Call of Special Meeting

[Josh Martin]

2 hours ago, Newbie said:

Below is our proposed agenda which I was planning on handing out to folks upon their arrival.

I don’t really think an agenda is necessary for this meeting.

2 hours ago, Newbie said:

Motion to confirm the number of residents present and voting to include any proxy votes. Announce the count and establish the majority criteria. (We likely will have spouses in attendance. Our bylaws stipulate 1 vote per unit.)

There is no need for a motion for this.

2 hours ago, Newbie said:

Motion to propose the vote be taken as a counted show of hands. (I learned this on this site/string. Hopefully this works, but if need be, I will have printed ballots should we need to go that route.)

So you don’t want a ballot vote anymore?

A motion for a counted show of hands, or for a ballot vote is in order. If both motions fail, the vote will be a voice vote (although calls for a Division of the Assembly are in order if that is inconclusive).

2 hours ago, Newbie said:

Motion to decide the number of directors (between 3 and 7) to be effective as of the elections at the upcoming annual meeting.

o   Those in favor of having 3 Directors raise your hand.

o   Those in favor of having 4 Directors raise your hand.

o   Those in favor of having 5 Directors raise your hand.

o   Those in favor of having 6 Directors raise your hand.

o   Those in favor of having 7 Directors raise your hand.

·         The vote for “X” directors has a majority.

First, it is not necessary or appropriate to spell the procedure out in detail in the agenda. I would strike everything after the first sentence. 

Secondly, when filling blanks, the numbers are arranged in a logical order and voted on in order. Since each proposal is viewed as an independent original, the members votes for and against each proposal in order. As soon as one of the numbers reaches a majority (that is, there are more votes for than against), that number is adopted. Because of this, they should be arranged such that the number with the least likelihood of adoption is listed first. Based on the order you have presented, this suggests you believe most members are in favor of a larger board. If this is not the case, the order should be reversed.

Also, a motion “to determine the number of directors (between 3 and 7)” is not in order. Rather, the member would move “To set the number of directors at (blank), to be effective as of the elections at the upcoming annual meeting.” The chairman should explain that suggestions for filling the blank are now in order, but that due to the rules in the bylaws, the numbers must be no lower than three and no higher than seven. Suggestions are then taken. It may be that not every possible number is suggested - perhaps only three, five, and seven will be suggested, for instance.

The process above assumes the counted show of hands vote is taken, and it also applies for most other methods of voting. In my opinion, for a ballot vote or roll call vote, it follows the same procedure as for an election. That is, the members instead vote for a suggestion of their choice on their ballot (rather than voting on the suggestions one at a time).

Finally, after the blank has been filled, the motion as it now reads is then pending and subject to further discussion, and ultimately, a final vote is taken on the ultimate wording of the motion.

2 hours ago, Newbie said:

The Special Meeting of the Association of XYZ was held on Wednesday, September 4, 2019, at Unit 16R.

This paragraph should read as follows: “The special meeting of the Association of XYZ was held on Thursday, September 4, 2019, at 6:30 P.M., at Unit 16R, the President being in the chair and Mr. A serving as Secretary.”

In the event a different chairman is elected, the words “the President” should be replaced with the name of that person.

2 hours ago, Newbie said:

List of all in attendance.

This should be struck.

2 hours ago, Newbie said:

Do officers retain their titles in a special meeting, or are they relegated to simply resident status?

Officers retain their titles.

2 hours ago, Newbie said:

Is President supposed to chair the meeting?

Yes.

2 hours ago, Newbie said:

We list everyone that attended, correct? Not just the spouse that actually voted?

So far as RONR is concerned, all that the minutes list with respect to attendance is the fact that the regular presiding officer and secretary  were present, or if they were not present, the names of the persons who served in those roles.

2 hours ago, Newbie said:

X called the meeting to order at 6:30 PM.

X motioned to request a person to serve as Secretary for the meeting. X was nominated/volunteered. All in favor.

This should be struck. The relevant information from this is included in the first paragraph.

2 hours ago, Newbie said:

X motioned to adopt the agenda. All in favor.

ThIs should read “Mr. X moved that the agenda be adopted. The motion was adopted.”

2 hours ago, Newbie said:

X motioned to confirm the number of residents present and voting to include any proxy votes. The number of those present and voting was E.G. 17. That results in a majority criteria of E.G. 9.

The motion in question is unnecessary, and in any event, the paragraph should be struck.

2 hours ago, Newbie said:

X motioned that the vote be taken by a counted show of hands. All in favor.

This should be struck. Incidental motions do not need to be recorded.

2 hours ago, Newbie said:

X motioned to decide the number of directors (between 3 and 7) to be effective as of the elections at the upcoming annual meeting. The counts were as follows:

·         3 directors: x votes

·         4 directors: x votes

·         5 directors: x votes

·         6 directors: x votes

·         7 directors: x votes

The majority results in E.G. 5 directors to be effective as of the elections at the upcoming annual meeting.

This should instead read: “Mr. X moved “To set the number of directors at (blank), to be effective as of the elections at the upcoming annual meeting. Three, four, five, six, and seven were suggested to fill the blank. The suggestions were voted on in ascending order. For “three,” there were X votes in the affirmative and X votes in the negative. (rinse/repeat) “Five” was chosen to fill the blank and the resulting motion “To set the number of directors at five, to be effective as of the elections at the upcoming annual meeting.” was adopted after debate with X votes in the affirmative and X votes in the negative.”

I would also note that in the ordinary case, secondary motions are not included in the minutes, so the minutes would generally read “Mr. X moved “To set the number of directors at five, to be effective as of the elections at the upcoming annual meeting. The motion was adopted after debate and amendment with X votes in the affirmative and X votes in the negative.” Some might rightly note that this is misleading, as this is not, in fact, what Mr. X moved, so I have no personal objection to instead saying “It was moved” rather than “Mr. X moved.”

RONR does provide, however, that when a counted vote is ordered, the count is recorded. The text is not entirely clear on whether this only applies to motions which are already supposed to be recorded in the minutes, or whether this means that if a counted vote is ordered, a motion which would not otherwise be recorded in the minutes should be recorded, including the resulting count. Since there is ambiguity on this point, I have provided versions with and without the details of the process of filling blanks.

2 hours ago, Newbie said:

X motioned to adjourn.

This should instead read “The meeting adjourned at X:XX PM.”

Then at the bottom, insert “Mr. A, Secretary Pro Tempore”

Edited August 28, 2019 at 04:49 PM by Josh Martin

[Newbie]

Thank you, Josh, for your time putting that response together. Clearly, I have a long way to go before I'm no longer "Newbie"!

From your description above, I think going the ballot route would actually be easier. None of our folks are anywhere near parliamentarian basic knowledge and I'm not sure I could explain why we'd be doing all the things we're supposed to be doing.

I recall reading something about "blank" in either the RONR In Brief or the "for dummies" book. Now I have a better understanding of what it means.

Another thing I recall about ballot votes would be something about "tellers" if that's the right term. If we go that route, I believe we'll have to ensure ballots go to those with the right to vote, then be collected, counted, and reported. Can we identify the tellers in advance?

[Josh Martin]

58 minutes ago, Newbie said:

From your description above, I think going the ballot route would actually be easier. None of our folks are anywhere near parliamentarian basic knowledge and I'm not sure I could explain why we'd be doing all the things we're supposed to be doing.

Okay. Please note that even if the vote is by ballot, most of the steps above are still followed. The only difference is that members cast a vote for a suggestion of their choice rather than voting on the suggestions in sequence. Also note that multiple rounds of balloting may be necessary.

1 hour ago, Newbie said:

Another thing I recall about ballot votes would be something about "tellers" if that's the right term. If we go that route, I believe we'll have to ensure ballots go to those with the right to vote, then be collected, counted, and reported.

Yes, this is correct.

1 hour ago, Newbie said:

Can we identify the tellers in advance?

There is nothing wrong with seeking out tellers in advance, but they are not formally appointed until the meeting itself. Also note that tellers are appointed by the chair.

[Gary Novosielski]

I don't see why you would need a proposed agenda nor approval of it.  Didn't the call of the meeting specifically describe the only item(s) that would be considered at the meeting, as the rules require?

[Newbie]

On 8/29/2019 at 1:42 PM, Gary Novosielski said:

I don't see why you would need a proposed agenda nor approval of it.  Didn't the call of the meeting specifically describe the only item(s) that would be considered at the meeting, as the rules require?

Well, that's why I ask some of these questions on the forum. Thank you for taking the time to respond.

We are a relatively new HOA and this will actually be our first ever called Special Meeting. So while I'm trying to drive the meeting (although I'm not the Prez), I'm clearly still on my learner's permit. And since our Prez actually doesn't support the Special Meeting, we're trying to make sure he doesn't mess it up (intentionally or otherwise). Thus perhaps an extra level of caution/agita.

[Atul Kapur]

7 hours ago, Newbie said:

And since our Prez actually doesn't support the Special Meeting, we're trying to make sure he doesn't mess it up (intentionally or otherwise).

Sounds like you would benefit from having a parliamentarian at the meeting, to help protect everyone's rights.

[Newbie]

On 8/31/2019 at 10:32 PM, Atul Kapur said:

Sounds like you would benefit from having a parliamentarian at the meeting, to help protect everyone's rights.

Atul, I agree completely. Unfortunately, we're not in a position to pay someone for their services at this time. And with our current make up, it wouldn't fly with those presently on the board.

A few months ago, I motioned that the board should buy copies of RONR In Brief for board members. That would have been a cost of under $50. The motion failed 5-2. Current board members don't know about RONR and they're not interested in learning about RONR. If we go from 7 to 5 board members, we'll be voting for 2 open spots. Hopefully, the incoming folks will be more receptive to meeting protocols. Actually, I know they will be. We just have to do our best to get them elected and turn over the obstructionist attitude that currently exists.

[Newbie]

On 8/31/2019 at 10:32 PM, Atul Kapur said:

Sounds like you would benefit from having a parliamentarian at the meeting, to help protect everyone's rights.

I spoke to our Prez today and asked if he'd be attending/chairing the meeting. His reply was "probably". At one point he suggested that perhaps we wouldn't even take a vote based on a motion that "someone" might make.

Now I'd raise a point of order saying that motion was out of order and contrary to the purpose of having the special meeting in the first place. But because of our association's lack of understanding about parliamentary protocol, some might actually find it as a legitimate motion. Because, after all, he's the PREZ.

I hope it doesn't come to that. We've had enough obstructionism and divisiveness over the past year.

[Guest Zev]

1 hour ago, Newbie said:

At one point he suggested that perhaps we wouldn't even take a vote based on a motion that "someone" might make.

The veiled suggestion that the president may violate his duty as chairman and refuse to put to a vote a legitimate motion does not fill me with a great amount of confidence that events will turn out in a satisfactory manner.

 

[Atul Kapur]

On 9/2/2019 at 2:16 PM, Newbie said:

Unfortunately, we're not in a position to pay someone for their services at this time.

Well, some of you, as individuals, may decide it's worthwhile to have one there to protect your rights.

It's almost certainly less expensive than the lawyers will cost.

[Newbie]

Well we had our special meeting this evening. Our Prez did try to interject that he wasn't in favor of the meeting. He did allow a dissenter to argue that our meeting was invalid. I tried to make a point of order that we were not here to discuss whether we had a valid or invalid meeting. Basically ignored.

Once we got around to the business at hand, we had 23 of 26 units represented. Our tellers passed out ballots. Our dissenter declined to accept a ballot. I'll assume we still count the dissenter as part of the residents that allowed us to have a quorum.

Our Prez wanted everyone to record their unit numbers on the ballots that were handed out. Another point of order saying that then the ballots wouldn't be considered secret. We got around that speed bump by calling out Unit by Unit and the tellers collected the ballots from each person representing a unit as called.

The tellers tabulated the results which ended up as a unanimous 22 votes for having 5 directors. The Prez announced the results.

The dissenter threatened to challenge the validity of the meeting. I'm not sure how she plans to do that. Some people asked why she was making a mountain out of a molehill.

At least we are now clear on how many positions we will need to fill at our next annual meeting in October. And people can decide to run for one of the two open positions.

[Josh Martin]

On 9/4/2019 at 7:34 PM, Newbie said:

He did allow a dissenter to argue that our meeting was invalid. I tried to make a point of order that we were not here to discuss whether we had a valid or invalid meeting. Basically ignored.

A Point of Order that the meeting is invalid is in order. The Point of Order should perhaps have been ruled not well taken (I don’t know as I don’t know what the member gave as her reasoning), but it is in order.

“The only business that can be transacted at a special meeting is that which has been specified in the call of the meeting. This rule, however, does not preclude the consideration of privileged motions, or of any subsidiary, incidental, or other motions that may arise in connection with the transaction of such business or the conduct of the meeting.” (RONR, 11th ed., pg. 93)

On 9/4/2019 at 7:34 PM, Newbie said:

Our dissenter declined to accept a ballot. I'll assume we still count the dissenter as part of the residents that allowed us to have a quorum.

Yes. So long as she remained in the room, she was still present and counts toward the quorum.

On 9/4/2019 at 7:34 PM, Newbie said:

The dissenter threatened to challenge the validity of the meeting. I'm not sure how she plans to do that.

She would do so by raising a Point of Order at the next regular meeting that the special meeting was invalid. At this point, there would need to be a continuing breach to raise such a point. I am still not certain on what grounds the member is making this claim, so I don’t know whether there is any validity to it.

Edited September 6, 2019 at 01:05 AM by Josh Martin

[Newbie]

1 hour ago, Josh Martin said:

A Point of Order that the meeting is invalid is in order. The Point of Order should perhaps have been ruled not well taken (I don’t know as I don’t know what the member gave as her reasoning), but it is in order.

“The only business that can be transacted at a special meeting is that which has been specified in the call of the meeting. This rule, however, does not preclude the consideration of privileged motions, or of any subsidiary, incidental, or other motions that may arise in connection with the transaction of such business or the conduct of the meeting.” (RONR, 11th ed., pg. 93)

Yes. So long as she remained in the room, she was still present and counts toward the quorum.

She would do so by raising a Point of Order at the next regular meeting that the special meeting was invalid. At this point, there would need to be a continuing breach to raise such a point. I am still not certain on what grounds the member is making this claim, so I don’t know whether there is any validity to it.

Let's see if I can explain how it unfolded. Immediately after the call to order, and even before we appointed our secretary pro temp, the dissenter was allowed to speak by the Prez. She went into her argument that the meeting was not valid because the Call of the Special Meeting was not mailed, but handed out to individual home owners. Below is the reference she was citing which comes from our Declaration that was written in 2007.

19.1 All notices hereunder, and under the Bylaws and The Act, to The Association and The Board shall be sent by United States certified mail to The Board at Blankity ESTATES CONDOMINIUM ASSOCIATION, c/o Blankity Estates, LLC, P.O. Box xxxx, Blank, New Hampshire xxxxx, or to such other address as The Board may designate, from time to time, by notice in writing to all Owners.  All such notices to Owners shall be sent to the address of the Owners at their respective Units and to such other addresses as any of them may have designated to The Board. All notices shall be deemed to have been given when mailed, except notices of change of address which shall be deemed to have been given when received, and except as otherwise provided herein.

Note there is reference to Bylaws and "The Act" which is our state statute. That reads as follows:

Section 356-B:37-a

    356-B:37-a Notice to Unit Owners. – An association shall deliver any notice required to be given by the association under this chapter to any mailing or electronic mail address a unit owner designates. If the unit owner does not designate an address, the association shall deliver notices by hand delivery, United States mail postage paid, or commercially reasonable delivery service to the mailing address of each unit. 

Source. 2016, 311:2, eff. Aug. 1, 2016.

Our position is that notices to Owners aren't required to be mailed, but if they are mailed, the postmark would determine if they were sent out in a timely manner, i.e. satisfying the number of days notice required. Also, that the updated statute (2016) would further allow for delivery directly to an owner's door (like Amazon Prime deliveries). I deem the notice to have been given when it went from my hand to a unit owner's hand. Does it need to be more complicated than that?

So she never raised a point of order but rather just went into her diatribe. I raised a point of order, but our Prez did nothing and probably doesn't know what he should do when someone does raise a point of order.

In any case we had a solid quorum - 23 of 26 unit owners represented (2 by proxy, which we allow) including the dissenter. We did the ballot vote and had a unanimous 22 votes to go to 5 directors effective at our next annual meeting.

Given that our old Declaration references "The Act", could we infer that the statute would take precedence as it is much more recent in publication? We'd never be able to change everything in the Declaration that might have been updated as the statute evolved.

We satisfied the requirements for the call at 2 levels: a (strong) majority of the board which was 5 out of 6 board members (Prez was the one not participating) and 25% of the association. We met the time requirement of 7 days in advance of the meeting by delivering 24 with 10 days notice and 2 with 7 days notice.

Now, since the meeting has actually been held and a decision made on the number of directors, how would a "continuing breach" occur? And given that 5 out of 6 board members favored having the meeting to begin with, what would be her expectation? Can our board simply shut this down?

Thanx again for any/all guidance. It's been very helpful. Difficult to explain to others who know even less than I do, but hopefully it's a learning experience for all of us.

[Josh Martin]

17 hours ago, Newbie said:

Let's see if I can explain how it unfolded. Immediately after the call to order, and even before we appointed our secretary pro temp, the dissenter was allowed to speak by the Prez. She went into her argument that the meeting was not valid because the Call of the Special Meeting was not mailed, but handed out to individual home owners. Below is the reference she was citing which comes from our Declaration that was written in 2007.

I think this is certainly an appropriate time to raise a Point of Order raising the meeting’s validity. Indeed, it seems prudent to handle such matters as soon as possible.

17 hours ago, Newbie said:

they were sent out in a timely manner, i.e. satisfying the number of days notice required. Also, that the updated statute (2016) would further allow for delivery directly to an owner's door (like Amazon Prime deliveries). I deem the notice to have been given when it went from my hand to a unit owner's hand. Does it need to be more complicated than that?

This seems to be a reasonable interpretation.

17 hours ago, Newbie said:

So she never raised a point of order but rather just went into her diatribe. I raised a point of order, but our Prez did nothing and probably doesn't know what he should do when someone does raise a point of order.

Nonetheless, it seems to me the member’s complaint was clearly in the nature of a Point of Order and should have been admitted as such (or alternately, the chair could have helped her properly frame it as a Point of Order). There is no need to penalize the member for not knowing the correct terminology. Unfortunately, since the President also apparently did not know how to process a Point of Order, the matter was not properly resolved. The chair should have ruled on the point, and the chair’s ruling could be appealed from.

17 hours ago, Newbie said:

Given that our old Declaration references "The Act", could we infer that the statute would take precedence as it is much more recent in publication? We'd never be able to change everything in the Declaration that might have been updated as the statute evolved.

Applicable procedural rules in state law take precedence over the bylaws in any event.

17 hours ago, Newbie said:

Now, since the meeting has actually been held and a decision made on the number of directors, how would a "continuing breach" occur?

Generally, a Point of Order regarding a violation of the rules must be raised at the time that the violation occurs. Certain rule violations, however, are so severe that they cause a “continuing breach,” in which event a Point of Order may be raised at a later time. One of the types of violations which causes a continuing breach is when a rule protecting the rights of absentees is violated. A rule concerning notice is such a rule. So if the member is in fact correct that notice may be sent only by mail, that would be a continuing breach.

So it seems to me the member should be permitted to raise this point at a future meeting of the membership. Specifically, her point would be that the special meeting (and the business conducted therein) is null and void, because the bylaws require notice to be sent by mail, which was not done. The point would be ruled on by the chair, and that ruling would be subject to appeal. A majority vote is sufficient to overturn the chair’s ruling. I don’t think the facts support the member’s claim, but this will ultimately be a question for the society to decide.

There is also the possibility that the member might pursue a legal challenge, in which event the society should seek legal counsel.

17 hours ago, Newbie said:

And given that 5 out of 6 board members favored having the meeting to begin with, what would be her expectation?

I can’t speculate as to the member’s expectations.

17 hours ago, Newbie said:

Can our board simply shut this down?

No. Since the decision was made at a meeting of the membership, a Point of Order regarding this matter may only be raised at a meeting of the membership. The board is subordinate to the membership, and therefore cannot declare an action of the membership to be null and void.