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Jeff Kelley

Motion to reconsider

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2 minutes ago, Jeff Kelley said:

If an item  is voted on that required a 2/3 vote and it was defeated would the people who voted yes be allowed to make a motion to reconsider or would it be no votes as they  prevailed?

"It can be made only by a member who voted with the prevailing side. In other words, a reconsideration can be moved only by one who voted aye if the motion involved was adopted, or no if the motion was lost. (In standing and special committees, the motion to Reconsider can be made by any member who did not vote on the losing side—including one who did not vote at all.) It should be noted that it is possible for a minority to be the prevailing side if a motion requiring a two-thirds vote for adoption is lost"  RONR (11th ed.), pp. 315-316 emphasis added by me.

So in your case, it would be a member who voted no.  I hope this is hypothetical, because if this already happened it's almost surely too late for the motion to reconsider the vote to be made.  See p. 316 b )

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Have an add on to Jeff's question.  The motion to raise something for reconsideration needs to come from the prevailing side.   We have absolutely no proof how the person that made the motion to reconsider voted.  The ballot is private.  We don;t know how the person voted, if the voted at all or if they filled out their ballot incorrectely.

Seems to me, if the motion to reconsider is dependent on how someone voted and we don't know how they voted, then this option should be off the table.  Is word of mouth proof as to how they voted?  Not to me.

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7 minutes ago, John Cummings said:

Have an add on to Jeff's question.  The motion to raise something for reconsideration needs to come from the prevailing side.   We have absolutely no proof how the person that made the motion to reconsider voted.  The ballot is private.  We don;t know how the person voted, if the voted at all or if they filled out their ballot incorrectely.

Seems to me, if the motion to reconsider is dependent on how someone voted and we don't know how they voted, then this option should be off the table.  Is word of mouth proof as to how they voted?  Not to me.

"A member who voted by ballot may make the motion if he is willing to waive the secrecy of his ballot."  RONR (11th ed.), p. 316

Yep, you just take his word for it.  Same with a voice vote.  The chair asks how the member voted and if he states he voted on the prevailing side you take his word for it.

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George the attorney that works for the  BOD interpretation was the yes votes were the prevailing vote so he let a person make motion to reconsider that person by virtue of his interpretation of what  was prevailing a yes vote

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So it would appear to mean that the vote was invalid.  We tried  to get him to understand that the no vote had prevailed but he said the yes votes had more so even though it had failed to pass the yes vote was the prevailing side. 

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3 minutes ago, Jeff Kelley said:

George the attorney that works for the  BOD interpretation was the yes votes were the prevailing vote so he let a person make motion to reconsider that person by virtue of his interpretation of what  was prevailing a yes vote

 

Just now, Jeff Kelley said:

So it would appear to mean that the vote was invalid.  We tried  to get him to understand that the no vote had prevailed but he said the yes votes had more so even though it had failed to pass the yes vote was the prevailing side. 

It's too late now to raise a point of order over a procedural error, Mr. Kelley.

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9 minutes ago, George Mervosh said:

"A member who voted by ballot may make the motion if he is willing to waive the secrecy of his ballot."  RONR (11th ed.), p. 316

Yep, you just take his word for it.  Same with a voice vote.  The chair asks how the member voted and if he states he voted on the prevailing side you take his word for it.

Thanks George.  Wow, that caught me off guard.  Why even have that provision in the reconsideration rule, if there is no proof.  Oh well.

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1 minute ago, John Cummings said:

Thanks George.  Wow, that caught me off guard.  Why even have that provision in the reconsideration rule, if there is no proof.  Oh well.

Well, if you think about it, if proof of how someone voted is required to make the motion to reconsider the vote, it would only be applicable in a roll call vote or some form of bylaw authorized electronic voting where your vote is there for the world to see.  But that's not the case.

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4 minutes ago, George Mervosh said:

 

It's too late now to raise a point of order over a procedural error, Mr. Kelley.


It was raised at the meeting but denied due to the lawyers error.  We are part of the same hoa.  All on tape.  

Thanks again.

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Just now, John Cummings said:


It was raised at the meeting but denied due to the lawyers error.  We are part of the same hoa.  All on tape.  

Thanks again.

Well it's too late to appeal too!

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5 hours ago, Jeff Kelley said:

If an item  is voted on that required a 2/3 vote and it was defeated would the people who voted yes be allowed to make a motion to reconsider or would it be no votes as they  prevailed?

For future reference, if a motion is defeated, those who voted No are the ones who prevailed, regardless of what the threshold was.

 

 

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Guest Zev

To my recollection this is the first time I have ever seen the suggestion that a losing faction in a vote actually prevailed.

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19 minutes ago, Guest Zev said:

To my recollection this is the first time I have ever seen the suggestion that a losing faction in a vote actually prevailed.

It is causing lots of controversy. Apparently the HOA lawyer doesn't know roberts rules.

His interpretation was that the side that didn't prevail was actually the winning side when applying the reconsideration rule since they received > 50%+1.   It was a 2/3 vote requirement.

Several folks actually had roberts rules with them and challenged the lawyer, but the lawyer got it wrong.

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Yes, apparently he did get it wrong. I agree with Mr Mervosh, though, that it is too late to do anything about it.

Your possible option, now, might be to give previous notice of a motion to Rescind the main motion.

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4 hours ago, Guest Zev said:

To my recollection this is the first time I have ever seen the suggestion that a losing faction in a vote actually prevailed.

Apparently he was using a legal definition of "prevail" (with apologies to all the lawyers on this forum who do understand parliamentary law and plain English, as this exact situation is explained on p. 315, line 34 - p. 316, line 1).

2 hours ago, reelsman said:

Your possible option, now, might be to give previous notice of a motion to Rescind the main motion.

It's not clear what happened so it's not clear if that's necessary. Did the motion to Reconsider get called up?
If so, was it adopted?
If so, what happened to the original motion: was it defeated again or did it obtain the 2/3 vote required this time?

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55 minutes ago, Atul Kapur said:

Apparently he was using a legal definition of "prevail" (with apologies to all the lawyers on this forum who do understand parliamentary law and plain English, as this exact situation is explained on p. 315, line 34 - p. 316, line 1).

It's not clear what happened so it's not clear if that's necessary. Did the motion to Reconsider get called up?
If so, was it adopted?
If so, what happened to the original motion: was it defeated again or did it obtain the 2/3 vote required this time?

 The original vote, the motion failed, the "no" votes prevailed.
Someone on the losing side was erroneously allowed to make a motion to reconsider.  Many objected, but the lawyer stood by his definition of prevali.

On the reconsideration vote, the motion passed by "1" vote, the "yes" vote prevailed.   The motion to reconsider was 2 hours after the initial vote and some folks had left the meeting, so the vote total was about 30 less.

Thanks

Edited by John Cummings

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11 hours ago, John Cummings said:

Thanks George.  Wow, that caught me off guard.  Why even have that provision in the reconsideration rule, if there is no proof.  Oh well.

Because it at least requires you to publicly state that you voted one way or the other in order to make the motion.

4 hours ago, John Cummings said:

Several folks actually had roberts rules with them and challenged the lawyer, but the lawyer got it wrong.

But presumably the lawyer wasn't presiding. The presiding officer is free to take or ignore advice.

57 minutes ago, Atul Kapur said:

Several folks actually had roberts rules with them and challenged the lawyer, but the lawyer got it wrong.

I dunno, somehow I made it through 3 years of law school without being taught this definition of "prevail."

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3 minutes ago, John Cummings said:

Someone on the losing side was erroneously allowed to make a motion to reconsider.  Many objected, but the lawyer stood by his definition of prevali.

But again, so what? The lawyer's definition only matters if the chair buys it, and if the chair is then sustained on appeal.

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1 minute ago, Joshua Katz said:

But again, so what? The lawyer's definition only matters if the chair buys it, and if the chair is then sustained on appeal.

The lawyer was the meeting chair. I'm new to all this, but the president announced this to start the meeting.

Thanks

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Just now, John Cummings said:

The lawyer was the meeting chair. I'm new to all this, but the president announced this to start the meeting.

Absent a bylaw provision or special rule of order allowing it, the president cannot do that. The assembly can decide to have a different presiding officer, but not the president by himself. But, as with many issues, that's just something to note for the future as it is too late to object.

In any case, strike the middle part of my comment:

2 minutes ago, John Cummings said:
4 minutes ago, Joshua Katz said:

But again, so what? The lawyer's definition only matters if the chair buys it, and if the chair is then sustained on appeal.

 

and the point stands - the assembly should have appealed.

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I feel I should have been a bit more cautious. I suppose if the president says it, and no one objects, either that's sort of like unanimous consent, or the time to object has passed, so if no one speaks up, the president CAN do it, in a sense. But only if no one speaks up.

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