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Mail-in ballots, quorum and moving the election deadline ad infinitum


par
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My HOA board is holding a vote via mail-in ballots on quite an unpopular amendment to CC&Rs. It requires a majority of all members to vote yes in order to pass. The deadline for receiving ballots has been moved twice already and the justification given is "lack of quorum". The election inspector is providing updates about the number of votes received to the HOA board and the board votes on extending the deadline. The question about the number of times the HOA board is allowed to move the deadline has been answered with - there is no limit.

  1. Is quorum something that applies to mail-in vote at all?
  2. Can voting procedure be stretched out indefinitely?
  3. What other problems do you see in this picture?

 

 

Edited by par
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1 hour ago, par said:
  • Is quorum something that applies to mail-in vote at all?
  •  

I don't know. In RONR, decisions are made in a deliberative assembly, not by mail. So the rules for mail-in voting have to appear in your own set of rules. Presumably, there are some, since you tell us a majority of the entire membership must vote yes. So what else do those procedures say? Do they establish a "quorum," which I assume means a certain percentage of votes received? 

As a general matter, when a vote requires a majority of the entire membership, to abstain is the same as to vote no. And abstention requires nothing more than not voting. A person who does not vote, in effect, has voted no. It would be logically for this to extend here, and a person who fails to return a ballot to be treated as abstaining, and hence, in effect, voting no. But that's just what makes sense to me, not what your rules require.

1 hour ago, par said:
  • Can voting procedure be stretched out indefinitely?
  •  

Again, it depends on your rules. What do they say about timing?

 

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1 hour ago, par said:

My HOA board is holding a vote via mail-in ballots on quite an unpopular amendment to CC&Rs. It requires a majority of all members to vote yes in order to pass. The deadline for receiving ballots has been moved twice already and the justification given is "lack of quorum". The election inspector is providing updates about the number of votes received to the HOA board and the board votes on extending the deadline. The question about the number of times the HOA board is allowed to move the deadline has been answered with - there is no limit.

  1. Is quorum something that applies to mail-in vote at all?
  2. Can voting procedure be stretched out indefinitely?
  3. What other problems do you see in this picture?

 

 

It all depends on what your bylaws,  and more importantly state laws and other regulations say.

In your case somewhere there must be a rule that sets the quorum. And hopefully it also regulates what should happen if there is no quorum. 

Have a look at the website of the homeowners protection bureau (hopb) www.hopb.co  there you can find links and explanation on the more legal side.

RONR has some rules but with conficting rules in higher regulations they are not governing.

More puzzling to me is who (or which meeting) can change the deadline? For me I think only the same meeting that decided on the mail-in voting in the first place can do so (or an higher authority). But it all depends on the other ruling documents

 

 

 

 

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@Joshua Katz

 

All I have in CC&Rs is this

 

image.png.e887dc2793edb01d33b9f6dd7e6e5f07.png

 

and a reference to Robert's Rules, 11th ed., pp. 21, 345 by the association manager:

 

Quote

Defined. A "quorum" of the membership is the required minimum of number of member votes present in person, by proxy and/or by ballot before the association may conduct business at a membership meeting. 

 

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What my copy of the 11th edition (not the most current, although this does not seem to have changed) says on page 345 is "a quorum in an assembly is the number of members . . . who must be present in order that business can be validly transacted." 

That said, assuming that the excerpt provided is all that is relevant on this matter (not a safe assumption because bylaws often work together), I don't know how to answer your questions. The text says very little about procedure, so the best guide to procedure, absent other adopted rules, is custom, i.e. how you've done it in the past. If I were handed this with no context, my best guess would be that there's no "quorum" concept applicable, and that there's no deadline at all. If there are 10 members with equal voting share, and 5 send in letters saying they want something, then the 6th sends a letter 10 years later, I would think that's the written consent needed. Consider that RONR says, in effect, that those who choose to conduct business outside of a deliberative assembly are left to their own devices, and good luck to them, because of the oddities that arise. But anyway, the short answer is that I don't know because this explains what needs to be done, but not how.

A few notes:

You said originally that a majority of the members had to vote in the affirmative, but the text provided says members representing a majority of the voting power. These may be different.

I should have said earlier - there is also little to no logic, absent some rule or custom on the matter, in saying that a lack of quorum extends the voting period. Not only is the concept of quorum generally inapplicable to mail voting, it is also unrelated to the time a poll stays open. If a meeting lacks a quorum, it cannot conduct any business, and can only consider a small number of motions, such as adjourn, set the time to which to adjourn, and to take actions necessary to obtain a quorum. I don't see how any of that relates to keeping the polls open longer. The usual thing that will happen without a quorum is adjourning, which seems close to an opposite of extending the time to vote.

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19 minutes ago, Joshua Katz said:

You said originally that a majority of the members had to vote in the affirmative, but the text provided says members representing a majority of the voting power. These may be different.

In HOA you get 1 vote per household no matter how big the household is. So yeah, it is different but this is not really relevant to the problem at hand.

 

19 minutes ago, Joshua Katz said:

I should have said earlier - there is also little to no logic, absent some rule or custom on the matter, in saying that a lack of quorum extends the voting period. Not only is the concept of quorum generally inapplicable to mail voting, it is also unrelated to the time a poll stays open. If a meeting lacks a quorum, it cannot conduct any business, and can only consider a small number of motions, such as adjourn, set the time to which to adjourn, and to take actions necessary to obtain a quorum. I don't see how any of that relates to keeping the polls open longer. The usual thing that will happen without a quorum is adjourning, which seems close to an opposite of extending the time to vote.

I agree. Conducting a vote means the quorum requirements (if any) have been met. However logic is not something the HOA boards typically use when dealing with unfavorable (for them) circumstances. This might be just my impression but they can be quite adversarial.

Edited by par
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2 hours ago, par said:

My HOA board is holding a vote via mail-in ballots on quite an unpopular amendment to CC&Rs. It requires a majority of all members to vote yes in order to pass. The deadline for receiving ballots has been moved twice already and the justification given is "lack of quorum". The election inspector is providing updates about the number of votes received to the HOA board and the board votes on extending the deadline. 

What exactly do your bylaws and any other applicable rules say about mail in ballots? Please quote exactly, don’t paraphrase, and also tell us whether the provision is a bylaw  provision or from some other rule. 

We really can’t help you much without knowing what your bylaws and rules say.

Also, as has been pointed out, state law and/or gubernatorial proclamations dealing with the pandemic might be applicable and would likely supersede provisions in your bylaws and in RONR.  But for openers, we need to know what your bylaws say about voting and especially voting by mail.

I will also add that there is usually not a quorum requirement for voting by mail, although it is not unusual for bylaws to provide that a mail or email vote shall not be valid unless a certain percentage of members return ballots. That might be viewed by some as a “quorum“ requirement, but it is not truly a quorum requirement even though the effect is pretty much the same.

Based on what we have been told so far, I have no idea whether it is permissible to extend the deadline for returning ballots.  It is also important for us to know who or what body is extending the deadline. Is it the president? Is it the management company? Is it an executive committee? Is it the Board of Directors? Is it the membership at a membership meeting? The answer to that is important and makes a huge difference.

And speaking of the ballot deadline, how and by whom or what body was the original deadline set?
 

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There are some additional regulations. Apologies for not finding it sooner:

 

image.png.41e64b2beb0410f409c312816e0bef74.png

 

EDIT: Not sure however if these have been adopted as this is from less than 6 month old proposal and I do not see it in the current set of documents. Will know more tomorrow. 

 

Edit 2: These have been adopted by the board.

 

 

 

 

Edited by par
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@Richard Brown

 

From the duties of the inspector of elections(third party in this case):

 

image.png.3f55b28aee6bcdf5dfb63822d868823e.png

 

 

EDIT: However in reality(from OP):

 

Quote

"The election inspector is providing updates about the number of votes received to the HOA board and the board votes on extending the deadline. "

 

Edited by par
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This is why we can't interpret bylaws; the relevant ones are often in different places, so you need to interpret the document as a whole. The new quotes change basically everything, or, at least, they might. It's a question of bylaw interpretation whether the quorum rule is applicable when there is no meeting at all, for instance. Does your board have the power to adopt bylaw amendments? It's also a question of interpretation what's going on with the closing of the polls.

In short, what started out looking like a general question is now clearly deeply intertwined with your own rules, limiting the value of any of our comments.

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1 hour ago, Joshua Katz said:

In short, what started out looking like a general question is now clearly deeply intertwined with your own rules, limiting the value of any of our comments.

Yes, I agree.  It appears to now be outside the scope of this forum and is a matter of the organization interpreting its own (somewhat strange) bylaws and rules.  I believe this is the first I have ever heard of an organization authorizing some official (a non-member, at that, apparently) to determine when to close and re-open the polls. 

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37 minutes ago, Richard Brown said:

I believe this is the first I have ever heard of an organization authorizing some official (a non-member, at that, apparently) to determine when to close and re-open the polls. 

Seems to be a California thing:

https://duckduckgo.com/?q=inspectors+of+election+hoa+service

Edited by par
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5 hours ago, par said:

There are some additional regulations. Apologies for not finding it sooner:

 

image.png.41e64b2beb0410f409c312816e0bef74.png

 

EDIT: Not sure however if these have been adopted as this is from less than 6 month old proposal and I do not see it in the current set of documents. Will know more tomorrow. 

 

Edit 2: These have been adopted by the board.

 

 

 

 

And what rule gave the board the authority to adopt the quoted rule? 

(Under no rule stating this  only the members meeting  has a right to adopt rules)

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1 hour ago, Guest Puzzling said:

And what rule gave the board the authority to adopt the quoted rule? 

(Under no rule stating this  only the members meeting  has a right to adopt rules)

Let me quote the November 2020 newsletter:
 

Quote

 

Election Rules

On October 12, 2019, Senate Bill 323 was signed into law. This significant piece of legislation, which went into effect on January 1, 2020, has mandated several changes to the way common interest developments conduct their elections. One of the most important – and time-sensitive – aspects of this law requires that boards adopt new Election Rules. These new Rules must integrate changes related to qualifications for voting and director candidacy, notice prior to ballot distribution and additional requirements for the Inspector of Elections, among other things. Enclosed you will find a proposed set of Election Rules intended to bring this association into compliance. 

Members are requested to review this document. Any comments regarding the same should be emailed to the Association’s community manager, XXX YYY. All comments should be submitted in advance of the above-mentioned meeting date. The Board will be considering adoption of the proposed Election Rules at the upcoming Board meeting in December. Thank you for your attention to this important issue. 

 

 

For the record the amendment in the original question is being pushed because of voluntary compliance with a new state law for the new constructions. It seems voluntary compliance with the state laws overrides member interests and any governing documents.

 

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Nothing in the above says that the board has the authority to amend the bylaws.

You have to follow the election procedure as spelled out in state law and if the bylaws conflict with it the bylaws give way,.  But that does not give the board the authority to change the bylaws.

But I think you need to consult a lawyer or inspector of election about this.

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Found a website especially for HOA s in California:  https://findhoalaw.com/about/

Maybe give them a ring or send them an email.(in you cannot find it on the website, and they are not linked to your election inspector)

Also maybe contact the Californian branch of :e natnational association of parliamentarians or the AIP

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1 hour ago, Guest Puzzling said:

Found a website especially for HOA s in California:  https://findhoalaw.com/about/

Maybe give them a ring or send them an email.(in you cannot find it on the website, and they are not linked to your election inspector)

Also maybe contact the Californian branch of :e natnational association of parliamentarians or the AIP

LOL:

Quote

FindHOALaw is powered by a law firm that has been providing expert legal counsel to California HOAs exclusively for over 25 years

My experience is getting a qualified lawyer to take a case against an HOA is difficult. It is just hard for an attorney to make a living this way. It is much easier to represent HOAs and their inflated budgets. My HOA puts 400k/year aside in cash reserves.

 

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32 minutes ago, par said:

LOL:

My experience is getting a qualified lawyer to take a case against an HOA is difficult. It is just hard for an attorney to make a living this way. It is much easier to represent HOAs and their inflated budgets. My HOA puts 400k/year aside in cash reserves.

 

Then there is also 

The attorney general 

https://oag.ca.gov/consumers/general/homeowner_assn

Not sure under which violation the problem falls, but probably the are other problems as well that easier fit in some categorie.

 

Or try (with others that think the same as you) to become the next board of directors.

 

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On 5/23/2021 at 7:31 AM, Joshua Katz said:

If there are 10 members with equal voting share, and 5 send in letters saying they want something, then the 6th sends a letter 10 years later, I would think that's the written consent needed. Consider that RONR says, in effect, that those who choose to conduct business outside of a deliberative assembly are left to their own devices, and good luck to them, because of the oddities that arise.

I think this is one of the shortcomings of RR where it never tries to be authoritative. From your example: a 10year voting deadline? Sure, no problem. Not stupid at all. Just make sure the rule is included in by-laws. ;)

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On 5/23/2021 at 3:31 PM, Joshua Katz said:

If there are 10 members with equal voting share, and 5 send in letters saying they want something, then the 6th sends a letter 10 years later, I would think that's the written consent needed.

Not if there have been (boardmember) elections in the last 10 years, all bussiness not in the hands of a committee falls to the ground when a new board is installed (even if it are the same members)

 

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7 hours ago, par said:

I think this is one of the shortcomings of RR where it never tries to be authoritative. From your example: a 10year voting deadline? Sure, no problem. Not stupid at all. Just make sure the rule is included in by-laws. ;)

But none of this is about RONR. RONR comes closer to suggesting not to do mail-in voting at all. Do you mean it should say specifically not to? That's hard to do when so many different sorts of organizations use it, and your own rules outrank the book anyway. And, as I am fond of pointing out, RONR is just a book of rules for organizations that choose to have and follow rules for the sake of fairness and efficiency. It may that too much outright legislation would reduce the number of organizations willing to use it, resulting in more disorder, not less.

Anyway, I don't think a 10 year voting deadline is quite right. Your rules allow for actions taken by consent from a fixed number of people. That's not quite a vote. Consider amending the Constitution - states need to ratify the amendment, and when enough do, it's passed. See the 27th amendment, which took 202 years to get sufficient ratifications.

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23 hours ago, par said:

From your example: a 10year voting deadline? Sure, no problem. Not stupid at all. Just make sure the rule is included in by-laws.

In addition to what Mr. Katz indicated, it's worth noting that RONR generally isn't intended to prevent the majority (especially a supermajority) of a group from doing something they want to do - whether that's conducting routine business or writing (potentially ill-conceived) bylaws. Whether the things decided are stupid or not is immaterial.

I saw an organization once that struck the sentence from their bylaws that incorporated RONR as their parliamentary authority, and didn't replace it with anything. That decision was, from my point of view, pretty stupid - but it's the organization's right to do it, if that's really what they want to do. :)

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  • 1 month later...
On 5/24/2021 at 11:56 AM, par said:

I think this is one of the shortcomings of RR where it never tries to be authoritative. From your example: a 10year voting deadline? Sure, no problem. Not stupid at all. Just make sure the rule is included in by-laws. ;)

 

10 hours ago, par said:

Quote of the year. Wonder if this "flexibility" was intended from the get-go.

An organization's own bylaws, which are the society's highest form of rules, quite obviously take precedence over the parliamentary manual the organization has voluntarily adopted. This "flexibility" isn't a decision or intent on the part of the authors, it is simply a statement of fact. To attempt to claim that RONR prevents (or even could prevent) a society from adopting certain rules in its bylaws would be a blatantly incorrect assessment of the common parliamentary law. I believe it has always been the intent from the start to make accurate statements.

"Within this framework under the general parliamentary law, an assembly or society is free to adopt any rules it may wish (even rules deviating from parliamentary law) provided that, in the procedure of adopting them, it conforms to parliamentary law or its own existing rules. The only limitations upon the rules that such a body can thus adopt might arise from the rules of a parent body (as those of a national society restricting its state or local branches), or from national, state, or local law affecting the particular type of organization." RONR (12th ed.) 2:2

Edited by Josh Martin
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