above which has been of immense help, I've gone back and forth with our HOA attorney on this matter and his final position is that Robert's Rules is not binding, and that "... one need not go beyond the four corners of the document [our Bylaws] to discern the intent of this sentence".  I.e., he believes that a "majority vote of the Members of the Association" means the same thing as "a vote of a majority of the entire membership".  Our Bylaws and state statutes are silent parliamentary authority.

If your organization has not adopted RONR as its parliamentary authority (a problem you should remedy as soon as possible), the chair is correct that RONR is not binding, although it may still be helpful, so I don't know that it is entirely correct to say that "one need not go beyond the four corners of the document to discern the intent of this sentence."

With that said, this does not necessarily mean that the chair's interpretation regarding the meaning of this phrase is incorrect. I can see reasonable arguments for both sides.

3 hours ago, Guest Hunt68 said:

The vote requirement to amend our bylaws is horribly written as Mr. Honemann points out above, but am I correct in assuming that the vote requirement to pass a motion at the special meeting for the "proper interpretion of the bylaws" would be the same vote requirement that we would need to amend the bylaws?  Namely, we would now need to make sense out of what "  "By-Laws may be amended at a regular or special meeting of the Members by a vote of a majority of a quorum of Members, present in person or by proxy."

No, this is not correct. There is no motion for the "proper interpretation of the bylaws." Rather, if and when the chair declares that the vote fails as there is less than a majority of the entire membership in the affirmative, a member may raise a Point of Order that only a majority vote is required. The chair will rule on this point, and his ruling may be appealed from. A majority vote is sufficient to overturn the chair on appeal.

A slight variation on this procedure may be that the chair rules the motion out of order when it is made, on the grounds that there is less than a majority of the entire membership present and the motion is therefore dilatory as it cannot possibly be adopted. If this happens, then this ruling may be appealed from.

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And just to be clear on this approach - if you go the route of raising a point of order, with or without a subsequent appeal, whatever the outcome of that is will not be equivalent to amending your bylaws. It will have established what RONR considers a precedent. The chair's unchallenged ruling on a point of order, or the decision of the assembly in a subsequent appeal of that ruling establishes a precedent for the assembly's agreed-upon interpretation of the bylaw wording in question. That precedent will continue to be persuasive - but not binding - on the assembly if the same issue is raised again in the future, unless and until it is changed by an actual amendment to the bylaws or by a different ruling on a point of order or appeal in the future. RONR's discussion on precedent is found on p. 251, l.28 - p. 252, l.17.

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