Changes to governing documents impacting annual elections

[Tinams]

Which version of the governing documents apply when a ballot for annual election of directors has been mailed prior to the adoption of new governing documents?

Ballot documents were sent out prior to the annual election stating that nominations from the floor would be accepted.  A special meeting was then called, prior to the annual election of directors, where new governing documents were approved.  The new bylaws do not allow nominations from the floor but at the annual election, a floor nomination was made.  The management agent said that no nominations were allowed but voting members disagree.  To make maters worse, no quorum was obtained at this meeting and a new meeting must be held within 30 days.

Our old CC&Rs read identical to the old bylaws regarding the election process.  State law said that the CC&Rs takes hierarchy over the bylaws.  If state laws also requires that the new CC&Rs be recorded and noticed and they have not been by the time the annual election takes place, does that not mean that the old CC&Rs are applicable?  How can rules change in the middle of voting? Would not the date of the ballot notice be the “Date of Record” and that was prior to the newly adopted governing documents?

[Joshua Katz]

You've hit on one reason RONR doesn't recommend asynchronous voting.

Ultimately, this is a question for your organization, guided by legal counsel.  I think the best we can offer is that, in RONR, bylaw amendments take effect immediately, unless a proviso is used.  We can't tell you, as far as I can see, whether an extended voting process is 'before' or 'after' the new bylaws.  Management agents shouldn't be chiming in on decisions your assembly makes.  If there was no quorum, no actions could be taken, including nominating candidates for office.  Will a 'new' meeting be held within 30 days, or an adjourned meeting?  I think that matters.

If the law states that your CC&Rs take precedence to your bylaws, and your new bylaws conflict with your CC&Rs, then he contradictory elements in your bylaws are probably void.  Determining that as a certainty, though, requires consulting with an attorney, probably.  

 

[Guest Who's Coming to Dinner]

Changes to the bylaws (or articles, constitution, CC&Rs, etc.) are effective immediately unless the enactment provides otherwise. Thus, I would say that nominations from the floor were not in order at the annual meeting notwithstanding what had been previously published. Further, it is not the role of "management" to tell the members what is or is not proper. That is the role of the chair, possibly reversed by the members on appeal. And finally, even if a contrary ruling had been made, the floor could not be opened for nominations in the absence of a quorum.

Whether the change is valid or effective versus other governing documents, is, as Mr. Katz observes, a matter for your attorney.

[Richard Brown]

On 4/25/2018 at 3:33 PM, Guest Who's Coming to Dinner said:

Changes to the bylaws (or articles, constitution, CC&Rs, etc.) are effective immediately unless the enactment provides otherwise.

Or unless state law provides otherwise, as might be the case here based on the information provided. I agree that this situation perhaps presents more of a legal question than a parliamentary one.