Election Nomination

[RobertJ]

I'm looking for clarification regarding a Homeowners Association (HOA) election.  Consider the following hypothetical situation:

An HOA has adopted election rules for election to the HOA Board of Directors. The election is held at the HOA's Annual Meeting.  The election rules state that HOA members (homeowners) in good standing can be nominated for election to the HOA Board by submitting a "Declaration of Candidacy" form to the HOA's Management company 40 days before the Annual Meeting, or can be nominated from the floor at the Annual Meeting prior to the close of balloting.  Five homeowners submit a declaration of candidacy form 40 days prior to the election for the 7 open HOA Board positions. So there are two Board Member positions that could be filled by nomination at the Annual Meeting. Homeowner A is nominated at the Annual Meeting my Homeowner B and receives 1 vote. The five Homeowners who submitted a declaration of candidacy form all receive more than 30 votes.  No other Homeowners receive any votes.  Homeowner A is not present at the Annual Meeting and has not communicated to anyone that he/she is willing to accept a nomination.

The HOA's Annual Meeting is governed by Robert's Rules of Order per State law. The HOA's bylaws do not contain any content with regard to nomination procedures.

Has Homeowner A been elected to the HOA Board at the Annual Meeting?

[Hieu H. Huynh]

Did Homeowner A receive enough votes?

[RobertJ]

Yes, per the election rules a Homeowner must receive at least 1 vote to be elected.

[jstackpo]

Without access to your bylaws and your adopted election rules, I can't say for sure.

But presuming your description captures the relevant details (and there is nothing left out, like state law provisions) I'd say sure, A was elected.  Unanimously, at that.  And you still have an incomplete election since the 7th position was not filled.

When you tell A of his good fortune, he will be free to decline the office, if he/she does then you will be back to two positions yet to be filled.

[RobertJ]

Thank you, Hieu and jstackpo for your replies.

When the election has been completed any open positions could be filled by vote of the existing HOA Board. 

I'm wondering if there are any RONR references regarding being elected subject to acceptance of a nomination before, during or after the ballots are counted.

 

[jstackpo]

Acceptance, and the option to decline:  page 444, RONR.

The unfilled positions are NOT "vacancies" in the sense of someone resigning from a position to which he was elected.  Incomplete elections (same RONR page) should be filled (eventually) by your regular nomination and election process.  But check your rules for something that supersedes RONR. Good luck!

[Richard Brown]

2 hours ago, RobertJ said:

. . . Has Homeowner A been elected to the HOA Board at the Annual Meeting?

There is a lot we don't know about what the bylaws say regarding elections, but, based on what we have been told, I agree that homeowner A has been elected, provided he does not decline.

I also agree with Dr. Stackpole that what you have Is not a vacancy but rather an incomplete election which should be completed as soon as possible.

[RobertJ]

Thank you all for your responses. 

In regards to this HOA, per the HOA's bylaws if all Board positions would not be filled due to lack of members volunteering to fill them, one or more vacancies would be created and any vacancies could then be filled by the soon to be elected Board. As I understand it per these bylaws and RONR that the election would be then completed when Homeowner A either accepted the nomination and was thus elected or declined the nomination.  If Homeowner A accepted then there would be six elected Board Members and one vacancy.  If Homeowner A did not accept the nomination then there would be five elected Board Members and two vacancies.

This HOA's bylaws state with regard to the HOA Board : "A vacancy shall be deemed to exist ... in the case where the Members of the Association fail at any time to elect the full number of authorized Directors."  The bylaws also state that vacancies on the Board can be filled by vote of the existing HOA Board.

I understand that these bylaws would take precedence over RONR 11th ed., p. 444, lines 16-27 which state that the election would be incomplete and another vote be taken.  

[Richard Brown]

1 hour ago, RobertJ said:

Thank you all for your responses. 

In regards to this HOA, per the HOA's bylaws if all Board positions would not be filled due to lack of members volunteering to fill them, one or more vacancies would be created and any vacancies could then be filled by the soon to be elected Board. As I understand it per these bylaws and RONR that the election would be then completed when Homeowner A either accepted the nomination and was thus elected or declined the nomination.  If Homeowner A accepted then there would be six elected Board Members and one vacancy.  If Homeowner A did not accept the nomination then there would be five elected Board Members and two vacancies.

This HOA's bylaws state with regard to the HOA Board : "A vacancy shall be deemed to exist ... in the case where the Members of the Association fail at any time to elect the full number of authorized Directors."  The bylaws also state that vacancies on the Board can be filled by vote of the existing HOA Board.

I understand that these bylaws would take precedence over RONR 11th ed., p. 444, lines 16-27 which state that the election would be incomplete and another vote be taken.  

Based on the additional bylaw provision that you posted regarding elections and vacancies, I agree that you appear to have one vacancy on the board, assuming Homeowner A accepts his election.  If he doesn't, you will have two vacancies.

[RobertJ]

Thank you all for your responses.  This election is actually now in process. The hypothetical situation I posed may or may not come to pass as I described it.  Once the votes of a quorum of Homeowners is received and the votes are counted, it would be up to the  Inspectors of Election appointed by the current HOA Board to decide based on their knowledge of the HOA's bylaws, RONR and State law what will be the outcome.

[Shmuel Gerber]

On 1/28/2017 at 5:39 PM, RobertJ said:

Five homeowners submit a declaration of candidacy form 40 days prior to the election for the 7 open HOA Board positions. So there are two Board Member positions that could be filled by nomination at the Annual Meeting.

Actually, there would be seven board-member positions that could be filled by persons nominated at the annual meeting, but at least two of them *must* be filled by such persons (if they are to be filled at the meeting at all).

On 1/28/2017 at 5:39 PM, RobertJ said:

Homeowner A is nominated at the Annual Meeting my Homeowner B and receives 1 vote. The five Homeowners who submitted a declaration of candidacy form all receive more than 30 votes.  No other Homeowners receive any votes.  . . .

Has Homeowner A been elected to the HOA Board at the Annual Meeting?

According to RONR, a majority vote is required to elect. So the answer will depend on whether the seven positions on the board are differentiated in some way, with voters choosing a name for each specific position, or they are considered identical positions, with voters merely listing or choosing up to seven names for the board.

If the latter, then since it is obvious that at least 30 ballots have been cast, Homeowner A did not receive the required majority. What should happen then is that all candidates who did receive a majority should be declared elected, and another round of balloting should take place to complete the election.

[RobertJ]

Thank you Shmuel for your reply.

Per State Law the HOA has adopted election rules which state:

"A candidate that receives a nomination must also receive at least one vote to be elected, regardless of the number of candidates or the number of positions to be filled."

The seven positions are not differentiated in any way.  Once elected, the Board Members choose which Board Member would fill each position (President, Vice President, Treasurer, Secretary, Board Member at Large).

So if there are only seven candidates that are nominated, a candidate would be elected with one or more votes.

[Shmuel Gerber]

1 minute ago, RobertJ said:

Thank you Shmuel for your reply.

Per State Law the HOA has adopted election rules which state:

"A candidate that receives a nomination must also receive at least one vote to be elected, regardless of the number of candidates or the number of positions to be filled."

The seven positions are not differentiated in any way.  Once elected, the Board Members choose which Board Member would fill each position (President, Vice President, Treasurer, Secretary, Board Member at Large).

So if there are only seven candidates that are nominated, a candidate would be elected with one or more votes.

A rule stating that a nominee must receive at least one vote to be elected obviously does not mean that every candidate with at least one vote is automatically elected. The standard for election in Robert's Rules is a majority vote -- more specifically: "In an election of members of a board or committee in which votes are cast in one section of the ballot for multiple positions on the board or committee, every ballot with a vote for one or more candidates is counted as one vote cast, and a candidate must receive a majority of the total of such votes to be elected. In such a case, if more than the prescribed number receive a majority vote, the places are filled by the proper number receiving the largest number of votes. If less than the proper number receive a majority vote, those who do have a majority are elected, and all others remain as candidates for the necessary repeated balloting." (RONR, 11th ed., p. 441).

[RobertJ]

Per the HOA's Bylaws:

 "A vacancy shall be deemed to exist ... in the case where the Members of the Association fail at any time to elect the full number of authorized Directors." 

I cited this in an earlier post. So there would be no repeated balloting since the HOA's Bylaws take precedence over RONR.

Also, it's my understanding that State law would take precedence over RONR.  State Law requires an HOA to adopt election rules so I would think that the election rules adopted by an HOA per state law would take precedence over RONR.

 

 

[Dan Honemann]

On ‎2‎/‎5‎/‎2017 at 2:52 AM, RobertJ said:

Thank you all for your responses.  This election is actually now in process. The hypothetical situation I posed may or may not come to pass as I described it.  Once the votes of a quorum of Homeowners is received and the votes are counted, it would be up to the  Inspectors of Election appointed by the current HOA Board to decide based on their knowledge of the HOA's bylaws, RONR and State law what will be the outcome.

This is a part of all of this that I don't understand.

In your initial post, you say that the election of directors is held at your HOA's Annual Meeting, and that nominations for positions on the board can be made from the floor at the Annual Meeting.

Are you saying that, when you posted what I have quoted above, your Annual Meeting was, in fact in progress? If so, I don't understand exactly what is meant by your statement that, "Once the votes of a quorum of Homeowners is received and the votes are counted, it would be up to the  Inspectors of Election appointed by the current HOA Board to decide based on their knowledge of the HOA's bylaws, RONR and State law what will be the outcome."

As previously noted, the question you originally asked is answered by what is said in RONR (11th ed.) on page 444, lines 18-27, but it appears as if virtually everything else in connection with these elections is governed by your own rules, and not those in RONR.

 

[Shmuel Gerber]

12 hours ago, RobertJ said:

Per the HOA's Bylaws:

 "A vacancy shall be deemed to exist ... in the case where the Members of the Association fail at any time to elect the full number of authorized Directors." 

I cited this in an earlier post. So there would be no repeated balloting since the HOA's Bylaws take precedence over RONR.

Also, it's my understanding that State law would take precedence over RONR.  State Law requires an HOA to adopt election rules so I would think that the election rules adopted by an HOA per state law would take precedence over RONR.

Of course the HOA election rules, if properly adopted, would take precedence over RONR. However, you haven't quoted any rules that lead me to believe -- or at least nothing that definitely says -- that board members may be elected by less than a majority vote. And I would hardly call it a "failure" of the members to elect the full number of authorized directors if you don't hand them ballots at the meeting when RONR says you're supposed to, such as when repeated balloting at the meeting is necessary in order to determine the majority.

6 hours ago, Daniel H. Honemann said:

As previously noted, the question you originally asked is answered by what is said in RONR (11th ed.) on page 444, lines 18-27, but it appears as if virtually everything else in connection with these elections is governed by your own rules, and not those in RONR.

But that passage, which I suspect RobertJ has not yet read for himself, says nothing about how to determine the winners in an election to a board with multiple identical seats. There is no exception in RONR for the situation where the number of candidates on the ballot (or the number of candidates for whom votes have been cast) is not more than the number of positions to be filled, but jstackpo and Richard Brown and RobertJ seem to be treating the case as though there is such an exception.

[Dan Honemann]

My best guess is that Robert J. will eventually disclose that the bylaws provide for election by plurality vote, and that a ballot vote is required even if the number of nominees is the same as, or less than, the number of board positions to be filled.

[Bruce Lages]

44 minutes ago, Daniel H. Honemann said:

My best guess is that Robert J. will eventually disclose that the bylaws provide for election by plurality vote, and that a ballot vote is required even if the number of nominees is the same as, or less than, the number of board positions to be filled.

The last part of your statement is what I believe Robert J's organization's election rule that a nominee must receive at least one vote to be elected is meant to ensure, i.e., no election by acclamation allowed.

[Dan Honemann]

3 minutes ago, Bruce Lages said:

The last part of your statement is what I believe Robert J's organization's election rule that a nominee must receive at least one vote to be elected is meant to ensure, i.e., no election by acclamation allowed.

Yes, that makes a lot of sense to me,

Thank you.

[Gary Novosielski]

14 hours ago, RobertJ said:

Thank you Shmuel for your reply.

Per State Law the HOA has adopted election rules which state:

"A candidate that receives a nomination must also receive at least one vote to be elected, regardless of the number of candidates or the number of positions to be filled."

The seven positions are not differentiated in any way.  Once elected, the Board Members choose which Board Member would fill each position (President, Vice President, Treasurer, Secretary, Board Member at Large).

So if there are only seven candidates that are nominated, a candidate would be elected with one or more votes.

No, a candidate would still need a majority of the ballots cast unless you have a rule allowing election by a plurality.   

[RobertJ]

Yes, I've read RONR, 11th ed., p. 444, lines 18-27 and I understand that per RONR that a person who is nominated for election and receives votes but has not communicated whether or not he/she would accept such nomination would have an opportunity to decline or accept such nomination after the votes are counted.  I don't know that this aspect of nomination is delineated in state law, the HOA's bylaws or the HOA's election rules so I would think that RONR would apply in this situation. 

State law requires a "double envelope secret ballot process" and requires that the votes be counted.

The HOA's bylaws allow each member to vote for 7 candidates to fill 7 positions and also allow for cumulative voting so that a member may cast 1 vote for each of 7 candidates, or 7 votes for 1 candidate, or 3 votes for 1 candidate and 4 votes for another candidate, etc.

The HOA's Bylaws also state that "the candidates receiving the highest number of votes, up to the number of Board members to be elected, shall be deemed elected." 

So based on this bylaw it appears to me that a candidate would not require a majority of votes to be elected. If there are only five people nominated for seven positions and one of the five receives one vote then that person would be elected.

This election is now in process.The ballots have been mailed to the members and ballots will be available at the Annual Meeting in March.  A quorum for the Annual Meeting is 50% for the initial Annual Meeting and drops to 25% for an adjourned Annual Meeting.  Experience has shown that quorum would most likely not be achieved for the first Annual Meeting and barely achieved for an adjourned Annual Meeting. 

Thank you all for your responses.

 

[Dan Honemann]

 

Well, I guess your association wasn't bothered much by RONR's caution (on p. 423, 11th ed.) that "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." 

Following up on your hypothetical, suppose five homeowners properly submit a declaration of candidacy form prior to the election, and then three persons are nominated at the annual meeting. Suppose further that each of the five homeowners who submitted a declaration of candidacy form receive 30 votes, and each of the persons nominated at the meeting receive 1 vote. There are seven open positions on the board to be filled. Do your rules make any provision for somehow determining, without repeated balloting, which two of the three candidates receiving 1 vote will be declared to be elected?

 

 

[RobertJ]

Thank you, Daniel, for your response.

The balloting procedure is dictated by state law not the HOA's bylaws. State law requires ballots be mailed to all members 30 days prior to the Annual Meeting using the "double envelope secret ballot process" and allow for the ballot be mailed "to the address designated by the inspector(s) of election".

If attendance at a meeting by a quorum of homeowners were required in order to complete the election, I think that a quorum would most likely never show up at one meeting and the election would never be completed. In past elections votes have been received by 25-30% of the homeowners with usually no more than 5% of the homeowners attending the Annual Meeting.  I think this is typical for most homeowners associations.  A quorum is 25% at an adjourned Annual Meeting after the first Annual Meeting failed to meet a 50% quorum per the HOA's bylaws.

Regarding candidates receiving the same number of votes resulting In a tie, I don't know that the HOA's election rules, bylaws or State law address this situation. Perhaps the HOA may consider revising its election rules to decide what to do in this event.

[Gary Novosielski]

11 hours ago, RobertJ said:

Thank you, Daniel, for your response.

The balloting procedure is dictated by state law not the HOA's bylaws. State law requires ballots be mailed to all members 30 days prior to the Annual Meeting using the "double envelope secret ballot process" and allow for the ballot be mailed "to the address designated by the inspector(s) of election".

If attendance at a meeting by a quorum of homeowners were required in order to complete the election, I think that a quorum would most likely never show up at one meeting and the election would never be completed. In past elections votes have been received by 25-30% of the homeowners with usually no more than 5% of the homeowners attending the Annual Meeting.  I think this is typical for most homeowners associations.  A quorum is 25% at an adjourned Annual Meeting after the first Annual Meeting failed to meet a 50% quorum per the HOA's bylaws.

Regarding candidates receiving the same number of votes resulting In a tie, I don't know that the HOA's election rules, bylaws or State law address this situation. Perhaps the HOA may consider revising its election rules to decide what to do in this event.

If state law dictates that all voting shall be done via ballots mailed to members and returned via the double envelope secret ballot process (presumably the one described in RONR), that would seem to prohibit nomination and in-person voting at the meeting.  Are those provisions for floor nominations and in-person voting contained in your bylaws, or in state law?  If the latter, there is an apparent possibility that they would supersede the rules in your bylaws.

[RobertJ]

Floor nominations are permitted according to the election rules adopted by the HOA.  The election rules are required to be adopted by the HOA per state law and must adhere to state law guidelines.  All voting is still done using the double envelope secret ballot process.  The ballots in the double envelope can be handed to the Inspectors of Election at the Annual Meeting.