Board Election Challenge

[msmumr]

Can a board election under secret written ballot be challenged by one member who believes certain votes are 'illegally'?

[Rob Elsman]

Yes—within limits. See RONR (11th ed.), pp. 444-446.

[msmumr]

Hey Rob: 

2 hours ago, Rob Elsman said:

Yes—within limits. See RONR (11th ed.), pp. 444-446.

Thanks. Could the ballots being challenged be segregated and if enough other ballots existed for a majority to elect the new board members, could the election be 'certified' under RONR  without counting the challenged ballots.

[Bruce Lages]

Yes, if the ballots in question are not of sufficient number to affect the outcome of the election, then the election will stand. But, if this is a 'written secret ballot' election, as you state, how can you determine which ballots are supposedly illegal? And, while you're at it, do you know why some ballots are considered to be illegal?

[Josh Martin]

6 hours ago, msmumr said:

Can a board election under secret written ballot be challenged by one member who believes certain votes are 'illegally'?

It would be helpful if more information could be provided regarding what is meant by this.

3 hours ago, msmumr said:

Thanks. Could the ballots being challenged be segregated and if enough other ballots existed for a majority to elect the new board members, could the election be 'certified' under RONR  without counting the challenged ballots.

It is correct that, if the ballots in question are not of sufficient number to affect the result, then the election result could not be overturned on this basis.

Edited December 8, 2019 at 01:43 AM by Josh Martin

[msmumr]

17 hours ago, Bruce Lages said:

Yes, if the ballots in question are not of sufficient number to affect the outcome of the election, then the election will stand. But, if this is a 'written secret ballot' election, as you state, how can you determine which ballots are supposedly illegal? And, while you're at it, do you know why some ballots are considered to be illegal?

Thanks Bruce,  (1) This is an HOA,  each homeowner gets one vote and must put his lot number on the sealed ballot envelope and sign it, to identify his right to vote. (2) The supposedly illegal ballots are from unsold lots voted by the developer beyond his authorized control phase. The control period notwithstanding, the HOA agreed to allow him  to vote the remaining few unsold lots. This decision is being challenged, along with these votes (maybe 80 out of about 3000 possible).

[Rob Elsman]

Unless the invalidation of these eighty votes would change the results of the elections, this matter should be dropped, since a Point of Order would not be sustained, anyway.

[Gary Novosielski]

It sounds like you have not yet counted the ballots, or at least not counted or opened the challenged ballots, so that they remain segregated from the known valid ballots.  That should make matters simpler.

• First, count the unchallenged ballots, and determine what the results would be based on those alone.  
• Then, see whether 80 additional votes (presuming one vote per lot) if they were all voted in the opposite way, could flip the result of the election.  If not, then the question is moot as the challenged votes could not affect the outcome.  With less than 3% of the vote in question, this may be a very likely outcome.  If this is the case, you're done.  The challenge can be dismissed as irrelevant.
• If the 80 votes could affect the outcome, you'll need to address the question of whether they were entitled to be cast.  Your challenge process (presumably you have rules about this) would proceed, and if it is decided that the votes were not valid, then once more the outcome stands, and there is no need to count the challenged vote.  If you don't have rules for this in place, then RONR would say that the assembly itself decides all questions arising out of any election that it held.  
• If the challenge fails, and the votes are deemed legal, then they would need to be counted and the actual tally added to the original votes, which may or may not affect the result, depending on how they were voted.  It's possible that people already can deduce how the developer would have voted, but ideally this should not be a factor in the decision-making, so it's best to delay the actual count if possible, until it has been determined whether the votes really need to be counted. 

 

[Richard Brown]

1 hour ago, msmumr said:

The supposedly illegal ballots are from unsold lots voted by the developer beyond his authorized control phase. The control period notwithstanding, the HOA agreed to allow him  to vote the remaining few unsold lots. This decision is being challenged, along with these votes (maybe 80 out of about 3000 possible).

I agree with the former responses but have a question: how and by whom was it determined that the developer would be allowed to cast ballots for unsold lots? If that violates your bylaws, then those ballots are indeed illegal as cast by persons not entitled to vote and they should not be counted per page 416 of RONR. Unless your bylaws provide otherwise, the rules cannot be suspended to permit these votes to be counted. The tellers should not even count those votes. However, it is ultimately up to the President or chairman to rule on a point of order that the ballots are illegal, subject to a possible appeal.  
 

Edited to add: As Mr. Elsman pointed out,  if the membership has already voted to permit the developer to cast ballots for the unsold lots, it might take a rather persuasive argument to convince the membership to sustain a decision of the chair that the ballots are illegal and should not be counted.

Edited December 8, 2019 at 07:40 PM by Richard Brown
Added last paragraph

[Atul Kapur]

I'm not so certain that the challenge to the developer's ballots is a lost cause. We are told that the HOA "agreed" to them being cast; that may have been informal rather than by vote. It may very well be that, once it is brought to the chair's attention that this violates a "fundamental principle of parliamentary law" (RONR 11th ed., p. 263, lines 18-23), that the Point of Order would be well taken. You could even make an argument here that any appeal would be dilatory and out of order. 😉 This all assumes, of course, that the bylaws do not say anything otherwise.

[Richard Brown]

1 minute ago, Atul Kapur said:

I'm not so certain that the challenge to the developer's ballots is a lost cause. We are told that the HOA "agreed" to them being cast; that may have been informal rather than by vote. It may very well be that, once it is brought to the chair's attention that this violates a "fundamental principle of parliamentary law" (RONR 11th ed., p. 263, lines 18-23), that the Point of Order would be well taken. You could even make an argument here that any appeal would be dilatory and out of order. 😉 This all assumes, of course, that the bylaws do not say anything otherwise.

I agree.  Among other things, i think we need to know a lot more about how the "HOA agreed to" let the developer cast votes for the unsold lots.   Knowing what the bylaws say about the right of the developer to cast votes at this stage of the association development is also critical.

[msmumr]

20 hours ago, Richard Brown said:

I agree.  Among other things, i think we need to know a lot more about how the "HOA agreed to" let the developer cast votes for the unsold lots.   Knowing what the bylaws say about the right of the developer to cast votes at this stage of the association development is also critical.

Much obliged for the comments. The HOA appointed a committee to negotiate the transition from the developer control phase. Both sides hired lawyers.This went to a protracted mediation with a retired judge as mediator. The mediation resulted in a binding agreement enforceable in court approved by the HOA board. In it the developer retained the right to vote his remaining unsold lots (80), a right he had under his control period for all platted lots until sold to new residents. There have been eight votes by the community since mediation agreement was posted on the HOA web site, each time the 80 votes were counted. Now there is a challenge in a board election where there are two vacancies and several candidates, some of whom object to the mediation settlement, especially the developer voting unsold lots. The point is made in this protest that these votes are cast by secret, sealed envelopes, one per lot, which have to identify a lot number and be signed by a lot owner on the outside of the envelope,. without which the ballot inside is supposed to be rejected. The developer's lots have no lot number or owner to sign the outside of an envelope other than his own platt designation for the 80 lots and his company president signing, presumably voted in the past by putting 80 ballots inside a single envelope listing the platt/designation on the outside.

Thanks for all your counsel and advice.

[Richard Brown]

1 hour ago, msmumr said:

The HOA appointed a committee to negotiate the transition from the developer control phase. Both sides hired lawyers.This went to a protracted mediation with a retired judge as mediator. The mediation resulted in a binding agreement enforceable in court approved by the HOA board. In it the developer retained the right to vote his remaining unsold lots (80), a right he had under his control period for all platted lots until sold to new residents. There have been eight votes by the community since mediation agreement was posted on the HOA web site, each time the 80 votes were counted. Now there is a challenge in a board election where there are two vacancies and several candidates, some of whom object to the mediation settlement, especially the developer voting unsold lots.

Thank you for the additional information.   That throws a substantial new wrinkle into things.  In short, this appears to me at this point to be as much a legal question for the attorneys to resolve as it is a parliamentary one.

From  a parliamentary standpoint, unless there is superior state law or a superior document such as a corporate charter which provides to the contrary, the bylaws are the supreme governing document.  Only those members specified in the bylaws have the right to vote.  That is not just a rule in RONR, it is a fundamental principle of parliamentary law.  No rule can be suspended so as to grant the right to non members or other persons not entitled to vote.  From a parliamentary standpoint, it appears that the agreement between the HOA (I  suspect it was actually the HOA board and not the membership that entered into this agreement) and the developer, even if arrived at through mediation would not be valid for granting the right to vote to those not otherwise entitled to vote.  However, this mediation may have been a legal proceeding of some sort in which the prohibition on the developer voting unsold lots was at issue and it may be binding.  That is a legal question beyond the scope of this forum. 

We can tell you that from a parliamentary standpoint and as far as the rules in RONR are concerned, neither the HOA membership nor the HOA board nor a HOA committee have the authority to waive or suspend or modify bylaw  provisions to grant the right to vote to someone prohibited from voting by the bylaws.

There might well be other superior laws and documents, such as state statutes, court cases, and articles of incorporation, which do grant this right.  That is for the attorneys to decide.  We can just tell you that based on the rules in RONR, the rules in the bylaws and other controlling documents regarding who can vote cannot be suspended or modified except by amending the bylaws unless some superior provision provides otherwise.

[msmumr]

21 hours ago, Richard Brown said:

Thank you for the additional information.   That throws a substantial new wrinkle into things.  In short, this appears to me at this point to be as much a legal question for the attorneys to resolve as it is a parliamentary one.

From  a parliamentary standpoint, unless there is superior state law or a superior document such as a corporate charter which provides to the contrary, the bylaws are the supreme governing document.  Only those members specified in the bylaws have the right to vote.  That is not just a rule in RONR, it is a fundamental principle of parliamentary law.  No rule can be suspended so as to grant the right to non members or other persons not entitled to vote.  From a parliamentary standpoint, it appears that the agreement between the HOA (I  suspect it was actually the HOA board and not the membership that entered into this agreement) and the developer, even if arrived at through mediation would not be valid for granting the right to vote to those not otherwise entitled to vote.  However, this mediation may have been a legal proceeding of some sort in which the prohibition on the developer voting unsold lots was at issue and it may be binding.  That is a legal question beyond the scope of this forum. 

We can tell you that from a parliamentary standpoint and as far as the rules in RONR are concerned, neither the HOA membership nor the HOA board nor a HOA committee have the authority to waive or suspend or modify bylaw  provisions to grant the right to vote to someone prohibited from voting by the bylaws.

There might well be other superior laws and documents, such as state statutes, court cases, and articles of incorporation, which do grant this right.  That is for the attorneys to decide.  We can just tell you that based on the rules in RONR, the rules in the bylaws and other controlling documents regarding who can vote cannot be suspended or modified except by amending the bylaws unless some superior provision provides otherwise.

Thanks for the very detailed comments on the governing documents explicitly allowing the developer to vote unsold lots. There seems to be this authority in the so-called CC&R's of the HOA which were voted on by the members and adopted after the mediation.   

[msmumr]

On 12/10/2019 at 10:12 AM, msmumr said:

Thanks for the very detailed comments on the governing documents explicitly allowing the developer to vote unsold lots. There seems to be this authority in the so-called CC&R's of the HOA which were voted on by the members and adopted after the mediation.   

Many thanks for all the insights about RONR in this "voting challenge" (one that may become more common as these HOAs built out). It appears that the 80 developer votes would affect the election as to one candidate, if they were assumed for this person. If excluded, another candidate finished second in a multi-candidate - two vacancy  race. The challenged ballots were segregated. The mediation agreement was binding in settlement of a lawsuit between the HOA and the developer that involved several other disputed points, e.g., completed homes not paying base lot fees to the HOA until a certificate of occupancy is issued by the developer - one of the concessions made by the HOA in return for the developer paying fees on all his unsold lots regardless of completion once platted. - hence he being allowed to then vote the 80 lots - as he has been doing for two years, without challenge.

Query: does RONR require this "voting concession"  to be an amendment to the by-laws before it is valid?

[Rob Elsman]

If we were just talking about RONR(11th ed.), it is a fundamental principle of parliamentary law that each member has one, and only one, vote.

[Atul Kapur]

2 hours ago, msmumr said:

Query: does RONR require this "voting concession"  to be an amendment to the by-laws before it is valid?

Again, this is properly a legal question. If the agreement is binding legally, then it may supercede the bylaws.

[Rob Elsman]

5 minutes ago, Atul Kapur said:

If the agreement is binding legally, then it may supercede the bylaws.

Really? Where did you find that?

[Joshua Katz]

10 minutes ago, Atul Kapur said:

Again, this is properly a legal question. If the agreement is binding legally, then it may supercede the bylaws.

How so? The law of contracts is not procedural law. Yes, they'd be bound to follow the contract - but as a substantive matter, not the sort of thing that makes a motion out of order.

Edited to add: much of the law of contracts is common law (except as to the sale of goods). RONR provides that a procedural statute supersedes the bylaws - so contractual matters seem to fail on both grounds. 

Furthermore, this rule would have negative consequences. A board with the power to execute contracts could just assume any other power it wanted, so long as it enshrined them in a contract with a party at arm's length.

Edited December 15, 2019 at 07:49 PM by Joshua Katz
Added two more things

[Atul Kapur]

In the Big Box of Legal Loopholes. Hence the use of the word, "may".

[Atul Kapur]

1 minute ago, Joshua Katz said:

Yes, they'd be bound to follow the contract - but as a substantive matter, not the sort of thing that makes a motion out of order.

As a practical matter, you agree that they still have to follow the terms of the contract/agreement. Even if the bylaws would disallow the 80 ballots.

[Joshua Katz]

1 minute ago, Atul Kapur said:

As a practical matter, you agree that they still have to follow the terms of the contract/agreement. Even if the bylaws would disallow the 80 ballots.

And they have to follow their bylaws, but for separate reasons. They painted themselves into a corner, and it happens to be that the bylaws are the easier ones to fix. The two do not exist, though, in the same hierarchy. That's why there's a problem.

You have to refrain from murder. If you adopt bylaws requiring murder, you will need to change your bylaws or violate one or the other. You'll probably choose to violate your bylaws (although, if it's the kind of organization that would adopt such a bylaw, maybe not). You are allowed to paint yourself into a corner.

The reason this case looks different is that they wrote a contract incorporating a procedural rule. At a meeting, if they try to follow the contract, I think a point of order should be well-taken. If they try to follow the bylaws, I think a point of order should not be well-taken. Hence, as a procedural matter, the contract does not supersede the bylaws.

 

[msmumr]

29 minutes ago, Joshua Katz said:

And they have to follow their bylaws, but for separate reasons. They painted themselves into a corner, and it happens to be that the bylaws are the easier ones to fix. The two do not exist, though, in the same hierarchy. That's why there's a problem.

You have to refrain from murder. If you adopt bylaws requiring murder, you will need to change your bylaws or violate one or the other. You'll probably choose to violate your bylaws (although, if it's the kind of organization that would adopt such a bylaw, maybe not). You are allowed to paint yourself into a corner.

The reason this case looks different is that they wrote a contract incorporating a procedural rule. At a meeting, if they try to follow the contract, I think a point of order should be well-taken. If they try to follow the bylaws, I think a point of order should not be well-taken. Hence, as a procedural matter, the contract does not supersede the bylaws.

 

Much obliged: Query-   if the 80 votes are "illegal" under RONR , can the developer walk into circuit court and get an injunction against enforcing RONA , if the by-laws are silent or don't mention the specific procedure adopted by the mediation settlement? This agreement is not a common law contract with parties alone. The court is a party inasmuch as it approved the settlement to end litigation, dismissing it with prejudice, removing it from a crowded court docket. 

Edited December 15, 2019 at 08:26 PM by msmumr
grammar

[Gary Novosielski]

Against enforcing return on net assets?

[J. J.]

On 12/8/2019 at 1:24 PM, msmumr said:

Thanks Bruce,  (1) This is an HOA,  each homeowner gets one vote and must put his lot number on the sealed ballot envelope and sign it, to identify his right to vote. (2) The supposedly illegal ballots are from unsold lots voted by the developer beyond his authorized control phase. The control period notwithstanding, the HOA agreed to allow him  to vote the remaining few unsold lots. This decision is being challenged, along with these votes (maybe 80 out of about 3000 possible).

I think you should check the bylaws as well, because some property organization base the voting on the number of properties known.  If, for example, one person owns 2 houses, he gets 2 votes.  This might not apply in this case, but you should double check.