Vote on a supposed "invalid" motion - now what?

[Guest Margie]

This question refers to a vote of owners of a condominium. The president of the Board of Managers was at the end of a three-year term of office and the following motion was made and voted per the Minutes: " ... XX (the president) has reached the end of ... three-year term. It was moved by X1, seconded by X2, ... , XX remain on the Board for this year. The motion was unanimously approved by owners." Note: the Minutes have been distributed, but have not yet been approved.

Now, almost a month later, an owner, who is also the spouse of XX, (and who was present at the time of vote) wants this motion challenged on the grounds that our by-laws state that a term of office should be three years and therefore, XX should now have another three year term, not simply one year. The initial intent of the motion was that XX remain "this year" as stated ... not another full three-year term.

The challenger also wants the Board of Managers to "determine" this decision immediately. If a correction is needed, and since it was on a motion voted by owners, wouldn't the change also require a different motion and owner vote? For the

Board to change the vote from a one-year term extension to a new three-year term seems inappropriate to me (and I am one of three members on this Board).

Does past precedent play any roll in this? Since 2006, four other Board members have extended their terms by one year to serve a total of four years. No one complained at that time and the owner who is challenging this vote now was part of the owner group in years past.

Thanks for any and all input on what to do next with this one ... obviously, I need help.

[Guest Edgar]

Does past precedent play any roll in this? Since 2006, four other Board members have extended their terms by one year to serve a total of four years. No one complained at that time and the owner who is challenging this vote now was part of the owner group in years past.

Whatever happened to holding the elections I assume your bylaws require?

[TrevorSorensen]

This question refers to a vote of owners of a condominium. The president of the Board of Managers was at the end of a three-year term of office and the following motion was made and voted per the Minutes: " ... XX (the president) has reached the end of ... three-year term. It was moved by X1, seconded by X2, ... , XX remain on the Board for this year. The motion was unanimously approved by owners."

Does past precedent play any roll in this? Since 2006, four other Board members have extended their terms by one year to serve a total of four years.

If there is a provision in the bylaws that states board members may serve a three year term, and there is no provision about serving the extra year, then the extension of one year violates the bylaws and is null and void no matter past precedent. The bylaws are the highest document for the society (excluding local, state, federal law and the corporate charter). RONR 11th edition states that all main motions in conflict with the bylaws are out of order (p 111 lines 4-10) and any motion adopted by the assembly in conflict with the bylaws is null and void automatically (p 343 14-17). Thefore, the adoption of the motion to allow a board member to serve an extra year let alone three is null and void unless it is accepted in the bylaws and if allowed, follows the correct election procedure.

If board members would like to serve four years instead of three, then they need to follow the process prescribed in your bylaws to amend them to change the provision from three years to four. Otherwise, they are violating the bylaws by serving the extra year.

The other commentors will have more information that what I present, but if your situation is as straightforward as you are portraying it to be, then this should at least help.

[Tim Wynn]

The bylaws are the highest document for the society (excluding local, state, federal law and the corporate charter).

There may very well be another document in the mix, since this is a condominium.

RONR 11th edition states that all main motions in conflict with the bylaws are out of order (p 111 lines 4-10) and any motion adopted by the assembly in conflict with the bylaws is null and void automatically (p 343 14-17).

Nice work.

If board members would like to serve four years instead of three, then they need to follow the process prescribed in your bylaws to amend them to change the provision from three years to four. Otherwise, they are violating the bylaws by serving the extra year.

This is not necessarily true. Even if the motion for the extra year is null and void, the officer in question may still be rightfully in office.

[Guest Margie]

OK ... if the motion is null and void, does that mean that the person is no longer in office? Or, how can they be rightfully in office as someone else wrote? And, if they are in office ... for one or three years? The motion stated "this year," which would indicate one year, however terms of office per the bylaws are three years.

I appreciate the questions regarding why elections are not held as the bylaws state ... probably because it is difficult to find willing bodies to serve and if someone is willing to stay in office longer, everyone is more than happy to oblige them.

[TrevorSorensen]

This is not necessarily true. Even if the motion for the extra year is null and void, the officer in question may still be rightfully in office.

Could you explain? I am not connecting the dots in my mind. Would it be if the election procedure was followed correctly?

[TrevorSorensen]

I appreciate the questions regarding why elections are not held as the bylaws state ... probably because it is difficult to find willing bodies to serve and if someone is willing to stay in office longer, everyone is more than happy to oblige them.

Being around a small non-profit organization we have the same problem. That is where the amendment of the bylaws may be in the best interest if they are willing to serve only that one extra year.

Or you could even implement an amendment stating the term is three years, but upon approval of the owners (or current appointing power) board members may serve for up to one addition year if approved by a ballot vote. (or something close to this)

(Tim, I would wonder what you would think of that. It may be difficult to implement, but would it be valid and hold up?)

[Tim Wynn]

Could you explain? I am not connecting the dots in my mind. Would it be if the election procedure was followed correctly?

If the bylaws say that the officers serve for three years or until their successors are elected, an invalid election would not remove them from office, and they would continue to serve under the "until their successors are elected" clause.

[Tim Wynn]

Being around a small non-profit organization we have the same problem. That is where the amendment of the bylaws may be in the best interest if they are willing to serve only that one extra year.

Or you could even implement an amendment stating the term is three years, but upon approval of the owners (or current appointing power) board members may serve for up to one addition year if approved by a ballot vote. (or something close to this)

(Tim, I would wonder what you would think of that. It may be difficult to implement, but would it be valid and hold up?)

I wouldn't recommend it, but it would be valid if it were properly adopted as a bylaw amendment.

[TrevorSorensen]

I wouldn't recommend it, but it would be valid if it were properly adopted as a bylaw amendment.

Just something to consider. I see it being very difficult to implement.

[TrevorSorensen]

If the bylaws say that the officers serve for three years or until their successors are elected, an invalid election would not remove them from office, and they would continue to serve under the "until their successors are elected" clause.

However, would the organization be violating the bylaws if they didn't hold an election for the position?

[Guest Edgar]

I appreciate the questions regarding why elections are not held as the bylaws state ... probably because it is difficult to find willing bodies to serve and if someone is willing to stay in office longer, everyone is more than happy to oblige them.

Then properly re-elect the incumbents who are willing to remain in office.

[Tim Wynn]

However, would the organization be violating the bylaws if they didn't hold an election for the position?

Yes, if the organization didn't do what the bylaws instruct it to do.