Richard Brown

On 8/22/2024 at 8:20 AM, Guest CIX said:

If none of that happens, does the EB or it's President have an obligation to force the resignation to actually appoint the replacement earlier than planned by the office holder presumably acting for the best interest of the organization?  

No. As Mr. Martin stated above, no one can be forced to resign or to resign on a date earlier than stated in his letter of resignation and the person elected or appointed to fill the upcoming vacancy cannot take office sooner than the effective date of the resignation.

On 8/22/2024 at 7:54 AM, Anthony Fasciano said:

does a modification in the mission statement require a resolution or just a board vote

thanks

A motion and a vote  (and debate, if any) are all that is required unless your bylaws require something more, such as previous notice or a 2/3 vote.  There might be specific provisions in your bylaws or other governing documents (such as articles of incorporation) for amending something such as your mission statement.

You proceed with the nomination and election just as you would if she was going to be present. It is not necessary that a candidate be present in order to be nominated or elected. If she has consented to being nominated and said she will serve if elected, that fact should be made known to the membership.

Guest Alice, would you please post the exact language from the bylaws regarding nominations and elections? Please quote the bylaws verbatim and don’t paraphrase. We especially need the part about nominations, but the entire section on nominations and Elections would be more helpful  

Also, What do your bylaw say about the term of office? Do they specify just a fixed term, such as one year or two years, or do they also contain language to the effect that officers (or board members) continue to serve until their successors are elected?  if so, we need that exact language also. 

On 8/21/2024 at 5:55 PM, Guest CIX said:

Is a motion to name someone to fill the vacancy in-order before the actual resignation date? 

Yes. I agree with Mr. Elsman that it is in order to appoint someone to fill a vacancy before the position is actually vacant. In the situation you describe, if the resigning officer has specified a future date for the resignation to become effective, and the assembly accepts the resignation, the assembly may then proceed to Name someone to fill the vacancy to be effective on  the effective date of the resignation. That way, then newly appointed treasurer can undergo the desired training with everyone having the confidence that he will in fact, be the new treasurer on the effective date of the outgoing treasurer’s resignation. 

it is important to note that appropriate prior notice of the intent to fill the vacancy must be given before making the appointment or having the election  

I am glad to see Mr. Honemann say that nothing in RONR prohibits a member from speaking against his own motion if the motion has been amended to do something, the member does not want. Like Mr. Merritt and JJ, it is my recollection from prior discussions in this forum that the consensus has been that a member cannot speak against his own motion, regardless of whether it has been amended in a way he does not like. 

On 8/21/2024 at 9:49 AM, Rob Elsman said:

suspect there is a lot of confusion in the wild about the distinction between an agenda and the call of a meeting

That may be, but in my experience, most (perhaps all) state open meetings laws require that the actual agenda be posted in advance of the meeting. That agenda is both the order of business and the agenda, and is usually followed precisely unless the council votes to amend the agenda and take up something out of order.  Those laws also generally provide for the process to follow in amending the agenda once it has been posted. In my own state, it requires the unanimous vote of all council members present to add something to the agenda after the posting deadline.

I agree with Mr. Martin that the council’s own rules or controlling law most likely dictate how items are placed on the agenda.

I agree with Mr. Novosielski that we need more information as to who stepped down from what.  
 

However, if it was someone on the 2025 nominating committee who  stepped down, I agree with Dr. Kapur that it would normally be up to the person or body which appointed or elected the members to that committee to fill the vacancy on that committee.

On 8/21/2024 at 1:47 PM, Josh Martin said:

I don't see a problem with this statement.

On 8/21/2024 at 2:04 PM, Rob Elsman said:

I don't either. He might even announce his intention to withdraw his main motion, as amended.

I agree with both statements above.

On 8/21/2024 at 2:06 PM, Gary Novosielski said:

And since the Articles of Incorporation are superior to the bylaws, there can be no conflict.

Tomm seems to have difficulty understanding the basic concept that if a superior document (the articles of incorporation) says one thing and an inferior document (the bylaws) says something that conflicts with the superior document, you ignore what the inferior document says. Hopefully, you will amend the inferior document at some point in the future to remove the conflict, but until then you just ignore it.

Note: I’m still not conceding that there is an actual conflict in the hypothetical presented by Tomm, but for the sake of this discussion and the point being made I am assuming that there is.

On 8/21/2024 at 8:20 AM, Josh Martin said:

Assuming this is in fact correct, the organization should certainly remove the language relating to ratification from its bylaws.

I agree! That language is causing considerable confusion and uncertainty, and probably creating needless work.

On 8/20/2024 at 6:54 PM, Patriot said:

Can a member make a motion that they have no intention of passing simply to prompt debate?

A member may make a motion that he actually hopes will be defeated because he wants the assembly to go on record as not supporting whatever it was the motion was purported  to accomplish

On 8/20/2024 at 5:33 PM, Tomm said:

Respectfully, you can say that a bylaw cannot overrule a provision in the articles of incorporation, but how or who adjudicates a situation like that when both rules are on the books?

Can it only be determined by a corporate lawyer, and can the bylaw be removed without a vote of the members?

The chair rules on a point of order and then the assembly itself, usually the membership, adjudicates the issue if the ruling of the chair is appealed — as always. If the chair’s ruling is not appealed, his ruling stands.  As long as you have been around, you don’t know that process yet? 🤔

The decision of the assembly is final unless someone files suit. And generally a bylaw provision which conflicts with the articles of incorporation is ignored … if there truly is an irreconcilable conflict.  I’m not convinced there is such a conflict. 

BTW, I think you need to re-read my last one or two posts. I don’t believe you are absorbing what I said. 

 

On 8/20/2024 at 2:19 PM, Tomm said:

Hypothetical Scenario:

The Articles of Incorporation state that, a Member/Director may be elected to a maximum of two (2) three-year terms, six (6) years total, on the Board of Directors.

But the Bylaws state: An appointed Directors term does not enter into the six (6) year limit set forth in the Articles.

The Bylaws obviously contradict the Articles of Incorporation.

Question: If a motion is made at the annual membership meeting to eliminate that portion of the bylaw that does not count the time spent as an appointee but the motion failed to pass. What is the proper way to address the allowance of a Bylaw to over rule the Articles of Incorporation?

Must you wait until the infraction actually occurs before something can be done?

A bylaw provision does not and cannot supersede or overrule a provision in the articles of incorporation.  The Articles of Incorporation are superior.

However, I do not see these provisions in your hypothetical Articles and Bylaws as necessarily being in conflict.  The Artices clearly state that "a Member/Director may be elected to a maximum of two (2) three-year terms, six (6) years total, on the Board of Directors."

The bylaws state that "An appointed Directors term does not enter into the six (6) year limit set forth in the Articles.

The six year (two term) limit in the Articles applies to directors who have been ELECTED.  The bylaws refine or clarify that by stating that the term limits in the Articles do not apply to directors who are APPOINTED, rather than elected.

This is ultimately a matter of interpretation of bylaws and other governing documents, but I see how the two provisions can be read together and applied not as contradicting each other but rather as complimentary or explanatory.

No.  The member who made a motion is free to vote against it, but a member is not permitted to SPEAK against his own motion in debate.  See section 43:25 of RONR (12th ed.), quoted below:

Quote

43:25  Refraining from Speaking Against One’s Own Motion. In debate, the maker of a motion, while he can vote against it, is not allowed to speak against his own motion. He need not speak at all, but if he does he is obliged to take a favorable position. If he changes his mind while the motion he made is pending, he can, in effect, advise the assembly of this by asking permission to withdraw the motion (33: 11– 18).

On 8/19/2024 at 4:48 PM, Josh Martin said:

Your organization appears to be using the word "tabled" in the British sense of the word. In British usage, to "table" an item means to place it before the assembly for consideration. Conversely, in American usage, to "table" an item means to set it aside.

On 8/19/2024 at 4:14 PM, Guest Guest PPF said:

Decisions taken at meetings of the Executive shall be tabled at the next General Meeting for ratification or reporting purposes.

On 8/19/2024 at 7:26 PM, Joshua Katz said:

It seems to me that some are ratified, and others are just reported. I have no idea how you'd tell which is which, though.

After thinking about this some more and digesting the observations made by Josh Martin and Joshua Katz, I believe that we have likely been interpreting these bylaws improperly all along. It does appear to me that the word “tabled“ is being used in the British parliamentary sense, not in the American parliamentary sense. 

It also appears obvious now that motions  adopted by the executive committee shall be reported at the next general membership meeting, and that such actions may simply be reported and entered in the minutes or, if the membership deems it  advisable, may ratify the actions taken by the executive committee, but is not obligated to do so. I do not think that notification ratification is necessary in order for executive committee decisions to be valid and binding. 

Nonetheless, it’s still appears these bylaws need work and can use lots of clarifications!
 

On 8/19/2024 at 7:26 PM, Joshua Katz said:

Do they say that?

It seems to me that some are ratified, and others are just reported. I have no idea how you'd tell which is which, though.

You actually make a very good point. A close reading of that provision indicates it can be interpreted to mean that executive committee decisions shall be put on the agenda at the next meeting for the purpose of being either reported or ratified. That can be read to mean that it is only necessary to report the executive board decisions, but no actual need to ratify them. That is an ambiguity that really should be cleared up. 

I agree with Josh Martin and would add that since this appears to be a public body, there are quite likely state law provisions and possibly local law provisions and council rules that affect the council or board procedures and that supersede the rules in RONR. I would say you should consult with the city attorney. 

On 8/19/2024 at 5:14 PM, Atul Kapur said:

From the context, I gather that GuestAFAF means that this process was explained and, implicitly or explicitly, described or implied as the standard, usual, or "normal" way of doing this type of thing.

That may be, but I am still anxious to hear from GuestAFAF what he or she means by the term “socialized” and exactly how this one year board term came to exist.

BTW, GuestAFAF,  I realize that my comments in my post three or four posts above this one probably sounded a bit snippy. For that, I apologize. I’m was feeling frustrated in my attempt to find out just what happened and I let it show. All of us here want to help you, but we need to know exactly what is going on in order to be the most helpful. Thus, all of our questions.

Yes, if the rules in RONR are controlling, you can nominate and elect someone to office regardless of whether that person is present when nominated or when elected.  

Although it is generally considered advisable to ascertain whether someone is willing to serve if elected, it is not a requirement in RONR. If someone is elected who is not present or has not consented to serve, the election is still considered valid and binding, unless the person so elected declines to serve immediately upon being notified of the election to office.

I agree with my colleagues that many of these bylaw provisions are very strange, hard to understand and lead to problems, especially the provisions regarding ratifying decisions of the executive board.  I agree that these bylaws could benefit from some significant updating, perhaps a complete revision.

On 8/19/2024 at 3:22 PM, Guest AskingForFriend said:

The interested Membership is suffering from memory lapse on how the re-establishment of staggered terms was communicated to the Membership. Many of us believe it was printed on the ballot and explained at the election... we just don't have a copy of the ballot and we rarely keep minutes for the election meeting other than the results.  

Thank you for that additional information. However, it still does not explain to me what you mean by the term “socialized“ when you say that “Last year, it was socialized that they term of one of the positions would be for just one year…”.  

What do you mean by “socialized“? What does the word mean in the context in which you are using it?  I know what socialism is, I know what socialized medicine is, and I know what it is to “socialize” a dog to learn to behave around people and other dogs. But I do not have the any idea what you mean when you say you “socialized” this business of changing board terms.  What exactly did your group do? And most importantly, did you amend the bylaws to reflect that change? It is important for us to know whether you amended your bylaws to reflect that change.

Edited to add: if you mean you simply elected one person to serve a term of one year without regard to what the bylaws provide, then please just say so. And tell us how long this has gone on. 

On 8/19/2024 at 1:50 PM, Guest AskingForFriend said:

Last year it was socialized that the term of one of the Positions would be for just one year. A specific individual identified themselves for that single year position.

What do you mean when you say "it was SOCIALIZED" that a certain term was changed to be for just one year?  What does the word "socialized" mean in this context?  How exactly was that accomplished?  Were the bylaws amended?

I've got concerns about "swapping" terms the way you have discussed it, but let's start with what you mean when you say something was "socialized".

On 8/19/2024 at 2:18 PM, Wild Dunes said:

At an annual meeting of the homeowners, an item of business, specifically a financial matter, is voted on. The entire membership was not notified of this business item as is usually done via the mailing of the meeting information where information on the item would have been included and the business matter would have been on the agenda. Rather, the president rather casually announced the matter, recommended the way to vote, and called for a vote, but did not take an actual count (understand in a large group it could have perhaps been a vote by acclamation). There was a quorum of homeowners certified. No paperwork was seen by the membership. The agenda was not amended.

Even though there was a quorum of homeowners, does not our entire membership have to be issued information fully explaining the matter and stating there will be vote at the annual meeting?

This is not covered in our bylaws.

Except for certain specified exceptions, RONR does not require previous notice of motions at a regular meeting or annual meeting.  Any such requirement would have to be in your own bylaws or in state law governing homeowner associations.  Do your bylaws or other governing documents require such notice?

Deleted post.  Will try to re-word it and post again.