Repeated failure to obtain quorum

[Guest Bette Cox]

Our HOA has failed to obtain a quorum at the last two Annual Meetings of our fairly small membership. All attempts to encourage members to attend failed last year. What suggestions can you give me for the next meeting, should we fail again? Important business needs to be conducted but we seem to be "on hold." Thanks for any help.

[Richard Brown]

For starters, considering offering free beer, free pizza, etc, etc., if you haven't already done that.

I  would also suggest you study state law regarding homeowner associations (and non profit corporations if you are incorporated) to see if there are any applicable provisions regarding quorum issues.  Some state laws provide for reducing quorum requirements for subsequent meeting attempts.

It may well be that it is time to simply "disband" the organization.  Perhaps if the members believe this is about to happen, they will show up.

Finally, General Henry Robert, in his 1923 book Parliamentary Law does suggest a possible solution for such a dilemma, but I'm not going to get into that just yet.  It should be an absolute last resort.

[Bette Cox]

Thanks, Richard. SC State Law doesn't help me with this question and so I am seeking suggestions - also considering making an appointment with a local attorney. We are not allowed to simply dissolve the HOA because of a quorum problem. Most of our condo (32 units only) owners are elderly and in ill health, and some owners no longer live in the unit and simply use it as rental income. Getting them to attend has become increasingly difficult. Free beer and pizza, might work with a younger crowd!

[Richard Brown]

12 minutes ago, Bette Cox said:

Most of our condo (32 units only) owners are elderly and in ill health

Hmmm.  Well, maybe a wheelchair or new walker such as a Rollator as a door prize??  A gift certificate from a taxi company?? 

12 minutes ago, Bette Cox said:

some owners no longer live in the unit and simply use it as rental income.

Do your bylaws or state law permit proxies?

(I'm trying to avoid getting into question 107 in Parliamentary Law as long as possible!)

Edited November 2, 2018 at 03:32 PM by Richard Brown
Added the taxi gift certificate comment. . . .

[Bette Cox]

Yes, we can and do use proxies. 17 votes are needed for a quorum; last year we had 10 members present and 5 proxies. The previous year was similar. Several people own 2 or more units and each unit is counted separately. My board doesn't really function well, nobody wants to make any decisions and they are not happy having to remain board members. Our management company comes to me for decisions on spending money for unbudgeted needs, such as repairing recent hurricane damage not covered by our master insurance policy. I am not comfortable about making all these decisions, but we can't elect new more dependable board members without a quorum.

[Atul Kapur]

In the faint hope that this helps solve your problem: often in an HOA, someone who owns 2 units is entitled to 2 votes at the Annual Meeting and counts as 2 of the 17 you need for quorum. If your bylaws are written that way and you counted them that way, would you reach quorum?

This rule generally would not apply to your board meetings, however. And you are correct to be uncomfortable about being asked to make decisions on your own without authorization from the board. Could you get your current board to at least pass a motion delegating authority to a committee of one (you)?

[Josh Martin]

1 hour ago, Atul Kapur said:

This rule generally would not apply to your board meetings, however. And you are correct to be uncomfortable about being asked to make decisions on your own without authorization from the board. Could you get your current board to at least pass a motion delegating authority to a committee of one (you)?

It should be noted that the board may only delegate its authority if authorized to do so by the bylaws.

[Bette Cox]

Many thanks for your comments, friends. It appears that we will have to tolerate the current situation until and unless we get more members to attend our annual meetings. To Atul - members who own two units do get two votes, and they were counted. And our Bylaws do grant me authority as President to make decisions, but I would definitely prefer to have an active board to support my decisions. I appreciate your willingness to offer help.  Richard: what is Question 107 in Parliamentary Law? Do I want to know?

[Joshua Katz]

Make that appointment with an attorney. There is very likely a legal remedy, even if not apparent on the face of a statute. From a parliamentary perspective, you might consider using the motion to set the time to which to adjourn so that the next attempt can be made sooner than the next year.

[Guest Who's Coming to Dinner]

The members will continue to shirk their duty as long as the board members remain in place and the president takes up the slack. After all, the hurricane damage gets fixed, so why should they bother with the annual meeting? I predict that if the board and officers were to resign and things stopped getting done, the owners would be motivated to become involved.

[Josh Martin]

2 hours ago, Bette Cox said:

Many thanks for your comments, friends. It appears that we will have to tolerate the current situation until and unless we get more members to attend our annual meetings. To Atul - members who own two units do get two votes, and they were counted. And our Bylaws do grant me authority as President to make decisions, but I would definitely prefer to have an active board to support my decisions. I appreciate your willingness to offer help.  Richard: what is Question 107 in Parliamentary Law? Do I want to know?

Question 107 in Parliamentary Law involves a slightly different scenario. In that scenario, the society may obtain a quorum, however, the bylaws require a vote of 3/4 of the entire membership for their amendment, and the society is not successful in getting that many members to attend. General Robert suggested that the society should take the following steps:

• Give the required notice of the bylaw amendment.
• Adopt the amendment at a meeting by a 3/4 vote of the members present.
• Send out a mail ballot (even although mail voting is not permitted by the bylaws) and adopt the amendment by another 3/4 vote.

General Robert suggests that through this procedure, the “amendment is adopted by a method as nearly in the spirit of the by-laws as is practicable.”

Mr. Brown appears to be suggesting that a similar strategy could be used here. I am not exactly certain what he is suggesting, but I suspect it is something where you should exhaust all other possible options first, and even then, talk to a lawyer before attempting it.

Edited November 3, 2018 at 12:31 AM by Josh Martin

[Guest Zev]

Bette: Question 107 deals with a problem related to an organization whose bylaws required a very high quorum percentagewise and the increase of membership over the years has made attaining a quorum virtually impossible. Mr. Robert's answer attempts to provide a solution.

Perhaps you can get all the member's proxy to agree to change the bylaws and allow voting by mail. If the members refuse to attend the meetings then you need to embrace a creative solution, otherwise you are at a standstill.

[Josh Martin]

4 minutes ago, Guest Zev said:

Bette: Question 107 deals with a problem related to an organization whose bylaws required a very high quorum percentagewise and the increase of membership over the years has made attaining a quorum virtually impossible. Mr. Robert's answer attempts to provide a solution.

Perhaps you can get all the member's proxy to agree to change the bylaws and allow voting by mail. If the members refuse to attend the meetings then you need to embrace a creative solution, otherwise you are at a standstill.

Question 107 was regarding an absurdly high requirement for amending the bylaws, not for quorum.

[Richard Brown]

36 minutes ago, Josh Martin said:

Mr. Brown appears to be suggesting that a similar strategy could be used here.

You are correct.  And you are correct that it should be used (or tried) as an absolute last resort.

btw, I believe that Burke Balch (one of the authors of RONR for those who don't know) has suggested in this forum that it can be used where there is an inability to obtain a quorum or to take necessary action to keep the society from  just withering away due to the inability to obtain a quorum to conduct business.   I came across his post a few months ago.  I'll try to find it again.  Regardless, though, I think it can be used here as a last resort.... but it should be a TRUE last resort after making every reasonable effort to obtain a quorum through proxies and in-person attendance.

[Richard Brown]

Here is a link to the thread back in 2011 in which Burke Balch suggested using the procedure General Robert set out in the answer to question 107 in Parliamentary Law for an organization that was  unable to obtain a quorum.

https://robertsrules.forumflash.com/topic/13272-quorum/

 

[Richard Brown]

For those who don't have the book Parliamentary Law by General Henry Robert, here is a copy and paste of Question 107 and General Robert's answer from page 452 of that book:

# 107.  Ques:  The bylaws of a society provide that they may be amended by a three-fourths vote of the entire membership, notice having been given at the previous regular meeting.  These by-laws were adopted when the society was very small.  Since that time it has grown to more than 600 members.  It is a necessity that the by-laws be amended to meet the requirements of such a large organization.  Repeated attempts have been made for two years to amend them, but it is impossible to get an attendance of three fourths of the entire membership.  What can be done about it?

 

Answer:  Since the society has adopted a provision for amendment in its by-laws that it is impracticable to carry out, the only thing that can be done is to change that provision to a reasonable one, complying, in making the change, with the spirit of the existing by-laws as nearly as possible.  The makers of the by-laws did not foresee that the time would come when it would be impracticable to secure the attendance of three fourths of the membership at a meeting.  If notice of the amendment of this by-law is given as required by the by-laws, and it is adopted by a three-fourths vote of the members present, and then a mail vote is taken on the adoption of the amendment as described in R.O.R. (Robert’s Rules of Order Revised), pp. 199,200, and three fourths of the votes cast are in favor of the amendment, the amendment is adopted by a method as nearly in the spirit of the by-laws as is practicable.  While voting by mail is not allowed by R.O.R. unless it is provided for in the by-laws, yet this rule must be broken in order to comply with the spirit of an unwise by-law.  In R.O.R., p. 270, the committee on by-laws is warned against similar provisions in by-laws.  [See Ques. 105.]

[Josh Martin]

37 minutes ago, Richard Brown said:

Here is a link to the thread back in 2011 in which Burke Balch suggested using the procedure General Robert set out in the answer to question 107 in Parliamentary Law for an organization that was  unable to obtain a quorum.

https://robertsrules.forumflash.com/topic/13272-quorum/

Yes, but since this is an HOA, just like the organization in that thread, it would also be wise to pay attention to the second paragraph of Mr. Balch’s response.

[Richard Brown]

1 hour ago, Josh Martin said:

Yes, but since this is an HOA, just like the organization in that thread, it would also be wise to pay attention to the second paragraph of Mr. Balch’s response.

I agree and I said just that in my first post in this thread:

12 hours ago, Richard Brown said:

I  would also suggest you study state law regarding homeowner associations (and non profit corporations if you are incorporated) to see if there are any applicable provisions regarding quorum issues.  Some state laws provide for reducing quorum requirements for subsequent meeting attempts.

 

Edited November 3, 2018 at 03:13 AM by Richard Brown

[Richard Brown]

Guest  Bette Cox, I want to emphasize that the POSSIBLE solution addressed in Question 107 in Parliamentary Law should be AN ABSOLUTE LAST RESORT, for a variety of reasons.  You should first make EVERY reasonable effort to obtain a quorum through the use of proxies and personal  attendance.  When I say "make every reasonable effort", I mean going far beyond the simple mailing of meeting notices and proxies.  I mean phone calls, personal visits, etc.  Perhaps even hiring couriers to personally visit the out of town owners to obtain their signatures on proxies. Anything short of that might well be deemed insufficient by a court if a legal challenge is filed. 

Your first order of business when you finally do have a quorum should be amending your bylaws to lower the quorum requirement.  An alternative to a direct lowering of the quorum requirement would be a provision that if a quorum is not present at a meeting, the quorum requirement at any adjourned meeting shall be reduced, such as to one-half of the normal  requirement.  Such a bylaw amendment needs to be properly noticed per your current bylaw (and any state law) requirements.  I suggest you consult with a professional parliamentarian and/or an attorney for the drafting of such a provision as it needs to be carefully worded.

Also, if your bylaws don't already provide  for this, they should perhaps be amended to say that officers and directors shall serve for whatever the term is "or until their successors are elected" (or the phrase, "and until their successors are elected").  The two phrases have a different meaning, but they both make plain that the officers can continue to serve until their successors are elected.

Finally, if this is not already the case, you might consider a provision which allows the board itself to fill vacancies rather than requiring a special election by the membership.