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FAQ 6


Guest James B Clayton

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Guest James B Clayton

Our HOA By-Laws establish a Board of 11 Directors and require that Board vacancies be filled by a majority vote of the remaining Directors. The By-Laws clearly state the requirement for majority vote of the remaining Directors and do no mention any alternative such as majority vote of Directors present or majority of votes cast.

 

Recently, two Directors resigned leaving 9 remaining Directors. So, according to the By-Laws, it would seem that filling both vacancies with a single motion would require at least 5 approval votes.

 

The motion was made at a Board meeting with 8 remaining Directors in attendance and no proxy for the one absentee Director. There were 4 votes of approval and 4 abstentions, so the Board concluded that the By-Law requirement for 5 approval votes in this situation was not met and the motion did not pass.

 

After the meeting, one Director contacted the other remaining Directors opining that the Board had incorrectly evaluated the results of the vote and that the motion did pass with 4 approval votes and 4 abstentions. The Director cited http://www.robertsrules.com/faq.html6 as reference for this conclusion.

 

Other Directors disagreed with the conclusion, citing the very same reference as rationale for the opposite conclusion and noting that nothing in the reference could be construed as reason to override the By-Law requirement that Board vacancies be filled by a majority vote of the remaining Directors. These Directors also opined that the only way that the 4 approval votes could have carried the motion would have been if the By-Laws allowed that Board vacancies be filled by a majority of votes cast rather than by a majority vote of remaining Directors.

 

We would greatly appreciate your advice on sorting out this issue.

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I agree in general with what Chris Harrison said, as I always do  when I know what's good for me, except that it seems to me that this sentence is unambiguously binding:

.... The By-Laws clearly state the requirement for majority vote of the remaining Directors and do no mention any alternative such as majority vote of Directors present or majority of votes cast. ...

 

And what RONR says, or its FAQ's here, is of no consequence, since it doesn't apply when the bylaws say different.  I would only say, with no disrespect to Guest Mr. Clinton, that I -- as would Chris, and anyone else -- would have to see the statement verbatim to answer confidently, and add that one would have to read the bylaws in their entirety, to answer authoritatively.

 

Nancy N.

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Guest James B Clayton

Thank you for responding and directing us to RONR for principles of interpreting Roberts Rules.

 

The exact wording of our By-Laws is: "Vacancies on the Board caused by any reason before the expiration of the three-year term shall be filled by a majority vote of the remaining Directors for the unexpired term of the vacating Director." The By-Laws contain no other requirements or wording on voting to fill Board vacancies.

 

Our problem is that the first sentence of FAQ 6 pertains exclusively to a motion where the requirement for approval is a majority of votes cast, and therefore seems irrelevant to any vote like ours when the requirement is a majority vote of the remaining voters.

 

The second sentence of FAQ 6 does, in fact pertain to the situation where approval requires a majority vote of the of the membership (in this case the remaining Directors). This sentence indicates how abstentions are handled, but does not contradict the By-Law requirement for approval by a majority of the voting membership.

 

Could you please be a little more specific in explaining how FAQ 6 could possibly be interpreted to support a conclusion that a vote of less than a majority of a voting population could carry a motion that requires a majority of the voting population.

 

Thank you.

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Could you please be a little more specific in explaining how FAQ 6 could possibly be interpreted to support a conclusion that a vote of less than a majority of a voting population could carry a motion that requires a majority of the voting population..

 

The problem, as has been noted, is not with the interpretation of FAQ #6, the problem is with the interpretation of your bylaws.

 

The unadorned term "majority vote" clearly (and simply) means the affirmative vote of a majority (more than half) of the members present and voting. Thus, at a board meeting with eight (or any number of) members present, a vote of 4-0 (even a vote of 1-0) would constitute a majority vote.

 

But your bylaws add the phrase "of the remaining Directors" which is clearly different from the RONR default "present and voting". And therein lies the rub.

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Guest James B Clayton

Nancy,

 

Thanks for your response.

 

I concur with all your points and add that the verbatim by-laws statement I included in my most recent comment to Chris is all that the by-laws say about the vote to fill Board vacancies. We gain nothing on this point by reading the rest of the by-laws.

 

Our problem is that one of our Directors doesn't agree with your points and is using what our other Directors consider to be a misinterpretation of FAQ 6 to support his erroneous conclusion. So we're seeking an authoritative interpretation along the lines that you have offered.

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Well, as noted, your phrase describing the required vote  ("a majority vote of the remaining Directors") is indeed ambiguous.  If your "other Director" disagrees with your interpretation of the phrase (is that what you mean by a "misrepresentation"?)   then you are both on equal footing in the argument.

 

The way to resolve the ambiguity, and decide what the bylaws "really mean", is to turn to p. 588 and take it from there.

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Guest James B Clayton

Thank you all for your advice.

 

The "misrepresentation of FAQ 6" to which I referred in my second post meant that one of our Directors was quoting FAQ 6 to other Directors and stating that it clearly and definitively supports his own interpretation of the by-laws to the exclusion of all other possible interpretations. I entered this form seeking confirmation of this Director's claim rather than seeking a different interpretation of our by-laws.

 

Your advice was helpful because it confirms that: (1) our by-laws are ambiguous about voting to fill Board vacancies , (2) that our Directors must decide for themselves how to interpret or change the relevant by-laws clause, and (3) that RONR and FAC 6 should not be cited to either defend or condemn any one particular interpretation of the by-laws clause in question.

 

Unless you respond to this post, I'll assume that each of you fully concurs with all three points stated in the preceding paragraph.

 

Thanks, again.

 

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Your advice was helpful because it confirms that: (1) our by-laws are ambiguous about voting to fill Board vacancies , (2) that our Directors must decide for themselves how to interpret or change the relevant by-laws clause,

Unless you respond to this post, I'll assume that each of you fully concurs with all three points stated in the preceding paragraph.

 

Thanks, again.

 

Your statement above that I bolded and italicized may or may not be true. It will be true if the board is empowered to amend your bylaws. But if it is the general membership that has the power to amend the bylaws, then they are the ones who also have the authority to make a binding interpretation on what the bylaws mean. If this is the case in your organization, then an interpretation of this particular bylaws statement by the board could be overruled and reversed by the membership. 

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Guest James B Clayton

Good point. Thank you.

 

Our by-laws require that by-laws be amended by majority vote of the general membership present, in person or voting by proxy.  If our Directors decide that a by-laws change is indicated, we would distribute the proposed amendment in writing to the general membership, call a general membership meeting, and conduct the vote per by-laws.

 

In any case, it's now clear that our Directors must decide for themselves how to interpret or change the ambiguous by-laws clause without citing RONR or FAQ 6 to support or criticize any particular interpretation of the current clause or its potential replacements.

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In any case, it's now clear that our Directors must decide for themselves how to interpret or change the ambiguous by-laws clause without citing RONR or FAQ 6 to support or criticize any particular interpretation of the current clause or its potential replacements.

Um, not exactly. 

 

The Directors cannot interpret for themselves what the bylaws "mean", and then apply the interpretation to the current problem, whatever it is.  Only the general membership can produce a (binding) interpretation, since the general members are the ones who have the (sole) authority to amend the bylaws.

 

The Directors could suggest what the members should amend by offering their (tentative) interpretation of the ambiguity to the members but the interpretation won't "count" until the general membership acts to DO an interpretation, by majority vote per p. 588, or amend the bylaws following whatever rules your bylaws require.

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Guest James B Clayton

I think we are in agreement, but please clarify the difference you see between: (1) putting the Board's tentative interpretations up for general membership approval as you recommend, and (2) my described procedure of distributing the Board's proposed amendments to the general membership, calling a general membership meeting and conducting a vote per by-laws.

 

Thanks.

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Neither of your suggestions follow the process described on p. 588 which allows the membership the opportunity do do the interpretation from scratch.

 

I seem to recall an earlier discussion to the effect that "the process" begins with a member raising a point of order. In other words, the assembly can't simply decide to address a perceived ambiguity in the bylaws "from scratch". In this instance, a member would have to raise a point of order to the effect that the motion was improperly declared to be lost (i.e. defeated).

 

Edited to add: And I wonder if the "statute of limitations" may have run out on that option.

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...  Unless you respond to this post, I'll assume that each of you fully concurs with all three points stated in the preceding paragraph

 

We have to set everything else aside until you acknowledge that this is unacceptable, and you withdraw it.  Posters are all volunteers, and have other concerns in their lives.

 

 (To put it parliamentarily, though oversimplifying, you have no justification to interpret abstensions to be Yes votes; nor, for that matter, to be No votes.)

 

(More later, perhaps, but this is paramount.  Interestingly, this procedural question is so much more important than anything substantive that might be said.)

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Guest James B Clayton

My apologies for unintentionally breaking your forum rule. I hereby withdraw my erroneous assumption and unequivocally eschew whatever implications it might have unwittingly conveyed  to you and your volunteers.

 

I value your expert opinions and am simply trying to understand if I'm correctly interpreting everyone's advice. I'm also trying to identify consensus among the experts.

 

Please let me restate my Post 12, modified as a result of all your subsequent responses:

 

==========================

 

Thank you for your advice through Posts 21.

 

The "misrepresentation of FAQ 6" to which I referred in my Post 12 meant that one of our Directors was quoting FAQ 6 to other Directors and stating that FAQ 6 clearly and definitively supports a specific interpretation of our by-laws, and does so to the absolute exclusion of all other possible interpretations. I entered this forum seeking either confirmation or refutation of this claim rather than seeking any particular interpretation of our by-laws.

 

Your advice, has been helpful because it seems to establish a consensus that: (1) our by-laws clause, which prescribes a voting procedure to fill Board vacancies, is ambiguous and can be interpreted differently by reasonable people, (2) our association must decide for itself, using procedures prescribed by our by-laws, how to process, interpret and possibly amend the ambiguous clause, and (3) RONR and FAC 6 should not be cited to either defend or condemn any one particular interpretation or possible amendment of the ambiguous clause.

 

I would greatly appreciate confirmation or refutation of my above-stated tentative conclusions and would welcome any further comments or advice you might offer on this issue.

 

Thanks, again.

 

 

 

 

 

 

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I was just thinking here, so please don't jump all over this, but if there is something ambiguous in the By-laws, then the organization has to interpret its own By-law.  In my opinion, it has already done so, as the Board has decided that the By-law in question requires a majority vote of the nine remaining directors and not a majority of votes cast.  While a Point of Order could be made, the Board, in my humble opinion, has made a decision on its own ambiguous By-law (which perhaps should be re-written at some point to make it clear in its intention.)

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Guest James B Clayton

Rev Ed - thanks for weighing in here.

 

I absolutely concur that the ambiguous clause in our by-laws deserves consideration for amendment by the general membership according to procedures established in the by-laws

 

I also tend to agree with you that the Board, in effect, has already interpreted the ambiguous clause and applied the interpretation to the particular motion described in my Post 1.. Other responders, however, point out that it is not up to the Board to make the interpretation, but rather up to the total membership of the association to make the interpretation "from scratch."

 

Thoughts?

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Since I haven't seen it mentioned, I would note that if the chair declared the motion lost at the time, and nobody questioned that by Point of Order, then the motion is indeed lost and it's almost certainly too late to change that.

I endorse the general consensus on how to get a definitive interpretation.

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