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A Vote to Choose Either Company A or Company B


Guest Randall

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Our organization has an upcoming vote before the Board of Directors of a Florida Not-for-Profit Corporation, to choose between two companies to provide services to our community for a 10-year telecommunications contract. From the outset, it is important to note that the affirmative vote of a majority of the members present is the act of the Board of Directors, as provided by statute. It was established at our last meeting, that a choice between Company A and Company B would be determined by a roll call vote. I mentioned that for example, if there were 160 members present (which there were), the affirmative vote of a minimum of 81 members is required to approve any contract. Knowing that this last "straw poll" vote indicated nearly an equal vote for each company, I added that should it be similarly split at our next meeting at which a contact would be finally be decided upon, and, there be numerous abstentions (with a roll call vote), that neither company may be approved, since approval would require the affirmative vote of a majority of the members present. I gave the further example that if 76 members voted for company A, and 74 members voted for company B, and there were ten abstentions, that though company A would be 'preferred', it would not meet the legal requirement of a majority of the members present, and neither company would receive lawful approval, and maybe a new vote would be required? Any thoughts by those who have assisted me for many years?  

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30 minutes ago, Guest Randall said:

Our organization has an upcoming vote before the Board of Directors of a Florida Not-for-Profit Corporation, to choose between two companies to provide services to our community for a 10-year telecommunications contract. From the outset, it is important to note that the affirmative vote of a majority of the members present is the act of the Board of Directors, as provided by statute. It was established at our last meeting, that a choice between Company A and Company B would be determined by a roll call vote. I mentioned that for example, if there were 160 members present (which there were), the affirmative vote of a minimum of 81 members is required to approve any contract. Knowing that this last "straw poll" vote indicated nearly an equal vote for each company, I added that should it be similarly split at our next meeting at which a contact would be finally be decided upon, and, there be numerous abstentions (with a roll call vote), that neither company may be approved, since approval would require the affirmative vote of a majority of the members present. I gave the further example that if 76 members voted for company A, and 74 members voted for company B, and there were ten abstentions, that though company A would be 'preferred', it would not meet the legal requirement of a majority of the members present, and neither company would receive lawful approval, and maybe a new vote would be required? Any thoughts by those who have assisted me for many years? 

Are you sure that the statutory requirement is a majority of those present or a majority of those present and voting. The latter is the RONR requirement.

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Florida Not-for-Profit (617.0824(3)) reads "If a quorum is present when a vote is taken, the affirmative vote of a majority of directors present is the act of the board of directors unless the articles of incorporation or the bylaws require the vote of a greater number of directors". Though the RONR requirement is based upon a majority (or 2/3) of those members present and voting, you will find that in corporation law, likely throughout the country, the voting bases for motions, is the majority of members present. Whether or not secondary motions have the same requirement, is questionable, since it may or may not be considered a [full] act of the Board of Directors. Our community has 349 Board members (Delegates), representing a community of 7,854 units and over 10,000 members, and we always know exactly how many members of the Board (Delegates) are present when a vote is taken, in order to determine whether or not a motion passes, or in this instance, which contract would be chosen. My question again is, what happens if the number of affirmative votes for either Company A or Company B is less than a majority of the members present, due to abstentions? Is neither company awarded the contract (for this vote) since only a preference for one over the other would be demonstrated?

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Since your rules (FL's rules, more precisely) are not the same as Robert's rules, there isn't much we can do for you here at the Robert's Rules website.  I suspect you had better consult with a Florida lawyer.

One way out (possibly): what is your quorum requirement?  If only the bare minimum of your 349 board members show up, the "majority of those present" might not be such a high hurdle.  Depends on your quorum number, of course.

You speak of Board members as "Delegates".  But are you sure your bylaws or articles define a meeting of "Delegates" as a meeting of the Board?  The two bodies are (commonly) not the same thing.

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4 hours ago, jstackpo said:

Since your rules (FL's rules, more precisely) are not the same as Robert's rules, there isn't much we can do for you here at the Robert's Rules website.  I suspect you had better consult with a Florida lawyer.

 

I agree, but it also seems rather clear to me that if, according to applicable statute, you need a majority of those present to vote in favor of something in order for it to pass, and less than those do, then it doesn't pass.  In truth, I'm somewhat concerned about the way this vote is set up, as an A/B choice, when a member can prefer to do nothing, or to use a different company, etc.  Assuming the rule of order is as described, though, I suppose an abstention functions as a vote to go with neither company, but it still bothers me because that's less than clear, and because the method of voting certainly provides a 'push' in favor of these companies.  If a majority vote cannot be gotten, then presumably you need to give the board other options.  

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I gather that this Board, for some reason or other, is about to hold an election by roll call (RONR, 11th ed. p. 443) to chose a company to provide services to its community. If so, it appears that it will need to continue voting until a candidate receives the requisite number of votes.

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Based on the well written information provided by guest Randall, I agree with the comments immediately above by Mr. Katz and Mr. Honemann. I believe that if 160 members are present, the affirmative vote of 81 members would be required to select a provider.

Edited to add: upon further reflection, I'm not sure that I agree completely with either Mr. Katz or Mr. Honemann, but I do agree (or at least take the position) that if 160 members are present, the affirmative votes of 81members would be required to adopt any motion or to select a provider.

I'm not so sure that voting must continue until a provider is selected. This appears to me more like a motion to fill in a blank with  the choice being between company A and Company B. It might well be that the membership does not want either company or does not want a new provider at all. I don't agree that they MUST choose a company (although there could be consequences such as the termination of telephone service or cable television service if they don't choose one by a certain deadline).

 

Edited by Richard Brown
Added last two paragraphs
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23 minutes ago, jstackpo said:

Sneaky... but it would work only if the folks stepping out did not break the quorum requirement for the number of members present and staying in the room to vote.  And with a roll call vote the (possible) lack of a quorum would be self evident.

 

Well, if the majority do not want either choice, they may stay. 

I would probably teat it as a yes/no roll call for each company.  If no company gets a majority, then the assembly does not want the service.  Members may change their votes on hearing that the choice will be between one of these companies and no company; one member may change their vote to permit reconsideration of the other company.

 

I would, not, however, treat  this as an election.  In that case, the option of not electing anyone is usually not there.  Here the assembly may properly choose not to contract with any company. 

 

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13 hours ago, Daniel H. Honemann said:

I gather that this Board, for some reason or other, is about to hold an election by roll call (RONR, 11th ed. p. 443) to chose a company to provide services to its community. If so, it appears that it will need to continue voting until a candidate receives the requisite number of votes.

As much as this is always a mistake, I disagree.  How was it decided that some company or other must be hired, and voting will continue until one is selected?  So far as I can tell, this is the first vote on the matter, and simply making a motion that one or another company be hired doesn't require that the organization hire someone.

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For clarification, we presently have Comcast, whose contract runs out in two years this June. Atlantic Broadband is the competing company, and we do require a decision at the June meeting in favor of one company or another, as Atlantic Broadband requires a two-year period to lay cable if awarded the contract. I don't believe that it would be proper to ask Delegates representing their individual Associations to leave the Assembly for the vote should they be undecided and choose to abstain. We are always aware of the number of members present whenever a vote is taken. Those who are indifferent, would not attend the meeting. Sufficient abstentions would indicate that there is uncertainty as to which company to go with, and further discussion and opinions may be necessary before another vote is taken. Thank you for your comments. 

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47 minutes ago, Guest Randall said:

For clarification, we presently have Comcast, whose contract runs out in two years this June. Atlantic Broadband is the competing company, and we do require a decision at the June meeting in favor of one company or another, as Atlantic Broadband requires a two-year period to lay cable if awarded the contract. I don't believe that it would be proper to ask Delegates representing their individual Associations to leave the Assembly for the vote should they be undecided and choose to abstain. We are always aware of the number of members present whenever a vote is taken. Those who are indifferent, would not attend the meeting. Sufficient abstentions would indicate that there is uncertainty as to which company to go with, and further discussion and opinions may be necessary before another vote is taken. Thank you for your comments. 

Yes, I gathered that this was the case, and I'm afraid it appears that there is no getting around the fact that repeated voting may be required in order to arrive at a decision.

Under these circumstances, one would hope that the Delegates at your June meeting will recognize the necessity of arriving at this decision, and that they and the presiding officer will keep in mind the importance of voting (not abstaining) and that their votes may be changed before the result is announced (unless changing ones initial response to the roll call is also precluded by your rules, in which event it is obvious that you all really do like to make life difficult :)).

 

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6 hours ago, Guest Randall said:

For clarification, we presently have Comcast, whose contract runs out in two years this June. Atlantic Broadband is the competing company, and we do require a decision at the June meeting in favor of one company or another, as Atlantic Broadband requires a two-year period to lay cable if awarded the contract. I don't believe that it would be proper to ask Delegates representing their individual Associations to leave the Assembly for the vote should they be undecided and choose to abstain. We are always aware of the number of members present whenever a vote is taken. Those who are indifferent, would not attend the meeting. Sufficient abstentions would indicate that there is uncertainty as to which company to go with, and further discussion and opinions may be necessary before another vote is taken. Thank you for your comments. 

If I understand the question would be, "to contract with Atlantic Broadband to provide service beginning in June of 2019."  If that decision is no, then you do not award the contract to Atlantic Broadband.  At that point, why is this a choice between Comcast and Atlantic Broadband? 

Further, is there some rule that says that says you must choose to have a provider?  I'm not arguing that it isn't a good idea to have a provider; I'm just asking if there is some rule requiring it. 

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18 hours ago, Guest Randall said:

For clarification, we presently have Comcast, whose contract runs out in two years this June. Atlantic Broadband is the competing company, and we do require a decision at the June meeting in favor of one company or another, as Atlantic Broadband requires a two-year period to lay cable if awarded the contract.

Is there some rule saying you must have cable, and therefore must always have a provider?

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