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Arthur541

BYLAW AMENDMENTS

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Arthur541, proxies and absentee ballots (mail ballots) are two different things used in two different ways for two different purposes. Proxies are used when voting takes place in a meeting. Absentee ballots are used when there is no meeting (and sometimes even when there is a meeting, although RONR strongly discourages it).

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57 minutes ago, Gary Novosielski said:

Unless RONR is your parliamentary authority.  See above.

While it is absolutely correct that, so far as RONR is concerned, if state law provides that proxy voting is permitted “unless the organization’s bylaws provide otherwise,” an organization which has adopted RONR as its parliamentary authority has incorporated RONR’s prohibition on proxy voting into its bylaws, my understanding is that the courts do not always agree with RONR on this point. As a result, if the OP wishes to know whether proxy voting is permitted as a matter of Florida law, he will need to consult an attorney.

Edited by Josh Martin

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3 hours ago, Josh Martin said:

While it is absolutely correct that, so far as RONR is concerned, if state law provides that proxy voting is permitted “unless the organization’s bylaws provide otherwise,” an organization which has adopted RONR as its parliamentary authority has incorporated RONR’s prohibition on proxy voting into its bylaws, my understanding is that the courts do not always agree with RONR on this point. As a result, if the OP wishes to know whether proxy voting is permitted as a matter of Florida law, he will need to consult an attorney.

I agree, but if I'd also note that if were asking my board attorney for an opinion on this I'd expect to see more than just a quote of the statute which, when read alongside of RONR doesn't appear to permit the use of proxies.  I have no idea whether Florida has some case law or corporate regulations to further refine the application of that statute in the specific case where bylaws are silent except for the inclusion by reference of a parliamentary authority that anticipates this exact situation, but I'd expect the lawyer to be able to tell me that.

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On 4/5/2018 at 3:11 AM, Atul Kapur, PRP "Student" said:

You had not indicated earlier that " A mass mailing, as opposed to a meeting,  for bylaw amendments is authorized in our bylaws." (or, if you did, I missed it). Any further comments would need you to provide the exact wording of the sections of your bylaws that authorize mass mailings to make decisions and it would be helpful to have the exact wording of the section on amending your bylaws.

True, I had not.  The bylaws actually say:

BYLAW AMENDMENTS. Amendments to the Bylaws shall be proposed in the following manner: 9.1 Notice. Notice of the subject matter of a proposed amendment shall be included in the notice of any meeting at which a proposed amendment is considered. 9.2 Initiation. An amendment may be proposed by either a majority of the Board of Directors or by twenty-five percent (25%) of the voting interests of the Association. 9.3 Percentage Vote. A resolution adopting a proposed amendment must receive approval of two-thirds (2/3) of the voting interests of the Association present (in person or by proxy) and voting at a duly called meeting at which a quorum is present so long as at least 230 members vote in favor of the amendment. Members not present in person or by proxy at the meeting considering the amendment may express their approval in writing. Alternatively, amendments to these Bylaws may be adopted in writing, without a meeting, with the approval of at least 230 of the voting interests. 9.4 Effective Date. An amendment to the Bylaws shall become effective only after being recorded in the records of Charlotte County, Flor

Comments to that?  

 

 

 

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Seems straightforward and clear to me... except:

This provision:  "Members not present in person or by proxy at the meeting considering the amendment may express their approval in writing."

Suppose, as is perfectly proper, a proposal to amend the bylaws is itself amended (majority vote sufficient) in some manner during the course of the discussion in the meeting.

Then what becomes of those "members not present" votes?  The are no longer addressing the original amendment. (There is no answer to this question -- RONR, page 423 says don't allow "mixed" voting like this.)

 

Edited by jstackpo

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2 hours ago, Arthur541 said:

Comments to that?

I would suggest that we exceeded the limitations of this forum some time ago, as the purpose of this forum is to answer questions pertaining to proper procedure under Robert’s Rules of Order, Newly Revised. It has become increasingly clear that the questions your organization is facing are not questions relating to RONR, but are instead questions relating to your bylaws and Florida HOA law. I would suggest that you consult with a professional parliamentarian regarding the former and an attorney regarding the latter.

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5 hours ago, Arthur541 said:

The bylaws actually say:

BYLAW AMENDMENTS. Amendments to the Bylaws shall be proposed in the following manner: 9.1 Notice. Notice of the subject matter of a proposed amendment shall be included in the notice of any meeting at which a proposed amendment is considered. 9.2 Initiation. An amendment may be proposed by either a majority of the Board of Directors or by twenty-five percent (25%) of the voting interests of the Association. 9.3 Percentage Vote. A resolution adopting a proposed amendment must receive approval of two-thirds (2/3) of the voting interests of the Association present (in person or by proxy) and voting at a duly called meeting at which a quorum is present so long as at least 230 members vote in favor of the amendment. Members not present in person or by proxy at the meeting considering the amendment may express their approval in writing. Alternatively, amendments to these Bylaws may be adopted in writing, without a meeting, with the approval of at least 230 of the voting interests. 9.4 Effective Date. An amendment to the Bylaws shall become effective only after being recorded in the records of Charlotte County, Flor

Comments to that?  

My comment is that the provision is fine until  you reach the portions I have bolded.  The rest of it is horrible, except, perhaps, for the last sentence if that provision is part of Florida law.  Some problems with the bolded part: 

1. What is meant by members not present at a meeting expressing their approval in writing?  Does this mean those not present or submitting a proxy may vote absentee?  Or just that "they can express their approval" much like they could in debate if present, but said expressions do not count as votes?   

2. As someone else pointed out, if those written expressions of approval are really absentee votes, how do you handle the situation where a proposed bylaw amendment is itself amended from the floor?  Those voting absentee are not voting on the same proposition as those who are voting in person or by proxy.  That is why RONR strongly discourages mixing absentee voting with in person voting.  You do one or the other.

3.  What vote is required to adopt a bylaws amendment by means of a mail vote?  It requires a two thirds vote at a meeting to adopt a bylaw amendment, but it seems that a regular majority vote might suffice for a vote by mail.  Is that what is intended?  If so, why the lower threshold for a mail vote?

4.  The effective date:  Why this provision?  Does Florida law provide that bylaw amendments do not become effective until recorded?  RONR provides that bylaw amendments become effective immediately upon adoption unless provided otherwise.  You may, of course, provide otherwise.... as these bylaws do.... but is there a requirement that a bylaw amendment actually be filed for recording?  What if the officer responsible for filing the document fails to file it?   Are you giving the power to one individual to thwart the will of the society, whether intentionally or by negligence?  If you are going to provide that an amendment does not become effective until filed and recorded, there should be a requirement somewhere that it actually get filed by somebody.

5. "voting interests" as used in several places:  I hope this term is defined elsewhere in the bylaws.

Those are just the concerns that jumped out at me.

2 hours ago, Josh Martin said:

I would suggest that we exceeded the limitations of this forum some time ago, as the purpose of this forum is to answer questions pertaining to proper procedure under Robert’s Rules of Order, Newly Revised. It has become increasingly clear that the questions your organization is facing are not questions relating to RONR, but are instead questions relating to your bylaws and Florida HOA law. I would suggest that you consult with a professional parliamentarian regarding the former and an attorney regarding the latter.

I agree.  This is a matter of bylaws (and possibly of state law) interpretation.  It has exceeded the scope of this forum.

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Thank you gentlemen.    I do appreciate the comments, including the comments about my bylaw amendment process.   The discussion admittedly did go beyond bylaws.   I have an attorney for other aspects.   

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BTW  Richard Brown  Outstanding comments about the bylaw amendment.   I would not have thought of any of that.   Thanks very much to the others for all your input.  

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On 3/27/2018 at 6:20 PM, Josh Martin said:

 

On 3/27/2018 at 5:11 PM, Arthur541 said:

If he is correct, is there something in RONR that restricts an amendment from contradicting an existing motion?

Not in the case of bylaws. The bylaws should not be amended in such a way that they contain internal contradictions, but an amendment to the bylaws cannot be ruled out of order on the basis that it contains a contradiction.

Getting back to a question that is not specific to these bylaws: I disagree with the statement that an amendment to the bylaws cannot be ruled out of order on the basis that it contains a contradiction. Any motion that contains no rational proposition is out of order, and amending the bylaws so as to make them contradict themselves is not a rational proposition.

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