Unentitled vote and status of motion

[Guest David Rowe]

Our local Ruritan club, also incorporated as a non-stock corporation in Virginia, has been below charter strength for some time.  It was decided to take a vote at our meeting last Tuesday as to whether to continue or disband the club by Sep 30, 2017.  The requisite notice of the meeting and the particular agenda item, in accordance with all rules imposed by the VA SCC, Ruritan National and our Bylaws was issued prior to the meeting.  When proving the quorum at the start of the meeting, it was discovered that one member, who had reverted to associate (non-voting) status on Jan 1, 2017 by giving notice to the secretary in writing and who had paid associate dues from that date,  was listed on the Ruritan National rolls as a full (voting) member, although he had no knowledge of a change to his status that had only occurred four days prior to the meeting and had not gone through the requisite steps in our Bylaws to revert to full member status.  The motion was made and seconded and a ballot vote, including a vote by the member whose status had been changed, was taken and by one vote the motion to dissolve the club failed.  After the meeting, the ballot slips were shredded.  In investigating the change of status of the member in question the next day, it was established that this had not been done by the member or by anyone known to our club (the person effecting this change has an identifying number that does not belong to any of our members).  An investigation as to how this occurred is being held currently at Ruritan National.
RONR is clear (page 416, lines 27-33) that if an unentitled vote is cast and that vote cannot be identified, then the ballot is null and void and a new ballot vote must be taken. I have advised our president that this is my opinion, subject to further clarification.  I would be most grateful for advice as to:
Whether my opinion is correct?
What is the current status of the motion?
As the motion included an action by date of Sep 30, 2017, I am assuming that a new vote would require either a new motion or an amendment to the original.
If the motion is still active, can the original motion, once amended be voted on without the requisite 30 days notice of a meeting to consider this being imposed?
 

[J. J.]

"RONR is clear (page 416, lines 27-33) that if an unentitled vote is cast and that vote cannot be identified, then the ballot is null and void and a new ballot vote must be taken. I have advised our president that this is my opinion, subject to further clarification "

 

Page 416, also notes if the illegal votes could not have possibly changed the result, then the result stands.

He first question is if this illegal vote effected the results. 

[J. J.]

Just now, George Mervosh said:

C'mon, JJ!

I added a few things.  The vote would have failed if it was a tie. 

[J. J.]

2 minutes ago, Richard Brown said:

JJ, perhaps you intended to say that "if the illegal votes could have possibly changed the result, then the result CANNOT stand".  Here is the quote from page 416:  "If there is evidence that any unidentifiable ballots were cast by persons not entitled to vote, and if there is any possibility that such ballots might affect the result, the entire ballot vote is null and void, and a new ballot vote must be taken. "

Corrected it. 

[Richard Brown]

Just now, J. J. said:

Corrected it. 

Yeah, I see that you did, so I deleted my post, but you were apparently already responding to it!

[Guest David Rowe]

Thank you for your comments so far.  I cannot tell who voted and in what way as it was a ballot and the ballots slips were unnamed - and subsequently destroyed.  The vote failed to reach the required 2/3 majority by one vote. So,  I'm pretty clear that the ballot is null and void - but welcome comment.  Now, if it is null and void, what is the position on the motion?  Please see my questions in toto.  I am floundering!

[Richard Brown]

David, what, exactly, was the outcome of  the vote?  What were the exact numbers? What was the vote requirement? And exactly what failed?  Was it the motion to dissolve the club?  You don't need to know how a particular person voted.  It is only important to know if the ballot cast by that member could have affected the results.  If the motion failed to achieve the two thirds threshold by one vote, then that ballot could have affected the outcome.   

[Guest David Rowe]

Richard - thanks for coming back.  The motion was to dissolve the club by 30 Sep 2017.  Seven voting members were present, including the unentitled vote.  The 2/3rds majority required an 'Aye' vote of five.  Four 'Aye' votes, one 'No' were tallied.  There were two abstentions.  The motion thus failed.  If there had been only six voting members present (i.e. excluding the unentitled member), the 2/3rd majority would have been four. So, from my perspective, it would seem that the unentitled voter did change the playing field, although I have no way of knowing how he voted.

The culprit who changed the status of the member has now been identified as our District Governor.  He claims that he was only accessing our club rolls to check on members status prior to the meeting.  You will realize that this is now becoming a very tricky situation and I do not want to put a dog into that particular fight but only to advise on the legality of the ballot vote and how to take this forward.

If you have time, I would appreciate you addressing my other questions as I believe another meeting will be required to deal with the motion that would appear, now, to be unresolved.

 

Thanking you for your consideration,

David

 

[Richard Brown]

David, what was the EXACT vote count?  The numbers.   How many yes votes were cast and how many no votes were cast.  it looks like the vote was 4 yes votes and 1 no vote, but I need to know for sure. It looks to me like the motion carried, but I need the exact numbers.  I'm not so sure that the one illegal vote could have affected the outcome.  A vote of 3 to 1 is a two thirds vote.  So is a vote of 4 to 0.  It doesn't matter which side you deduct one vote from.  The motion still had a two thirds vote, unless your rules require a vote of two thirds of the members present, rather than a regular two thirds vote.

[Gary Novosielski]

3 hours ago, Richard Brown said:

David, what was the EXACT vote count?  The numbers.   How many yes votes were cast and how many no votes were cast.  it looks like the vote was 4 yes votes and 1 no vote, but I need to know for sure. It looks to me like the motion carried, but I need the exact numbers.  I'm not so sure that the one illegal vote could have affected the outcome.  A vote of 3 to 1 is a two thirds vote.  So is a vote of 4 to 0.  It doesn't matter which side you deduct one vote from.  The motion still had a two thirds vote, unless your rules require a vote of two thirds of the members present, rather than a regular two thirds vote.

I agree with your math, but in this case, with seven present and three two abstaining, the chair incorrectly declared the motion defeated and, apparently believing 2/3 of those present to be the threshold, would have declared the motion defeated if the vote with six present were 3-1, but not if it were 4-0.   So one vote could have made the difference, but only if we count on the chair making the same error consistently.

Edited September 22, 2017 at 01:27 AM by Gary Novosielski

[Guest David Rowe]

Richard - sorry for the gap in continuity but I had to attend a meeting.  To answer your queries seven members present (including unentitled voter) four yes votes, one no, two abstentions.   Bylaws state 2/3rds majority vote of the members in quorum required to pass motion (to disband club).  So are you saying that in determining the numbers required for a 2/3rd majority, the two abstention votes are not included, i.e. the 2/3rd majority is taken from a total of five, not seven - hence your 3 to 1 vote?   That would greatly simplify matters!

 If not, does the one unentitled vote alter the 2/3rd majority number?  For example, a 2/3 majority of seven members present in quorum is five but if the number of legal voting members present dropped to six (because of an unentitled vote), then the 2/3rd figure is 4 - and would this pass the motion (I think yes)?

[Dan Honemann]

The motion which was declared to have been defeated must be considered to have been validly defeated until such time as your club's membership determines that the vote was null and void (unless your club has some rule that specifically grants another body the authority to make such a determination).

So if the questions you are asking aren't moot now, they probably will be within just a few days. 

 

[J. J.]

2 hours ago, Daniel H. Honemann said:

The motion which was declared to have been defeated must be considered to have been validly defeated until such time as your club's membership determines that the vote was null and void (unless your club has some rule that specifically grants another body the authority to make such a determination).

So if the questions you are asking aren't moot now, they probably will be within just a few days. 

 

Further, even if the assembly determines the vote was proper, the motion may be made again at the next meeting.  

[Dan Honemann]

10 minutes ago, J. J. said:

Further, even if the assembly determines the vote was proper, the motion may be made again at the next meeting.  

Maybe, maybe not.

From what Mr. Rowe has posted, it would appear that his club has a number of rules which must be complied with before a motion of this kind can be introduced.

[Richard Brown]

I agree that if the motion was declared to have been defeated, regardless of whether that ruling was correct, the motion must be considered to have been defeated.  There have been several discussions in the forum regarding how to deal with mistakes of "fact" vs mistakes of "law" vs mistakes of "math", in the announcement of vote results by the chair.   My head is still swimming from those discussions and at the moment I don't have a clue what it all means. 

We also have not answered Guest David's questions from the bottom of his first post, to-wit:

"I would be most grateful for advice as to:
Whether my opinion is correct?
What is the current status of the motion?
As the motion included an action by date of Sep 30, 2017, I am assuming that a new vote would require either a new motion or an amendment to the original.
If the motion is still active, can the original motion, once amended be voted on without the requisite 30 days notice of a meeting to consider this being imposed? "

I have a question of my own:  Guest David said this is the vote which their bylaws require:  " Bylaws state 2/3rds majority vote of the members in quorum required to pass motion (to disband club)".   Question:  Can someone tell me in plain English what on earth that means?  David, is that EXACTLY what your bylaws say?

[Dan Honemann]

1 hour ago, Richard Brown said:

I agree that if the motion was declared to have been defeated, regardless of whether that ruling was correct, the motion must be considered to have been defeated.  There have been several discussions in the forum regarding how to deal with mistakes of "fact" vs mistakes of "law" vs mistakes of "math", in the announcement of vote results by the chair.   My head is still swimming from those discussions and at the moment I don't have a clue what it all means. 

We also have not answered Guest David's questions from the bottom of his first post, to-wit:

"I would be most grateful for advice as to:
Whether my opinion is correct?
What is the current status of the motion?
As the motion included an action by date of Sep 30, 2017, I am assuming that a new vote would require either a new motion or an amendment to the original.
If the motion is still active, can the original motion, once amended be voted on without the requisite 30 days notice of a meeting to consider this being imposed? "

I have a question of my own:  Guest David said this is the vote which their bylaws require:  " Bylaws state 2/3rds majority vote of the members in quorum required to pass motion (to disband club)".   Question:  Can someone tell me in plain English what on earth that means?  David, is that EXACTLY what your bylaws say?

I thought that my initial post did answer the question with respect to the current status of the motion, and I do think that the other two are moot, or, as I said, will become moot very shortly.

[Guest David Rowe]

In haste, but to clarify the Bylaws question raised by Richard, these are in complete accord with the VA Non-Stock Corporation Act and worded ‘dissolution to be authorized shall have been approved by more than two-thirds of all the votes cast on the proposal to dissolve at a meeting at which a quorum exists.’ 

[Guest Who's Coming to Dinner]

The only possibilities with one illegal vote are 3-1 or 4-0 in favor, both of which constitute "more than two-thirds of all the votes cast." Abstentions count for nothing. Your chair was in error declaring the motion defeated and the illegal vote could not have affected the result. It is too late to raise a point of order about the matter.

[Joshua Katz]

22 hours ago, Guest David Rowe said:

Bylaws state 2/3rds majority vote of the members in quorum required to pass motion (to disband club). 

 

1 hour ago, Guest Who's Coming to Dinner said:

The only possibilities with one illegal vote are 3-1 or 4-0 in favor, both of which constitute "more than two-thirds of all the votes cast." Abstentions count for nothing. Your chair was in error declaring the motion defeated and the illegal vote could not have affected the result. It is too late to raise a point of order about the matter.

I don't know what the first statement here is supposed to mean, but I think it creates a question of bylaw interpretation as to whether or not abstentions mean anything.

[Dan Honemann]

12 hours ago, Guest David Rowe said:

In haste, but to clarify the Bylaws question raised by Richard, these are in complete accord with the VA Non-Stock Corporation Act and worded ‘dissolution to be authorized shall have been approved by more than two-thirds of all the votes cast on the proposal to dissolve at a meeting at which a quorum exists.’ 

This is an entirely different requirement than a requirement of a vote of two-thirds of the members present, which is what you have previously indicated was the vote required to approve the dissolution and the premise upon which previous responses to your questions have been based.

As a consequence, all of my previous responses posted to this thread, having been based upon an erroneous premise, should be completely ignored.

 

 

 

[Guest Who's Coming to Dinner]

9 hours ago, Joshua Katz said:

I don't know what the first statement here is supposed to mean, but I think it creates a question of bylaw interpretation as to whether or not abstentions mean anything.

The first statement is a paraphrase and indeed ambiguous. However, Mr. Rowe's actual quote from his bylaws is not.

[Dan Honemann]

54 minutes ago, Guest Who's Coming to Dinner said:

The first statement is a paraphrase and indeed ambiguous. However, Mr. Rowe's actual quote from his bylaws is not.

I think what was quoted is a part of a sentence taken from a Section of Virginia's Nonstock Corporation Act, and that Mr. Rowe probably ought to be consulting a Virginia lawyer.

[Richard Brown]

17 hours ago, Guest David Rowe said:

In haste, but to clarify the Bylaws question raised by Richard, these are in complete accord with the VA Non-Stock Corporation Act and worded ‘dissolution to be authorized shall have been approved by more than two-thirds of all the votes cast on the proposal to dissolve at a meeting at which a quorum exists.’ 

 

12 hours ago, Joshua Katz said:

I don't know what the first statement here is supposed to mean, but I think it creates a question of bylaw interpretation as to whether or not abstentions mean anything.

 

 

4 hours ago, Daniel H. Honemann said:

This is an entirely different requirement than a requirement of a vote of two-thirds of the members present, which is what you have previously indicated was the vote required to approve the dissolution and the premise upon which previous responses to your questions have been based.

As a consequence, all of my previous responses posted to this thread, having been based upon an erroneous premise, should be completely ignored.

1

 

2 hours ago, Guest Who's Coming to Dinner said:

The first statement is a paraphrase and indeed ambiguous. However, Mr. Rowe's actual quote from his bylaws is not.

 

1 hour ago, Daniel H. Honemann said:

I think what was quoted is a part of a sentence taken from a Section of Virginia's Nonstock Corporation Act, and that Mr. Rowe probably ought to be consulting a Virginia lawyer.

I think a close reading of Gust David Rowe's most recent quote of the vote requirement (in the comment I copied first in this post) makes it hard to tell whether it is from the Virginia Nonstock Corporation  Act or from his bylaws. I get the impression it is from his bylaws. (Edit: On second reading, perhaps it is from the statute. We just don't know). He isn't explicit as to where that quote came from.   Mr. Rowe has given us several conflicting statements as to the vote requirement in this thread.  This all points out the importance of quoting bylaw language PRECISELY and not paraphrasing.   We have been all over the ball park as to the vote requirement.

We still haven't answered his main question, though.  Since the chair seems to have improperly announced that the motion to dissolve the organization failed, and that announcement was apparently based on a misunderstanding as to the vote required for passage, what is the status of the motion?  Is the announcement of the chair still subject to a point of order?  Why or why not?   Must a new motion to dissolve be made at a future meeting?  What about the status of the illegal vote?  I don't see how it could have affected the outcome based on the quoted statute.

One final question:  I don't know that I've ever seen a bylaw or statute requiring "more than two thirds of all the votes cast".  I don't think it can make any difference in this case, but I would still like for Guest David Rowe to affirm whether he quoted the applicable statute (or bylaw provision) PRECISELY.

I agree that perhaps Mr. Rowe should be consulting a Virginia attorney at this point since there appears to be an applicable Virginia statute that must be complied with.

Edited September 23, 2017 at 04:09 PM by Richard Brown
Edited first paragraph, Added language underlined

[Guest Who's Coming to Dinner]

18 hours ago, Guest David Rowe said:

In haste, but to clarify the Bylaws question raised by Richard, these are in complete accord with the VA Non-Stock Corporation Act and worded ‘dissolution to be authorized shall have been approved by more than two-thirds of all the votes cast on the proposal to dissolve at a meeting at which a quorum exists.’ 

Perhaps my understanding of the English language is flawed, but the antecedent of "these" is "the Bylaws," and "these" are two things: (1) "in complete accord…" and (2) "worded…." Thus, we are given the wording of the bylaw passage in question.

I maintain that it's too late to raise a point of order regarding the mistaken announcement of the result. Nor is it possible to order a recount because the ballots have been destroyed.

[Dan Honemann]

Well, I suggest that those of you who are in doubt about where the quote comes from should take a look at Sec. 13.1 - 902 of Virginia's Nonstock Corporation Act. Doing so may also give you an idea as to what other facts may be relevant and material, and why the bylaws themselves may not be, but all of this is certainly beyond anything we want to get into here in this forum.

As noted, Mr. Rowe should be consulting a Virginia attorney.