Using appeal to change outcome of vote

[Guest TazPB]

Board consists of four members which resulted in a tie vote.  Appeal was called and the board was told that the president had to abstain from voting on the appeal. The president had been against the motion so when he abstained it caused the motion to pass.  Was this handled correctly, or if not how should this have been handled?

[Hieu H. Huynh]

What was appealed?

[George Mervosh]

An appeal applies to the chair's ruling on a point of order alleging some violation of the rules, not the fact a vote was tied.  The chair may vote on a proper appeal, yes.  It sounds like a big mess but whatever the result finally was after all of this, stands.

[Guest TazPB]

The motion resulted in a tie so a member in favor of the motion called an appeal (to the tie vote) and the president was told they couldn't vote on the appeal.  Basically the appeal was called to prevent a tie vote.  Ultimately the motion passed.  

You're correct Mr. Mervosh, a mess.

[Richard Brown]

Someone in that organization doesn't have a clue what he is talking about.  First, an "appeal" of a tie vote is not proper.  The motion fails on a tie vote.  it isn't left hanging, undecided:  it's defeated just as much as if the vote had been 1 yes, 3 no.

Second, the president does vote on an appeal.  It takes a majority to overturn the chair's decision.  A tie vote sustain's the chair's decision.  Keep in mind, though, as Mr. Mervosh pointed out, an appeal is supposed to be from a ruling of the chair on a point of order.  This appeal was improper to start with.

[Gödel Fan]

Regardless of who the someone without a clue is, what matters more is that the chair also appears not to have one.  You might try giving out those nice yellow cards the NAP produces, and giving the chair a copy of "Spotlight on You:  The President" as well as buying RONR and RONRIB for the organization.

[Guest TazPB]

Thanks for all of your comments, they've been very helpful.  I do have one follow-up question. Given that this wasn't handled correctly, could this vote be challenged in the future?  It was a HOA vote to increase annual dues (which passed because of the "appeal" to the tie vote).  All of this happened in front of the members present some of which are not happy about the increase.

[Chris Harrison]

9 minutes ago, Guest TazPB said:

Thanks for all of your comments, they've been very helpful.  I do have one follow-up question. Given that this wasn't handled correctly, could this vote be challenged in the future?  It was a HOA vote to increase annual dues (which passed because of the "appeal" to the tie vote).  All of this happened in front of the members present some of which are not happy about the increase.

A couple of thoughts:

1) Do the bylaws need to be amended in order to change the dues?  If so, were all the requirements met (proper notice and voting threshold)?

2) Do the bylaws authorize the Board to change the dues?

[Guest TazPB]

Chris, thanks for the thoughts.  The board sought legal council to ensure that proper notice was issued and that the board has the power to raise dues.  In the opinion of legal council the board has the authority to raise dues at a properly called meeting.  

I'm more concerned about someone challenging the vote because the proper rules weren't followed (tie vote at first then an erroneous "appeal" resulting in the passing and acceptance of the motion).  The advice to do an appeal was provided by the management company and acted upon by the board.  So basically the board was acting on incorrect 3rd party advice provided by the management company to call the appeal.  

So given that information, is it possible that this could be challenged by the HOA members?

[Hieu H. Huynh]

"Except in matters placed by the bylaws exclusively under the control of the board, the society's assembly can give the board instructions which it must carry out, and can rescind or amend any action of the board if it is not too late (see [Section] 35)." - RONR 11th ed., p. 483, ll. 9-13

[Josh Martin]

2 hours ago, Guest TazPB said:

Chris, thanks for the thoughts.  The board sought legal council to ensure that proper notice was issued and that the board has the power to raise dues.  In the opinion of legal council the board has the authority to raise dues at a properly called meeting.  

I'm more concerned about someone challenging the vote because the proper rules weren't followed (tie vote at first then an erroneous "appeal" resulting in the passing and acceptance of the motion).  The advice to do an appeal was provided by the management company and acted upon by the board.  So basically the board was acting on incorrect 3rd party advice provided by the management company to call the appeal.  

So given that information, is it possible that this could be challenged by the HOA members?

It seems to me that the effect of the improper Appeal was to discard the properly cast vote of a member (the chair), and said vote could (and did) affect the result. So yes, I think that this would be a continuing breach and a Point of Order would be appropriate.

[DrEntropy]

A point of order must be timely (RONR p 250-251). This means that a point of order must be raised at the time of the breach and if it is not raised at that time, the action taken is valid and it is too late to make a point of order at some future meeting.   However, if the breach of the rules is of a continuing nature, a point of order may be made at any time since any such action is null and void.  Josh is suggesting that this is a breach of this nature in that it was an action taken in violation of a rule protecting a basic right of an individual member. I agree, but there are perhaps many other facts to consider, and this will be up to your society to determine, perhaps at a special meeting called for such a purpose.  (Or a special meeting can be called to simply rescind the dues increase, if that is the desired result). 

[jstackpo]

At the next Board meeting, any board member could move to rescind (p. 305ff.) the dues increase (as long as it is not embedded in the bylaws).   The outcome of that vote might settle things (or might not...).

And then a nice Christmas gift to all the Board members would be  copies of...

RONRIB:

"Roberts Rules of Order Newly Revised In Brief", Updated Second Edition (Da Capo Press, Perseus Books Group, 2011). It is a splendid summary of all the rules you will really need in all but the most exceptional situations. And only $7.50! You can read it in an evening. Get both RONRIB and RONR (scroll down) at this link. Or in your local bookstore.

[Gödel Fan]

Also, stop taking parliamentary advice from people who don't know how to give it:  attorneys (unless they happen to also know parliamentary procedure) and management companies.

For what it's worth, I think it's rather straightforward that this is a continuing breach, as Mr. Martin said, and that a point of order is appropriate.  I don't think it's appropriate to try to rescind this action without at least trying to raise a point of order, since doing so gives an impression of propriety to an action that denied a member the right to vote.  It might be worthwhile, though, to give notice that you will move to rescind, so that, should a point of order fail, the change could be rescinded (I don't think there would be enough votes for it without notice).

[Dan Honemann]

16 hours ago, Josh Martin said:

It seems to me that the effect of the improper Appeal was to discard the properly cast vote of a member (the chair), and said vote could (and did) affect the result. So yes, I think that this would be a continuing breach and a Point of Order would be appropriate.

None of the facts as stated make any sense to me, and so I'm not at all sure what actually happened, but if a presiding officer is advised that he cannot vote on a motion, accepts this advice as being correct, does not vote, and then declares the motion adopted or rejected, I don't see how this gives rise to a continuing breach.

[Dan Honemann]

5 hours ago, Gödel Fan said:

Also, stop taking parliamentary advice from people who don't know how to give it:  attorneys (unless they happen to also know parliamentary procedure) and management companies.

Attorneys and employees of management companies are generally familiar with laws applicable to homeowner's associations (and other incorporated bodies), and are usually correct in the advice which they provide in this regard. As to offering advice concerning parliamentary law, they are, in general, no better or worse than butchers, bakers, candlestick makers, or any other group.

[Gödel Fan]

2 hours ago, Daniel H. Honemann said:

Attorneys and employees of management companies are generally familiar with laws applicable to homeowner's associations (and other incorporated bodies), and are usually correct in the advice which they provide in this regard. As to offering advice concerning parliamentary law, they are, in general, no better or worse than butchers, bakers, candlestick makers, or any other group.

Sure - and if the organization in question had asked the local butcher for parliamentary advice, then (unless that butcher happened to be familiar with parliamentary procedure) I would have advised not to, in general, ask butchers for parliamentary advice, particularly if the advice they received had been ludicrous.  I certainly agree that attorneys tend to be familiar with laws, and are a good resource for legal questions - just as parliamentarians, unless they happen to be lawyers, are not.

This does bring up a question for me, though.  Most of the legal profession, if pressed, will say they believe in some form of "living Constitution" jurisprudence.  It would be interesting if they decided that bylaws are also living, evolving documents, along with rules of order.  "Well, the bylaws say the election shall be by ballot, but that was in a different time.  No, there's no need to amend the bylaws; they live and evolve."

Since NAP and AIP strictly warn their members against the unlicensed practice of law, and even provide guidelines to avoid this, I think it would be nice if the ABA warned its members against the uncredentialed practice of parliamentary procedure.  Not against using it, of course, but against holding oneself out as an expert simply by virtue of being an attorney.

[Richard Brown]

3 hours ago, Daniel H. Honemann said:

None of the facts as stated make any sense to me, and so I'm not at all sure what actually happened, but if a presiding officer is advised that he cannot vote on a motion, accepts this advice as being correct, does not vote, and then declares the motion adopted or rejected, I don't see how this gives rise to a continuing breach.

I'm glad to see that Dan weighed in.  I agree.  As I was reading the responses that were posted after mine (the 5th post), I kept wondering how others see what happened as being a continuing breach.  Somebody gave bad advice, the board and the president mistakenly followed it, the chair failed to exercise his right to vote, nobody raised a timely point of order, and that's that:  the last vote stands.  It all appears to be a screwed up mess.  That's perhaps unfortunate, but that's the way it is,  If a majority of the board (or of the members) are opposed to the motion that was declared adopted, it can most likely be rescinded.

[Gödel Fan]

3 minutes ago, Richard Brown said:

I'm glad to see that Dan weighed in.  I agree.  As I was reading the responses that were posted after mine (the 5th post), I kept wondering how others see what happened as being a continuing breach.  Somebody gave bad advice, the board and the president mistakenly followed it, the chair failed to exercise his right to vote, nobody raised a timely point of order, and that's that:  the last vote stands.  It all appears to be a screwed up mess.  That's perhaps unfortunate, but that's the way it is,  If a majority of the board (or of the members) are opposed to the motion that was declared adopted, it can most likely be rescinded.

Raising dues impacts membership, and thus the right to vote (if those who fail to pay are put through the disciplinary process).  The dues were raised, not by an original main motion, but by an appeal of nothing in particular, by incorrectly denying a member the right to vote.  It appears to me that the size of the minority impacted by incorrectly raising dues is one, and denying even one member having such a right the right to vote on this question creates a continuing breach.  Granted, it's a bit odd that the person denying X the right to vote is, in fact, X, but that doesn't make the ruling correct, nor stop it from having continuing effect that violates the bylaws and fundamental principles.  Granted, disagreeing with an author and with Mr. Brown simultaneously makes me queasy, but at least Mr. Martin seems to agree with me.

[Josh Martin]

4 hours ago, Daniel H. Honemann said:

None of the facts as stated make any sense to me, and so I'm not at all sure what actually happened, but if a presiding officer is advised that he cannot vote on a motion, accepts this advice as being correct, does not vote, and then declares the motion adopted or rejected, I don't see how this gives rise to a continuing breach.

I agree with this completely, and I almost posted a similar response.

As I understand the facts, however, the chairman did vote on the main motion, and that vote resulted in a tie. There was then an "appeal" from the tie vote (which makes no sense), and it seems that the effect of this "appeal" was to disregard the chairman's vote on the main motion. This is what I am alleging is a continuing breach.

[Richard Brown]

58 minutes ago, Josh Martin said:

I agree with this completely, and I almost posted a similar response.

As I understand the facts, however, the chairman did vote on the main motion, and that vote resulted in a tie. There was then an "appeal" from the tie vote (which makes no sense), and it seems that the effect of this "appeal" was to disregard the chairman's vote on the main motion. This is what I am alleging is a continuing breach.

It seems to me that what happened is the the chairman CHOSE not to vote on the appeal based on bad advice.  But, bad advice or not, he CHOSE not to vote.  Nothing that has been posted says that the appeal was to disregard his first vote.   There is no indication that anyone said the president's original vote was improper.  That might have been what someone was thinking, but it is not what we have been told.  We have been told only that he was told by someone (from the management company?) that he could not vote on the appeal, which, of course, was incorrect advice but he chose to follow it.

[Gary Novosielski]

I wonder if any responses would change if the vote of a member other than the chair was the one at issue.  if the chair ruled improperly that Mr. D. could not vote, the result was affected, and Mr. D., either unaware of his rights or unwilling to physically challenge the burly tellers and force his ballot into the box, simply sat quietly and did not vote.

Would that not constitute a continuing breach?

I'm as confused as anyone by the original question.  There was a tie vote, defeating the motion.  So far, so good.  

Then there was an appeal?  Of what?  We are not told what ruling the chair made that was appealed.  Votes, and their results, cannot be appealed.  The only thing, as far as RONR is concerned, that can be appealed is decision of the chair, and there was none that we know of.  There's also confusion about whether the (apparently single) vote taken afterward was a vote on the appeal, or a vote on the previous motion that had been voted down.  

Since there appears to be no valid reason for an appeal, and no valid reason to have voted again on the main motion, and no valid reason to prevent the chair from voting on either (except that they should not have happened at all), I'm stumped.

[Josh Martin]

3 hours ago, Richard Brown said:

It seems to me that what happened is the the chairman CHOSE not to vote on the appeal based on bad advice.  But, bad advice or not, he CHOSE not to vote.  Nothing that has been posted says that the appeal was to disregard his first vote.   There is no indication that anyone said the president's original vote was improper.  That might have been what someone was thinking, but it is not what we have been told.  We have been told only that he was told by someone (from the management company?) that he could not vote on the appeal, which, of course, was incorrect advice but he chose to follow it.

The topic of this title is "Using appeal to change outcome of vote." Based on this, my understanding is that the vote on the"appeal" to the tie vote replaced the vote on the main motion. This would have the effect of disregarding the chair's vote on the main motion.

49 minutes ago, Jeepien said:

I wonder if any responses would change if the vote of a member other than the chair was the one at issue.  if the chair ruled improperly that Mr. D. could not vote, the result was affected, and Mr. D., either unaware of his rights or unwilling to physically challenge the burly tellers and force his ballot into the box, simply sat quietly and did not vote.

Would that not constitute a continuing breach?

It depends upon whether the chair did, in fact, make a ruling that the member could not vote. The fact that the chair said this does not necessarily make it a ruling, and the chair's incorrect advice has no more force or effect than anyone else's incorrect advice.

[Dan Honemann]

1 hour ago, Josh Martin said:

The topic of this title is "Using appeal to change outcome of vote." Based on this, my understanding is that the vote on the"appeal" to the tie vote replaced the vote on the main motion. This would have the effect of disregarding the chair's vote on the main motion.

It seems to have had the effect of disregarding all votes on the main motion.

[Weldon Merritt]

29 minutes ago, Daniel H. Honemann said:

It seems to have had the effect of disregarding all votes on the main motion.

I agree. There is no guarantee that everyone vioted the same way on the second vote. Granted, it there was a one-vote difference instead of a tie, it seems likely that everyone (except the chair) voted the same way, but not necessarilly. (For example, if two members, or any other even number of members, changed their votes, the result would be the same as if no one had.) What happened was appalling, but I don't see it as a continuing breach.