Quorum and Proxy Votes

[justice]

In our organizations by-laws under quorum at the annual meeting, it states; owners present and voting at a duly called meeting shall constitute a quorum.  Proxy votes will be permitted.

Questions raised now are:

Do these two statements conflict?  "owners present and voting" and "proxy votes" permitted since clearly if you have a proxy vote, they are not present?

Does the vagueness of stating just cottages present and voting.....consitute a quorum, give credence to if only 3 owners attend, a quorum has been reached?  Our by-laws do not currently state a specific number but NYS non-profit law mentions

(a) Members entitled to cast a majority of the total number of votes entitled to be cast thereat shall constitute a quorum at a meeting of members for the transaction of any business, provided that when a specified item of business is required to be voted on by a class of members, voting as a class, members entitled to cast a majority of the total number of votes entitled to be cast by such class shall constitute a quorum for the transaction of such specified items of business." (b) The certificate of incorporation or the by-laws may provide for any lesser quorum not less than the members entitled to cast one hundred votes or one-tenth of the total number of votes entitled to be cast, whichever is lesser, and may, under section 615 (Greater requirement as to quorum and vote of members), provide for a greater quorum.

Under these laws, we have 49 owners, would this mean 25 in section a, above?  is the quorum required or at least 5 in the 10% rule in section b?

We want to clean up this wording to prevent future conflicts at this years annual meeting by amending the by-law.  Any suggestions greatly appreciated.

 

[Richard Brown]

13 minutes ago, justice said:

In our organizations by-laws under quorum at the annual meeting, it states; owners present and voting at a duly called meeting shall constitute a quorum.  Proxy votes will be permitted.   (Emphasis added)

Questions raised now are:

Do these two statements conflict?  "owners present and voting" and "proxy votes" permitted since clearly if you have a proxy vote, they are not present?

It is a matter of bylaws interpretation as to whether proxies count as "members present".  Usually similar language states something to the effect that "members present in person or by proxy" count as "present' and count toward the quorum.  Since your bylaws are silent on that point,  the members of your  organization will have to interpret that provision and decide whether members who have submitted a proxy are considered present.  We cannot do that for you... we don't interpret bylaws.   The default rule in RONR is that proxies are not permitted and must be authorized in the bylaws if they are to be permitted.

As to New York state non profit corporation law, we do not interpret statutes.  You need to consult with an attorney on that point.

As to preventing future conflicts, I would suggest amending your quorum provision to reflect that "members present in person or by proxy" are considered as present for quorum purposes (if that is your desire).  If it is not your desire, then the provision should be clarified to provide that only members present in person count as present for quorum purposes.

 

[Shmuel Gerber]

2 hours ago, justice said:

In our organizations by-laws under quorum at the annual meeting, it states; owners present and voting at a duly called meeting shall constitute a quorum.  Proxy votes will be permitted.

Questions raised now are:

Do these two statements conflict?  "owners present and voting" and "proxy votes" permitted since clearly if you have a proxy vote, they are not present?

The first statement doesn't really make sense, because you don't know how many members vote until a vote is taken, and each member might vote on some questions but not on others.

In any event, it seems that this provision doesn't require any particular number or fraction for a quorum, so I don't see how it matters whether or not members participating by proxy are counted for purposes of a quorum.