Amending a by-law change proposal at the annual meeting

[Termination Requested Pls]

Atul Kapur, do you mean you think I should have quoted this: [From RONR 45:70] But in a nonstock corporation, where membership is usually on the same basis as in an unincorporated, voluntary association, voting by proxy should not be permitted unless the state’s corporation law—as applying to nonstock corporations—absolutely requires it."  ?

First, I quoted this sentence from 45:70 in my first post here. Second, condominium associations are not voluntary. If you buy a condo, you're a member of the condo association, and there's no way to get out of it. I believe I am capable of making a decent presentation on why this is so, but respectfully I believe doing so is out of scope for this forum. I am kind of stuck with: People either know why condos are "stock corporations," or they do not.

[Termination Requested Pls]

On 8/21/2022 at 7:00 PM, Dan Honemann said:

You haven't answered my questions, but I suppose that's just as well.

Yesterday, in another thread, you posted the following:

"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."

This I know to be false, but, as I think you recognize, this is not the forum in which to discuss such questions. 

And yes, your apparent understanding about what RONR says about the use of proxies is incorrect.

 

I'm sorry. Did you miss where I wrote that I heard you about not assuming? Did you miss where I made the inquiry of the OP as to whether his association is a corporation? That was me trying to cut to the chase and also say, 'No, I am not certain the OP's association is a corporation. Point taken.'

You do not explain your position on the other items. Given the rules of the forum, I guess we are at an impasse.

I stand by my statements from the other thread, with perhaps an existential type caveat here and there that will likely never be applicable to a HOA/COA member who posts here. (What condo association would take on the liability of not being a corporation?)

If you want me to resign from the forum, I will, and save you the trouble. I do not care to rain on people's parade and subtract from their enjoyment here.

It appears to be your forum for the most part. Just say the word. 

Edited August 22, 2022 at 12:30 AM by Augustin

[Gary Novosielski]

On 8/21/2022 at 4:04 PM, Augustin said:

Just to be clear that RONR does permit proxies for stock corporations

This is false. 

RONR recognizes that proxies are often used in stock corporations, and that voting power in them is not one-person-one-vote but rather proportional to shares owned.  Recognizing these facts does not indicate "permission" of any sort.  These conditions are incompatible with the requirements for a deliberative assembly, and are prohibited by RONR to the greatest extent possible by law.

The only way proxies may be used in an organization that has adopted RONR as its parliamentary authority is for the rules prohibiting proxies to be superseded either by the bylaws themselves, or by a law that does not permit the prohibition of proxies in the bylaws or parliamentary authority. 

RONR even goes so far as to say that if the law provides that proxies shall be permitted in corporations, unless the bylaws prohibit their use yet the bylaws appear to be silent on the matter, the adoption of RONR in the bylaws is sufficient to constitute such a prohibition.

Edited August 22, 2022 at 12:40 AM by Gary Novosielski

[Atul Kapur]

On 8/21/2022 at 8:04 PM, Augustin said:

People either know why condos are "stock corporations," or they do not.

Do condominium corporations issue stock? Or do you have a different interpretation of what RONR means by "stock corporations" other than one that issues stock? I understand that you have a perspective on why condominium corporations should be considered equivalent to stock corporations, but I am not convinced RONR uses it with that meaning.

On 8/21/2022 at 8:04 PM, Augustin said:

[From RONR 45:70] But in a nonstock corporation, where membership is usually on the same basis as in an unincorporated, voluntary association, ...."  ?

Second, condominium associations are not voluntary. If you buy a condo, you're a member of the condo association, and there's no way to get out of it.  [emphasis added]

Is anyone obligated to buy a condo? Yes, membership is part of owning a condominium unit, but I question how that means membership is not voluntary.

Edited August 22, 2022 at 06:32 AM by Atul Kapur
Made my questions more specific and, hopefully, clear.

[Dan Honemann]

On 8/21/2022 at 8:21 PM, Augustin said:

 

I'm sorry. Did you miss where I wrote that I heard you about not assuming? Did you miss where I made the inquiry of the OP as to whether his association is a corporation? That was me trying to cut to the chase and also say, 'No, I am not certain the OP's association is a corporation. Point taken.'

You do not explain your position on the other items. Given the rules of the forum, I guess we are at an impasse.

I stand by my statements from the other thread, with perhaps an existential type caveat here and there that will likely never be applicable to a HOA/COA member who posts here. (What condo association would take on the liability of not being a corporation?)

If you want me to resign from the forum, I will, and save you the trouble. I do not care to rain on people's parade and subtract from their enjoyment here.

It appears to be your forum for the most part. Just say the word. 

As noted in the Welcome message, the RONR "Question and Answer Forums are provided to allow an open exchange of views relevant to specific questions of parliamentary procedure under Robert's Rules of Order Newly Revised."  These Forums are not the place to discuss what a state's statutes may or may not provide with respect to any sort of entity which has adopted RONR as its parliamentary authority, although it is proper and often advisable to note that if the provisions of any applicable statute conflict with the rules in RONR, the provisions of the statute will prevail.

The difficulty arises when someone posts his or her views as to the effect that statutes may have in any given parliamentary situation because, if there is some disagreement concerning the correctness of those views, this may prompt a discussion which is neither appropriate nor welcome.

You have posted quite a number of opinions, often in very sweeping terms, about the meaning and effect of state statutes regulating what you refer to as HOAs and COAs, with which I, and no doubt others, disagree, but these Forums are not the place to debate such matters. Therefore, we respectfully request that you refrain from doing so. 

I think you have, on a number of occasions, invited posters to privately message you for further information (which is fine), and if you would like to have some discussion as to my disagreements with what you have posted concerning applicable statutes you are invited to do the same. 

[Termination Requested Pls]

On 8/21/2022 at 9:09 PM, Atul Kapur said:

Do condominium corporations issue stock? Or do you have a different interpretation of what RONR means by "stock corporations" other than one that issues stock? I understand that you have a perspective on why condominium corporations should be considered equivalent to stock corporations, but I am not convinced RONR uses it with that meaning.

Is anyone obligated to buy a condo? Yes, membership is part of owning a condominium unit, but I question how that means membership is not voluntary.

Respectfully, I think the questions are:

What meaning does RONR give to "stock corporations"? Where RONR speaks of membership in a society being "transferable," what does "transferable" mean?

My response:

-- The only sections that I see in RONR that speak to these points are:

     1:23

     45:56

     45:70 

     49:7

-- Sections 45:56 and 45:70, among other things, seems to me to be saying that a society subject to RONR is either (1) an "ordinary" deliberative assembly; or (2) not an ordinary deliberative assembly. To me this is saying RONR's position is that RONR has authority over both ordinary and non-ordinary assemblies. 

-- Section 45:70 further speaks expressly of societies where membership (1) is transferable and (2) not transferable. From this sentence in 45:70: "Ordinarily [the use of proxies] should neither be allowed nor required, because proxy voting is incompatible with the essential characteristics of a deliberative assembly in which membership is individual, personal, and nontransferable."  From my general reading, it seems clear to me that RONR does contemplate what the world outside it says. This includes the fact that the legal structure of shareholder corporations (a.k.a. stock corporations) argues for a structure that is somewhat different from non-shareholder corporations. The law of course has much to say on this, to say the least. And what the law has said for centuries now does seem to be much  of what is accepted in our language. Granted nuance arises and so on.

-- I believe the first Robert's Rules of Order appeared in 1876. From my reading of history, this is very close to the date when large, publicly held shareholder corporations were first becoming established in the United States. I expect the contributors to the early Robert's Rules did not have large, publicly held shareholder corporations in mind. Times and the law of corporations evolve though. I expect subsequent authors of Robert's Rules saw the need to draw some distinctions between shareholder societies and non-shareholder societies. Which to me indicates that the authors were saying RONR can be applied to both types of societies. Which furthermore at least suggests to me that RONR does not have a blanket prohibition on proxies.

-- Section 45:56 speaks to 'exceptions to the rule' that members of a deliberative assembly must be actually present to vote. I think a fair parsing of this is that RONR has a rule about voting in person but also recognizes and validates the exceptions to this rule. One exception being for those societies where membership per se in the society is not transferable voluntarily, at will, instantly. Instead, transfer of membership can only take place via sale of real property, an extensive process where sale is not even guaranteed. (Witness the Surfside condominium collapse. No condo owner in that building had the option to sell her or his destroyed or non-exististent condo unit after the collapse and cease to be a member of the association.)

-- Appeals courts have acknowledged that condominium corporations are, at a minimum, de facto shareholder corporations. Anyone wanting citations, email me, and I will provide them. Email: *****@*****.tld

-- Some state statutes require either HOAs, COAs, or both, to use RONR. Many HOA/COA Bylaws require RONR as well. It seems to me that this translates to state legislatures and attorneys believing that RONR sufficiently addresses the category into which HOAs and COAs fall  (the 'non-ordinary' category) to make use of RONR a good practice. 

-- Regarding membership being "voluntary" versus "mandatory": When one buys a condominium, the covenants that go with the purchase are contractual terms (say the courts). The covenants for a condominium always say that one is stuck with being a member of the condominium association, run by a board. A condominium owner cannot simply resign from being a member of the condo association. By contrast, a member of, say, the Elks, can resign at any time. A City Council member can resign at any time. And so on.

-- Most importantly to me, at times RONR itself speaks of "voluntariness" as distinguishing one category of organization from another.

-- I see the Robert's Rules Association is "the partnership of direct descendants of General Henry Martyn Robert formalized in 1960 to manage and advance the Robert’s Rule of Order books and legacy." It appears the Robert's Rules Association also "manages the content" of RONR. Which means that when one of these descendants and/or managers comes here, then one should give at least some deference. (All this is new to me as of this morning, as I read more of the robertsrules.com site.) As direct descendants of General Robert, with all the rights, responsibilities and familial sensibilities that this entails, I can see now how my challenges to RONR would go over like a lead balloon and be patently offensive. 

-- Dan Honemann posted himself, on April 18, 2022 in the other thread that: "... condominium regimes are often (unfortunately, in my opinion) constructed more along the lines of those relating to stock corporations than they are to the type of society referred to in RONR." On the one hand, this seems to me to acknowledge that, for one, where statutes or bylaws require the use of RONR, condominiums should pay heed to those sections of RONR that speak expressly to "stock corporations." On the other hand, I grant he appears to be saying RONR does not refer to "stock corporations."

-- But RONR does expressly refer to stock corporations, even elaborating that "stock corporations" involve "transferable" membership whereas non-stock corporations do not, and even noting that proxies may be used in stock corporations. At least that's my reading.

-- I would hope those who come here feel  free to point out where they think RONR applies to stock corporations. As I have written, I believe condo associations and mandatory HOAs are stock corporations for the purposes of RONR. I think folks from condos and HOAs posting here will almost assuredly have bylaws and be corporations.

-- Voluntary HOAs would not have commonly-owned property and so are not stock corporations. Voluntary HOAs might exist to enforce covenants, but bylaws with any legal force are unlikely. I believe members of voluntary HOAs would not have reason to post here.

-- I cannot respond intelligently to questions where I either do not share the premise, or I am not sure of what the premise is. Words do matter. If I seem to not be answering a question, then this may be because I think the premise is not clear or is not a premise with which I agree.

 

Gary Novosieski, respectfully, I think RONR says what it says. I have made an earnest effort to quote directly from RONR. Your arguments do not make sense to me, given the actual language of RONR. It's only my opinion.

From a practical point of view, as you or someone else pointed out elsewhere, I am odd woman out (the name "Augustin" is a nom de plume). Group dynamics being what they are, questioning an interpretation does not seem welcome at this point. Plus were this forum subject to RONR, the super-majority here would vote to either suspend or terminate discussion of the issues I have raised. 

 

 

[Josh Martin]

On 8/21/2022 at 7:54 AM, John Cummings said:

-- Every HOA/COA is a corporation and each state has a statute vesting the Board to make decisions persuant to state law and the HOA/COA's governing documents.  The governing documents in my case are the NH Condo act, our association by-laws and the association declaration.  NOT Roberts's Rules.

-- Roberts rules is not one of our governing documents and must yield to our controling documents if a conflict arises.   This sounds exactly how the NH Condo RSA states it.   The very first sentence in RSA 356-B:37 states that we must yield to the by-laws and our by-law is also clear that a proposed amendment to a by-law must be included in the written meeting notice which is required by law to be sent 21 days in advance of the meeting. 

I would disagree with this slightly. RONR is one of your organization's governing documents, however, the other governing documents take precedence over it in any areas where they conflict.

I am highly doubtful that the HOA's bylaws and state law cover all matters pertaining to parliamentary procedure, so it would not be advisable to chuck RONR out the window. In those matters where there are conflicts, however, there is no doubt that RONR is superseded by the other rules you mention.

On 8/21/2022 at 7:54 AM, John Cummings said:

To a layman like myself this seems very clear. Any and ALL proposed amendment to by-laws must be included in the written meeting notice.  Unless someone is clairvoyant it would be impossible for "day of meeting" amendments to by-law change proposals to be included in the meeting notice.

As I have previously stated, I do not agree that the language in the bylaws which you have cited prohibits the making of subsidiary amendments within the scope of notice. It may well be that some rule in state law provides as much. That will be a question for the attorney. Additionally, if your society wishes to amend its bylaws to provide that no amendments whatsoever are in order to proposed bylaw amendments, the society is free to do so.

Finally, it is ultimately up to your society to interpret its own bylaws

On 8/21/2022 at 1:04 PM, Augustin said:

The OP has identified that this is a condominium association about which he is talking. A condominium association is a type of stock corporation, where members may transfer ownership, via the sale of one's condo unit. (Compare a non-stock corporation, like say the Elks. An Elk member cannot transfer his membership rights to another person. Or say a city with a City Council presiding. A City Councilor may not transfer her or his membership rights on the City Council to another person.) As a stock corporation, I believe the pertinent section of RONR is 45:70:

In the end, it is irrelevant whether HOAs and COAs are considered "stock corporations" in the sense this term is used in RONR (at least for purposes of this question). Even for stock corporations, where RONR states that proxies are permitted, RONR provides no guidance regarding how proxies work, because this is still a legal question and the answers to it must be found in applicable law. As the OP has stated, proxies are permitted in the organization under applicable law. So the OP will have to refer to those laws to answer questions concerning the proxies. The OP has already stated that he will be consulting a lawyer regarding this matter, which is the correct course of action.

So in any event, it is correct that "the answers to any questions concerning the correct use of proxies, the extent of the power conferred by a proxy, the duration, revocability, or transferability of proxies, and so forth, must be found in the provisions of the law or bylaws which require or authorize their use."

On 8/21/2022 at 1:04 PM, Augustin said:

Else I favor Atul Kapur's remark early on as reflecting the prudent course: "No. The changes, even if within scope of notice, may have be enough to have changed the proxy-giver's opinion — you can't assume otherwise."

Yes, it could be that ultimately a court would consider RONR (courts have at times); reflect on the scope of the change (courts have at times; the term "scope of change" is established, in general); and rule that such-and-such change is "in scope." But as Gary Novosielski pointed out, "scope is not always easy to determine unambiguously." This potentially translates to a long dispute, costing a lot of money in attorney's fees. Hence why tempt fate? I think not tempting fate on this issue is particularly important given the mixing of the proxies described here. (As previously noted, the detail of this proxy situation is something that RONR certainly does not treat.)

If this condo association selected me as parliamentarian, then after perhaps studying RONR and also consulting here, such would be my recommendation anyway.

Just to be clear, your advice is that, under the organization's bylaws, all amendments from the floor to proposed amendments to the bylaws are prohibited?

Edited August 22, 2022 at 02:28 PM by Josh Martin

[Dan Honemann]

On 8/22/2022 at 10:24 AM, Josh Martin said:

A condominium association is a type of stock corporation,

This is the sort of thing that I have cautioned you against. It is simply not true in the state of Maryland, and most likely not true in many other states.

Please refrain from offering such opinions in this forum.

[John Cummings]

On 8/22/2022 at 10:42 AM, Dan Honemann said:

This is the sort of thing that I have cautioned you against. It is simply not true in the state of Maryland, and most likely not true in many other states.

Please refrain from offering such opinions in this forum.

I'm the original poster and admittedly this conversation is over my head, but I'm reading and taking it all in

The association is a "non-profit corporation as listed on the NH Secretary of State website.






 

[Termination Requested Pls]

Dear Mr. Honemann,

I apologize for not realizing that General Robert's family (meaning yourself and other direct descendants of General Robert) continues to publish Robert's Rules, along with this forum and the robertrules.com web site. It's as though this forum puts one in the virtual living room of the Robert family. Of course it is just not appropriate to criticize either the work of the hosts or the hosts' opinions about their own publications. Had I did some legwork and figured out in advance that this is a Robert family-run (family company) web site, I think (hope?) it is unlikely I would have begun commenting to the extent I did.  I wish the staff would delete all my posts at this forum and then delete my account. Maybe this is not possible, but if it is worth anything to the Robert family descendants who run this forum, it is how I feel.

I thank your family for Robert's Rules.

AugustinD

[Dan Honemann]

On 8/22/2022 at 1:16 PM, Termination Requested Pls said:

Dear Mr. Honemann,

I apologize for not realizing that General Robert's family (meaning yourself and other direct descendants of General Robert) continues to publish Robert's Rules, along with this forum and the robertrules.com web site. It's as though this forum puts one in the virtual living room of the Robert family. Of course it is just not appropriate to criticize either the work of the hosts or the hosts' opinions about their own publications. Had I did some legwork and figured out in advance that this is a Robert family-run (family company) web site, I think (hope?) it is unlikely I would have begun commenting to the extent I did.  I wish the staff would delete all my posts at this forum and then delete my account. Maybe this is not possible, but if it is worth anything to the Robert family descendants who run this forum, it is how I feel.

I thank your family for Robert's Rules.

AugustinD

As much as I'd like to let this all go, I feel obliged to note that neither I nor any of the other current authors of RONR (the administrator and moderators of this forum) are members of the Robert family (descendants of the original author) who comprise the Robert's Rules Association. This is not really relevant to anything being discussed, but I did not think I should let this misunderstanding pass uncorrected.

[Atul Kapur]

On 8/22/2022 at 10:42 AM, Dan Honemann said:

This is the sort of thing that I have cautioned you against. It is simply not true in the state of Maryland, and most likely not true in many other states.

Please refrain from offering such opinions in this forum.

Mr. Honemann's post (four above this one) appears to be quoting @Josh Martin as saying "A condominium association is a type of stock corporation."

I believe that it was actually @Augustin who made that statement.

 

 

[Richard Brown]

On 8/22/2022 at 2:18 PM, Atul Kapur said:

Mr. Honemann's post (four above this one) appears to be quoting @Josh Martin as saying "A condominium association is a type of stock corporation."

I believe that it was actually @Augustin who made that statement.

I believe so, too, Atul.   Pretty confident of it, in fact.

[Dan Honemann]

On 8/22/2022 at 3:18 PM, Atul Kapur said:

Mr. Honemann's post (four above this one) appears to be quoting @Josh Martin as saying "A condominium association is a type of stock corporation."

I believe that it was actually @Augustin who made that statement.

 

 

Yes; I don't know how that happened. This was a quote from a post by Augustin.

[John Cummings]

Would it be an accurate summation that my question really boils down to the interpretation of our by-law(10-100) ?  Perhaps this doesn't mean what I think it means?

10-100 Amendments to the By-Laws.   These By-Laws may be amended at any regular or Special Meeting of the Association, provided a copy of the proposed amendment has been included in the written notice of the meeting.  

It sounds like most of the responses agree that my association is required to follow Robert's Rules, but Robert's Rule's is low and perhaps lowest on the pecking order.  The hierarchy is the NH Condo act, the association by-laws and then Robert's Rules.   If this is the case, then I really need to get a legal opinion of the intent of our by-law.

Thanks to everyone that responded.
John

[Atul Kapur]

The interpretation based on RONR Is that the bylaws amendment can, itself, be amended once the proposal is under consideration (aka "pending").

You are prudent to check with a lawyer experienced in NH Condo Law, but I will be surprised if any superior document conflicts with that.

There is a second question of what to do with the combination of (a) potential amendments to the proposal, and (b) the directed proxies. The answer or recommendation from the lawyer may very well differ from the answer to your first question. 

Much of the prolonged discussion was a digression from your question, so don't let that distract you.

[Josh Martin]

On 8/22/2022 at 3:57 PM, John Cummings said:

Would it be an accurate summation that my question really boils down to the interpretation of our by-law(10-100) ?

There are two main things going on here, which may (or may not) be related.

1.) The meaning of the rule in question in your bylaws - that is, whether the rule prohibits all amendments from the floor whatsoever or whether, consistent with RONR, amendments from the floor which are within the scope of notice are permitted. In my view, I believe it is the latter. (It is possible that applicable law provides otherwise).

2.) How directed proxies concerning bylaw amendments should be handled if the proposed bylaw amendment is amended from the floor. This is a question which will ultimately depend upon what applicable law says regarding proxy votes.

On 8/22/2022 at 3:57 PM, John Cummings said:

It sounds like most of the responses agree that my association is required to follow Robert's Rules, but Robert's Rule's is low and perhaps lowest on the pecking order.  The hierarchy is the NH Condo act, the association by-laws and then Robert's Rules.   If this is the case, then I really need to get a legal opinion of the intent of our by-law.

I think this is mostly correct, although what you really need the legal opinion about is the provisions of the NH Condo Act. While an attorney (or a parliamentarian, or both) certainly may be of assistance in interpreting your bylaws, ultimately the persons best positioned to determine the meaning of your association's bylaws are the members of the association.

Edited August 23, 2022 at 02:12 PM by Josh Martin

[John Cummings]

On 8/22/2022 at 7:21 PM, Atul Kapur said:

The interpretation based on RONR Is that the bylaws amendment can, itself, be amended once the proposal is under consideration (aka "pending").

You are prudent to check with a lawyer experienced in NH Condo Law, but I will be surprised if any superior document conflicts with that.

There is a second question of what to do with the combination of (a) potential amendments to the proposal, and (b) the directed proxies. The answer or recommendation from the lawyer may very well differ from the answer to your first question. 

Much of the prolonged discussion was a digression from your question, so don't let that distract you.

Thanks,
The entire discussion was a good learning experience.

[John Cummings]

On 8/23/2022 at 10:11 AM, Josh Martin said:

There are two main things going on here, which may (or may not) be related.

1.) The meaning of the rule in question in your bylaws - that is, whether the rule prohibits all amendments from the floor whatsoever or whether, consistent with RONR, amendments from the floor which are within the scope of notice are permitted. In my view, I believe it is the latter. (It is possible that applicable law provides otherwise).

2.) How directed proxies concerning bylaw amendments should be handled if the proposed bylaw amendment is amended from the floor. This is a question which will ultimately depend upon what applicable law says regarding proxy votes.

Thanks Josh,

Unfortunately this by-law(10-100) was created back in 1986 and I believe by the declarant.   I don't think any of the current owners have the tribal knowledge this by-law and could explain the intent.  If the intent was that no "new" by-law change proposals could be introduced at the meeting then it probably could have been worded a bit better - oh well.

Directed proxies are allowed by law.  I have already spoken to a NH Condo attorney on this subject, so the BOD will have to put a process in place to handle them.

Thanks
John