Challenging the election of officers of the board

[Guest Richard]

To elect the officers of the  HOA Board of directors, a board member made a motion to name as president the board member who received the largest number of votes during the member election and the vice president the board member who received the second highest number of votes.  I objected referring to our bylaws as stating there is to be a election.  The vote was made and the motion carried.  Is this an election?

[Richard Brown]

We can more accurately answer your question if you will tell us more about exactly what your bylaws say regarding the election of officers of the association. Please quote the relevant provision verbatim, don’t paraphrase.
 

Also, what, if anything, do your bylaws say about requiring a vote by ballot for officers?

[Rob Elsman]

Assuming the election for board members was held, the first-place and second-place winners are, indeed, president and vice-president, respectively, even if the adoption of the motion constituted a continuing breach, since the completed election and the expiration of the time within which an election must be contested has "healed" whatever continuing breach there may have been.

Edited December 24, 2019 at 06:21 PM by Rob Elsman

[Richard Brown]

1 hour ago, Rob Elsman said:

Assuming the election for board members was held, the first-place and second-place winners are, indeed, president and vice-president, respectively, even if the adoption of the motion constituted a continuing breach, since the completed election and the expiration of the time within which an election must be contested has "healed" whatever continuing breach there may have been.

Rob, this isn't necessarily true.  In this particular case, based on how these things normally happen, it is most likely true, but it is not necessarily true.  If, for example, the bylaws call for the president and vice president to be voted on by secret ballot and that was not done, the election is void and a point of order can be raised at any time as long as the breach continues.  It is not subject by the  normal rules for challenging an election.  That is why I asked Guest Richard whether his bylaws call for election of officers by ballot.  The election would also be void and be subject to a delayed point of order if a qualification for holding office was violated..  Violation of a term limit provision would probably constitute such a violation.   That is another reason why I asked Guest Richard for more information before answering.

Here is the language from page 251 regarding violations which constitute a continuing breach and are subject to a point of order as long as the breach continues:

The only exceptions to the rule that a point of order must be made at the time of the breach arise in connection with breaches that are of a continuing nature, in which case a point of order can be made at any time during the continuance of the breach. Instances of this kind occur when:
    a)    a main motion has been adopted that conflicts with the bylaws (or constitution) of the organization or assembly,*
    b)    a main motion has been adopted that conflicts with a main motion previously adopted and still in force, unless the subsequently adopted motion was adopted by the vote required to rescind or amend the previously adopted motion,
    c)    any action has been taken in violation of applicable procedural rules prescribed by federal, state, or local law,
    d)    any action has been taken in violation of a fundamental principle of parliamentary law (p. 263), or
    e)    any action has been taken in violation of a rule protecting absentees, a rule in the bylaws requiring a vote to be taken by ballot, or a rule protecting a basic right of an individual member (pp. 263–64).
In all such cases, it is never too late to raise a point of order since any action so taken is null and void.  

[Rob Elsman]

The breach occurred with the adoption of the "motion", not the election. The election  and announcement of president and vice president appear to have been executed fully pursuant to the adopted "motion". In my opinion, the completed and uncontested election has ended the continuing breach that arose out of the adoption of the "motion". Therefore, in my opinion, the door is closed to raise any further objection to the adoption of the "motion" or the consequent announcement of president and vice president.

[Atul Kapur]

Rob, did you dip into the eggnog a bit early? Let's use Richard's example, that the bylaws call for a ballot election by the board to elect the officers (it appears, from the OP, that the members elect the board and the board elects/appoints the officers). The motion in the OP is in violation of a rule requiring a vote to be taken by ballot. That constitutes a continuing breach. You are saying that the adoption of the motion has at the same time created and ended the continuing breach because the motion improperly replaced an election by ballot. Maybe Santa will give me the wisdom to make sense of that, but I doubt it.

[Rob Elsman]

As I have already indicated, the adopted motion was fully executed with respect to the election that followed. It's all over with but the cookies and eggnog. And, of course, congratulations to the new president and vice president.🌲

[Josh Martin]

16 hours ago, Rob Elsman said:

As I have already indicated, the adopted motion was fully executed with respect to the election that followed. It's all over with but the cookies and eggnog. And, of course, congratulations to the new president and vice president.🌲

Rob, I think the original post is worded in such a way that it is somewhat confusing. Hopefully the OP can clarify. 

It seems your interpretation (correct me if I am wrong) is that a motion was adopted to have the first-place candidate be elected as President and the second-place candidate be elected as Vice President. Subsequent to this, an election was in fact held for President and Vice President, with the first-place candidate becoming President and the second-place candidate becoming Vice President.

My understanding is that what occurred is that the organization’s bylaws provide that the membership elects board members and that the  board elects officers. The board adopted a motion that the person who received the most votes in the membership’s election for board members would be President and that the second place candidate in that election would be Vice President. No election by the board ever took place.

Now, if the bylaws do not require a ballot vote, I don’t think this is a continuing breach. If the bylaws do require a ballot vote for the election of officers, however, I don’t think that relying on a ballot vote by a different assembly for different positions is sufficient to satisfy that requirement.

[Rob Elsman]

Mr. Martin, I did, in fact, understand the poster to be asking, by "Is this an election?", that the election of the board was completed and the first- and second-place winners were announced to be the new president and vice president, respectively. It does not seem reasonable to me that the poster is asking whether the new president and vice president were elected just because they came in first and second in an election for board members; surely, he and everyone who reads this post understands the answer is flatly no. The more likely interpretation of his question is whether the announcement of president and vice president, pursuant to the adopted motion, is valid. That's the real rub, since, by mentioning an objection to the "motion" that appears to be predicated on an asserted conflict with the bylaws, the validity of the proceedings seems to be the source of doubt.

[Atul Kapur]

21 hours ago, Rob Elsman said:

It does not seem reasonable to me that the poster is asking whether the new president and vice president were elected just because they came in first and second in an election for board members; surely, he and everyone who reads this post understands the answer is flatly no.

I, as did Mr. Martin, read the OP this way. I have seen enough questions on this forum not to assume that everyone shares the same understanding.