Can the President speak as an ordinary member to raise a New Business Topic?

[Guest Rich McPherson]

In an HOA annual meeting, would it be in order for the BOD President to raise an issue speaking not as a board member but as any other owner would, if he is doing so in the appropriate part of the meeting?

[Josh Martin]

3 minutes ago, Guest Rich McPherson said:

In an HOA annual meeting, would it be in order for the BOD President to raise an issue speaking not as a board member but as any other owner would, if he is doing so in the appropriate part of the meeting?

He could, but if he does so, he should relinquish the chair to the Vice President until the pending main question is disposed of, since he has undermined his appearance of impartiality on that issue. RONR notes that this should be done sparingly.

[Rich McPherson]

55 minutes ago, Josh Martin said:

He could, but if he does so, he should relinquish the chair to the Vice President until the pending main question is disposed of, since he has undermined his appearance of impartiality on that issue. RONR notes that this should be done sparingly.

So, he recognizes himself to speak as an owner rather than an officer or BOD member; relinquishes the chair; raises an issue that is per the bylaws an issue to be decided by the membership and not the BOD; explains the issue; speaks in support of the issue; states that he will leave it to another to make a motion or not; another makes a proper motion that gets properly seconded; debate ensues; then he does not vote since he is not designated to cast the vote of his member association (of the umbrella association for which the meeting is held). Question: Is the collective losing of minds of those offended by the process warranted or not? Is this proper; proper but possibly unseemly; improper? It sounds from your answer above that you might argue "proper but possibly unseemly."

[Gary Novosielski]

15 hours ago, Guest Rich McPherson said:

In an HOA annual meeting, would it be in order for the BOD President to raise an issue speaking not as a board member but as any other owner would, if he is doing so in the appropriate part of the meeting?

At an annual meeting the president would not be there as a board member, but as president.  No board members are there as board members, since the board is not in session.  Other board members are there as ordinary owners, except that the board secretary is often named as secretary of the association as well. 

If the rules in RONR apply, the president, while in the chair, should maintain impartiality.  If he wishes to speak in debate on a question, he should step down from the chair  (he would not recognize himself first) for the duration of that item of business, and seek recognition from whoever is presiding at the time, typically the VP.  He would vote along with all other owners, and not resume the chair until that business was disposed of.

Edited to add:

Note well: This answer assumes (from your use of the phrase "as any other owner") that the president is, in fact, an owner with full rights in this assembly like any other owner..  If that's not the case, then he does not have these rights.

 

Edited July 25, 2020 at 02:49 PM by Gary Novosielski
Clarity

[Atul Kapur]

4 hours ago, Rich McPherson said:

then he does not vote since he is not designated to cast the vote of his member association (of the umbrella association for which the meeting is held)

This raises the question of whether he has the right to speak at this meeting at all, other than as the chair. RONR only has one class of members, those with all the rights of membership. Do other members of his member  association who are "not designated to cast the vote of his member association" have the right to speak and move motions?

[Josh Martin]

14 hours ago, Rich McPherson said:

So, he recognizes himself to speak as an owner rather than an officer or BOD member; relinquishes the chair; raises an issue that is per the bylaws an issue to be decided by the membership and not the BOD; explains the issue; speaks in support of the issue; states that he will leave it to another to make a motion or not; another makes a proper motion that gets properly seconded; debate ensues; then he does not vote since he is not designated to cast the vote of his member association (of the umbrella association for which the meeting is held).

My original answer assumed that the President is a member of the assembly, since this is generally the case. This now seems to be in some doubt. If the President is not, in fact, a member of the assembly, he has no right to speak.

Under ordinary circumstances, where the President is a member of the assembly, the process would work like this:

1) The President relinquishes the chair and the Vice President takes the chair.

2) The President seeks recognition, is recognized by the chair, and makes the motion in question.

3) The motion is seconded, debate ensues, and the President votes like any other member.

If the President is not, in fact, a member of the assembly, I do not think it would be appropriate for him to relinquish the chair in order to speak in debate on an issue. The rules in RONR note "If the presiding officer is a member of the society, he has—as an individual—the same rights in debate as any other member; but the impartiality required of the chair in an assembly precludes his exercising these rights while he is presiding. Normally, especially in a large body, he should have nothing to say on the merits of pending questions. On certain occasions—which should be extremely rare—the presiding officer may believe that a crucial factor relating to such a question has been overlooked and that his obligation as a member to call attention to the point outweighs his duty to preside at that time." (RONR, 11th ed., pgs. 394-395)

If the President is not a member of the assembly, he has no rights to speak in debate and has no obligations as a member which could outweigh his duty to preside. As a result, in those circumstances I would say the answer to the original question is "No."

If the President is some sort of quasi-member who has some, but not all, of the rights of membership then I suppose that complicates things.

Lastly, it should also be noted that, unless your rules provide otherwise, it is not appropriate for the President (or anyone else) to explain an issue, speak in support of an issue, and then leave it to someone else to make a motion. So far as RONR is concerned, debate is only in order when a motion is pending. So a member would make the motion first, and then he can explain it and speak in support of it during debate on the motion.

14 hours ago, Rich McPherson said:

Question: Is the collective losing of minds of those offended by the process warranted or not?

I would note that the process is actually not quite as complicated as what you laid out (at least not in RONR). In any event, no, I do not think the "collective losing of minds of those offended by the process" is warranted. If the President is a member of the assembly, he retains the rights of membership. In order to exercise these rights, however, it is critical that he relinquishes the chair in order to do so, in order that a different person who has maintained the appearance of impartiality in regards to the issue can preside.

The assembly may well be justified in being offended by the President abandoning his duty to preside, especially if he does this frequently, but I don't think being offended by the process itself is warranted, as the process exists for perfectly legitimate reasons, and also because as far as parliamentary law goes, this is actually a very simple process.

14 hours ago, Rich McPherson said:

Is this proper; proper but possibly unseemly; improper?  It sounds from your answer above that you might argue "proper but possibly unseemly."

If the President is a member of the assembly, then I would say that this is "proper but possibly unseemly." If the President is not a member of the assembly, then I would say that it is improper.

Edited July 25, 2020 at 02:51 PM by Josh Martin

[Atul Kapur]

15 hours ago, Gary Novosielski said:

he should step down from the chair  (he would not recognize himself first) for the duration of that item of business, and seek recognition from whoever is presiding at the time, typically the VP.

Note that he does not get any preference in recognition. I recall one instance where I was the presiding officer who vacated the chair and took my place at the end of the line at the microphone. The previous question was moved by the person in front of me and ordered by the assembly. 

54 minutes ago, Josh Martin said:

it is not appropriate for the President (or anyone else) to explain an issue, speak in support of an issue, and then leave it to someone else to make a motion.

Although this is exactly what happens if the President makes a recommendation as part of his report.

[Rich McPherson]

15 hours ago, Atul Kapur said:

This raises the question of whether he has the right to speak at this meeting at all, other than as the chair. RONR only has one class of members, those with all the rights of membership. Do other members of his member  association who are "not designated to cast the vote of his member association" have the right to speak and move motions?

This is a master HOA comprising 17 individual condo complexes, for a total of 346 individual condos. Only the 17 HOAs are members of the master association. By long custom, any individual owner is welcome at the annual meeting, and is welcome to ask questions and make comments. The idea is that everyone can be heard even if their opinion is different than the association they live with. It would not be out of order - by established custom - for any owner to pose an issue that could be taken up by any member of the assembly.

Edited July 25, 2020 at 08:29 PM by Rich McPherson
typo

[Josh Martin]

1 hour ago, Rich McPherson said:

This is a master HOA comprising 17 individual condo complexes, for a total of 346 individual condos. Only the 17 HOAs are members of the master association. By long custom, any individual owner is welcome at the annual meeting, and is welcome to ask questions and make comments. The idea is that everyone can be heard even if their opinion is different than the association they live with. It would not be out of order - by established custom - for any owner to pose an issue that could be taken up by any member of the assembly.

Thank you for the clarification. Based on these additional facts, in my view, it would not be appropriate for the President to relinquish the chair to speak on an issue in the circumstances described.

If the President nonetheless did so, I suppose the situation would indeed unfold as you originally described, except that the President should not recognize himself - he should relinquish the chair first and then seek recognition.

It would probably be easier for the President to just find a friend to bring up the issue on his behalf.

[Rich McPherson]

Follow up question:

Assume the President is improper in speaking; no one objects through the entire process; proper motion, second, debate, vote in the affirmative, all by correct members; is the passed motion valid, or is some sort of administrative invalidation in order?

Further complication: Bylaws require that this particular topic be included in the agenda or notice of meeting; does a lack of objection to that error allow the passage of the motion despite the bylaw requirement. The meeting was otherwise properly noticed, agenda accepted, etc., and bypassing the bylaw requirement is not contrary to controlling state law.

[Atul Kapur]

Quote

does a lack of objection to that error allow the passage of the motion despite the bylaw requirement

No.

Adopting a motion that requires notice without such notice renders the action null and void, because it violates a rule protecting absentees, if there are any (RONR 11th ed., p. 251, lines 20-26 and p. 263, line 29 - p. 264, line 5). A Point of Order can be raised at any time.

It no longer matters, because of the paragraph above, but if the only error was that the president spoke (that is, the motion was moved by a person eligible to do so and only eligible voters voted) then any Point of Order regarding that error would need to be made in a timely manner.

Edited July 25, 2020 at 11:53 PM by Atul Kapur

[Joshua Katz]

54 minutes ago, Rich McPherson said:

Further complication: Bylaws require that this particular topic be included in the agenda or notice of meeting; does a lack of objection to that error allow the passage of the motion despite the bylaw requirement. The meeting was otherwise properly noticed, agenda accepted, etc., and bypassing the bylaw requirement is not contrary to controlling state law.

 

26 minutes ago, Atul Kapur said:

Adopting a motion that requires notice without such notice renders the action null and void, because it violates a rule protecting absentees, if there are any (RONR 11th ed., p. 251, lines 20-26 and p. 263, line 29 - p. 264, line 5). A Point of Order can be raised at any time.

 

I agree, but I'm curious about the fact that inclusion in the agenda is sufficient. If the agenda is, as is ordinarily the case, adopted at the meeting, then the requirement is not protecting absentees. What exactly do the bylaws say about this?

[Josh Martin]

14 hours ago, Rich McPherson said:

Assume the President is improper in speaking; no one objects through the entire process; proper motion, second, debate, vote in the affirmative, all by correct members; is the passed motion valid, or is some sort of administrative invalidation in order?

No sort of invalidation is in order on these grounds. A Point of Order regarding a violation, generally speaking, must be raised at the time of the breach. There are some cases in which a Point of Order is so egregious that it constitutes a continuing breach and a Point of Order may be raised after the fact, but this is not one of those cases.

14 hours ago, Rich McPherson said:

Further complication: Bylaws require that this particular topic be included in the agenda or notice of meeting; does a lack of objection to that error allow the passage of the motion despite the bylaw requirement. The meeting was otherwise properly noticed, agenda accepted, etc., and bypassing the bylaw requirement is not contrary to controlling state law.

I'm not certain. This is a much more serious violation and may constitute a continuing breach, as the rule in question may protect the rights of absentees. In order to say for sure, however, we would need to know 1) what exactly the rule says, and 2) whether there were any absentees - that is, whether all the representatives of all 17 complexes were present.

Edited July 26, 2020 at 01:32 PM by Josh Martin