ByLaw Question Concerning 'Rogue' Board

[lanesharon]

Or..... maybe NOT a rogue board. 

 

I am brand new to the concept of RONR, although I am not new to HOA board policy.  I am building a home in a Texas subdivision that has some possible conflicts in ByLaw wording.  Our bylaws are posted here:

http://hlecc.org/index.php?p=1_9_By-Laws

 

Amendment wording is at the bottom.  We have a husband/wife team that have controlled the Board since they moved into the subdivision.  The election of officers includes this wording:

 

Election of a committee:

Members of the Committee will gather names to present to the Board for open positions on the Governing Committee.  The candidates will be qualified by the Governing committee.  To be qualified, a candidate must be:  paid up on all maintenance fees and other fees billable by HLE; not have any deed restriction violations and be a member in good standing.

 

Yet, also in the Bylaws, there is this wording:

  Officers shall serve for one (1) year terms.  An officer may succeed himself, but cannot serve more than three (3) consecutive terms.

 

QUESTIONS:

From what I have been reading in RONR, illegal ballots should not be counted. But, are the votes for the '3+ year' board members illegal?

Is that 3 consecutive years on the Board, OR 3 consecutive years in the same exact Board position?  Does the 'To be qualified' statement over-ride that?

 

(NOTE: This board does not allow for an 'overseer' other than existing board members when counting the ballots. And, they modified the Bylaws in 2009 to allow for postcard ballots which would preclude state law from allowing for an overseer (identity would be known).

[Hieu H. Huynh]

Votes cast for an ineligible candidate are illegal votes and are included in the count as votes cast but not credited to any candidate (see RONR 11th ed., p. 416).

 

It will ultimately be up to your organization to interpret your bylaws. Such interpretation is beyond the scope of this forum.

[Curiosulus]

Is that 3 consecutive years on the Board, OR 3 consecutive years in the same exact Board position?  Does the 'To be qualified' statement over-ride that?

 

How could an officer succeed himself except in the same office?

[Josh Martin]

Or..... maybe NOT a rogue board. 

 

I am brand new to the concept of RONR, although I am not new to HOA board policy.  I am building a home in a Texas subdivision that has some possible conflicts in ByLaw wording.  Our bylaws are posted here:

http://hlecc.org/index.php?p=1_9_By-Laws

 

Amendment wording is at the bottom.  We have a husband/wife team that have controlled the Board since they moved into the subdivision.  The election of officers includes this wording:

 

Election of a committee:

Members of the Committee will gather names to present to the Board for open positions on the Governing Committee.  The candidates will be qualified by the Governing committee.  To be qualified, a candidate must be:  paid up on all maintenance fees and other fees billable by HLE; not have any deed restriction violations and be a member in good standing.

 

Yet, also in the Bylaws, there is this wording:

  Officers shall serve for one (1) year terms.  An officer may succeed himself, but cannot serve more than three (3) consecutive terms.

 

QUESTIONS:

From what I have been reading in RONR, illegal ballots should not be counted. But, are the votes for the '3+ year' board members illegal?

Is that 3 consecutive years on the Board, OR 3 consecutive years in the same exact Board position?  Does the 'To be qualified' statement over-ride that?

 

(NOTE: This board does not allow for an 'overseer' other than existing board members when counting the ballots. And, they modified the Bylaws in 2009 to allow for postcard ballots which would preclude state law from allowing for an overseer (identity would be known).

 

Illegal ballots are counted and are included in the total number of ballots cast, but they are not credited to any particular candidate. Where did you read otherwise?

 

For your other questions, see RONR, 11th ed., pgs. 588-591 for some Principles of Interpretation. In particular, Principle of Interpretation #3 seems to make it quite clear that the general statement about eligibility does not override the specific statement regarding officers being term-limited. If, for example, the Treasurer had just served three consecutive terms, it seems quite clear to me that he would not be eligible for another term in the position of Treasurer.

 

Whether that same Treasurer would be eligible for a term as Secretary is less clear. In the long run, it would be best to amend your bylaws so that there is no question on the subject.

 

How could an officer succeed himself except in the same office?

 

He can't, but that doesn't seem to be the problematic phrase. Whether "cannot serve more than three (3) consecutive terms" refers to three consecutive terms in the same office or to three terms in any office on the board seems ambiguous to me. RONR itself suggests that "Since a reasonable rotation in office is desirable in almost all organizations, a section of this article may well provide that 'No person shall be eligible to serve . . . consecutive terms [specifying the number] in the same office.'" (RONR, 11th ed., pgs. 574-575) Since it specifically recommends including the words "in the same office," it seems to me that failing to include those words introduces ambiguity.

 

(NOTE: This board does not allow for an 'overseer' other than existing board members when counting the ballots. And, they modified the Bylaws in 2009 to allow for postcard ballots which would preclude state law from allowing for an overseer (identity would be known).

 

I am not suggesting that the board should or should not appoint an "overseer" other than existing board members when counting the ballots, but I would note that allowing for mail voting should not compromise the secrecy of the ballots if you do it right. See RONR, 11th ed., pgs. 424-425 for more information on the double-envelope method to be used for mail voting when the vote is to be secret.