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Can a board be elected w/o a vote?


CatsterB
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I am on a board for an very small HOA-28 units.  Our original bylaws stated that there "shall be 3" board members.  In 2008, the membership amended the bylaws to say there "shall be 5, or more" board members.

Last election-7 people wanted to be on the board.  2 are a husband and wife.  Since we have no cap, there was no vote.  Essentially every member one who wants to be on the board can. Thereby nullifying an actual voted in board. 

We have a very dysfunctional board with 3 members always voting together- running the board, and now his wife has decided to be on the board too. 

That makes a set majority 4 of 7 on the board without a vote of the membership actually electing or voting them in. The 3 of us might as well not be there.  With a board of 5 it would be 4 to 1 which was their original intent.

1. Is it allowed in Roberts Rules to elect a board without a vote? 

2. Would the cure be to rescind prior resolution.  Motion for new amendment with a cap & can it be retro-active to this last non-election.

 

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In the order you asked:

1)    Yes, election by acclamation is proper when there is no opposition, AND a ballot vote is NOT required in the bylaws - page 443.

2)    You can't "rescind" the previously adopted amendment to the bylaws, but you are free to propose, and if you have the votes, adopt a new amendment to set the Board membership back to 3 (or strike out the words "or more", if a 5 member board is OK with you).    Such an amendment would have to include a proviso stating, for example, which of the current members would cease to be on the board.  Or a proviso saying that the current (seven) members would serve until the next regular election at which time only 3 (or 5) board members would be elected.  The "extra" members cannot be removed retroactively.

Edited by jstackpo
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21 hours ago, CatsterB said:

I am on a board for an very small HOA-28 units.  Our original bylaws stated that there "shall be 3" board members.  In 2008, the membership amended the bylaws to say there "shall be 5, or more" board members.

Last election-7 people wanted to be on the board.  2 are a husband and wife.  Since we have no cap, there was no vote.  Essentially every member one who wants to be on the board can. Thereby nullifying an actual voted in board. 

We have a very dysfunctional board with 3 members always voting together- running the board, and now his wife has decided to be on the board too. 

That makes a set majority 4 of 7 on the board without a vote of the membership actually electing or voting them in. The 3 of us might as well not be there.  With a board of 5 it would be 4 to 1 which was their original intent.

1. Is it allowed in Roberts Rules to elect a board without a vote? 

2. Would the cure be to rescind prior resolution.  Motion for new amendment with a cap & can it be retro-active to this last non-election.

 

I don't believe that the bylaws language means that anyone who wants to walk onto the board is automatically elected.  First, check your bylaws to see if a ballot vote is required.  If it is, then it must be held, even if only one (or fewer) persons are nominated.

The bylaws authorizing a board of "5 or more", "no fewer than 7", "5 to 12 members" or some other variable size board is not unheard of.  The way to handle it is to vote before the election is held, to set the size of the board (within the limits set by the bylaws).  Then you will know how many spots you are voting for, and when the use of acclamation (where allowed) is appropriate.  Specifying a range in the bylaws allows the membership flexibility to set the actual board size on the fly.  It does not mandate an accordion-sized board forever.

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13 hours ago, Gary Novosielski said:

The bylaws authorizing a board of "5 or more", "no fewer than 7", "5 to 12 members" or some other variable size board is not unheard of. 

But it should be.

Wouldn't an ahead-of-election-motion to set the board size be, in effect, an amendment to the bylaws which couldn't be done "on the fly"?   To allow on-the-fly changes to the board size the bylaws would have to authorize that sort of (temporary, I suppose) action.  And how about reducing the board size in a similar motion.  Vote to do so any old time?  If the board is shrunk, who goes?  Who stays?

Big mess. Don't go there.  (RONR doesn't.)

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It seems to me that a bylaw provision saying that there "shall be 5, or more" board members is rather unique (and perhaps inadvisable), but we've often seen provisions such as "not less than 3 and no more than 9". 

As previously noted, by Mr. Novosielski, "The way to handle it is to vote before the election is held, to set the size of the board (within the limits set by the bylaws).  Then you will know how many spots you are voting for, and when the use of acclamation (where allowed) is appropriate."

Adoption of such a motion does not conflict with the bylaws, it is in conformance with them. It may be worded in such a way as to apply only for a specified period of time or indefinitely. In either event, to change it once adopted, and while it remains in effect, will require the adoption of a properly worded motion to Amend Something Previously Adopted.  

Having said all that, I do agree that it is better practice to adopt bylaws which are specific as to the board's composition.

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I'd rather suggest that the By-laws be amended to allow for a "between 5 and x number of directors be elected each year."  That way, whatever x is (be it 7, 8, 9, 10, etc. does not matter), it means that no more than that number can be elected. 

I'd like to make another suggestion, and I'd love to corrected as to why this will not work, would be to put something into the By-laws requiring a ballot vote (although it could still create an issue as the current By-laws allow for 5 or more directors, the first five must receive a majority vote to be elected, but how do you stop the others from being elected as well), but the By-laws could also call for "Should more than 5 candidates be nominated, the owners (members) must hold a ballot vote to determine if a majority of members wish the specific candidate elected."  Someone will likely correct me, or at least suggest better wording. 

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56 minutes ago, Rev Ed said:

  Someone will likely correct me, or at least suggest better wording. 

 

Consider me to be that first "someone"!  :)   I'm  sorry, Rev Ed, but I think both suggestions are a bad idea and rather complicated.  I believe the suggestions by Mr. Novosielski and Mr. Honemann are better.

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1 hour ago, Rev Ed said:

I'd rather suggest that the By-laws be amended to allow for a "between 5 and x number of directors be elected each year."  That way, whatever x is (be it 7, 8, 9, 10, etc. does not matter), it means that no more than that number can be elected. 

I'd like to make another suggestion, and I'd love to corrected as to why this will not work, would be to put something into the By-laws requiring a ballot vote (although it could still create an issue as the current By-laws allow for 5 or more directors, the first five must receive a majority vote to be elected, but how do you stop the others from being elected as well), but the By-laws could also call for "Should more than 5 candidates be nominated, the owners (members) must hold a ballot vote to determine if a majority of members wish the specific candidate elected."  Someone will likely correct me, or at least suggest better wording. 

I don’t like it personally, but I suppose the society could do something like this:

”Five members shall be elected to the board of directors. After five members are elected, a yes/no vote shall be held on each of the remaining candidates (if any), with all candidates receiving a majority vote in the affirmative being elected to the board of directors.”

I think this is what you were trying to get at, but it more clearly spells out how the process works.

Edited by Josh Martin
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8 hours ago, Rev Ed said:

I'd rather suggest that the By-laws be amended to allow for a "between 5 and x number of directors be elected each year."  That way, whatever x is (be it 7, 8, 9, 10, etc. does not matter), it means that no more than that number can be elected. 

I'd like to make another suggestion, and I'd love to corrected as to why this will not work, would be to put something into the By-laws requiring a ballot vote (although it could still create an issue as the current By-laws allow for 5 or more directors, the first five must receive a majority vote to be elected, but how do you stop the others from being elected as well), but the By-laws could also call for "Should more than 5 candidates be nominated, the owners (members) must hold a ballot vote to determine if a majority of members wish the specific candidate elected."  Someone will likely correct me, or at least suggest better wording. 

If you don't know how many seats are being filled, you don't know how to instruct the voters to "Vote for 6" or whatever.  If you tell them to vote for five or more, it could be that everyone nominated would appear on a majority of ballots.

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2 minutes ago, Gary Novosielski said:

If you don't know how many seats are being filled, you don't know how to instruct the voters to "Vote for 6" or whatever.  If you tell them to vote for five or more, it could be that everyone nominated would appear on a majority of ballots.

Plus any number of write-in votes  which could elect still more people to the Board.

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19 hours ago, jstackpo said:

Plus any number of write-in votes  which could elect still more people to the Board.

Essentially yes- since the "or more" wording allows anyone who wants to be on the board it invalidates the bylaws requirement for a written ballot.

Furthermore Title 30 of Idaho non-profit law states that boards must consist of three (3) or more individuals, with the number specified in or fixed in accordance with the articles or bylaws.

It would seem that the amendment to add "or more" after required (3) would be in violation of Idaho statute.  I would think bc "or more" is not a specified or fixed number.

Wouldn't this invalidate the amendment and the election entirely.  Bylaws should revert to orginal context if amendement wasn't per statute.  The board election would have to be redone and elect 3 members per bylaws.

If the hoa members want 5 directors they would have to amend the bylaws before a new election.   

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10 minutes ago, CatsterB said:

. . . Furthermore Title 30 of Idaho non-profit law states that boards must consist of three (3) or more individuals, with the number specified in or fixed in accordance with the articles or bylaws . . . . (Remainder of post omitted)

 

Unfortunately, we do not give legal advice on this forum or try to interpret state statutes.  You should check with an attorney licensed in your state for his opinion regarding how the statute might affect your organization or its bylaws and whether your bylaws comply with the law.  We cannot tell you that on this forum.

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2 hours ago, CatsterB said:

It would seem that the amendment to add "or more" after required (3) would be in violation of Idaho statute.  I would think bc "or more" is not a specified or fixed number.

Wouldn't this invalidate the amendment and the election entirely.  Bylaws should revert to orginal context if amendement wasn't per statute.

By law, perhaps, but not by procedure. A motion is null and void only if it conflicts with a procedural rule prescribed by law.

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5 hours ago, CatsterB said:

Essentially yes- since the "or more" wording allows anyone who wants to be on the board it invalidates the bylaws requirement for a written ballot.

That's not so.  If in fact the bylaws require a written ballot, this provision cannot be suspended, even by a unanimous vote.  And the majority requirement makes it unlikely that any given write-in name would appear on a majority of ballots without substantial prior planning.

What the "or more" wording does not do is prevent the assembly from setting the precise number of seats to be elected prior to holding the election.  As long as the number is not less than the "x or more" specified in the bylaws, the motion would not conflict with the bylaws. 

I might even go so far as to say that such a motion fixing the size of the board, though not "specified in" the bylaws, still causes the number to be "fixed in accordance with" the bylaws, but I'm not a lawyer and would not assume that to be the case without asking one.

Edited by Gary Novosielski
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On 10/21/2017 at 6:37 PM, Gary Novosielski said:

That's not so.  If in fact the bylaws require a written ballot, this provision cannot be suspended, even by a unanimous vote.  And the majority requirement makes it unlikely that any given write-in name would appear on a majority of ballots without substantial prior planning.

 

We have cumulative voting.  So if bylaws say "3, or more"  - there still needs to be a ballot and to be elected you would need a majority vote?

So if we have 26 voting.  We get one vote per nominee.  We had 4 past board and 3 nominated from the floor.  Thats 7 nominees.

7 nominees with a 26 member quorum x 7 votes = 302 votes. 

Bylaws state "the vote of a majority of a quorum present at any meeting".  A majority would be 14 votes or more per nominee to be elected to the board?  

So if they do not get the majority of votes they cannot be on the board bc the majority did not elect them?

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8 minutes ago, CatsterB said:

 

We have cumulative voting.  So if bylaws say "3, or more"  - there still needs to be a ballot and to be elected you would need a majority vote?

So if we have 26 voting.  We get one vote per nominee.  We had 4 past board and 3 nominated from the floor.  Thats 7 nominees.

7 nominees with a 26 member quorum x 7 votes = 302 votes. 

Bylaws state "the vote of a majority of a quorum present at any meeting".  A majority would be 14 votes or more per nominee to be elected to the board?  

So if they do not get the majority of votes they cannot be on the board bc the majority did not elect them?

By cumulative voting, do you mean that a member can cast more than one vote per candidate.  That may complicate what I am about to say.

I have no clue what a "majority of a quorum" is, and apparently neither do the courts.  One guess would be that if, say, a quorum is more than half of the members, then a majority of a quorum would be more than one quarter.   Or maybe a majority of those that show up, presuming that is at least a quorum.. You'll need to figure it out, though others here might have suggestions.

To be elected, a candidate must be voted for on the requisite number of ballots (for that office).  If they do not get a vote sufficient to elect, then they are not elected on that round of balloting.  But they still might be elected on the second or subsequent rounds.  Whoever is elected is dropped from the ballot and additional rounds are held to fill the number of seats that remain.

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So your bylaws say there shall be 5, or more board members, that cumulative voting is allowed, and that the vote of a majority of a quorum present at any meeting is necessary to elect?

I nominate your bylaws for our "most horribly drafted bylaws of the year award". Probably win in a landslide.

 

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9 hours ago, Daniel H. Honemann said:

So your bylaws say there shall be 5, or more board members, that cumulative voting is allowed, and that the vote of a majority of a quorum present at any meeting is necessary to elect?

I nominate your bylaws for our "most horribly drafted bylaws of the year award". Probably win in a landslide.

 

Lol- i agree!  Actually the bylaws & state law say we must have "at least 3" board members. Our bylaws were fine until they changed them wanting more people to be on the board. 

 Our bylaws were amended by an ignorant board that added the words "or more" after the at least 3. So now bylaws say we shall have at least 3 or more board members. Totally stupid IMO and needs rescinding or to be deemed null & void if found in non-compliance with state law.   

Yes votes are cumulative  each condo unit/person gets 1 vote per board position.  If electing 3 directors you would get 3 votes ea, if for 5 directors- 5 votes etc.  You can cast all 3 for 1 person or spread them out between the nominees as you wish. 

I may have confused majority of the quorum comment.  The board is supposed to be elected by majority vote.  If there are 26 present every nominee with 14 or more votes would be elected by majority. Easy if you have a cap of no more than X. Not if its more than "fill in the blank" or whoever wants to be part of the "or more". 

You could have 14 nominees and each of them vote all 14 votes for themselves - then all 14 would be elected by the majority. Then our "or more" board would be 14 directors for a 28 member association. 

Bottom line I believe the election (last wk) should be null & void as no one was voted in bc we has no ballots - no majority vote. Bylaw breach. 

Solution seems to fix the bylaws to add a cap on # of directors & then hold another election. 

Our bylaws say we follow RONR - clearly we havent and we are a non-profit corp. I think this violates our fiduciary duty. 

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10 hours ago, Gary Novosielski said:

By cumulative voting, do you mean that a member can cast more than one vote per candidate.  That may complicate what I am about to say.

I have no clue what a "majority of a quorum" is, and apparently neither do the courts.  One guess would be that if, say, a quorum is more than half of the members, then a majority of a quorum would be more than one quarter.   Or maybe a majority of those that show up, presuming that is at least a quorum.. You'll need to figure it out, though others here might have suggestions.

To be elected, a candidate must be voted for on the requisite number of ballots (for that office).  If they do not get a vote sufficient to elect, then they are not elected on that round of balloting.  But they still might be elected on the second or subsequent rounds.  Whoever is elected is dropped from the ballot and additional rounds are held to fill the number of seats that remain.

I messed up the majority of tbe quorum vote.  We had a quorum of 26 the majority would be 14.

The members ate supposed to vote in the board and then the board elects the officers. We only have one round of voting.

In our case we had no vote-no ballot.  All nominations became board members.  People nominated themselves when they found out any number of us could be on the board.  We had 5 nominees and 2 more joined on. So now we have 7 board members none of whom were elected by a majority of the membership. 

 

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Catster, be careful how you toss parliamentary terms around.  For example, a "majority vote" is not at all the same thing as "a vote of a majority of the members present" (or of a quorum present).  A vote of a majority of the members present is not the same thing as a vote of a majority of the members (or of the entire membership).

I agree with those who said that if your bylaws require a ballot vote, the election is null and void.

I also agree with the statements by Mr. Novosielski  and Mr. Honneman that, although your bylaw provision re "at least three or more" directors is not ideal, it is permissible and that the way to handle it is for the assembly to decide, by a motion adopted PRIOR to the election, on the exact number of directors to be elected.  Such a motion could be worded so as to apply only to this one election or to be permanent until amended.

So, in a nutshell, I guess I have these comments and suggestions:

1.  The election was null and void because the vote was not by secret ballot as required by the bylaws.

2.  Re-do the election, making sure members vote by ballot.

3.  PRIOR to the election, adopt a motion setting the number of directors to be elected.

4. Amend your bylaws asap to either specify a fixed number of directors, or, in the alternative, to specify a definite range of directors, such as "no less than three nor more than five". 

5. Amend your bylaws to remove the awkward wording "majority of a quorum present".  That phrase causes lots of problems.  However, make plain whether the election is by regular "majority vote" or "vote of a majority of the members present".  The two terms do not mean the same thing.  Do not wind up saying "majority vote of the members present".  That wording is not advisable as it is confusing, does not use standard terminology, and leaves the reader confused as to whether the requirement is a "majority vote" or "a vote of a majority of the members present".   Exact terminology is important if you want to avoid ambiguities.  If the intent is to require an ordinary majority vote, DO NOT add the words "of the members present after it".  That only causes confusion.  If you don't understand what I am saying, please ask us to explain the difference!

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I think the "majority vote of the members present" may be because of one way I've seen this vote done.  Let's say there are 25 members present.  On a member's ballot , they list up to X (limit in the bylaws) different names for candidates and if someone is on 13 or more ballots they are elected.  In this case abstentions or blank ballots are treated like "None of the above".

 

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On 10/20/2017 at 2:33 PM, Josh Martin said:

I don’t like it personally, but I suppose the society could do something like this:

”Five members shall be elected to the board of directors. After five members are elected, a yes/no vote shall be held on each of the remaining candidates (if any), with all candidates receiving a majority vote in the affirmative being elected to the board of directors.”

I think this is what you were trying to get at, but it more clearly spells out how the process works.

Yes, that's what I am trying to get at.  But I do think it's better to simply state that "x directors shall be elected at each Annual Meeting" and leave it at that.  The "minimum of x directors" raises too many problems.  For one, what if a majority of members don't like one or more nominated directors (as in this case) and what stops a minority - even one member - from nominating everyone he/she wants to be directors?  Nothing. 

Better to have a specific number or have the yes/no option.  The yes/no option is not ideal, but at least it forces the directors to be approved by the members.

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