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To what extent is RONR (11th ed.), §63., “Investigation and Trial,” binding on a homeowners association, the Board of which recently attempted to remove a Director without any apparent interest in applying §63 (or numerous other rules stipulated by RONR, for that matter)?

RONR (11th ed.), p.653, ll. 26-34, in the first of two bullets, state – “If the bylaws provide that officers shall serve “for __ years or until their successors are elected,” the officer in question can be removed from office by adoption of a motion to do so.  The vote required for adoption of such a motion is (a) a two-thirds vote, (b) a majority vote when previous notice (as defined on p. 121) has been given, or (c) a vote of a majority of the entire membership – any one of which will suffice.”  As contrasted with the second bullet (further comment below), use of this bylaw wording, together with the appropriate choice of action, appears sufficient to remove an officer, without specification of cause and without recourse to §63.

In our by laws, Article II (“Officers”), Section 2 (“Terms of Office”) uses the “or” framework described by this first RONR bullet – “The . . . Directors of . . . Operations . . . shall be elected in odd numbered years and shall serve for a term of two (2) years or until their successors are elected.”

However, our by laws also include a specific provision directly addressing removal of an officer: Article II (“Officers”), Section 6 (“Removal from Office”) – “An Officer may be removed from office for misconduct or neglect of duty in office by a two-thirds (2/3) vote of the Officers, present and voting.  The Officer being removed shall be given an opportunity to be heard by the Board of Directors prior to the vote.”

Not only does our by law explicitly limit our options to the first option stated in the RONR bullet cited above, but our “misconduct or neglect of duty” phrase alluding to removal from office with cause doesn’t sound like the no-cause sense of that first bullet in the cited RONR text.  So although we have the “or” construction in our statement of terms of office (i.e., thus technically do not fit into the phrase before the ellipsis in the quote I’m about to cite), our provisions that directly relate to removal from office sound a whole lot more along the lines of the second bullet, at RONR (11th ed.), p. 654, ll. 8-13.: “… an officer can be removed from office only for cause – that is, neglect of duty or misconduct – in accordance with the procedures described in 63; that is, an investigating committee must be appointed, charges must be preferred, and a formal trial must be held.”

If I can give our by laws drafters the benefit of the doubt of knowing what they set up for us (but remember, ours is the set of by laws missing a crucial “not” in its statement of parliamentary authority), it would seem that they do wish to prevent removal of an officer for any reason other than neglect of duty or misconduct, and that they intend further restraint by restriction of method of removal solely to a two-thirds vote of the Board . . . but that perhaps they hope their use of “or” in their by laws setting terms of office give them freedom beyond that point to kick an unwanted officer off the board without advance notice to homeowners, without any advance notice to the targeted Director until the verbal statement of the motion, et cetera, . . . and showing no awareness of or responsibility under §63.

Is the fig leaf of that “or” in our terms of office really as huge as they seem to be making it out to be?  Or does that crucial "or" pretty much rip sec. 63 out of our HOA's version of RONR?

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15 minutes ago, Adrien LaBombarde said:

To what extent is RONR (11th ed.), §63., “Investigation and Trial,” binding on a homeowners association, the Board of which recently attempted to remove a Director without any apparent interest in applying §63 (or numerous other rules stipulated by RONR, for that matter)?

 

To the extent that the organization has adopted RONR and doesn't have conflicting rules in the bylaws or special rules of order.  However, if I recall correctly, your bylaws state that RONR applies where it is inconsistent with your rules, making this a somewhat tricky question.  Let's ignore that for a moment, though, and pretend your rules properly adopted RONR.

The question would then be one of bylaw interpretation, which must be done by your organization, and would be guided by the fact that saying that X may be done by doing Y forbids doing X in other ways, in most cases.  I think what you're really asking is if the phrase "misconduct or neglect" requires a hearing, and if that hearing would then be conducted in accordance with the formal rules in RONR.  That's for your organization to determine, but in my personal opinion, no - it just requires that the officers, when removing someone, state such a cause.  

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3 minutes ago, Joshua Katz said:

I think what you're really asking is if the phrase "misconduct or neglect" requires a hearing, and if that hearing would then be conducted in accordance with the formal rules in RONR.  That's for your organization to determine, but in my personal opinion, no - it just requires that the officers, when removing someone, state such a cause.  

Unfortunately, I think that is what I'm really asking, since I think that's where our bylaws lead us.

The unfortunate part of that being that it pretty much turns our whole process into a sham in which homeowners don't get advance notice of the action, get no explanation of the cause, the debate itself gets turned into a circus, et cetera.

But whereas at one stage I thought I could simply point to section 63 the next time they try the same scheme, your conclusion here is confirming my fears - I don't think we have section 63 to fall back on.

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Guest Who's Coming to Dinner

 

If you think other members feel the same way, why don't you call a special meeting to amend the bylaws? They should be a living document that serves your needs, not the stone tablets of Moses. On the other hand, if your members are as lackadaisical as you have said, you will have a tough campaign ahead and may do better to let sleeping clauses lie.

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37 minutes ago, Adrien LaBombarde said:

But whereas at one stage I thought I could simply point to section 63 the next time they try the same scheme, your conclusion here is confirming my fears - I don't think we have section 63 to fall back on.

However, do take note:  my interpretation and conclusion is irrelevant.  The question is how your organization understands it.  At the same time, yes, bylaws can do those things (although personally I don't think the process is exactly a sham.  There are still some gaps in my understanding, as well, and further points for interpretation.  For instance, your board has the power to remove officers - but it is unclear to me if they are being removed from the specific office, or from the board (I'd lean towards the latter since RONR refers to directors as officers, but officer might have a narrower understanding within your organization).  Furthermore, I'd note that, even if we thought your customized rule required a hearing as in RONR, it would have nothing to do with the homeowners - it seems perfectly clear to me that, even then, it would be referring to a process taking place only among the board, and notice would only be due board members.    

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10 minutes ago, Guest Who's Coming to Dinner said:

 

If you think other members feel the same way, why don't you call a special meeting to amend the bylaws? They should be a living document that serves your needs, not the stone tablets of Moses. On the other hand, if your members are as lackadaisical as you have said, you will have a tough campaign ahead and may do better to let sleeping clauses lie.

In due course . . . and if they don't lynch me for simply trying to get us back on the even keel we were on for 28 years until the past 2 years, when a small but influential minority of our recent Board has turned our entire HOA upside down.

The majority of homeowners don't want this recent circus - they want their old HOA back.  But part of that process might have to start with getting our by laws, our covenants and deed restrictions, and just about every rule and regulation going back to our original Articles of Incorporation put in order.

Let's start my list.  For now, we're the HOA with bylaws that include --

  1. Two articles numbered "Article VI."  I figure that's one of those clerical errors that we should be able to incorporate easily enough into the total re-write I see us heading toward.
  2. A statement of Parliamentary Authority that is missing its crucial "not," rendering that provision and most if not all of the other bylaws nonsensical (except via interpretation by common sense).
  3. Provisions for terms of office and removal of officers that seem to give rather broad latitude to any of our boards to see "misconduct" as they feel justified in doing.
  4. Screwed-up provisions on our Directors that our managing agent never got around to filing with the county over a year ago upon our Board's vote back then, when one Director and associated Standing Committee was completely eliminated, while a separate Director and associated Standing Committee were split into two separate positions and committees . . . our bylaws still state the old Board structure, although our current Board has been operating under its new structure for over a year.

Without yet going into detail, don't be surprised to find me asking more questions about RONR and bylaws and procedure and such over the course of the coming 4-6 months.  We're aiming to deal with this all in one full action sometime this fall, versus piecemeal month by month....

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7 minutes ago, Joshua Katz said:

However, do take note:  my interpretation and conclusion is irrelevant.  The question is how your organization understands it.

Irrelevant to our practical situation, perhaps. But very much appreciated and valued.

With all due respect to our Board, I believe they themselves would openly admit that they do not understand any of this.

For its recent attempt to remove one of our director, I firmly believe that they looked no further than the "Removal from Office" provision in our bylaws and took no further thought to any other rule or procedural requirement.  Those lined up to vote against the targeted director were contacted in advance, but directors known to support the targeted director knew nothing until the motion was made at the Board meeting.  Even the targeted director knew nothing of the proposed action until the motion was enunciated.  The motion itself was made during one director's report, not during "New Business"; and even that director's report was moved to the first place on the agenda, ahead of the president's own report, so as to make the motion to remove the director the first business of the meeting.  No evidence or detail was given of the charge; the matter came down to a simple "popularity" vote.  And the "debate," such as it was, violated nearly every rule in RONR one can conceive of violating, without control by the chair.

I apologize for suggesting any proceeding that is meant to be done in compliance with bylaws or RONR to be a "sham."  But if bylaws and RONR are meant to be an effective means of reaching a decision while protecting the rights of all involved, then at the very least our board's application of the rules and procedures leave very much to be desired.

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6 minutes ago, Adrien LaBombarde said:

Those lined up to vote against the targeted director were contacted in advance, but directors known to support the targeted director knew nothing until the motion was made at the Board meeting. 

Your rules do not require notice.  Something to think about including.  

 

7 minutes ago, Adrien LaBombarde said:

The motion itself was made during one director's report, not during "New Business"; and even that director's report was moved to the first place on the agenda, ahead of the president's own report, so as to make the motion to remove the director the first business of the meeting. 

None of this strikes me as problematic.

 

7 minutes ago, Adrien LaBombarde said:

No evidence or detail was given of the charge; the matter came down to a simple "popularity" vote.  And the "debate," such as it was, violated nearly every rule in RONR one can conceive of violating, without control by the chair.

Your organization (note: not your board, but the organization) may decide that some evidence or detail was needed, but so far as I can tell, all that's needed is an accusation.  Again, that's something to think about modifying.  As for the debate, you can hardly blame that on the rules or bylaws - certainly you should be (assuming we ignore that odd parliamentary authority clause) following the rules for debate in RONR.  In other words, if your rules required the hearing procedure described in RONR, and the rules of debate were not followed or enforced, you'd be no better off, in that regard.  If your chair refuses to preside properly, perhaps they should be reminded that your rules make it relatively easy to remove an officer...

10 minutes ago, Adrien LaBombarde said:

I apologize for suggesting any proceeding that is meant to be done in compliance with bylaws or RONR to be a "sham." 

I'm not offended, I just don't think it's accurate.  The basic idea here is that being an officer is a privilege, not a right, and so it should be somewhat easy for organizations to remove their officers.  However, based on the above, it seems the proceeding was not conducted in accordance with RONR or your bylaws, so maybe that's the "sham" part.  

 

11 minutes ago, Adrien LaBombarde said:

But if bylaws and RONR are meant to be an effective means of reaching a decision while protecting the rights of all involved, then at the very least our board's application of the rules and procedures leave very much to be desired.

RONR is meant to embody (and balance) the ideals you mention.  Your bylaws are meant to establish the organization framework of your organization - which may not embrace those same ideals.  That's up to the organization.  I happen to think those are good principles, and that organizations should avoid writing bylaws that stray too far from them, but RONR imposes no such values or restrictions on organizations.  You can do whatever you want with your bylaws.  However, even RONR recognizes that the rights of officers, as such, weigh less heavily than general parliamentary rights.  The right not to be removed from office is a different sort of right than the right to vote, for instance.  

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Mr. LaBombarde, this is really a matter of bylaws interpretation and it is ultimately up to your organization to interpret its own bylaws.  Our opinions are just the opinions of interested bystanders.

Here's my take on it.  I think your bylaws, by providing a method of removing officers for cause, have opted out of the Section 63 Disciplinary procedures of RONR, at least when it comes to removing officers for cause.  I believe that the removal provisions of your bylaws provide the sole guidance on how to go about removing officers for cause.  I do not believe any of the Section 63 procedures apply.  Your bylaws provide a method of removal that is different from that of Section 63.

However, I believe the  removal from office procedures in Section 62, particularly pages 653-654, ARE still applicable.  Your bylaws don't say that officers can be removed ONLY for cause, but rather they provide for a simplified method of removing them for cause.  By incorporating the "or until their successors are elected" language in the bylaws, I believe the Section 62 removal from office provisions are still  applicable, along with  your customized procedure for removal  for cause.  Your board handles removal for cause and your membership handles Section 62 removal from office.

As I said earlier, this is a matter of bylaws interpretation.  Only your own members can do that.   We have not seen your complete bylaws.... and please don't post them!   I gave you my opinion.  Others may well disagree.   I think we can all agree, however, that your  bylaws can use some refining.

 

 

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5 minutes ago, Joshua Katz said:

RONR is meant to embody (and balance) the ideals you mention.  Your bylaws are meant to establish the organization framework of your organization - which may not embrace those same ideals.

While true of any organization that relies on RONR and its principles, the particular organization involved here is a homeowners association incorporated under state law and operating under state property law that explicitly imposes some of the notice requirements and other requirements our bylaws have left out of the equation.

Ah, except even our state attorney general is quick to point out that we have no agency charged with enforcing those particular laws, so I'm well aware that ours is not the first and won't be the last to have to deal with a board that takes its privileges to extremes, shall we say.

But we are steering toward a complete re-write of our bylaws, starting with our nonsensical enunciation of parliamentary authority and settling the proper statement of our director positions and even cleaning up nuances like misnumbered bylaws.  So your advice here will be well considered - as to removal of directors, I will be aiming toward having our bylaws provide greater specificity as to how homeowners' rights are adequately protected in the process.

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2 minutes ago, Richard Brown said:

Mr. LaBombarde, this is really a matter of bylaws interpretation and it is ultimately up to your organization to interpret its own bylaws.  Our opinions are just the opinions of interested bystanders.

Thank you.  And yes, in the end, it comes down to how our organization interprets its own bylaws.

I'll still value and appreciate the opinions I see here by those with knowledge and experience on these matters.

No disrespect of our organization intended, but we have nobody who does have the knowledge and experience sufficient to reasonably interpret our own bylaws.  Our current Board's familiarity with its own bylaws, much less with RONR, and even far more less our state laws, is pitifully nonexistent.

As for our bylaw on removal of a director from the board, it appears to have been copied almost verbatim from one of our state laws applicable to corporations . . . but we have no further basis on which to gauge how we should be interpreting what our own bylaw means to do.

Which has left us vulnerable to a power-hungry director who is wielding that bylaw against one of our other directors.  And yes, I can see through this thread that boards have the freedom to apply provisions such as this one in that manner, but it sure does leave the homeowners - the ones all this is supposed to be protecting - rather at a loss.  Just sayin' . . .

Anyway, I'll still come hunting for RONR knowledge and expertise here as we continue sorting all this out and move toward re-drafting our bylaws to have them make sense and give us a reasonable basis for decision-making.

Thanks again, all.

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The By-laws of you HOA would supercede anything found in RONR.  Thus, if there is a  provision in the By-laws about the removal of officers, that is what you have to follow.

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19 minutes ago, Adrien LaBombarde said:

While true of any organization that relies on RONR and its principles, the particular organization involved here is a homeowners association incorporated under state law and operating under state property law that explicitly imposes some of the notice requirements and other requirements our bylaws have left out of the equation.

 

That goes into an area that is even more beyond the scope of this forum.  Applicable procedural laws take precedence over anything in RONR or your bylaws.  It makes no difference if your bylaws have left them out of the equation, they remain in the equation nonetheless.  However, there is the matter of interpreting them, for which you should speak to an attorney.  

 

10 minutes ago, Adrien LaBombarde said:

No disrespect of our organization intended, but we have nobody who does have the knowledge and experience sufficient to reasonably interpret our own bylaws.  Our current Board's familiarity with its own bylaws, much less with RONR, and even far more less our state laws, is pitifully nonexistent.

 

You might wish to consult with a PRP (Professional Registered Parliamentarian) or CPP (Certified Professional Parliamentarian) as well.  Mr. Brown has a boilerplate he might drop in here providing information about obtaining referrals for either.

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I do understand that our bylaws take precedence over RONR.  (See previous post about how our bylaws screw that one up . . . I do know we need to correct our parliamentary authority to get straight on that essential principle.)

Maybe my question here comes down to how far a bylaw goes in taking its precedence over RONR.

Our bylaw on removal of a director from the Board says the Board can do so with a 2/3 vote.  That tells me that any other rule - majority vote with prior notice, vote by homeowners, or any other process we might find under RONR - is inapplicable to us.  Our bylaw says 2/3 of the Board, so that's what decides the removal.

But could the President simply call for a vote by the Board and kick a director out if 2/3 agree, without going through the process of motion and second of motion and debate and all the other rules of order in RONR?  Our bylaw on removal of directors does not suspend any other relevant rule of order, rather it seems to me to only generically state the basis for removal and to stipulate the vote needed.

I admit, I was half-hoping that the scope of our bylaw might leave the process to be settled by section 63 . . . but then again, the reason I posted here was that my own reading of RONR and our bylaws was leaving me in doubt on that score; and now I've pretty much pushed section 63 off to the side. 

But when notice to the homeowners is required under state law for any major motion to be brought before the HOA Board, can a simply worded provision that only states basis of action and vote threshold override ALL the other procedural rules that would apply to any other major motion?  Sorry, but that would give me a rather depressing evening . . . and a lot more bylaw re-drafting ahead of me!

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8 minutes ago, Joshua Katz said:

You might wish to consult with a PRP (Professional Registered Parliamentarian) or CPP (Certified Professional Parliamentarian) as well.

We really must.  And this is most definitely already one of the recommendations we will be making at an upcoming Board meeting dealing with all this.

I myself am still but a RONR virgin.  Although my own copy of RONR (11th) is already dog-eared and marked up, I have a Barnes & Noble receipt proving I purchased it only 10 days ago.  And my copy of RONRIB is even fresher, although already getting its own dog-ears and notes.

I might someday look into taking the necessary education and working for the necessary experience to gain one of those titles for myself.  Not yet . . . insufficient time . . . I'm currently winding up a 40+-year career as an expert on pension regulations, so excuse me if I keep my focus on IRC 401(a)(4) or 415 or 404 for the next year or so.  And meanwhile, my HOA can't afford to wait until I find the time to attend to it myself; so yes, a PRP or CPP will definitely be high on our shopping list this year.

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I think you need help  that is beyond the scope of this forum.  As Mr. Katz suggested, you might contact either NAP or AIP for a referral to a professional  parliamentarian.  The NAP is the larger of the two organizations, but both have referral services.  The NAP website, in particular, also has a listing of some professional  registered parliamentarians.


National Association of Parliamentarians (NAP)
213 South Main St.
Independence, MO  64050-3850
Phone: 888-627-2929
e-mail: hq@NAP2.org  
www.parliamentarians.org



American Institute of Parliamentarians (AIP)
618 Church Street, Ste 220
Nashville, TN 37219
Phone: 888-664-0428
e-mail: aip@aipparl.org
www.aipparl.org

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