Unexpected consequences of New Electronic Meeting bylaw

[John Cummings]

Wondering if we just voted to allow electronic voting without realizing it. 

Our annual meeting was yesterday and the owners approved a new by-law to allow "electronic meetings" shown below.  Our existing "voting" by-law also shown below states that owners are entitled to cast a vote for each unit own at a meeting.  

My questions.

• What is the definition of "in person" ?  Is an owner attending a meeting electronically considered "in person" ?  I think so.
• Does our voting by-law paired with the new electronic meeting by-law now allow electronic voting? 
  • Seems to me that if we are allowed to vote at a meeting and meetings are now allowed to be conducted electronically then the logical conclusion is that we can vote electronically.

New By-Law to allow electronic meetings

Meetings by Telephonic, Video, or Other Conferencing Process. – This new bylaw provides, the Association, Committees thereof, and the Board of Directors the ability to meet by telephonic, video, other conferencing process or electronic meeting tools.

 

Existing Voting bylaw
Voting. At any meeting of the Association, the owners shall be entitled to cast one vote for each Condominium Unit owned. Any owner may attend and vote at such meeting in person or by proxy

 

Thanks

John

[Josh Martin]

1 hour ago, John Cummings said:

• What is the definition of "in person" ?  Is an owner attending a meeting electronically considered "in person" ?  I think so.

Generally I would say that "in person" refers to a person who is physically present. When reading a rule of this nature in conjunction with a rule which provides for "the ability to meet by telephonic, video, other conferencing process or electronic meeting tools," however, then it would seem reasonable to conclude that a person who is attending a meeting held electronically is considered to be "in person" for the purposes of the rule.  Otherwise, the electronic meetings wouldn't work very well.

1 hour ago, John Cummings said:

Does our voting by-law paired with the new electronic meeting by-law now allow electronic voting? 

• Seems to me that if we are allowed to vote at a meeting and meetings are now allowed to be conducted electronically then the logical conclusion is that we can vote electronically.

Yes, I think it is obvious that if meetings can be conducted electronically, then electronic voting is permitted, at least at meetings which are held electronically. Otherwise the electronic meetings wouldn't work very well.

If what you're trying to get is that the rule requires the organization to permit members to attend (and vote) electronically even at meeting which are otherwise held "in person," I'm not sure that's obvious.

Edited September 20, 2020 at 09:24 PM by Josh Martin

[John Cummings]

Thanks Josh,

  Here is the reason for the question.   We had 2 ballot questions on our agenda yesterday that I believe affected voting, both required 2/3 vote to pass.  One to allow mail-in voting narrowly failed by just a few votes. I was the sponsor of this article and my long term goal was to get to electronic voting, but thought I would go slowly .   The second article to allow meetings electronically passed easily by > 2/3 vote.

So, after analyzing the article I reasoned that we had in fact just approved electronic voting which was my end goal anyway. 
 

[Atul Kapur]

Interpretation of the bylaws can only be done by the organization itself. That being said, I do want to remind you that you have allowed electronic voting only at meetings where people are participating electronically.

If your intent was just to get to electronic voting, I'm not sure why the motion you proposed was to allow mail-in voting.  These are two different things. Your motion may have been defeated because it was an overreach and if you had just proposed that those who are participating electronically can vote electronically, you may have prevailed.

[John Cummings]

11 hours ago, Atul Kapur said:

If your intent was just to get to electronic voting, I'm not sure why the motion you proposed was to allow mail-in voting.  These are two different things. Your motion may have been defeated because it was an overreach and if you had just proposed that those who are participating electronically can vote electronically, you may have prevailed.

Thanks, I agree, in hindsight I should have prepared the article better and done exactly as you recommended.  The article was done last minute and I didn't have much time to research electronic voting.  My flawed reasoning for my approach is that there are many in this summer association that are elderly and not computer literate. I didn't want to scare them off and figured they would be comfortable with mail.   Also as I mentioned in another thread this year was an exception due to Covid-19.  For this year only we conducted a mail-in vote as allowed by NH Condo Act and every owner was able to participate in the vote.  Typically only 150 out of 459 owners attend the annual meeting and vote, this year everyone had the option to vote by mail and 375 owners participated.

My overall goal is to improve our voting process to allow more participation and have a hybrid of voting options, in-person and electronic and perhaps this happened by accident with the "Electronic Meeting Vote".  Our current process outside of the COvid-19 year is to allow only in-person voting for those that are lucky enough to be able to attend the meeting.  THis is a summer Condo association and most close up and return home prior to the annual meeting, so they don't.  I understand the proxy option, but we don't have tight controls over that process.

Thanks again

[Josh Martin]

16 hours ago, John Cummings said:

Thanks Josh,

  Here is the reason for the question.   We had 2 ballot questions on our agenda yesterday that I believe affected voting, both required 2/3 vote to pass.  One to allow mail-in voting narrowly failed by just a few votes. I was the sponsor of this article and my long term goal was to get to electronic voting, but thought I would go slowly .   The second article to allow meetings electronically passed easily by > 2/3 vote.

So, after analyzing the article I reasoned that we had in fact just approved electronic voting which was my end goal anyway. 
 

Well, as I have previously noted, you have obviously approved electronic voting in some fashion, since you can't have an electronic meeting without some form of electronic voting.

This does not necessarily mean, however, that the assembly has also authorized other means of electronic voting, such as members participating electronically in a meeting which is otherwise held in person, or votes being cast by electronic votes outside of a meeting (such as by email).

Edited September 21, 2020 at 02:13 PM by Josh Martin

[John Cummings]

Thanks Josh,

We will certainly need our association attorney to weigh in, but it sounds like we have at least the potential to allow electronic voting if everything else is done correctly and email is not something we want to introduce.  My goal would be to hire a service to run the hybrid voting to allow those participating remotely to vote. 

The main reason for my question has been answered and it appears if everything is done correctly then we did in fact open the door to electronic voting.

Thanks

[Josh Martin]

29 minutes ago, John Cummings said:

We will certainly need our association attorney to weigh in, but it sounds like we have at least the potential to allow electronic voting if everything else is done correctly and email is not something we want to introduce.  My goal would be to hire a service to run the hybrid voting to allow those participating remotely to vote. 

The main reason for my question has been answered and it appears if everything is done correctly then we did in fact open the door to electronic voting.

I feel like I'm repeating myself, but I want to be crystal clear about this.

We are told that a new bylaw "provides, the Association, Committees thereof, and the Board of Directors the ability to meet by telephonic, video, other conferencing process or electronic meeting tools." While we have not seen the exact wording of the rule in question, what this sounds like to me is that it authorizes meetings in which all members are meeting remotely. That is, every member is sitting at their own phone or computer and participating in the meeting in that manner, without any central physical location. It seems obvious on the face of it that at least for the purposes of such meetings, electronic voting is authorized, since otherwise I don't know how people are supposed to vote.

What you seem to want is to also have the ability to hold meetings which are held with some persons present at a central, physical meeting location while also granting other persons the ability to remotely participate and vote in such meetings. It is not clear to me that such meetings are authorized by your bylaws, let alone that the association is required to hold all of its in-person meetings in this manner. So I think that if this is what you want, further amendments to the bylaws may be necessary.

In other words, you may have opened the door, but possibly not as wide as you would like.

Edited September 21, 2020 at 11:32 PM by Josh Martin

[Atul Kapur]

3 hours ago, John Cummings said:

My goal would be to hire a service to run the hybrid voting to allow those participating remotely to vote.

Be careful of the service you hire. Don't just accept at face value their claims to be able to properly handle the votes and process the ballots according to your rules.

[Al Dunbar]

On 9/20/2020 at 2:07 PM, John Cummings said:

 

• What is the definition of "in person" ?  Is an owner attending a meeting electronically considered "in person" ?  I think so.

New By-Law to allow electronic meetings

Meetings by Telephonic, Video, or Other Conferencing Process. – This new bylaw provides, the Association, Committees thereof, and the Board of Directors the ability to meet by telephonic, video, other conferencing process or electronic meeting tools.

 

Existing Voting bylaw
Voting. At any meeting of the Association, the owners shall be entitled to cast one vote for each Condominium Unit owned. Any owner may attend and vote at such meeting in person or by proxy

 

Thanks

John

There would be  no logical reason to  have electronic meetings without the attendees being considered to be doing so "in person". That said, the apparent ambiguity would best be resolved by having the bylaw allowing electronic meetings state this explicitly so the question need not be asked.

[John Cummings]

On 9/21/2020 at 7:31 PM, Josh Martin said:

 

What you seem to want is to also have the ability to hold meetings which are held with some persons present at a central, physical meeting location while also granting other persons the ability to remotely participate and vote in such meetings. It is not clear to me that such meetings are authorized by your bylaws, let alone that the association is required to hold all of its in-person meetings in this manner. So I think that if this is what you want, further amendments to the bylaws may be necessary.

In other words, you may have opened the door, but possibly not as wide as you would like.

Thanks Josh,

I'm really just trying to understand what the new by-law gives us.  I would like it to open the door for electronic voting, but if it doesn't that is fine too. You are correct,  our annual meeting has always been an in-person meeting and is poorly attended as the summer season has ended and many have closed up their summer homes for the season.  

With the passage of the new by-law the plan is to conduct BOD meetings once a month over the winter which we have never done in the past.  During these meetings the BOD will be voting on motions, but the owners/members of the association will not be voting as there is nothing for them to vote on until the annual meeting.  If the BOD votes during these electronic meetings are they opening the door for owners to vote at later meetings?

I anticipate next years annual meeting to be broadcast electronically for those that can't attend in-person.  I would like the zoom attendees to be able to vote electronically by some means.

Thanks

John

 

[Josh Martin]

3 hours ago, John Cummings said:

I would like it to open the door for electronic voting, but if it doesn't that is fine too.

It opens the door for electronic voting, at a minimum, at meetings which are held electronically.

3 hours ago, John Cummings said:

With the passage of the new by-law the plan is to conduct BOD meetings once a month over the winter which we have never done in the past.  During these meetings the BOD will be voting on motions, but the owners/members of the association will not be voting as there is nothing for them to vote on until the annual meeting.  If the BOD votes during these electronic meetings are they opening the door for owners to vote at later meetings?

No.

3 hours ago, John Cummings said:

I would like the zoom attendees to be able to vote electronically by some means.

As I have previously noted, if the desire is that all members shall have a right to participate electronically (including electronic voting) at all meetings of the association, then further amendments to the bylaws will likely be necessary.

I would suggest taking a look at the Sample Rules for Electronic Meetings developed by the RONR Authorship Team, available here. What you seem to have in mind most closely matches Scenario C. Some modifications will be necessary since the technology used is slightly different than that envisioned in Scenario C, and also because these rules are written with meetings of a small board in mind.

[John Cummings]

Thanks Josh.

I agree Scenario C is similar just needs slight modifications to include participant voting and not only the BOD.