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NancySkiff

Ballot Vote said to be only Informational

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Happy New Year!  For the HOA Annual General Meeting our Board of Directors mailed the membership paint chip colors, architects renderings of the colors, and included ballots to select the paint color.  It was also an agenda item.  The membership voted their ballots, absentee votes were counted and the votes were announced at the meeting with one color overwhelming in the majority.  The results of the vote were included in the minutes.  Two months later a Board member at a Board meeting made a motion to change the paint color.  When I questioned whether the Board could override a ballot vote by the owners, I was told that it was announced at the meeting that the vote would be only informational.  I do not recall that statement being made and it wasn't stated in the minutes.  Since we had votes that were mailed-in, the absentee owners would not have heard that announcement.  

I believe it was an improper motion for the Board to change the owner's vote.  Is there any case where a ballot vote can only be informational?  To me an "informational" vote is reserved for a show of hands.

Many thanks and I really appreciate your responses.

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As a general matter, straw polls are out of order, whether by raised hands or ballot, but that rule can be suspended, and, besides, if the vote was in fact said to "informal," the ship sailed on that question long ago.  There are a couple questions I would ask here.  First, just who is said to have "announced" this?  Remember, the board is not present at the meeting as a board.  Presumably, the adopted agenda of that meeting still exists - what does it say?  If it says "Determination of color" and, when that vote was about to take place, some board member jumped up and said "it's only informational!" that has about as much validity as me having said it, by accident, simultaneously, from the privacy of my bedroom while your meeting was taking place - that is, none.  If the chair said "it is the ruling of the chair that the following vote shall be informational only" and no one objected, well, that's an interesting question for my betters.

Next there's the factual question - what actually happened at the meeting?  Certainly we can't be of much help there (even my betters here won't know that).

Finally, unless your bylaws give unusually broad authority to the board, the board can't resolve this issue if members believe that they cast a binding vote.  It's not up to the board to determine what happened at the meeting, but rather to the general membership. 

Finally, I note that the board member moved to "change" the paint color.  If this board member doesn't believe the general membership meeting determined the color, why is she making a motion that (apparently) is to Rescind or Amend Something Previously Adopted?

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2 minutes ago, Daniel H. Honemann said:

My guess is that this "determination of color" is something which the governing documents of this HOA (or applicable law) place exclusively within the control of the Board, and if so, all's well. 

How does that make all well?  Even if the bylaws give the board the authority to determine the color, isn't the assembly permitted to remove the matter from the board's hand, or give the board directions, which it seemingly has done in this case?  Applicable laws, of course, are a different matter.

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7 minutes ago, Gödel Fan said:

  Even if the bylaws give the board the authority to determine the color, isn't the assembly permitted to remove the matter from the board's hand, or give the board directions, which it seemingly has done in this case?  

No, the membership cannot do either of these things if, as I said, this is something which the governing documents of this HOA place exclusively within the control of the Board.

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Thank you so much your time on this holiday.  To answer your questions.  

1. Supposedly, it was the President of the Board who made the announcement during the meeting.

2. The board member didn't like the color selected by the membership, she wanted a blue-gray color and made the motion to change the color at a Board meeting two months later.  The board voted to adopt her motion over my protests.

This is from an email sent by the Board Secretary regarding our Annual Meeting.  It says nothing about the vote being informational.

You will see that we will be voting on both the building color and uniform entryway design. The Board has selected 4 colors to be voted upon. A swatch of each color is in the packet sent by USPS. For those of you anxious to look at the colors, here is a link to each: 
Sabre Gray http://www.benjaminmoore.com/en-us/paint-color/sabregray
Oatbran Tan http://m.valsparpaint.com/color-chip.php?id=2505&g=1017&r=lowes
Sage Green http://m.valsparpaint.com/paint-chip.php?cnum=6006-5B&id=2517
Monsoon Blue http://www.myperfectcolor.com/en/color/61179_Pratt--Lambert-1284-Monsoon#prettyPhoto/0/

This is from the cover letter sent to the members.  It says nothing about the vote being informational.

At the AGM we will be asking for your vote to determine the basic color for the buildings (of course, we need to figure out how to pay for it.)  I have enclosed four color swatches for your consideration.  In order to avoid confusion, we are not enclosing all the companion trim colors, etc.  These building colors will be presented for viewing at the AGM.  But, for those of that want some time to think over the choices, or to notify in advance your designee you've appointed pursuant to your proxy, here they are 1. a Gray color (slightly darker than our present color); 2. a Nautical Blue color; 3. a Sage Green color and 4. Tan Oak color.

This is from the adopted agenda for the Annual Meeting.  Again, it says nothing about the vote being informational.

8.  New Business:

c.  Vote on Building Color

This is from the minutes of the Annual meeting.  The result of the vote was announced at the meeting.  It says nothing about the vote being informational.

Building Color & Entryway Design: Owners had been provided with 4 paint colors and estimated painting costs
to consider for the buildings (Sabre Gray, Oatbran Tan, Sable Green and Nautical Blue). In addition they were
presented with photos and renders of the various entryway designs and options (and costs) since we have at
least 4 differing looks at present. Each owner was presented a ballot to use to vote for his or her choices.


The ballots were collected and the tabulation of those votes was as follows:
Color:
Gray 29 Votes
Tan 16 votes
Green 3 votes
Nautical Blue 1 vote
Light blue/gray 1 vote
Same Color 1 vote

 

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1 hour ago, Daniel H. Honemann said:

No, the membership cannot do either of these things if, as I said, this is something which the governing documents of this HOA place exclusively within the control of the Board.

In response to Daniel Honemann.  Our HOA governing documents do not place this within the control of the Board.  If it did, then why even ask for the vote?  When is a vote of the membership valid?  We asked for their vote. They voted.  We then say "never mind" we don't like the way you voted.  I contend that the motion to change the owners vote, once solicited, recorded, and announced is an improper motion.

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37 minutes ago, NancySkiff said:

In response to Daniel Honemann.  Our HOA governing documents do not place this within the control of the Board.  If it did, then why even ask for the vote?  When is a vote of the membership valid?  We asked for their vote. They voted.  We then say "never mind" we don't like the way you voted.  I contend that the motion to change the owners vote, once solicited, recorded, and announced is an improper motion.

If that is the case, I would agree with you.

 

And it's great to see so much activity in this forum on the first day of the new year!

Edited by Hieu H. Huynh
added commentary

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In the general default case, the board would have no power to overrule a decision made by the membership.  

However, as Dan H. pointed out, it is common in HOA settings for such matters to be placed exclusively in the power of the board.  If that were the case, the board could not properly delegate that power to the membership, and the vote would have to be treated as advisory in nature.

We have no way of knowing, without undertaking a complete review of your founding documents, which of these is definitely the case in your organization.

And none of us, I'd wager, wish to be such undertakers.

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Guest Nancy N. (no relative)
20 hours ago, Hieu H. Huynh said:

If that is the case, I would agree with you.

And it's great to see so much activity in this forum on the first day of the new year!

I would agree also, and probably also would Mr. Honemann, since that way he'll get to be right again.

It's great to see how many of us have nothing else to do on New Year's Day, or it's great to see how many of us think this is more fun than anything else they can come up with?

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Guest Nancy N. (no relative)
On 1/1/2016 at 1:17 PM, NancySkiff said:

In response to Daniel Honemann.  Our HOA governing documents do not place this within the control of the Board. ....

Nancy Skiff, meaning no disrespect, but Mr. Honemann's (the "H" stands for Hortimer, rhymes with Mortimer; I was going to say "hematode," rhymes with Nematode, but that's disgusting) guesses (he usually calls them "surmises," 'cause look at him, he's in a suit and tie on New Year's Day, and of all things, without an ice bag on his head, unlike me) are often more spot-on than other people's certainties.  So please, have you really scrupulously, thoroughly examined all the COA's governing documents, including all applicable law?

Edited by Shmuel Gerber
Edited to remove fluffiness

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