Bruce Lages

Thank you, Mr. Gerber, for answering our guests' requests. I wasn't able to respond before you did.

No - not unless the bylaws themselves allow for the suspension of those election mandates, which I suspect is highly unlikely.

Unless your bylaws specifically prohibit write-in votes, they are permitted under the rules for ballot voting in RONR (45:18, 25). It would certainly be helpful to the voting members, and would serve to remind them of their right to cast a write-in vote, to provide a place on the written ballot for write-in votes to be cast. But even in the absence of a dedicated space for write-in votes on the ballot, members still have their right to cast such a vote by writing in the name of their preferred candidate.

I had the same response to that statement about nominations received fewer than three days before the annual meeting as Dr. Kapur. It's possible that that statement is meant to apply exclusively to nominations submitted by membership petition - especially since it's included in the bylaw section describing the procedure for nomination by petition, but taken at face value, that could be interpreted as prohibiting the election of a write-in candidate.

I don't think it can, given what your Constitution seems to say - that any member can attend any meeting of the BoD. But a more definitive answer might result if you can quote the exact language in your Constitution regarding this provision. Whatever your Constitution says will take precedence over what is said in RONR.

The board may not be paralyzed. Adding to what Mr. Novosielski said, you need to look in your HOA bylaws or, preferably with the help of an attorney, into the applicable HOA statutes in your area for language regarding the terms of office for your directors. What you are looking for is wording that says directors are elected for a term of ___ years and/or until their successors are elected. If that language is present, then the answer to your question 2 is that the members with expired terms do, in fact, remain officially active, and will continue that way until you can properly elect new directors to replace them. So you well may still have 4 of your 5 board members still active. (In fact, you may have all 5 members still active if your resigning member's resignation hasn't been officially accepted yet.)

I think it is more likely than not that, because of the nature of HOAs and their legal liabilities, either your bylaws or local applicable statutes do, in fact, have the and/or language that keeps your expired-term directors in office.

I would then look again at your bylaws (as well as the applicable statutes) for their requirements for the election process. Do they require 51% of owners to be physically present at the meeting at which the election will be held? In many HOAs, elections are conducted using mail-in ballots, with a requirement for a response from a certain percentage of the owners. Just be sure you know exactly what is required for the election to be completed.

And if none of this is applicable, i.e., the and/or language doesn't apply in your case, then it will be up to the owners, or at least a dedicated group of them, to do everything possible to rally the troops to get a quorum present at the next meeting. I understand that announcing free food and drink can work wonders to get people out to a meeting!

The seconder can certainly make it known that he no longer supports the motion, but he does not have any inherent right to have that 'read into the record' (I assume by 'the record' you mean the minutes). He can request that his change of heart be recorded in the minutes of the next meeting, but that requires a majority vote, or unanimous consent, of the assembly to be granted. Removing his support will have no effect on the motion itself, his second of it, or the vote that adopted it, since those are all done deals as of now.

If he really feels strongly in opposition to that motion, he can move to rescind or amend it. The motion to rescind or amend something previously adopted requires a majority vote if previous notice of intent to make the motion is given, otherwise a 2/3 vote or a vote of a majority of the entire membership

I guess it's OK if it works for you, as long as those directors (plural? Usually only one member makes a motion) actually do make the motion at the meeting. In addition, RONR doesn't require the name of the seconder to be recorded.  But it seems like the minutes should have a lot more 'blanks' in advance of the meeting. How do you know what motions are going to be made and what their exact wording is going to be? Does your board require all motions to be submitted in writing in advance of the meeting?

Not according to the rules in RONR, but if your board wants to have these abstentions routinely recorded, it can adopt a special rule of order to do so. Adoption of a special rule of order requires previous notice and a 2/3 vote. But how big is your board? If it has more than about a dozen members regularly in attendance then your president is doing the right thing (at least in most cases). In larger assemblies the chair (I'm assuming your president chairs your board meetings) doesn't vote unless the vote is by ballot or if the chair's vote will make a difference in the outcome. If the board has about no more than about a dozen members regularly attending, the chair may vote along with every one else on all matters.

On 10/20/2022 at 6:45 PM, DrEntropy said:

RONR 12th 13:22 states that an assembly can, by majority vote, give a committee 'subsequent instructions'.   It seems that by this means you can instruct a committee to report on a motion referred to it at a time sooner than originally planned.   This seems like a loophole to get around the 2/3 vote (or majority with previous notice) requirement of discharging a committee ? Or perhaps it is not in order to  give instructions to a committee to report at the same meeting that the instructions are given?  

 

At first I didn't understand the suggested connection between giving a committee additional instructions and using that motion to discharge the committee. After all, giving the committee additional instructions just results in the committee continuing its work, but under somewhat different conditions. It is not, and was never intended to be a cheaper, majority-vote-only means of discharging the committee. But I see now that the last sentence provides the necessary clue - it implies that the committee could be discharged by giving it the additional instruction to, in effect, present its final report at this time,  thus resulting in its automatic discharge immediately afterwards.

Mr. Martin has already made it clear that a majority vote will not be sufficient here if the committee was given instructions previously to report at a different time. But regardless of the vote required, I wonder if in this scenario the chair has the ability to dispose of such a motion directly, perhaps by asking "Is the committee ready to present its final report?", and if the answer is "No, we are not", then ruling the motion not in order or dilatory.

If that is not an option for the chair, I would hope that the assembly would realize that an attempt to discharge the committee by this means would be a major imposition on, and rather disrespectful to, the committee and its members, and vote it down.

That probably depends on what happened or can still happen. It certainly would not be proper procedure if the secretary, or someone else, added this language after the minutes were already approved. But if the minutes have not yet been approved the commission can decide, by majority vote if necessary, whether to approve the minutes as written if the additional language is already included, or to remove the additional language before approval.

In looking again at Guest kristin's post, I see that she has actually asked two very different questions. In the first two sentences she asks:

On 10/17/2022 at 10:02 AM, Guest kristin said:

Does a motion need to include what was discussed in regard to that motion within that motion? For example, during a local planning commission meeting a motion was passed that stated, "There is no violation of permit 14-66." However, in the official minutes of that meeting, the motion reads, "No violation of permit 14-66. Day use is allowed and the advertising of the hall is not a violation. Use of hall when buildings are rented is not a violation."

And then she asks:

On 10/17/2022 at 10:02 AM, Guest kristin said:

Is it possible to add this wording, which was part of the planning commissioners discussion, in the official minutes of this meeting?

I will stand by my answer to the first of these questions, while Mr. Brown's response is entirely correct for the second question. I think it is clear that any additional material that is to be included in the minutes must be written in a manner which clearly distinguishes it from the exact wording of motions as adopted (or considered), and which never conveys the impression that any wording in such additional material was also included in the original motion. 

Not according to the rules in RONR. The minutes should contain the exact wording of the motion as stated by the chair prior to the vote on the motion being taken. In RONR's words: "stating the wording in which each motion was adopted or otherwise disposed of..." (48:4, 6a).  Whatever is said during discussion is not part of the motion unless any such wording is incorporated into the motion by an adopted amendment.

Actually, there should be no motion to approve the minutes. The chair asks for any corrections and after any corrections are made, either by unanimous consent or by majority vote if there is not unanimous consent, the chair declares the minutes accepted (RONR, 12th ed. 41:9-10). The only way to object to approval of the minutes is to offer a correction. In your case, each set of minutes should have been brought up for approval separately, which may be what was done.

You are correct that not attending a meeting does not preclude a member from offering corrections to the minutes of that meeting. The most obvious example of this is if the member's name is  mentioned in the minutes when the member was not present at the meeting. However, nothing in RONR requires a member to 'fully participate or fully abstain' on any issue of parliamentary procedure.

I'm not sure what you mean when you say that the board "is to nine members". Do you mean that the board is to consist of nine members, or is the board a variable size up to a maximum of nine members?  In any event, as Mr. Elsman has stated, the board can function as a board as long as a quorum of members is present at a board meeting. Under the rules in RONR, a quorum will consist of a majority of the current membership, and in your case that can be a variable number, up to a maximum of five. Your rules could provide for a different quorum number, however, and you will need to look to your quorum rule to see if the presence of five elected members satisfy that requirement.

Richard, guest sally said that "a member presented a new motion that included a change to the motion being discussed'. Although we don't know the actual wording of these motions, it seems possible that the 'new' motion could be considered as an amendment to the original.

If the new motion actually included a change in the language of the motion already under consideration, the chair should have recognized it as a motion to amend the original motion and stated it to the assembly as such. You should be aware that RONR allows a great deal of latitude in the ways that a motion to amend can alter a pending motion - including substituting an entirely different motion for the original motion, as long as it addresses the same subject as the original motion.

Also be aware that it was not proper to rescind the original motion if that motion was still under discussion and no vote had been taken on it. Only motions which already been adopted can be rescinded (RONR, 12th ed. section 35).

No, you don't have to vote on each instance separately. You can offer one amendment to replace the words 'initiate' or 'initiation' wherever they appear with 'welcome' or a similar word. Such an amendment can specify each instance where 'initiate' or initiation' appears in the bylaws, or it can state "wherever the words 'initiate' or 'initiation' appear in the bylaws". In the first case, though, you need to be certain that you have listed every instance the words you are replacing are found in the bylaws, and in both cases, you need to be certain that there is no place in the bylaws where the words you are replacing are used in some other context than referring to new members.

And, no - you cannot amend the wording in just one place in the bylaws and assume that allows the same change to be made anywhere else the same wording occurs.

An agenda item entitled "Armed Security Officer bid" certainly sounds like something that could reasonably be expected to require action of some kind. But you say "The motion was not voted on..." (my emphasis). Was there in fact a motion offered, either orally or in writing?

I think that depends on the nature of this agenda item. It would seem rather unusual to me for a specific item to be placed on the agenda if it was expected that no action would be taken on it. Topics do arise in officer and committee reports which are presented for information only, where no action is expected or required, but it's not clear if that was the case here. So, what was the nature of this item? Was it something that board members could reasonably expect something should be done about?

RONR would agree with your board that the subjects of discussion during executive session cannot be disclosed to those outside the group that was meeting, unless the group -the board in your case - agrees to release that information. I don't know what "places our current policies and procedures in the back blast" refers to specifically, but it is certainly possible that the extent of the impact on the member who is the subject of this motion may be such that it will become evident at least to other members of the organization. For example, a motion to terminate a membership would soon become known to other members when the terminated member is no longer around.

Despite the results of a motion adopted in executive session becoming known to other members, or even to non-members, however, it is the deliberations that led to the adopted motion that should remain under the secrecy imposed by executive session.

Let's take the easy part first - No, it would not be valid to initially schedule the annual meeting for a month other than September. However, it is possible for the annual meeting to be held in another month (October), and you have hinted at the way that can be done. If the meeting is scheduled for a date in September, with proper notice, then on that date if a quorum cannot be obtained, the members who do show up can set the date for an adjourned meeting, which could be in October. The motion is fix the time to which to adjourn (RONR, 12th ed. section 22) and it is one of the few actions that can be taken in the absence of a quorum.

(As an aside, the same action could be taken even if there was a quorum present - for whatever reason the assembly deems sufficient.)

As to whether a properly noticed meeting date can be changed after the notice has been given, I think it is possible to do that. Assuming that your board does have the authority to set the date for the annual meeting, it can only do that a properly called meeting of the board. If the board can properly call a board meeting for a date after the initial notice of the annual meeting has been sent, they could set a new date for the annual meeting, but if, and only if, there would still be sufficient time to satisfy the notice requirement to the membership. I wouldn't recommend that, however, except in the most extreme circumstances because it is likely to cause substantial confusion. Better to go with the adjourned meeting route.

I doubt it, but what would be the purpose of that first vote? Can you give us some more details about the situation?

Richard is right of course. I described just the 'and' condition because it was more directly applicable to the situation given, since this group doesn't seem to be able to hold an election any time soon. But I should have mentioned the 'or' condition as well. 

First, what do your bylaws say about the term of office for these offices? If they say that officers hold office for a term of 'x years and until their successors are elected' (the 'and' is the key word there), your current officers would continue to hold office until you can find eligible members or change the eligiblity requirements.

But unless this is a one-off set of very unusual circumstances, the body should move to amend its bylaws ASAP to adjust the eligibility requirements for holding office, so that under the usual and typical circumstances a reasonable number of members can always be found who fulfill those requirements. In the meantime, the group can at least hold meetings by electing a chair pro tem and a secretary pro tem for each meeting. However, those persons will only have the authority to carry out the duties of those positions with respect to meetings. If, for example, your president usually chairs your meetings a chair pro tem will not have any authority to undertake actions occurring outside of meetings that your bylaws delegate to the president. The same restriction holds for a secretary pro tem.