May board members vote on complaints against themselves?

[LMB]

Good evening.  I am a member of a Home Owners Association board, and a complaint has been made against a fellow board member, namely that she is believed to be in violation of a specific covenant (regarding ownership of pets).  There were two separate complaints, made by two individuals, one of which happens to also be a board member.  Are both of those two board members (the one who made the complaint and the one defending herself against the complaint) permitted to vote about the matter?  Our covenants/bylaws do not discuss this at all.

 

Thank you.

[Guest Puzzling]

Tread careful here mines around.

In principle both members have the right to vote, but also the member accused has a personal interest not shared with other boardmembers and should not vote. (But cannot be compelled to do so)

Then there can be problems of selective enforcement if you allow boardmembers to breach a convenant , you can not enforce it on others. 

Then there can be a problem of disability rights if the pet is an assistance dog or similar, you cannot prohibit that.

With homeowners organizations it always can become quite legal, have a look the website of the homeowners protection bureau www.hopb.co they give much better information on the important legal sides of it than we can do.

I would suggest to have a more general motion and debate in the association about pet ownership in the association and how the board has to enforce that then to only discuss the specific breach. If anything the association  could possibly then decide not to enforce that covenant and that would then apply to all breaches of it, not only by boardmembers.

It is very important that the board shows that the rules that apply to all members also apply to all boardmembers.

 

[LMB]

5 hours ago, Guest Puzzling said:

Tread careful here mines around.

In principle both members have the right to vote, but also the member accused has a personal interest not shared with other boardmembers and should not vote. (But cannot be compelled to do so)

Then there can be problems of selective enforcement if you allow boardmembers to breach a convenant , you can not enforce it on others. 

Then there can be a problem of disability rights if the pet is an assistance dog or similar, you cannot prohibit that.

With homeowners organizations it always can become quite legal, have a look the website of the homeowners protection bureau www.hopb.co they give much better information on the important legal sides of it than we can do.

I would suggest to have a more general motion and debate in the association about pet ownership in the association and how the board has to enforce that then to only discuss the specific breach. If anything the association  could possibly then decide not to enforce that covenant and that would then apply to all breaches of it, not only by boardmembers.

It is very important that the board shows that the rules that apply to all members also apply to all boardmembers.

 

 

[LMB]

"Tread careful here mines around."  
What's the saying? Truer words have never been spoken.  This board is in its infancy, as we're the first HOMEOWNERS to run it (as opposed to the developer of the community).  The pages dedicated to the establishment and running of the board itself are relatively few and we have no precedent for just about everything!  We are blazing a trail, as it were.

The issue at hand comes to one deceptively simple question: what is the legal definition of "commercial" as it applies to the selling of puppies.  Our documents do not define it, so we must go to local & state ordinances/laws.  Then the matter becomes more clear but the board members are sharply divided on the 'intent' of the wording in the by-laws.  We have chosen to consult legal counsel for the Association but I fear that won't help as it is an opinion, and not binding.

 

I thank you for the website suggestion, and I'll have a look.  This Q&A resource has been very helpful, also.  Research continues!

[Dan Honemann]

As far as the rules in RONR are concerned, no member can be compelled to refrain from voting under circumstances such as you have described (RONR, 12th ed., 45:4-5). A member's right to vote may be suspended incident to disciplinary proceedings being conducted pursuant to the provisions of Chapter XX of RONR, 12th ed., but that does not appear to be the case here. 

I think that your decision to consult legal counsel for the Association is a wise one.

 

 

 

[LMB]

Update: General Counsel for the Association has returned with a written opinion on the matter.  Our bylaws are completely silent on disciplinary matters, and all we have to use for a framework is RONR.  The process, thus far, hasn't even followed the steps outlined in the book, unfortunately.  There has been no trial proceedings, no committee formed, no formal investigation.....the meetings barely follow Parliamentary Procedures.

Two individuals made a complaint to the property management company.  The Board was made aware of the two complaints, and the accused prepared a defense, of sorts.  During Executive Session the Board voted to seek legal advice - which we did.  At the next monthly meeting, during Executive Session, we are anticipating a vote on the matter at hand.  However, we are unclear on who should withhold their vote.  It seems obvious that the accused would not vote, but one of the complaints was made by a fellow Board member.  This situation does not, clearly, fall within the one circumstance under which a member should withhold their vote yet it seems ludicrous that a Board member can bring a charge, even loosely, then vote on it!  I fear we are about to set a precedent for future dealings and we need to do things correctly.  Any guidance here?

[Guest Puzzling]

1 hour ago, LMB said:

Update: General Counsel for the Association has returned with a written opinion on the matter.  Our bylaws are completely silent on disciplinary matters, and all we have to use for a framework is RONR.  The process, thus far, hasn't even followed the steps outlined in the book, unfortunately.  There has been no trial proceedings, no committee formed, no formal investigation.....the meetings barely follow Parliamentary Procedures.

Two individuals made a complaint to the property management company.  The Board was made aware of the two complaints, and the accused prepared a defense, of sorts.  During Executive Session the Board voted to seek legal advice - which we did.  At the next monthly meeting, during Executive Session, we are anticipating a vote on the matter at hand.  However, we are unclear on who should withhold their vote.  It seems obvious that the accused would not vote, but one of the complaints was made by a fellow Board member.  This situation does not, clearly, fall within the one circumstance under which a member should withhold their vote yet it seems ludicrous that a Board member can bring a charge, even loosely, then vote on it!  I fear we are about to set a precedent for future dealings and we need to do things correctly.  Any guidance here?

Not sure we can help you, the organization seems to refuse to follow the disciplinary procedure as described in RONR. 

You already have legal advice  (or it is on its way) 

We are not lawyers here, what shall we say?

I do doubt if the disciplinary procedure from RONR is the best way forward, maybe best is to follow your own he Complaints procedure (if you have one, and acting as if it was a normal member instead of a boardmember that was accused) 

Then there is also that if you do not enforce the convenant you will run into the problem of selective enforcement, and that is bad.

I am not sure which council gave you a written opinion on the matter nor what that opinion was, but you also have legal advice now just follow it.

 

[Richard Brown]

The question asked is:

On 3/30/2021 at 9:37 PM, LMB said:

Are both of those two board members (the one who made the complaint and the one defending herself against the complaint) permitted to vote about the matter?  Our covenants/bylaws do not discuss this at all.

 I think Mr. Honemann correctly and fully answered the question as follows:

On 3/31/2021 at 7:55 AM, Daniel H. Honemann said:

As far as the rules in RONR are concerned, no member can be compelled to refrain from voting under circumstances such as you have described (RONR, 12th ed., 45:4-5). A member's right to vote may be suspended incident to disciplinary proceedings being conducted pursuant to the provisions of Chapter XX of RONR, 12th ed., but that does not appear to be the case here. 

I can’t really think of anything else that needs to be said.

[Joshua Katz]

On 4/5/2021 at 9:41 PM, LMB said:

Two individuals made a complaint to the property management company.  The Board was made aware of the two complaints, and the accused prepared a defense, of sorts.  During Executive Session the Board voted to seek legal advice - which we did.  At the next monthly meeting, during Executive Session, we are anticipating a vote on the matter at hand.  However, we are unclear on who should withhold their vote.  It seems obvious that the accused would not vote, but one of the complaints was made by a fellow Board member.  This situation does not, clearly, fall within the one circumstance under which a member should withhold their vote yet it seems ludicrous that a Board member can bring a charge, even loosely, then vote on it!  I fear we are about to set a precedent for future dealings and we need to do things correctly.  Any guidance here?

None of this resembles the procedure in RONR, so it is hard to know what to say beyond what Mr. Brown said above. I will just add that, in regards to the recusal question, I would probably not recuse under these circumstances. My making a complaint about a member is not, in most cases, a personal or pecuniary interest not in common with the other members. It is one in common with the others, because I made my complaint to protect the organization from malfeasance. If I think you stole from the treasury, that's not some unique issue to me. So I would go beyond saying he cannot be compelled to recuse and say that, in most cases, I see no reason he should.

[Guest Zev]

45:5

Voting on Questions Affecting Oneself.

The rule on abstaining from voting on a question of direct personal interest does not mean that a member should not vote for himself for an office or other position to which members generally are eligible, or should not vote when other members are included with him in a motion. If a member never voted on a question affecting himself, it would be impossible for a society to vote to hold a banquet, or for the majority to prevent a small minority from preferring charges against them and suspending or expelling them (61, 63).