Board of Directors overrule/reverse something HOA voted on?

[Termination Requested Pls]

Dan Honemann, I appreciate your observations and citations. They did lead to my further study.   

I am new here. I want to be clear that, below when I reference a Robert's Rule, I am referring to RONR, 12th edition (copyrighted 2020).

As I think all here know, Robert's Rules comes up fairly often with city councils, county commissions and HOAs and COAs (condominium owners' associations). This is especially so when the governing documents require use of RONR. For HOA/COA owners and directors alike, I think the applicability of RONR is a topic worth reviewing a bit. 

I searched for an express definition of "organized society" in the context of Robert's Rules. So far I have come up empty handed. Rule 1:23 seems clear that cities, counties and HOAs/COAs are not "organized societies." Cities, counties and HOAs/COAs all have either councils, commissions or boards with powers that IMO are well-delineated in their respective governing documents. All city council, county commission and HOA/COA board members are elected by a larger 'assembly.' The governing documents of city councils, county commissions, and HOA/COA boards all restrict the powers of the council, commission or board and state when decisions must be made by the larger assembly. The 'larger assembly' is of course either duly registered voters or lawful owners within a HOA/COA.

I have seen city councils where a person has the assigned duty of "parliamentarian."

I am not sure yet whether I would say that RONR is geared towards "organized societies" and not so much city councils, county commissions, nor HOAs/COAs. Robert's Rules seems to qualify its commentary regularly for when the commentary applies to an "organized society" and when it does not. 

A little background on HOAs/COAs (as I see this background, anyway), for the archives and to keep my own thoughts organized:

By my reading, the courts for one recognize owners in a HOA/COA as "shareholders," having roughly the same meaning as a shareholder in, say, a publicly held corporation like Pepsi Co. For COAs, each owner legally does hold a certain, fixed interest in the common areas of the COA, very much like a shareholder in Pepsi owns a certain percent interest in the Pepsi Corporation. The existence of HOAs/COAs is said to have been driven by cities wanting to offload certain formerly municipal responsibilities. Today it is rare that a city will not require a new subdivision to have a HOA. This translates to the city requiring the HOA to be incorporated, with mandatory HOA membership. A HOA/COA corporation will have the authority to enforce the covenants and collect assessments, typically intended to maintain the HOA/COA common area. The volunteers for a HOA/COA board have the responsibility of overseeing sometimes massive infrastructure; an often massive, detailed budget; the books and financial records of the corporation; and understanding much real estate law as it pertains to covenants (dating back some 200 years IIRC) and corporate law. The evidence supporting the use of such volunteers being a recipe for disaster is ample. It appears people in this thread know this.

And yet: Many of these HOA/COA Board volunteers subscribe to the philosophy of organizations structured as RONR describes in RONR Section 2. They want to 'get it right' when it comes to decision-making.

I think the discussion in this thread, particularly as it pertains to whether HOA/COA owners have the lawful power to overrule their respective boards, is worth having. (Not that anyone here is saying otherwise.)

The Rules at Dan Honemann's citations 49:6 and 56:43 speak of organizations "whose main purpose is other than to transact business." I suppose enforcing covenants might be a purpose 'other than to transact business.' Both 49:6 and 56:43, along with other sections of RONR, certainly seem to speak in part of HOA/COA governance, expressly noting that the Boards of organizations whose "main purpose is other than to transact business" are not subordinate to the membership of the HOA/COA except to the extent the Bylaws specify. To expropriate Dan Honemann's language some, I think it is rather undeniable that RONR says the latter. I think RONR is applicable to HOAs/COAs, as long as the reader watches for caveats like those I reference above.

I am not a fan of HOAs/COAs. I have lived in three. I hope I never find myself living in another. In my very small way, I continue to assist others in their machinations with HOAs/COAs. I have a specialized interest in HOA/COA violations of Fair Housing law.

One final thought: The main objection to HOAs/COAs seems to be that the boards can be dictatorial. From my reading and study over many years: Except where the Bylaws provide otherwise, specific HOA/COA Board decisions are not subordinate to the larger assembly (of owners). By contrast and from RONR 1:23, "A board within an organized society, on the other hand, is an instrumentality of the society's full assembly, to which it is subordinate." Robert's Rules seems to suggest that the structure of HOAs/COAs (and city councils and county commissions) is almost savage. Yet when all the griping is over, the fact remains that every year by law, the larger assembly of a HOA/COA (meaning the owners) has the right to replace directors on the board. Despite not being an "organized society," I would say that HOA/COA Boards are subservient to the larger assembly.

 

Edited April 19, 2022 at 02:40 PM by Augustin

[Termination Requested Pls]

On 4/18/2022 at 9:10 PM, Shmuel Gerber said:

"Reserved to the membership" means that only the membership can exercise the power and not the board. So the fact that a certain power is not reserved to the membership doesn't mean that the membership cannot exercise that power; it just means that the board can.

Thank you for pointing this out. The following seems another way of writing the aforementioned bylaw section:

[Augustin version] The Board of Directors shall have the power to: ... exercise for the Association all powers, duties and authority vested in or delegated to this Association and not belonging exclusively to the membership where other provisions of the Governing Documents provide for such exclusive membership powers, duties and authority;

To me, the "not reserved" clause in particular says that the membership cannot override a Board decision, except to the extent the governing documents provide that only the membership has the power to make such a decision. (And to those who loathe HOAs/COAs: Nationwide many bylaws do give powers exclusively to the membership. For example, some bylaws require that Special Assessments over a certain amount go into effect only when the membership approves the Special Assessment.)

RONR 1:23 states inter alia, "A board within an organized society, on the other hand, is an instrumentality of the society's full assembly, to which it is subordinate." But RONR 1:23 says much more before this phrase, indicating that, for example, a HOA/COA Board, city councils and county commissions are not 'organized societies.' Robert's Rules seems clear that the rules are different for 'organized societies' vis-à-vis non-organized societies.

In either event, I think RONR Section 2 remains clear that the Bylaws trump RONR when a specific bylaw conflicts with a specific Robert's Rule. 

Edited April 19, 2022 at 03:10 PM by Augustin

[Dan Honemann]

I think you are making much more of this than the topic warrants.

There can be no doubt but that the bylaws of many home owners associations and condominium owners associations adopt Robert's Rules Of Order as their parliamentary authority; in some instances they are required to do so by statute.

So let's take the simplest case. The bylaws of a HOA adopt  RONR.   The only provision in the bylaws or any other governing document relating to the powers of its Board is as follows:

"The Board shall exercise for the Association all powers, duties and authority vested in or delegated to this Association and not reserved to the membership by other provisions of the Governing Documents."

It seems to me clear that RONR is saying that this provision should be interpreted to mean that the Board has full power to act for the Association between meetings of the membership, excepting only in those instances where the bylaws or other governing documents reserve to the membership the sole power to act.  The provisions of 50:41 are fully applicable. 

Now I know that this is overly simplistic, but it makes the point. All of the governing documents (including applicable statutes) of any association must be carefully examined before one can be confident that one fully understands the extent of the powers conferred upon its Board.

 

[Termination Requested Pls]

Quote

 The provisions of 50:41 are fully applicable. 

Typo? I do not see a 50:41 in my RONR 12th edition.

I will comment further subsequently. Along with being interesting, the topic is of no small legal import in my opinion.

[Dan Honemann]

On 4/19/2022 at 12:18 PM, Augustin said:

Typo? I do not see a 50:41 in my RONR 12th edition.

Yep,  should be 56:41.

[Termination Requested Pls]

 

Quote

[Hypothetically, suppose t]he bylaws of a HOA adopt  RONR.   The only provision in the bylaws or any other governing document relating to the powers of its Board is as follows:

"The Board shall exercise for the Association all powers, duties and authority vested in or delegated to this Association and not reserved to the membership by other provisions of the Governing Documents."

It seems to me clear that RONR is saying that this provision should be interpreted to mean that the Board has full power to act for the Association between meetings of the membership, excepting only in those instances where the bylaws or other governing documents reserve to the membership the sole power to act.  The provisions of [56:41] are fully applicable. 

I gather you are alleging that, per RONR, ultimate decision-making lies with the society's membership. If I understand you correctly, and in your view, if the governing documents require the society to meet only once a year, the board acts as a mere proxy for the membership. In your view, the board does so only within the proverbial four corners of what the governing documents say. According to you, the society's membership can throw out a Board's decision. In your view, RONR still says board's decisions are subordinate to the wishes of the society's members (meaning for a HOA, the owners).

I read the RONR sections you cited yesterday. I also read the RONR sections cited by your citations. Robert's Rules RONR distinguishes between "organized societies" and non-organized societies. Do you agree?

Sections 49:6, 49:7 and 56:43, along with other sections of RONR, speak of, for one, organizations whose "main purpose is other than to transact business" having boards that are not subordinate to the membership of the organization except to the extent the Bylaws specify. I get the feeling that you and others wish this were not so. But I think it is undeniable that RONR does draw a distinction between "organized societies" and non-organized societies. For organized societies, RONR seems to emphasize that the membership has much more power than the board. For non-organized societies, RONR time and again speaks of the greater deference the membership is stuck with giving to the board, pursuant to the governing documents.

You referenced RONR 56:41:

RONR 56:41

A board may never alter a decision of the society’s assembly (and an executive committee may never alter a decision of either the assembly or the board), even by a motion to Rescind or Amend Something Previously Adopted or by adoption of a proposal which has been rejected, unless expressly authorized by the superior body or the bylaws. ...

Is RONR consistent? 

As far as 56:41 is concerned, yes, RONR is consistent. Why? Because a society's assembly is only allowed to make the "decisions" that its governing documents authorize. Any other "decisions" would not be lawful decisions, both in the eyes of the law and presumably in the eyes of RONR. (I have not read every word of RONR, so I do not want to be presumptuous.)

Using parliamentary rules, can the OP's HOA's Board overturn/reject/abandon the "decision" the owners made at the owners meeting, and lawfully insist the Board's decision be the controlling decision? Yes, the Board could do so by noting that the governing documents do not reserve to the membership (meaning the owners en masse) the right to adopt rules for the common areas.

Because of your citations yesterday (RONR 1:23, RONR 49:6 and RONR 56:43) and further reading of RONR, I am convinced that RONR can be used by city councils, county commissions and HOAs/COAs without any assumptions about for whom RONR is intended but with some attention to (1) RONR's express caveats; and (2) a full reading of RONR.

Interestingly, a number of my online acquaintances who are or have served as HOA/COA directors have talked about decisions made at meetings of the owners. Where a decision that the owners want to make is clearly (per the governing documents) outside the owners' authority, the recommended language to use is like the following:

Owner Jones motions that the owners recommend to the board that masks not be required in the common area starting June 1, 2022. Owner Smith seconds the motion. All in favor? [either a voice vote or show of hands occurs]

When someone asserts that HOA/COA owners can override board decisions, it is a big deal. In the aftermath of the Surfside condominium collapse, much reporting has been done on whether Surfside COA owners could lawfully override a board decision to special assess each unit say $60,000. I understand that, for the Surfside condo, the owners could not lawfully have done this. A board with enough backbone would have special assessed this large amount starting several years ago, foreclosed on condos that could not pay, and so on (all as other COAs have at times done). Whence a building would not have collapsed; 98 souls would still be with us; and the wounds of this disaster would not be haunting survivors for the rest of their lives. A HOA/COA board having the final say, within the four corners of what the governing documents authorize, is important.

 

 

 

 

Edited April 19, 2022 at 05:36 PM by Augustin

[Josh Martin]

On 4/18/2022 at 4:32 PM, Augustin said:

Second, I am not sure how you can omit the underlined phrase in this clause of the Bylaw section: The Board of Directors shall have the power to: ... exercise for the Association all powers, duties and authority vested in or delegated to this Association and not reserved to the membership by other provisions of the Governing Documents;

Per the Bylaws, if power X is not reserved to the membership by other provisions of the Governing Documents, then power X is  not reserved to the membership.

But there are two ways of interpreting this passage. As you suggest, one way of interpreting it is that the board has exclusive authority over all matters, except in those instances where the bylaws grant a power to the membership.

The other way of interpreting it is that for a power which is "reserved to the membership," only the membership has the authority to exercise that power and, in other cases, powers may be exercised by the board and by the membership, except in those cases where the rules provide that only the board may take certain actions. This does not limit the membership's authority to only those matters. In the absence of any rules on this matter from a higher source, I personally support the latter interpretation.

On 4/18/2022 at 4:32 PM, Augustin said:

I think perhaps you are stuck on a belief that, since RONR says the default authority for the exercise of powers is the membership, this overrides the Bylaws?

I have made no suggestion of the sort. Nothing in RONR can ever override the bylaws.

On 4/18/2022 at 5:06 PM, Augustin said:

I am not sure where you land on the OP's original question: Can the Board adopt rules for the common area that override a membership vote? By my reading, yes, absolutely. Can the membership turn around and override this Board decision? No. In my view, this is consistent with the Bylaws and Section 2 of RONR.

I am happy to agree to disagree.

In my opinion, the rule in the bylaws, in and of itself, provides no clear statement one way or the other on this matter. If all that was relevant to this matter was the bylaws and RONR, I think reasonable arguments could be made for both sides, and the solution in the long run would be to amend the bylaws for clarity. But I expect the state's HOA laws have a clear answer to this question.

On 4/19/2022 at 10:09 AM, Augustin said:

To me, the "not reserved" clause in particular says that the membership cannot override a Board decision, except to the extent the governing documents provide that only the membership has the power to make such a decision.

Mr. Augustin, you say that you have experience with HOAs and COAs. To what extent is your interpretation based upon that experience? To put it another way, if this were some other type of society, would this still be your interpretation of the rule in question?

Frankly, I think you are probably right, but the reason why is I expect state law for HOAs likely provides as much.

On 4/19/2022 at 10:09 AM, Augustin said:

In either event, I think RONR Section 2 remains clear that the Bylaws trump RONR when a specific bylaw conflicts with a specific Robert's Rule. 

Yes, no one is disagreeing with this. The disagreement is regarding whether there is only one reasonable interpretation of the rule in the organization's bylaws.

Edited April 19, 2022 at 11:47 PM by Josh Martin

[Termination Requested Pls]

On 4/19/2022 at 6:10 PM, Josh Martin said:

But there are two ways of interpreting this passage. As you suggest, one way of interpreting it is that the board has exclusive authority over all matters, except in those instances where the bylaws grant a power to the membership.

The other way of interpreting it is that for a power which is "reserved to the membership," only the membership has the authority to exercise that power and, in other cases, powers may be exercised by the board and by the membership, except in those cases where the rules provide that only the board may take certain actions. This does not limit the membership's authority to only those matters. In the absence of any rules on this matter from a higher source, I personally support the latter interpretation.

I had a response explaining why I disagree with Josh Martin's interpretation above. In particular how the above seems to rest on the belief that an association has powers that are not delineated in the bylaws and so exercise of these non-delineated powers, allegedly per Robert's Rules and the Bylaws, rests with the membership. Instead, I would like to cut to the chase to give what I feel is the solution. That solution is for the membership to exercise what is nearly always its lawful, and nearly always exclusive, power to amend the Bylaws, Articles of Incorporation and Declaration of CC&Rs. For example:

The first post to this thread spoke of the membership having voted on a mask mandate for all the HOA's common areas. Some months later, the Board overruled the membership. The implication was that the Board believed it had the final say on such matters, per the Bylaws and so on. The OP asked whether the board can overrule a membership vote and still be complying with the Bylaws, Robert's Rules, and so on.

For those who want the membership to prevail here, and with the least chance of further dispute, in my opinion the membership need only have a vote to amend the bylaws giving the membership the exclusive power to determine, in this instance, whether masks are mandatory or not mandatory in the common area. If such an amendment had occurred in the first place, and subsequently the membership voted to require masks, then the board would not have the authority to overrule the membership.

I raise this because I realize instances most certainly do arise at HOAs where the members are, ya know, fit to be tied, and want to override a board decision. Sometimes of course this may be completely justified. I think rogue boards may be more common than not. (So are rogue HOA members, who do not know a Bylaw from a covenant, IMO.) To me the best chance of the membership overriding a board decision and said membership's action surviving a legal challenge lies in following the amendment process, as is typically delineated in the association's governing documents and often as well, state law.

Alternatively the membership always has the option of voting in new directors for the board.

Edited August 18, 2022 at 06:58 PM by Augustin

[Josh Martin]

On 8/18/2022 at 1:56 PM, Augustin said:

I had a response explaining why I disagree with Josh Martin's interpretation above. In particular how the above seems to rest on the belief that an association has powers that are not delineated in the bylaws and so exercise of these non-delineated powers, allegedly per Robert's Rules and the Bylaws, rests with the membership. Instead, I would like to cut to the chase to give what I feel is the solution. That solution is for the membership to exercise what is nearly always its lawful, and nearly always exclusive, power to amend the Bylaws, Articles of Incorporation and Declaration of CC&Rs. For example:

The first post to this thread spoke of the membership having voted on a mask mandate for all the HOA's common areas. Some months later, the Board overruled the membership. The implication was that the Board believed it had the final say on such matters, per the Bylaws and so on. The OP asked whether the board can overrule a membership vote and still be complying with the Bylaws, Robert's Rules, and so on.

For those who want the membership to prevail here, and with the least chance of further dispute, in my opinion the membership need only have a vote to amend the bylaws giving the membership the exclusive power to determine, in this instance, whether masks are mandatory or not mandatory in the common area. If such an amendment had occurred in the first place, and subsequently the membership voted to require masks, then the board would not have the authority to overrule the membership.

I raise this because I realize instances most certainly do arise at HOAs where the members are, ya know, fit to be tied, and want to override a board decision. Sometimes of course this may be completely justified. I think rogue boards may be more common than not. (So are rogue HOA members, who do not know a Bylaw from a covenant, IMO.) To me the best chance of the membership overriding a board decision and said membership's action surviving a legal challenge lies in following the amendment process, as is typically delineated in the association's governing documents and often as well, state law.

Alternatively the membership always has the option of voting in new directors for the board.

Well, I agree with all of this, so I don't really know what we're arguing about.

As to my belief that "an association has powers that are not delineated in the bylaws," I believe this because, as a matter of the common parliamentary law and RONR, it is correct.

I am well aware that applicable laws pertaining to various types of organizations (particularly HOAs and the like) quite frequently provide 1.) that there must be a board (this first one is almost inevitably required, in fact) and 2.) that all powers rest with the board, except as otherwise provided in the bylaws or applicable law (the reverse of the situation in the common parliamentary law). Such laws take precedence over RONR and the organization's bylaws. So as I have stated repeatedly, I think you are correct, because of the applicable laws that are likely in effect in this matter.

Edited August 18, 2022 at 09:09 PM by Josh Martin

[Termination Requested Pls]

[Repeat post deleted.]

Edited August 18, 2022 at 09:30 PM by Augustin

[Termination Requested Pls]

On 8/18/2022 at 3:57 PM, Josh Martin said:

As to my belief that "an association has powers that are not delineated in the bylaws," I believe this because, as a matter of the common parliamentary law and RONR, it is correct.

I tried to imagine what such powers could be. I came up short.

Looking at the bylaw section which we have been discussing, I asked myself:

      What 'thing' "vests" "powers, duties and authority" to an association?

I believe only its governing documents and state law do this vesting. I believe this is consistent with what RONR states at a number of points, somewhat philosophically at times (a good thing for the student of government, AFAIC). Somewhat more concretely at other times.

For either a board or the membership to take up powers not delineated by the bylaws (or state law), the only clear path to me is to amend the bylaws, to the extent the amendment is consistent with the Articles, Declaration and state and federal law of course.

My bigger point is that this does come up a lot at HOAs and COAs, and even for-profit corporations like Pepsi Company. People want to revolt. But usually in this modern age, they have to use process. In my opinion and if anything, this forum is about process and getting said process right in the context of RONR.

[Josh Martin]

On 8/18/2022 at 4:29 PM, Augustin said:

      What 'thing' "vests" "powers, duties and authority" to an association?

The common parliamentary law.

On 8/18/2022 at 4:29 PM, Augustin said:

I believe only its governing documents and state law do this vesting.

I strongly disagree, but even if one believes this is correct, it should be noted that if the organization has adopted RONR as its parliamentary authority, then RONR is one of the society's governing documents.

On 8/18/2022 at 4:29 PM, Augustin said:

I believe this is consistent with what RONR states at a number of points, somewhat philosophically at times (a good thing for the student of government, AFAIC).

This is certainly consistent with what RONR says in regard to boards, and RONR is quite clear on that subject. In my view, it is quite the opposite of what RONR says in regard to the membership.

"A society has no executive board, nor can its officers act as a board, except as the bylaws may provide; and when so established, the board has only such power as is delegated to it by the bylaws or by vote of the society’s assembly referring individual matters to it." RONR (12th ed.) 49:5

"In any event, no action of the board can alter or conflict with any decision made by the assembly of the society, and any such action of the board is null and void (see 56:41 and 23:9). Except in matters placed by the bylaws exclusively under the control of the board, the society’s assembly can give the board instructions which it must carry out, and can rescind or amend any action of the board if it is not too late (see 35)." RONR (12th ed.) 49:7

So this statement appears to quite clearly state that a board only has the authority granted by the society's assembly or by the organization's rules. (Applicable law would also suffice, of course, since that takes precedence over RONR and the organization's rules.)

In regards to the membership, RONR is somewhat less clear, however, there are statements such as the following:

"The assembly at the meetings of an organized permanent society existing as a local club or local branch is the type of assembly with which the average person is most likely to have direct experience. As the highest authority within such a society or branch (subject only to the provisions of the bylaws or other basic document establishing the organization), this body acts for the total membership in the transaction of its business." RONR (12th ed.) 1:13

"The bylaws, by their nature, necessarily contain whatever limitations are placed on the powers of the assembly of a society (that is, the members attending a particular one of its meetings) with respect to the society as a whole." RONR (12th ed.) 2:13

My reading of these statements is that, in so far as RONR and the common parliamentary law are concerned, the assembly of a society has full and unrestricted power to act for the society, except as otherwise provided in the organization's bylaws or other, higher-level rules (such as applicable law). Unlike a board, it is not necessary for the bylaws to specifically grant power to the society's assembly for it to be exercised. (There are some exceptions. There are a few, limited cases in which RONR provides that certain matters must be provided for in the bylaws (or applicable law) in order for them to be permissible - such as dues and assessments, proxy votes, absentee voting, and so forth.)

On 8/18/2022 at 4:29 PM, Augustin said:

My bigger point is that this does come up a lot at HOAs and COAs, and even for-profit corporations like Pepsi Company. People want to revolt. But usually in this modern age, they have to use process. In my opinion and if anything, this forum is about process and getting said process right in the context of RONR.

That is all certainly correct, but RONR does not require powers to be specifically granted to the membership by the bylaws in order for the membership to exercise them. (State law, however, very well might, and almost certainly does for the types of organizations you describe - to the extent doing so is even permitted under state law.)

Edited August 19, 2022 at 01:44 PM by Josh Martin

[Richard Brown]

On 8/18/2022 at 3:57 PM, Josh Martin said:

As to my belief that "an association has powers that are not delineated in the bylaws," I believe this because, as a matter of the common parliamentary law and RONR, it is correct.

 

On 8/18/2022 at 4:29 PM, Augustin said:

I tried to imagine what such powers could be. I came up short.

Well, here is one such power for you which is contained in section 61:3 of RONR (12th Ed.);

”61:3 If there is an article on discipline in the bylaws (56:57), it may specify a number of offenses outside meetings for which these penalties can be imposed on a member of the organization. Frequently, such an article provides for their imposition on any member found guilty of conduct described, for example, as “tending to injure the good name of the organization, disturb its well-being, or hamper it in its work.” In any society, behavior of this nature is a serious offense properly subject to disciplinary action, whether the bylaws make mention of it or not.”

[Termination Requested Pls]

On 8/19/2022 at 8:03 AM, Richard Brown said:

 

Well, here is one such power for you which is contained in section 61:3 of RONR (12th Ed.);

”61:3 If there is an article on discipline in the bylaws (56:57), it may specify a number of offenses outside meetings for which these penalties can be imposed on a member of the organization. Frequently, such an article provides for their imposition on any member found guilty of conduct described, for example, as “tending to injure the good name of the organization, disturb its well-being, or hamper it in its work.” In any society, behavior of this nature is a serious offense properly subject to disciplinary action, whether the bylaws make mention of it or not.”

I am not sure I understand. For a HOA/COA (if you do not mind) subject to RONR, are you saying that 61:3 authorizes the membership (meaning in a HOA/COA, the owners en masse) to vote to penalize a fellow owner when the owner injures the good name of the HOA/COA, disturbs its well-being, or hampers it in its work?

I suppose RONR maybe speaks of penalties such as expulsion (in the extreme); removal from an officer (President, VP, et cetera) position; removal from a director position; and censure.

Expulsion is the same as forcing the owner to sell his or her home or condo unit. I believe state law and federal law will trump RONR when it comes to forcing an owner to sell her or his home.

Removal from an officer position is gutless because, for one thing, since state law and the Bylaws typically say the board appoints and has the power to remove officers. If the membership removed a person as an officer, the board could turn around and re-appoint the person. Whence the membership can repeat its vote to remove the officer. And around and around we go, defying the logic of RONR and logic in general. I guess some will say it's still a power the membership has under RONR.

Removal from a director position is a power that nationwide, owners in a HOA/COA always or nearly always exclusively have under the Bylaws and often, state statutes as well.

I grant that the membership can have a vote on anything it wants, including censure. I do not have RONR in front of me. However, early editions of Robert's Rules warn against aspects of this, like publishing the charges against the member. See Rule 72 at http://www.rulesonline.com/rror-13.htm . I will check RONR 12th edition later to see if this is RONR's position.

You bolded the sentence:  "In any society, behavior of this nature is a serious offense properly subject to disciplinary action, whether the bylaws make mention of it or not.” To me this reads like a judge's dicta, meaning it is not a directive but instead, represents thoughts and nothing enforceable. It's part of the philosophical writing of RR but might not be an actual "rule," as in a rule that can be enforced.

Respectfully, I remain unconvinced that the owners have any powers other than those expressly presented in the bylaws and state law. More and more I am seeing Robert's Rules as good on the nuts and bolts of, for example, motions and notice. Here and there RR does have legally enforceable rules. I know this because the courts have at times rolled up their sleeves and parsed Robert's Rules (when said Robert's Rules applied to a body, of course), recognizing that RR has legal authority in the particular conflict, in the rare instances where the organization's governing documents and state law do not conflict with Robert's Rules. (Perhaps I will start a thread on this topic, to make a certain point.)

I am happy to agree to disagree, of course.

[Josh Martin]

On 8/19/2022 at 9:57 AM, Augustin said:

I am not sure I understand. For a HOA/COA (if you do not mind) subject to RONR, are you saying that 61:3 authorizes the membership (meaning in a HOA/COA, the owners en masse) to vote to penalize a fellow owner when the owner injures the good name of the HOA/COA, disturbs its well-being, or hampers it in its work?

Speaking generally, I think it would be helpful for us to understand each other if you would focus on a type of organization other than an HOA or COA - ideally, an organization with voluntary membership. There are numerous regulations in state law pertaining to HOAs and COAs (for good reason), and I can understand how it is difficult to untangle your knowledge of those laws from a discussion of RONR.

In any event, as to this particular question, RONR provides that organizations have the authority to impose penalties on a fellow member when the member injures the good name of the organization, disturbs its well-being, or hampers it in its work. It is of course the case that if applicable law has its own rules on this matter (as is undoubtedly the case for an HOA or COA), then those rules will take precedence over RONR.

On 8/19/2022 at 9:57 AM, Augustin said:

Expulsion is the same as forcing the owner to sell his or her home or condo unit. I believe state law and federal law will trump RONR when it comes to forcing an owner to sell her or his home.

Yes, obviously. No one is suggesting otherwise.

On 8/19/2022 at 9:57 AM, Augustin said:

Respectfully, I remain unconvinced that the owners have any powers other than those expressly presented in the bylaws and state law. More and more I am seeing Robert's Rules as good on the nuts and bolts of, for example, motions and notice. Here and there RR does have legally enforceable rules. I know this because the courts have at times rolled up their sleeves and parsed Robert's Rules (when said Robert's Rules applied to a body, of course), recognizing that RR has legal authority in the particular conflict, in the rare instances where the organization's governing documents and state law do not conflict with Robert's Rules. (Perhaps I will start a thread on this topic, to make a certain point.)

Your use of "owners" here makes it seems clear you are again confining your view to HOAs, COAs, and the like. I have repeatedly stated that I believe you are correct that, in the case of those types of organizations, the owners do not have any powers except those expressly presented in the bylaws and state law. However, the reason this is the case is because the laws pertaining to HOAs and COAs provide as much.

RONR is written for use by a great many types of organizations, however, not just HOAs and COAs.

Edited August 19, 2022 at 03:13 PM by Josh Martin

[Termination Requested Pls]

On 8/19/2022 at 6:25 AM, Josh Martin said:

The common parliamentary law.

I strongly disagree, but even if one believes this is correct, it should be noted that if the organization has adopted RONR as its parliamentary authority, then RONR is one of the society's governing documents.

Josh Martin, you posted that the "common parliamentary law" "vests" "powers, duties and authority" to an association. I believe "common parliamentary law" refers to the parliamentary procedures an association has adopted. In the United States, to me this means the bylaws and the state statutes to which an organization has chosen to be subject. I already observed that the organization's governing documents and state statutes vest the organization with its powers.

I suspect you want to speak of the philosophy of governance? I want to speak of actual governance. For the greater part, don't people come here with real-life problems involving parliamentary procedure? Sometimes this procedure involves Robert's Rules. With HOAs/COAs, in my experience more often than not for real-life solutions one has to go to the bylaws and state law.

You concluded with:

RONR does not require powers to be specifically granted to the membership by the bylaws in order for the membership to exercise them. (State law, however, very well might, and almost certainly does for the types of organizations you describe - to the extent doing so is even permitted under state law.)

I agree with these closing words of yours, with a caveat: For shareholder corporations such as HOAs and COAS, my own version of these closing words would put much more emphasis on state law and the governing documents. The conflicts between RONR and state law, the Bylaws, Articles of Incorporation and Declarations are rampant, from proxies, to open meetings, to discipline to the majority or super majority requirements to more. As you know, and with conflicts, this means state law, the Declaration, Articles of Incorporation and Bylaws control for shareholder corporations such as HOAs/COAs.

[Termination Requested Pls]

Josh Martin posted:

Speaking generally, I think it would be helpful for us to understand each other if you would focus on a type of organization other than an HOA or COA - ideally, an organization with voluntary membership. There are numerous regulations in state law pertaining to HOAs and COAs (for good reason), and I can understand how it is difficult to untangle your knowledge of those laws from a discussion of RONR.

My response:

I am not interested in some kind of general discussion of RONR.

I am concerned at how often folks from HOAs / COAs come here, with said HOAs/COAs being subject to RONR, and receive mis-information, for the reasons I gave above. I will try to keep any responses I post here to those from HOAs/COAs short and to the point, suggesting they post at a HOA/COA forum and PM me for my suggestions on same.

I watch HOA / COA boards, say, assess $10,000 to owners for filing a legitimate, non-frivolous Fair Housing complaint. (The latter is fact. It's happened at least twice in two different states in the last few years.) Owners from HOAs/COAs come online looking for help. If they land at this particular forum and get an answer saying the collective membership can vote to impose such a "penalty" for filing a Fair Housing complaint, then in my opinion this forum has done a serious, grave disservice. I respectfully urge those here who love the study of RONR to consider when they should urge people to turn to state law, the governing documents and another forum, and ignore any discussion of RONR for the time being.

Edited August 19, 2022 at 03:34 PM by Augustin

[Josh Martin]

On 8/19/2022 at 10:20 AM, Augustin said:

Josh Martin, you posted that the "common parliamentary law" "vests" "powers, duties and authority" to an association. I believe "common parliamentary law" refers to the parliamentary procedures an association has adopted. In the United States, to me this means the bylaws and the state statutes to which an organization has chosen to be subject. I already observed that the organization's governing documents and state statutes vest the organization with its powers.

I would clarify this term slightly.

"Parliamentary law originally was the name given to the rules and customs for carrying on business in the English Parliament that were developed through a continuing process of decisions and precedents somewhat like the growth of the common law. These rules and customs, as brought to America with the settling of the New World, became the basic substance from which the practice of legislative bodies in the United States evolved. Out of early American legislative procedure and paralleling it in further development has come the general parliamentary law, or common parliamentary law, of today, which is adapted to the needs of organizations and assemblies of widely differing purposes and conditions. In legislative bodies, there is often recourse to the general parliamentary law in situations not covered by the rules or precedents of the particular body—although some of the necessary procedure in such a case must be proper to that type of assembly alone." RONR (12th ed.) pg. xxix

Your definition more closely matches what RONR refers to as "parliamentary procedure."

"Acting under the general parliamentary law, any deliberative assembly can formally adopt written rules of procedure which, as fully explained in 2:14–22, can confirm, add to, or deviate from parliamentary law itself. As indicated above, the term rules of order, in its proper sense, refers to any written parliamentary rules so adopted, whether they are contained in a manual or have been specially composed by the adopting body. The term parliamentary procedure, although frequently used synonymously with parliamentary law, refers in this book to parliamentary law as it is followed in any given assembly or organization, together with whatever rules of order the body may have adopted." RONR (12th ed.) pgs xxix-xxx

I have no disagreement with the rest of your post.

On 8/19/2022 at 10:30 AM, Augustin said:

I appreciate your opinion and of course, that you have your own interests.

I am not interested in some kind of general discussion of RONR.

I am concerned at how often folks from HOAs / COAs come here, with said HOAs/COAs being subject to RONR and receive mis-information, for the reasons I gave above. I will try to keep any responses I post here to those from HOAs/COAs short and to the point, suggesting they post at a HOA/COA forum and PM me for my suggestions on same.

I watch HOA / COA boards, say, assess $10,000 to owners for filing a legitimate, non-frivolous Fair Housing complaint. (The latter is fact. It's happened twice in two different states in the last few years.) Owners from HOAs/COAs come online looking for help. If they land at this particular forum and get an answer saying the collective membership can vote to impose such a "penalty" for filing a Fair Housing complaint, then in my opinion this forum has done a serious, grave disservice. I respectfully urge those here who love the study of RONR to consider when they should urge people to turn to state law, the governing documents and another forum, and ignore any discussion of RONR for the time being.

I think this is a fair point and I will take these words to heart. I do my best to add caveats of this nature, but certainly I can always endeavor to do better generally, and for HOAs and COAs in particular.

The only counterpoint I would offer is that we do also occasionally get people on here (and I am not leveling this against you, it is just a general observation) who assume every post is about an HOA or COA (or in the alternative, assume every post is about a public body) and respond accordingly. So that's also something to watch out for.

Edited August 19, 2022 at 03:47 PM by Josh Martin

[Termination Requested Pls]

Josh Martin, I do appreciate the caveat at the bottom of your posts and your other, customized caveats to those who post here. But in my experience at another forum, folks are not reading carefully (no surprise). They are missing this and other warnings many of the long-time posters here kindly offer.

I do wonder what fraction of the posts here are from shareholder organizations, such as HOAs/COAs. I should think it's quite large. If so, then I suspect one reason its being large is because members of City Councils and State Legislatures have their own parliamentarians and city/county/state attorneys to whom they may turn with questions. This perhaps leaves, as possible members at this forum, those who participate in non-shareholder organizations like charities, with largely honorary boards (said board members often being big donors) that are not exercising a great deal of power. They are less likely to have the pressing issues that those in shareholder organizations do.

Anyway I can sense some dismay here with me or others pointing out the conflicts, for shareholder organizations, between RONR and {state law, Declaration, Articles Bylaws) and will take it as feedback.

[Josh Martin]

On 8/19/2022 at 10:53 AM, Augustin said:

I do wonder what fraction of the posts here are from shareholder organizations, such as HOAs/COAs. I should think it's quite large. If so, then I suspect one reason its being large is because members of City Councils and State Legislatures have their own parliamentarians and city/county/state attorneys to whom they may turn with questions. This perhaps leaves, as possible members at this forum, those who participate in non-shareholder organizations like charities, with largely honorary boards (said board members often being big donors) that are not exercising a great deal of power. They are less likely to have the pressing issues that those in shareholder organizations do.

I have no dispute that the share of posts here from HOAs/COAs "are quite large." But if you watch around for a while, I think you will find that the share of questions from non-shareholder organizations and from local government organizations may surprise you. (The latter surprises even me - I am as confused as you as to why they don't direct these questions to their attorneys.)

As to how "pressing" the issues are, that is in the eye of the beholder.

[Gary Novosielski]

On 8/19/2022 at 10:57 AM, Augustin said:

I am not sure I understand. For a HOA/COA (if you do not mind) subject to RONR, are you saying that 61:3 authorizes the membership (meaning in a HOA/COA, the owners en masse) to vote to penalize a fellow owner when the owner injures the good name of the HOA/COA, disturbs its well-being, or hampers it in its work?

Since an HOA is a very specialized subset of "societies" and fairly heavily regulated, I doubt anyone would be saying that, since 63:1 is likely to be superseded by the copious regulations applicable to HOAs in most states.  However I think it's likely that the explicit rules applying to homeowners can be said to exist in order to improve the well-being of the HOA's membership and facilitate it in its work, so there's no actual contradiction.

 

[Gary Novosielski]

On 4/18/2022 at 6:06 PM, Augustin said:

Can the membership turn around and override this Board decision? No. In my view, this is consistent with the Bylaws and Section 2 of RONR.

I am happy to agree to disagree.

I'm glad you're happy, but when your view disagrees with several experienced parliamentarians and two of the actual authors of RONR 12th ed., you cannot fairly be said to be on firm ground.

Edited August 19, 2022 at 07:38 PM by Gary Novosielski
fixed typo

[Termination Requested Pls]

Gary Novosielski, thank you for your opinion. My view is based largely in reading a wealth of HOA and condominium case law for the past 13 years that speak to the board's rights and owners' rights. Said case law treats statutes and the bylaws at length. In much of this case law are HOAs and COAs that are subject to Robert's Rules. 

Josh Martin posted: "As to my belief that "an association has powers that are not delineated in the bylaws," I believe this because, as a matter of the common parliamentary law and RONR, it is correct."

I responded that I could not come up with any. Richard Brown proposed one. I find what Richard Brown proposed to be not a power of the membership but more of the membership wishing to express an opinion, via a vote, with no substantive effect on how the HOA/COA operates or any owner. I guess that's some kind of power.

Please feel free to name other powers not delineated in the bylaws or state law and which the membership could conceivably exercise.

[Edit:] Importantly, I continue to feel the safe route is to amend the bylaws or Declaration to give the members the specific power that they want (assuming said power does not violate some other law). This would satisfy RONR, the governing documents, and state law. I do not like tempting fate (as in someone sues) by putting a parliamentarian theory, applied to a shareholder corporation, to a test. Do you?  [end Edit]

I am trying to be fair. I simply cannot think of a "power" not delineated in the bylaws or state law that truly represents "power" that the membership in theory could use in some way to get what the membership wants.

My position remains that the powers of a corporation derive from the governing documents and state law. Yes, the governing documents sometimes include RONR, but only to the extent RONR does not conflict with the governing documents and state law.

I am sorry you seem to think that I am being illogical and that I should just succumb to a majority view here, by parliamentarians. I would not have expected such a tactic to be something parliamentarians employ.

Edited August 19, 2022 at 09:57 PM by Augustin

[Rob Elsman]

So, for purposes of this forum, can we skip the case law stuff and get back to Robert's Rules of Order?  The original poster came to a forum on Robert's Rules and parliamentary procedure.  Let's give him a straight answer.

As to matters for which authority has not been vested exclusively in the executive board, the general membership assembly, being the superior body in an ordinary society,  may countermand an action taken by the board by adopting an appropriate motion to Rescind or Amend Something Previously Adopted, provided that the action has not been fully executed or is unable to be reversed.  The motion is an incidental main motion that has characteristics that are different from other main motions.  The characteristics and further explanation of the motion are discussed in RONR (12th ed.) §35.

To the extent that state or local laws or regulations have a bearing, it will be necessary to seek the advice of a competent attorney.  All the junk on this thread about case law should be ignored, since there are multiple jurisdictions throughout the United States that surely have varying statutes, ordinances, or regulations.

[Termination Requested Pls]

Rob Elsman,

Where Bylaws and state law conflict with RONR, RONR says the Bylaws and state law trump RONR. This is obviously a part of RONR and so IMO, this is worthy of bringing up. Facts:

• Every HOA and COA is a corporation.
• Every HOA and COA is a stock corporation, meaning it has shareholders.
• Every single state has a statute requiring each corporation to have a board.
• Every single state has a statute vesting either the Board or the membership with the authority to makes decisions pursuant to state law and the HOA/COA's governing documents.
• A corporation's Bylaws, Articles of Incorporation (AoI), and Declaration are a contract. This contract binds all members of the stock corporation together in agreement that all will follow the terms of the Bylaws, AoI and Declaration.
• RONR distinguishes often between its rules for (1) a non-stock corporation or non-stock entity and (2) a stock corporation. 

When the membership attempts to countermand a corporate board decision, and either the Bylaws, Declaration, Articles of Incorporation do not reserve this power to the membership on the subject where the membership wishes to exercise this power, then I see two problems within the scope of RONR: First, the Board always has the right to reverse the membership decision, pursuant to the higher authority of the Bylaws and state law and what the Bylaws and state law say about Board powers. Which means decisions theoretically would go back and forth endlessly between the Board and membership. Which makes no sense. Second, the membership is attempting to modify the contract that the HOA/COA's governing documents are. Per RONR, a modification to such a contract may be done only via the amendment process given in the governing documents.

For these reasons, I believe this forum's members' frequent insistence on addressing stock corporation queries by reverting to RONR is misguided. Because time and again, the responses here are either flatly wrong (like this latest post by Rob Elsman) in application to a stock corporation, or the responses confuse  the person making the query.  I believe that nearly always, posters who come here with questions about the parliamentary procedure for their stock corporation should be told that discussions of parliamentary procedure for stock corporations is out of this forum's scope, due to the intense regulation of corporations under state law, denoting significant conflicts with RONR. Per RONR itself, said conflicts are resolved in favor of state law and the stock corporation's governing documents.

Where a thread asks about the parliamentary procedure for a stock corporation, the posts and threads that embark on a long discussion of a particular subset of RONR bury the high likelihood that RONR does not even apply when it comes to answering the query do a grave disservice to the person asking the question.

In the alternative, I think every time a person queries here about whether the membership of a stock corporation can countermand a board decision should be told that the RONR-dictated approach is to first amend the Bylaws to give the membership the power the person making the query seeks. This will force stock corporation members posting here to either go to their bylaws and ultimately, as needed, the AoI, Declaration, and state law, or give up. I believe either is preferable to sending the person away from here with incorrect information.

I am also grateful to those posters here that answer queries about a stock corporation with a short response that the query is out of scope here. I believe RONR's own rules on the content of debate for an assembly, such as this forum, support such responses.

 

Edited August 20, 2022 at 02:10 PM by Augustin