BOD acting as nomination committee?

[Noelgroup]

Our BOD sent out AGM notice stating "The Board of Directors acting as the nominating committee hereby presents the following slate of candidates:'

and have not allowed anyone else to put their name forward. The nominating committee was not formed or set up in the bylaws and never asked the membership for nominations. Two candidates for two director posts and anyone else is being told to attend the AGM and go forward at the nominations from the floor section. But as most members have sent in general proxies and already voted for the two named candidates (and no write in space on form), that would seem like a done deal and makes a mockery of the nominations from the floor?

North Carolina Condo Act 47C states:

103 ( 'The executive board may not act on behalf of the association to amend the

declaration (G.S. 47C-2-117), to terminate the condominium (G.S. 47C-2-118), or to

elect members of the executive board or determine the qualifications, powers and duties,

or terms of office of executive board members (G.S. 47C-3-103(e) and (f)),'

So is the BOD acting against RONR by acting as the nominating committee and can this be raised as a point of order at the AGM?

There is nothing wrong with the two candidates - it's just that other members have not been afforded the opportunity to put their names in the election and our bylaws do not state that nominations have to come through a committee, just that elections must be at the AGM in person or by proxy.

[jstackpo]

Well, somebody has to dredge up candidates.

Don't like the Board doing it? Propose amendments to the bylaws that establish, and populate, a nominating committee in a manner more to your liking.

And if you wish, make a nomination from the floor at the meeting -- the right to do so IS an RONR requirement - p. 421.

[Chris Harrison]

Well, somebody has to dredge up candidates.

Don't like the Board doing it? Propose amendments to the bylaws that establish, and populate, a nominating committee in a manner more to your liking.

And if you wish, make a nomination from the floor at the meeting -- the right to do so IS an RONR requirement - p. 421.

...I would also point out that you should not be mixing present votes with proxy votes (especially if the proxy holder doesn't have the ability to cast the proxy in favor of one of the floor nominees if they believe that the proxy giver would prefer that person over who the giver told the holder to vote for).

[Noelgroup]

...I would also point out that you should not be mixing present votes with proxy votes (especially if the proxy holder doesn't have the ability to cast the proxy in favor of one of the floor nominees if they believe that the proxy giver would prefer that person over who the giver told the holder to vote for).

Thanks Chris - from Mr Stackpole's replies I thought I wasn't explaining it right. I was trying to set out the issue I have with the proxies coming in before the AGM with votes for only two names for two places - and the fact that at the AGM (which is next week) that the quorum will be achieved through proxy and therefore most members will have 'voted' already - thereby making any nominations from the floor a paper exercise and meaningless. The general membership (approx 70) is not aware, as the BOD will not inform them, that there are other possible choices and therefore will not be able to vote for anyone other than the two candidates nominated from the BOD.

Ref Stackpole's reply - I do not have a problem with the Board nominating - they have a tough job and need all the help they can get - but it is their apparent restricting any other choices or 'new blood' coming onboard that is the problem and undemocratic.

I still don't know how to bring this up at the AGM. I understand, and accept, that nothing will change at this late stage, BUT I WOULD WELCOME any suggestions on HOW to make a point or suggest a change to ensure a more open process for next year. ANY HELP would be appreciated!!

[Chris Harrison]

First, I would suggest that you take whatever floor nominations that are offered and then move to postpone the election until an Adjourned meeting (RONR pp. 90-91, pp. 234-239) for the reasons you pointed out. In the mean time all the members would know who were nominated by the Board and from the floor and can instruct their proxy holders accordingly (or indicate who they want elected but leave it up to the holder to vote for someone else if a better nominee is later nominated from the floor). As you may have gathered there could be further floor nominations from the floor at the Adjourned Meeting but there may be a way to prevent that so stay tuned.

For the long run I would suggest the bylaws be amended to eliminate the issue of mixing absentee votes (which proxy voting is a form of) and present votes. The easiest and most simple way is to eliminate all forms of absentee voting (proxy voting, absentee ballots, voting by email, etc). If members want a say in what happens they need to go to the meetings.

[Noelgroup]

First, I would suggest that you take whatever floor nominations that are offered and then move to postpone the election until an Adjourned meeting (RONR pp. 90-91, pp. 234-239) for the reasons you pointed out. In the mean time all the members would know who were nominated by the Board and from the floor and can instruct their proxy holders accordingly (or indicate who they want elected but leave it up to the holder to vote for someone else if a better nominee is later nominated from the floor). As you may have gathered there could be further floor nominations from the floor at the Adjourned Meeting but there may be a way to prevent that so stay tuned.

For the long run I would suggest the bylaws be amended to eliminate the issue of mixing absentee votes (which proxy voting is a form of) and present votes. The easiest and most simple way is to eliminate all forms of absentee voting (proxy voting, absentee ballots, voting by email, etc). If members want a say in what happens they need to go to the meetings.

Thank you - very helpful and useful. I think I am getting to the center of this one. The Board got a legal response to our suggestion that the proxy votes made it difficult to respond to any floor nominations and the atorney said there was nothing wrong or illegal and we had no issue to bring.

I'd like to ask/beg one more question. I am going to assume that the meeting will not be adjourned - as the proxy quorum will be represented by teh Secretary and he will not want to be bothered and won't want any problems or delay. So - will moving for a postponement illuminate the issue of proxy votes not being responsive to any nominations from the floor - or is there a ruling about mixing absentee votes and present votes that I can refer to in the motion? (as well as work long term to change the bylaws to clarify the election process). Thanks again, you have really helped us clarify this one.

[Chris Harrison]

I am going to assume that the meeting will not be adjourned - as the proxy quorum will be represented by teh Secretary and he will not want to be bothered and won't want any problems or delay.

Well it is not the Secretary's decision to make. It is the Membership's decision and the Secretary is only 1 vote. Majority rules. Also, with all due respect to the Secretary if he is bothered by performing his duties he needs to get over himself or resign his office.

So - will moving for a postponement illuminate the issue of proxy votes not being responsive to any nominations from the floor - or is there a ruling about mixing absentee votes and present votes that I can refer to in the motion? (as well as work long term to change the bylaws to clarify the election process).

The motion to postpone is debatable and so you can speak to the issue in debate.

Though there is no hard and fast rule RONR in its wisdom says on page 409:

An organization should never adopt a bylaw permitting a question to be decided by a voting procedure in which the votes of persons who attend a meeting are counted together with ballots mailed in by absentees. The votes of those present could be affected by debate, by amendments, and perhaps by the need for repeated balloting, while those absent would be unable to adjust their votes to reflect these factors. Consequently, the absentee ballots would in most cases be on a somewhat different question than that on which those present were voting, leading to confusion, unfairness, and inaccuracy in determining the result.

Even though absentee ballots are mentioned the concept is still the same for any form of absentee voting since the absent member cannot make an informed decision on what or who to vote for when the question at the meeting has been changed from the one he originally voted on.

[Noelgroup]

Well it is not the Secretary's decision to make. It is the Membership's decision and the Secretary is only 1 vote. Majority rules. Also, with all due respect to the Secretary if he is bothered by performing his duties he needs to get over himself or resign his office.

The motion to postpone is debatable and so you can speak to the issue in debate.

Though there is no hard and fast rule RONR in its wisdom says on page 409:

Even though absentee ballots are mentioned the concept is still the same for any form of absentee voting since the absent member cannot make an informed decision on what or who to vote for when the question at the meeting has been changed from the one he originally voted on.

Thanks for the quote - useful.

I mentioned the Secretary as HE will be holding the general proxies for the absent members and I am guessing they will number 30 or more. Therefore he will be very instrumental in any vote to postpone.... and has been aloof and not willing to discuss any of it and only talks through the managing agents. So far at least!

[Noelgroup]

Well, somebody has to dredge up candidates.

Don't like the Board doing it? Propose amendments to the bylaws that establish, and populate, a nominating committee in a manner more to your liking.

And if you wish, make a nomination from the floor at the meeting -- the right to do so IS an RONR requirement - p. 421.

Ok JD - but what about the fact that the majority of the members will not attend and will send in their vote by proxy ( and a general proxy given to the Secretary) - and therefore will not even know that a nomination has come from the floor? How is that election vote fair and according to rules?

[Chris Harrison]

I mentioned the Secretary as HE will be holding the general proxies for the absent members

Yeah, that could be a problem. I don't know if this is even possible (because RONR goes into little detail about proxy voting so you will need to do some research) but I wonder if it is possible to let the proxy givers know of the situation and urge them to 1) withdraw their proxies altogether so you will have enough votes at the meeting to postpone the election, or 2) make someone else the proxy holder who would vote to postpone the election (you will need to look to the bylaws and/or applicable law to see if this is possible), or 3) instruct the proxy holder to vote in favor of a motion to postpone the election.

[Josh Martin]

Even though absentee ballots are mentioned the concept is still the same for any form of absentee voting since the absent member cannot make an informed decision on what or who to vote for when the question at the meeting has been changed from the one he originally voted on.

Well, I believe the concerns on RONR, 10th ed., pg. 409 only apply to proxy voting in the case of directed proxies. The admonitions on that page are primarily directed towards combining absentee ballots and votes at a meeting.

The harsh words about proxy voting are found in RONR, 10th ed., pgs. 414-415.

[jstackpo]

Ok JD - but what about the fact that the majority of the members will not attend and will send in their vote by proxy ( and a general proxy given to the Secretary) - and therefore will not even know that a nomination has come from the floor? How is that election vote fair and according to rules?

Getting a little hard nosed about this: Those are your (association) rules; until they are changed you are stick with them. Tough cookies. RONR doesn't deal with "fairness", just rules of procedure. The RONR rules happen to be "fair" but that is just an emergent property; your rules evidently don't have that property.

[Noelgroup]

Getting a little hard nosed about this: Those are your (association) rules; until they are changed you are stick with them. Tough cookies. RONR doesn't deal with "fairness", just rules of procedure. The RONR rules happen to be "fair" but that is just an emergent property; your rules evidently don't have that property.

Thanks JD - no problem with being hard-nosed - you are setting it out as it is. This Condo Assoc bylaws are a little 'thin' on proceedure and have plenty of scope for improvement. In your parting shot - could you advise on the best way - at the AGM - to bring up the issue and set the scene for improvement and discussion at a later date? I have no doubt that due to the lack of attendees that a motion to postpone would not be approved - but would this be the best way to raise the awareness of the problem? Thank you for your advice!