tie in elections of hoa directors

[Mare]

Our HOA recently held elections for board of directors which ended in a tie vote between two runners. This was announced by our chairperson at the next monthly Board meeting. They reported that someone involved in the counting of the votes reported that there was a discrepancy in the count. This was reported after the announcement of the results of the vote and the board members were sworn in. The votes were recounted and came out with the same count. The problem that I see is that the recount tellers included one of the people running and who was involved in this tie vote. I feel that it was a conflict of interest for the board to let this person be involved in the recount. The end result was a coin toss between the two people running as per advice from our lawyer. My question is to the fact of the conflict of interest. Should his participation in the recount have been allowed?

 

[Richard Brown]

It's hard for me to follow exactly what happened, but as to your question whether one of the candidates should have served as a teller, my answer is "probably not", but RONR does not explicitly prohibit it.  The way RONR states it, it appears to be a "should" rule which expresses preferred practice, but not an absolute rule.  However, the time to raise a point of order was at the time of his appointment.  It is too late to complain about it now.  Here is the provision on page 414 of RONR regarding the appointment of tellers:

Balloting Procedure. In balloting in a meeting where the voting is in the same room as the meeting, the chair appoints tellers to distribute, collect, and count the ballots, and to report the vote. The number of tellers is dependent on the number of voters, and the number of offices to be filled or questions to be answered, or the number of candidates. For a small group, two or three tellers are usually sufficient. The tellers should be chosen for accuracy and dependability, should have the confidence of the membership, and should not have a direct personal involvement in the question or in the result of the vote to an extent that they should refrain from voting under the principle stated on page 407. Often their position with regard to the issue involved is well known, however, and they are frequently chosen to protect the interests of each opposing side. They normally vote themselves.

[Gary Novosielski]

1 hour ago, Mare said:

Our HOA recently held elections for board of directors which ended in a tie vote between two runners. This was announced by our chairperson at the next monthly Board meeting. They reported that someone involved in the counting of the votes reported that there was a discrepancy in the count. This was reported after the announcement of the results of the vote and the board members were sworn in. The votes were recounted and came out with the same count. The problem that I see is that the recount tellers included one of the people running and who was involved in this tie vote. I feel that it was a conflict of interest for the board to let this person be involved in the recount. The end result was a coin toss between the two people running as per advice from our lawyer. My question is to the fact of the conflict of interest. Should his participation in the recount have been allowed?

 

This is confusing.  I have a few (okay, a dozen) questions.

1. The election was held, the results were announced, and one of the tellers reported there was a discrepancy in the account? 
2. How were the results announced before the tellers reported? 
3. Was there an earlier tellers' report from which the results were announced?
4. And what were the results? 
5. Was a tie announced originally, or was it alleged later? 
6. The recount showed the same result?  The same as what, a tie or not? 
7. Was any point of order raised at the time that the result was announced? 
8. If there was a tie, which candidate was "sworn in"? 
9. Do you have a special rule of order authorizing a coin toss, or did the lawyer just make stuff up out of thin air? 
10. What does any of this have to do with the alleged conflict of interest?  Was any point of order raised at the time that the recount tellers were appointed? 
11. Was the recount ordered by vote of the assembly? 
12. Was this an election for a single office, or for multiple board seats?  And did you confirm that the winner(s) received a majority vote of the ballots cast?

 

[Guest Who's Coming to Dinner]

1 hour ago, Mare said:

The end result was a coin toss between the two people running as per advice from our lawyer.

Is that what they teach in law school these days? In parliamentary land, a tie means neither candidate has a majority and voting should be repeated until one does.

[Joshua Katz]

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

Is that what they teach in law school these days? In parliamentary land, a tie means neither candidate has a majority and voting should be repeated until one does.

I'm only a 3L, so I haven't learned about this yet.

[Gary Novosielski]

1 hour ago, Guest Who's Coming to Dinner said:

Is that what they teach in law school these days? In parliamentary land, a tie means neither candidate has a majority and voting should be repeated until one does.

It used to be that if you needed surgery you went to a barber.  But nowadays if you want a parliamentary opinion, you go to a parliamentarian, and if you want to get trimmed you go to a lawyer barber.  🙂 

Edited November 10, 2018 at 02:54 AM by Gary Novosielski
To avoid being pelted with Milk Duds.

[Richard Brown]

3 hours ago, Mare said:

The end result was a coin toss between the two people running as per advice from our lawyer.

 

1 hour ago, Guest Who's Coming to Dinner said:

Is that what they teach in law school these days? In parliamentary land, a tie means neither candidate has a majority and voting should be repeated until one does.

Actually, a coin toss CAN be used to settle a tie vote in an election without violating RONR, but only indirectly.  If the election is for an officer as defined in RONR, it can be decided only by a majority vote unless a bylaw provision provides otherwise.  So, the assembly cannot properly permit the election  to be directly settled by a coin toss.  But, the candidates themselves can agree between themselves that one of them will withdraw from the race based on the result of a coin toss.  There technically still needs to be another ballot taken, and the members can technically continue to vote for or write in the name of the candidate who withdrew, but as a practical matter the coin toss usually settles the election impasse.

If you search the forum using the search words "coin toss" you will find several threads on point. BTW, I  suggest that when doing a forum search, it is almost always best to choose the selection for "all search terms" rather than "any search terms".  Using the default setting of "any search terms" usually yields far too many results, most unrelated to what you are searching for.

[Mare]

10 hours ago, Gary Novosielski said:

This is confusing.  I have a few (okay, a dozen) questions.

1. The election was held, the results were announced, and one of the tellers reported there was a discrepancy in the account? 
2. How were the results announced before the tellers reported? 
3. Was there an earlier tellers' report from which the results were announced?
4. And what were the results? 
5. Was a tie announced originally, or was it alleged later? 
6. The recount showed the same result?  The same as what, a tie or not? 
7. Was any point of order raised at the time that the result was announced? 
8. If there was a tie, which candidate was "sworn in"? 
9. Do you have a special rule of order authorizing a coin toss, or did the lawyer just make stuff up out of thin air? 
10. What does any of this have to do with the alleged conflict of interest?  Was any point of order raised at the time that the recount tellers were appointed? 
11. Was the recount ordered by vote of the assembly? 
12. Was this an election for a single office, or for multiple board seats?  And did you confirm that the winner(s) received a majority vote of the ballots cast?

 

Gary, I'm relatively new to all of this. I've been a member of this HOA for 15 years and this is the first time this has come up to my knowledge. I'm doing research as this new BOD is doing things a lot differently from the way things have always been done and I want to make sure that everything they are doing is legal. The board wasn't really clear on the way the tie was reported but I believe it was after our General Membership meeting was closed. They told us they did a recount, with counting being done by board members including one of the candidates involved in the two-way tie. Our lawyer was contacted and said that they would have to do a coin-toss. The two candidates agreed to it and it was over. The bylaws committee will be going over this and try to come up with an amendment to make things clearer. Thanks for your help.

[Guest Who's Coming to Dinner]

11 hours ago, Richard Brown said:

 

Actually, a coin toss CAN be used to settle a tie vote in an election without violating RONR, but only indirectly.  If the election is for an officer as defined in RONR, it can be decided only by a majority vote unless a bylaw provision provides otherwise.  So, the assembly cannot properly permit the election  to be directly settled by a coin toss.  But, the candidates themselves can agree between themselves that one of them will withdraw from the race based on the result of a coin toss.  There technically still needs to be another ballot taken, and the members can technically continue to vote for or write in the name of the candidate who withdrew, but as a practical matter the coin toss usually settles the election impasse.

If you search the forum using the search words "coin toss" you will find several threads on point. BTW, I  suggest that when doing a forum search, it is almost always best to choose the selection for "all search terms" rather than "any search terms".  Using the default setting of "any search terms" usually yields far too many results, most unrelated to what you are searching for.

Really, what does any of this have to do with RONR? Of course people can toss a coin, throw the yarrow sticks, or slide the planchette to come to an informal decision and then backfill proper parliamentary technique. I don't think teaching people to use chance to resolve an impasse is the right step toward parliamentary education.

[Joshua Katz]

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

Really, what does any of this have to do with RONR? Of course people can toss a coin, throw the yarrow sticks, or slide the planchette to come to an informal decision and then backfill proper parliamentary technique. I don't think teaching people to use chance to resolve an impasse is the right step toward parliamentary education.

I agree. Apparently telling people to use chance to resolve an impasse is lawyers' work, not parliamentarians'.

[Richard Brown]

13 hours ago, Richard Brown said:

Actually, a coin toss CAN be used to settle a tie vote in an election without violating RONR, . . . .

 

1 hour ago, Guest Who's Coming to Dinner said:

Really, what does any of this have to do with RONR? Of course people can toss a coin, throw the yarrow sticks, or slide the planchette to come to an informal decision and then backfill proper parliamentary technique. I don't think teaching people to use chance to resolve an impasse is the right step toward parliamentary education.

 

40 minutes ago, Joshua Katz said:

I agree. Apparently telling people to use chance to resolve an impasse is lawyers' work, not parliamentarians'.

Well, then, I guess the two disagree with General  Robert and are not aware that provisions for settling election ties by lot are rather common.  And I suppose you would  rather an organization that uses mail ballots to elect officers to have to resort to another expensive and time consuming mail ballot to settle a tie than to settle it by lot.  It is quite common, for example, for bylaws to provide that election ties be settled by lot, such as the  flip of a coin.  And it is quite common for two candidates who are tied to agree between themselves that one of them will withdraw and that they will decide who will withdraw by a coin toss.

You also must disagree with General Robert who said the following on page 234 of Parliamentary Law regarding a tie vote when voting by mail, "If there is a tie vote, it should be decided by lot".    And the following statement on page 238;

"In electing members of boards by ballot, if a majority vote is received by more than there are places to fill, those places are filled by those receiving the highest number of votes.  If a tie interferes, the tie is decided by lot, unless the assembly continues the balloting, which latter is much more satisfactory and should be done if time permits."  If the term of office of the members of the board elected at one time varies, those receiving the greatest number of votes take the longer term.  All ties are decided by lot."

That makes at least three references by General Robert in Parliamentary Law to settling ties by lot.  But, I guess our sarcastic unknown guest thins that reading and studying Parliamentary Law is not a good step in obtaining a good education in parliamentary procedure.  For that matter, it looks like both of you think that becoming familiar with Parliamentary Law is a bad thing, not a good thing.  The parliamentarian who suggested it at least three times in his book is the one who we most revere.  SMH.

Just to make sure there is no misunderstanding, I did not endorse the coin toss for declaring a winner as was supposedly suggested by this organization's attorney, but rather I said that it is quite appropriate for the candidates themselves to agree that one of them will withdraw  from the race based on a coin toss.  I very carefully DID NOT say that the coin toss itself would substitute for a majority vote in determining the winner.   It is quite common for two candidates, especially when they are friends, to agree between themselves that one of them will withdraw from the race based on a coin toss.  And it is quite common for parliamentarians to suggest that some organizations, depending on the size and nature of the organization and the nature of its elections, to include a provision in their bylaws that election ties shall be settled by lot. 

 

[Joshua Katz]

1 hour ago, Richard Brown said:

Well, then, I guess the two disagree with General  Robert and are not aware that provisions for settling election ties by lot are rather common. 

Not really, I just wanted to make a crack on lawyers while I still can.

Your points here are well taken. At the same time, I've seen too many organizations (okay, a few organizations too many times) ignore all the cautions you mention and simply flip a coin. Yes, there are some some statements in PL endorsing that - but no organization adopts PL as its parliamentary authority, they adopt RONR, and I think you'll agree that the cautions in your final paragraph, therefore, apply - and are ignored too often. Perhaps that's one reason for a parliamentarian to suggest such a provision in the bylaws - to keep the organization from violating its rules by doing it anyway. 

So, on a more serious note, I have no objection to organizations doing this within the rules. I do worry about how it is explained, and about how vigorously a parliamentarian should suggest it. As we all well know, a tie is often an opportunity for a dark-horse candidate to emerge on the next ballot. So from a philosophical standpoint, I agree with the quotes from PL you provide, which say that continued balloting is preferable. We should all be conscious of the ways our words can be misunderstood. Who among us has not carefully explained the coin toss procedure you suggest, only to hear later "the parliamentarian said we should just flip a coin and get it done with?" For me, much comes down to the specific words used and how it is explained.

[Gary Novosielski]

7 hours ago, Mare said:

Gary, I'm relatively new to all of this. I've been a member of this HOA for 15 years and this is the first time this has come up to my knowledge. I'm doing research as this new BOD is doing things a lot differently from the way things have always been done and I want to make sure that everything they are doing is legal. The board wasn't really clear on the way the tie was reported but I believe it was after our General Membership meeting was closed. They told us they did a recount, with counting being done by board members including one of the candidates involved in the two-way tie. Our lawyer was contacted and said that they would have to do a coin-toss. The two candidates agreed to it and it was over. The bylaws committee will be going over this and try to come up with an amendment to make things clearer. Thanks for your help.

You should also make sure that your board and lawyer get a better handle on the proper procedures in RONR and in your bylaws. 

• Results of an election can only be officially announced at a meeting. 
• Recounts can only be ordered by the assembly, which is responsible for settling all questions of validity in an election. 
• The appointment of tellers should also take place at a meeting, so that members have an opportunity to object if there are objections to the appointment of certain tellers. 
• Lawyers give advice--they do not tell you what to do. And if they don't know the right answer, they should tell you that, or find out the right answer before giving you bad advice. 

It is good to have the bylaws committee review your bylaws, but it seems to me that part of the problem is that the board is not following the rules in RONR, which are about as free of ambiguities as the English language permits, but people have to know what those rules are. 

And they have to be committed to follow them.  

Edited November 10, 2018 at 08:26 PM by Gary Novosielski