Vote without a Motion

[Guest Jeff Kuperstocjk]

My state requires absentee ballots (electronic or paper) for HOA votes unless expressly prohibited in the governing documents. My HOA's governing documents do not so prohibit absentee ballots. The Board of Directors set up an electronic vote on a resolution for an IRS tax election. The electronic voting took place 14 days prior to the Annual Meeting. At the Annual Meeting no motion was made regarding the IRS tax election. Consequently, there was no seconding and no discussion and no voting at the meeting. Rather, the electronic vote results were reported as "new business" and the resolution deemed passed. No point of order was raised at the time. The minutes of the Annual Meeting reflect the foregoing, i.e., a resolution was passed outside a motion with only electronic (absentee) voting. Is the motion validly passed under RONR? 

[Josh Martin]

On 11/29/2022 at 7:13 AM, Guest Jeff Kuperstocjk said:

My state requires absentee ballots (electronic or paper) for HOA votes unless expressly prohibited in the governing documents. My HOA's governing documents do not so prohibit absentee ballots. The Board of Directors set up an electronic vote on a resolution for an IRS tax election. The electronic voting took place 14 days prior to the Annual Meeting. At the Annual Meeting no motion was made regarding the IRS tax election. Consequently, there was no seconding and no discussion and no voting at the meeting. Rather, the electronic vote results were reported as "new business" and the resolution deemed passed. No point of order was raised at the time. The minutes of the Annual Meeting reflect the foregoing, i.e., a resolution was passed outside a motion with only electronic (absentee) voting. Is the motion validly passed under RONR? 

It is not valid to adopt a motion in this manner in RONR unless the organization's rules or applicable law provide for absentee voting, which you say is the case in your organization. Indeed, RONR prefers that either all voting be done absentee or all voting be done in-person. RONR strongly advises against "mixing and matching" in-person and absentee votes.

"It is a fundamental principle of parliamentary law that the right to vote is limited to the members of an organization who are actually present at the time the vote is taken in a regular or properly called meeting, although it should be noted that a member need not be present when the question is put. Exceptions to this rule must be expressly stated in the bylaws. Such possible exceptions include: (a) voting by postal mail, e-mail, or fax, and (b) proxy voting. An organization should never adopt a bylaw permitting a question to be decided by a voting procedure in which the votes of persons who attend a meeting are counted together with ballots mailed in by absentees. The votes of those present could be affected by debate, by amendments, and perhaps by the need for repeated balloting, while those absent would be unable to adjust their votes to reflect these factors. Consequently, the absentee ballots would in most cases be on a somewhat different question than that on which those present were voting, leading to confusion, unfairness, and inaccuracy in determining the result. If there is a possibility of any uncertainty about who will be entitled to vote, this should be spelled out unambiguously and strictly enforced to avoid unfairness in close votes." RONR (12th ed.) 45:56

Based on the facts presented, and with the understanding that absentee ballots are permitted in this organization, it seems to me that the procedure used was proper so far as RONR is concerned. Likely a better question is whether the procedure used is consistent with the state law in question, which is a question that is beyond the scope of RONR and this forum and should be directed to an attorney.

As for the concern that the votes were "without a motion," we are told that "The Board of Directors set up an electronic vote on a resolution for an IRS tax election." Permitting the board to place a matter before the membership for a decision by absentee voting would not be unusual, and could suffice as the motion. Indeed, it is intended for the motion to take place before voting, so it would be quite unusual to have absentee voting and for a person to subsequently make a motion that members have already voted on.

In the long run, since your organization is required to permit absentee votes, it would be prudent for the organization to amend its rules to clearly address how that works and to answer questions like this one.

Edited November 29, 2022 at 01:33 PM by Josh Martin

[Guest Jeff Kuperstocjk]

I appreciate Mr. Martin's detailed response. The HOA has mixed absentee-ballot voting with in-person voting in the past. I believe that may be mandated by State law. The legislature passed its legislation requiring that HOA members have the option of using in-person voting, proxy voting and absentee voting in reaction to COVID. The legislature went beyond that and mandated that any member voting by absentee-ballot or by proxy will be deemed present at the relevant meeting "for all purposes."  I fully appreciate the hash that such a mandate makes of voting under RONR.  Mr. Martin, if a point of order had been proplerly raised, would your answer be changed? In other words, if in-personam members wanted to vote and objected, would their point of order have validity? Thank you.

[Josh Martin]

On 11/29/2022 at 8:05 AM, Guest Jeff Kuperstocjk said:

I appreciate Mr. Martin's detailed response. The HOA has mixed absentee-ballot voting with in-person voting in the past. I believe that may be mandated by State law. The legislature passed its legislation requiring that HOA members have the option of using in-person voting, proxy voting and absentee voting in reaction to COVID. The legislature went beyond that and mandated that any member voting by absentee-ballot or by proxy will be deemed present at the relevant meeting "for all purposes."  I fully appreciate the hash that such a mandate makes of voting under RONR.  Mr. Martin, if a point of order had been proplerly raised, would your answer be changed? In other words, if in-personam members wanted to vote and objected, would their point of order have validity? Thank you.

To the extent it is correct that state law mandates that members have a right to vote on these matters both via absentee ballot and in-person (and I express no view on whether this is correct), a Point of Order raised at the time to this effect should be ruled well taken.

Further, if the number of persons improperly denied the right to vote could have affected the result (which would be, specifically, the number of members present at the meeting who had not already cast absentee ballots), a Point of Order regarding this matter could also be raised after the fact, since it involves a continuing breach.

"If one or more members have been denied the right to vote, or the right to attend all or part of a regular or properly called meeting during which a vote was taken while a quorum was present, a point of order concerning the action taken in denying the basic rights of the individual members can be raised so long as the decision arrived at as a result of the vote has continuing force and effect. If there is any possibility that the members' vote(s) would have affected the outcome, then the results of the vote must be declared invalid if the point of order is sustained. If there is no such possibility, the results of the vote itself can be made invalid only if the point of order is raised immediately following the chair's announcement of the vote." RONR (12th ed.) 23:7

As a practical matter, however, it may be difficult to address the issue after the fact, notwithstanding that it is a continuing breach, because only the full membership of the HOA would have the authority to make a decision on a question of order concerning a vote taken by the membership of the HOA. The board would not have the authority to make a determination that the vote was invalid.

Once again, however, I expect that this is more of a legal issue than a parliamentary one.

[Gary Novosielski]

On 11/29/2022 at 9:05 AM, Guest Jeff Kuperstocjk said:

The legislature passed its legislation requiring that HOA members have the option of using in-person voting, proxy voting and absentee voting in reaction to COVID.

Depending on how the rule is written, the members could be required to exercise that choice in advance of any given vote, with the choice applying to all votes cast on that particular question.

If the rule explicitly requires in-person and absentee votes to be mixed, then it serves as an example of the decidedly finite wisdom of legislatures.

[laser158689]

Check your bylaws for provisions to do business outside of the Annual Meeting.  My HOA bylaw include a section titled "Action Without a Meeting".