Condo board "continued" meeting to gather more votes

[Leonardo]

Our condo board put forth a motion that required 75% of the membership to vote "yes" in order to be adopted.  At the meeting to announce the results, the vote fell short of that number.  So the board "continued" the meeting until the next month in order to convince other members to vote "yes."  Is this legitimate? 

[Guest Zev]

At the same meeting, or any continuation of the same meeting, a motion that has failed could only be revisited by way of a motion to Reconsider, which would have to be moved by someone on the prevailing side, in this case, by someone that voted no. However, at a future meeting the measure can be introduced once again and the attempt renewed.

[Bruce Lages]

A meeting can be 'continued' by means of the motion to fix the to which to adjourn (RONR, 12th ed. sec. 22) which establishes the time (and sometimes the place) for a continuation of the same meeting. If this motion was being voted on at the initial meeting, it would also be possible to move to reopen, or to leave open, the polls so that voting could also be continued at the adjourned meeting (RONR Sec. 30).

But I suspect, from your description, that this motion might be being voted by mail ballots or some other absentee voting method. Is that correct?  If so, then a time limit for the voting period should have been set, and perhaps it was, since you say that the results were to be announced at the initial meeting. If this was the case, a motion to reopen the polls could be made.

[Richard Brown]

On 11/3/2021 at 10:37 AM, Leonardo said:

Our condo board put forth a motion that required 75% of the membership to vote "yes" in order to be adopted.  At the meeting to announce the results, the vote fell short of that number.  So the board "continued" the meeting until the next month in order to convince other members to vote "yes."  Is this legitimate? 

 

On 11/3/2021 at 4:57 PM, Bruce Lages said:

If this motion was being voted on at the initial meeting, it would also be possible to move to reopen, or to leave open, the polls so that voting could also be continued at the adjourned meeting (RONR Sec. 30).

I'm not so sure I agree with my colleague Mr. Lages.  First, motions related   to opening and closing polls are applicable only to ballot votes.  RONR (12th ed.) §30:8.  Was this vote by ballot?  If it was (and I suspect it was), then the polls can be reopened with a majority vote.  §30:10.   However, if the vote was not a ballot vote, I question whether the polls can be re-opened except by means of a unanimous vote.  

It seems to me that even it it was a ballot vote it might be inappropriate to reopen the polls after the votes have been counted and the results announced.  The motion had failed.  However, I can't find a provision on that specific point in RONR.  It seems too likely to lead to skulduggery to permit the proponents of, say, a bylaw amendment requiring a two thirds vote but which failed with just 60 percent of the vote on a ballot vote to re-open the polls and set an adjourned meeting for a week later to bring in a few additional members to cast "yes" votes to add to those votes cast in the first meeting so that the motion ultimately passes due to the combined "yes" votes from the two meetings.   This just does not sound right.   I would appreciate hearing what others think about that issue.

I do agree with Guest Zev that the assembly has at least two other options:  First, to simply renew the failed motion at the next meeting and hope it passes on the second attempt.  A second option is to set an adjourned meeting for a future date and to then reconsider the failed motion at the adjourned meeting and hope that enough additional support is garnered that the motion passes on reconsideration.

[J. J.]

On 11/3/2021 at 9:39 PM, Richard Brown said:

 

I'm not so sure I agree with my colleague Mr. Lages.  First, motions related   to opening and closing polls are applicable only to ballot votes.  RONR (12th ed.) §30:8.  Was this vote by ballot?  If it was (and I suspect it was), then the polls can be reopened with a majority vote.  §30:10.   However, if the vote was not a ballot vote, I question whether the polls can be re-opened except by means of a unanimous vote.  

 

I agree with Mr. Lages on this point.  The polls could be reopen for a ballot or roll call vote. 

If it was determined that less than 75% of members voted, I would see no problem in closing the polls and reopening them.  Likewise, if the result was not announced by the chair, reconsideration would not be applicable.  Some member, e.g. a teller, could move set an adjourned meeting before the result is announced; if adopted, he could them move that the polls be reopened at that meeting. 

 

[Bruce Lages]

Richard - I do agree that if the results had been announced, the appropriate next step according to RONR would be to declare the motion defeated. But RONR does allow for a motion to reopen the polls to be made 'until the announcement of the result is complete or immediately thereafter" (30:3, 1). I wouldn't bet very much that the polls were actually reopened in accord with that procedure though.

  But I do suspect, as I stated above, that this may well be a mail-in ballot vote or some other type of absentee ballot voting, so that the continuation was a move to allow more time for more members to submit their votes. I have a vague recollection that this specific scenario, i.e. extending the polling time to try to get more votes, was the subject of a previous topic here.

[Richard Brown]

On 11/3/2021 at 9:10 PM, J. J. said:

I agree with Mr. Lages on this point.  The polls could be reopen for a ballot or roll call vote. 

If it was determined that less than 75% of members voted, I would see no problem in closing the polls and reopening them.  Likewise, if the result was not announced by the chair, reconsideration would not be applicable.  Some member, e.g. a teller, could move set an adjourned meeting before the result is announced; if adopted, he could them move that the polls be reopened at that meeting. 

 

I think you are assuming facts not in evidence and that are actually contradicted by the evidence.

The OP did not say that fewer than 75% of the membership voted.  He said, or certainly implied, that the vote on the motion failed to reach the required 75% vote threshold required for the motion to pass.  There is no indication that the problem was not enough members present, but rather that those present and voting failed to reach the 75% vote threshold of "yes" votes required for passage.   I interpret his post as indicating that the motion failed because not enough members voted "yes", not because not enough members were present.   It seems pretty clear to me that the votes were actually counted and the result announced, that the motion failed to pass, and they are now hoping to get a few additional members to come to the adjourned meeting to vote "yes" and to add those "yes" votes to the "yes" votes cast at the first meeting.

I agree that if it was a ballot vote and that if the votes were not counted but it was clear that not enough members had voted (assuming that the vote of 75% of the entire membership was required rather than a regular 75%vote), the situation would be at least a little  bit different, but still not necessarily permissible. It is giving the proponents a second bite at the apple because even without counting the votes they know there were not enough votes (or ballots) cast for the motion to pass. That's equivalent to knowing the results of  the vote.  It's the fact that the votes have been counted and the results apparently announced that concerns me.

I'm also  not convinced that a vote conducted via a roll call vote could be re-opened once the results have been announced.  In fact, based on §30:8, I'm not sure "the polls" on a vote taken by roll call can be re-opened.  The rule is pretty specific that motions  to close and reopen the polls "are applicable only with respect to ballot votes".  §30:8.  Also 6:17 (8).

[J. J.]

On 11/3/2021 at 11:05 PM, Richard Brown said:

I think you are assuming facts not in evidence and that are actually contradicted by the evidence.

The OP did not say that fewer than 75% of the membership voted.  He said, or certainly implied, that the vote on the motion failed to reach the required 75% vote threshold required for the motion to pass.  There is no indication that the problem was not enough members present, but rather that those present and voting failed to reach the 75% vote threshold of "yes" votes required for passage.   I interpret his post as indicating that the motion failed because not enough members voted "yes", not because not enough members were present.   It seems pretty clear to me that the votes were actually counted and the result announced, that the motion failed to pass, and they are now hoping to get a few additional members to come to the adjourned meeting to vote "yes" and to add those "yes" votes to the "yes" votes cast at the first meeting.

I agree that if it was a ballot vote and that if the votes were not counted but it was clear that not enough members had voted (assuming that the vote of 75% of the entire membership was required rather than a regular 75%vote), the situation would be at least a little  bit different, but still not necessarily permissible. It is giving the proponents a second bite at the apple because even without counting the votes they know there were not enough votes (or ballots) cast for the motion to pass. That's equivalent to knowing the results of  the vote.  It's the fact that the votes have been counted and the results apparently announced that concerns me.

I'm also  not convinced that a vote conducted via a roll call vote could be re-opened once the results have been announced.  In fact, based on §30:8, I'm not sure "the polls" on a vote taken by roll call can be re-opened.  The rule is pretty specific that motions  to close and reopen the polls "are applicable only with respect to ballot votes".  §30:8.  Also 6:17 (8).

Notice that I said, "If the result was not announced by the chair."  The person making the motion, e.g. a teller, could very easily, know what the result is, even if that knowledge is unofficial.

As to polls being limited to ballots, a signed ballot is a form of roll call vote, where polls are clearly proper (45:46).  Further, 30 is the general list of "Motions Related to Methods of Voting and the Polls."  Setting a time for voting is certainly one of those motions. 

 

[Leonardo]

I am the OP, and I apologize for apparently not clearly identifying the method.  The residents were mailed a proxy form that included a yes/no question on the issue, and return mail was the most common method of response.  In addition, the explanatory material for the issue, also mailed with the proxy form, stated that "a 'no response' counts as a no vote."

[Joshua Katz]

On 11/4/2021 at 10:59 AM, Leonardo said:

The residents were mailed a proxy form that included a yes/no question on the issue, and return mail was the most common method of response. 

This process will be governed by your own rules. What do they say about whether a no response counts as a no vote? Or the voting threshold? or about when a vote closes?

[J. J.]

On 11/4/2021 at 10:59 AM, Leonardo said:

I am the OP, and I apologize for apparently not clearly identifying the method.  The residents were mailed a proxy form that included a yes/no question on the issue, and return mail was the most common method of response.  In addition, the explanatory material for the issue, also mailed with the proxy form, stated that "a 'no response' counts as a no vote."

Did they announce the results? 

[Richard Brown]

On 11/4/2021 at 9:59 AM, Leonardo said:

I am the OP, and I apologize for apparently not clearly identifying the method.  The residents were mailed a proxy form that included a yes/no question on the issue, and return mail was the most common method of response.  In addition, the explanatory material for the issue, also mailed with the proxy form, stated that "a 'no response' counts as a no vote."

As indicated by the questions asked by Joshua Katz and J.J., there are several questions which need to be answered in order for us to properly advise you.  Some of them concern issues which you did not directly raise in your original  post but which stand out as red flags for us.  For example:

What EXACTLY do your bylaws say about the vote required to adopt the particular motion that was being considered?  Please don't paraphrase but quote the provision exactly.  The precise wording in the bylaws is important.  If the bylaws don't require a 75% vote, how and by whom was it determined that a 75% vote was required?

Was this motion a proposed bylaw amendment?

As asked by Mr. Katz, is there a provision in your bylaws which says that not voting on an issue such as the motion being considered counts as a "NO" vote?   If not, where did that "instruction" come from?  RONR is cear that a failure or refusal  to vote is an abstention and does not count as a vote either way. Abstentions are ignored unless you have a bylaw provision to the contrary.

What exactly transpired at the meeting at which the results were to be announced?  Was voting (or turning in of ballots) permitted at that meeting?   How (and by whom) was it determined that additional votes were necessary?  Were the votes tabulated and were the results announced? What exactly did the chair say when it was "determined" that not enough members had voted?  Finally, what was the vote result (yes votes, no votes, and abstentions or blank ballots)?

We want to help you and the additional information will help us to help you.

[Leonardo]

Thank you for your assistance.  Our bylaws are silent on this particular issue (substantial modification to our common areas).  Florida Statue FS 718.113(2)(a) covers this:

"Except as otherwise provided in this section, there shall be no material alteration or substantial additions to the common elements or to real property which is association property, except in a manner provided in the declaration as originally recorded or as amended under the procedures provided therein. If the declaration as originally recorded or as amended under the procedures provided therein does not specify the procedure for approval of material alterations or substantial additions, 75 percent of the total voting interests of the association must approve the alterations or additions before the material alterations or substantial additions are commenced. This paragraph is intended to clarify existing law and applies to associations existing on July 1, 2018."

The board had made the determination that its proposal contained a material alteration to the common elements.

Yes, some ballots were turned in at the meeting.  It was announced, by our management company's representative, at that meeting that ballots containing 95 "yes" votes and 11 "no" votes were turned in.  No blank ballots or abstentions were received.  As there are 172 total voting interests, that meant that 75% approval would require 129 "yes" votes.  At that time, the board agreed to continue the meeting for a month so as to gather additional votes.

The ballot itself gave a brief verbal description of the proposal, and stated "See line description and drawing included herewith."  That referenced description is where the statement that "no response" equals a no vote resides.

[Joshua Katz]

What do the bylaws say about the voting procedure, and in particular when it should close?

Also: 

On 11/4/2021 at 3:47 PM, Leonardo said:

Yes, some ballots were turned in at the meeting.

Of what was this a meeting? Presumably, a membership meeting, since that was who was voting. Assuming that is correct, the board likely has no authority to "continue" the meeting, which I take to mean setting an adjourned meeting. 

[Richard Brown]

On 11/4/2021 at 2:47 PM, Leonardo said:

If the declaration as originally recorded or as amended under the procedures provided therein does not specify the procedure for approval of material alterations or substantial additions, 75 percent of the total voting interests of the association must approve the alterations or additions before the material alterations or substantial additions are commenced.

Based on this statute, if your declaration does not contain a different vote threshold, an abstention or failure to cast a vote will have the same EFFECT as a “no“ vote.  That is because the statute specifically requires the approval of 75% of the members (voting interests). That is essentially equivalent to  what parliamentarians would probably refer to as a requirement of 75% of the entire membership.  In those cases, not voting or expressly abstaining has the effect of a “no” vote because all that matters is that 75% of the entire membership must vote yes. it is not technically a “no“ vote, but it has the same effect as a “no“ vote.

 

 

[Leonardo]

On 11/4/2021 at 3:52 PM, Joshua Katz said:

What do the bylaws say about the voting procedure, and in particular when it should close?

Also: 

Of what was this a meeting? Presumably, a membership meeting, since that was who was voting. Assuming that is correct, the board likely has no authority to "continue" the meeting, which I take to mean setting an adjourned meeting. 

Yes, it was a membership meeting.  So the board didn't have standing to continue the meeting.  So in order for the membership to set an adjourned meeting, a quorum must have had to be present to vote on that resolution?  But fewer than 25 members (out of 172) were present.  I assume that they couldn't have used the limited proxies that were present on the other resolution to establish a quorum for a new vote.  Am I correct?

 

[Bruce Lages]

No, you do not need a quorum present to use the motion to fix the time to which to adjourn to set a time and place for an adjourned meeting. That's one of the few motions that are in order in the absence of a quorum. Clearly it's too late to apply that to your present situation, but keep this in mind for future occasions when your meeting(s) may be lacking a quorum.

[Shmuel Gerber]

On 11/4/2021 at 3:47 PM, Leonardo said:

Thank you for your assistance.  Our bylaws are silent on this particular issue (substantial modification to our common areas).  Florida Statue FS 718.113(2)(a) covers this:

"Except as otherwise provided in this section, there shall be no material alteration or substantial additions to the common elements or to real property which is association property, except in a manner provided in the declaration as originally recorded or as amended under the procedures provided therein. If the declaration as originally recorded or as amended under the procedures provided therein does not specify the procedure for approval of material alterations or substantial additions, 75 percent of the total voting interests of the association must approve the alterations or additions before the material alterations or substantial additions are commenced. This paragraph is intended to clarify existing law and applies to associations existing on July 1, 2018."

It is beyond the scope of this forum to interpret whether this "approval" requires a vote at a meeting at which a quorum is present.