Electronic Absentee Ballots Required by Law - How to Deal With This

[Jeff Kuperstock]

The following state statute applies to my HOA: 

"H. Unless expressly prohibited by the governing documents, a member may vote at a meeting of the association in person, by proxy, or by absentee ballot. Such voting may take place by electronic means, provided that the board of directors has adopted guidelines for such voting by electronic means. Members voting by absentee ballot or proxy shall be deemed to be present at the meeting for all purposes. (emphasis added)"

Our governing documents do not expressly prohibit electronic or paper absentee ballots. Our bylaws provide for a majority vote of members present.

The statute mandates the use of absentee ballots if requested and provides that each member submitting such a ballot is present for all purposes at the applicable meeting. This makes any action at the meeting that is not included as a voting item on the absentee ballot virtually impossible (given that electronic absentee ballot voting has been popular in my HOA since Covid and is supported by guidelines that have been in place since 2020). For example, an action stated on a paper or electronic absentee ballot likely cannot even be amended at the meeting given that absentee ballots will outnumber in-person attendance by 2:1. 

Voting outside of a meeting is not possible for my HOA because our Articles lack the "magic" words required by the nonstock corporation act.

I understand that RONR discourages mixing in-person meetings and absentee ballots. However, that is reality in my state by statute.

I wonder whether we could provide for a vote on the absentee ballots (as well as a motion at the companion meeting) to suspend the rules so that all majority votes at a member's meeting of my HOA would be based on votes cast versus members present? This would at least allow us some room to maneuver at member meetings rather than having them be sterile (nondeliberative) gatherings. 

 

 

 

 

 

[rulesasker]

This seems like a legal issue of what "expressly prohibited by the governing documents" means. If your bylaws incorporate RONR, then RONR prohibits absentee voting when it's not expressly allowed in the bylaws. So it seems like the legal question is whether the "governing documents" include RONR and the interaction of your bylaws and RONR assuming RONR is incorporated.

[Jeff Kuperstock]

RONR is not incorporaterd into our bylaws but is the selected rules of procedure for meetings as determined by our President (on a standing basis) as chair of any members' meeting.

I am struggling to see if there is any way to have a deliberative assembly when, by statute, all absentee balloting members are present for all purposes during the meeting and when my HOA uses electronic (absentee) voting as the predominant way that members can express their votes.

Our bylaws require majority voting based on members present. Normally, electronic absentee votes are more than 250% of in-person votes. This makes any kind of secondary motion impossible at a meeting (unless it is anticipated and placed on the absentee ballot) because no majority can be reached given the number of absentee ballots cast.

Amending our governing documents to prohibit electronic absentee voting will not be popular and likely would not pass.

I am wondering if anyone has run across this and figured out a solution?

 

 

[Richard Brown]

On 12/8/2022 at 2:08 PM, Jeff Kuperstock said:

Our bylaws require majority voting based on members present.

Please quote the provision in your bylaws which requires this (or any other vote requirement).  Please quote the provision exactly, word for word, don't paraphrase.

[Jeff Kuperstock]

"Except where a greater number is required by law, the Declaration, the Articles or these Bylaws,  Owners holding more than one-half of the aggregate  membership votes present in person or by proxy at a duly convened meeting at which a quornm is present ("Majority of Owners"), are required to adopt decisions at any meeting of the Association."

[Gary Novosielski]

On 12/8/2022 at 3:08 PM, Jeff Kuperstock said:

Amending our governing documents to prohibit electronic absentee voting will not be popular and likely would not pass.

I am wondering if anyone has run across this and figured out a solution?

How about adopting RONR as your parliamentary authority?  Would that pass?

[Josh Martin]

On 12/8/2022 at 8:05 AM, Jeff Kuperstock said:

I wonder whether we could provide for a vote on the absentee ballots (as well as a motion at the companion meeting) to suspend the rules so that all majority votes at a member's meeting of my HOA would be based on votes cast versus members present? This would at least allow us some room to maneuver at member meetings rather than having them be sterile (nondeliberative) gatherings. 

As a parliamentary matter, yes. The rule in the bylaws on this matter is in the nature of a rule of order and, therefore, may be suspended by a 2/3 vote. It must be noted that a motion to Suspend the rules, at most, lasts for the duration of the present meeting. So it would need to be adopted again at each meeting. If it is desired to make this change permanent, the bylaws would need to be amended.

But I would also consult an attorney on this matter, to determine whether such a course of action would be consistent with state law.

On 12/8/2022 at 9:37 AM, rulesasker said:

This seems like a legal issue of what "expressly prohibited by the governing documents" means. If your bylaws incorporate RONR, then RONR prohibits absentee voting when it's not expressly allowed in the bylaws. So it seems like the legal question is whether the "governing documents" include RONR and the interaction of your bylaws and RONR assuming RONR is incorporated.

This is indeed what RONR says, but I am not entirely certain courts will agree on that point. It would be highly advisable to consult an attorney on that matter.

Of course, it seems the organization's bylaws may not incorporate RONR, so in that event, what RONR says certainly will not be relevant for purposes of the state law.

On 12/8/2022 at 2:08 PM, Jeff Kuperstock said:

RONR is not incorporaterd into our bylaws but is the selected rules of procedure for meetings as determined by our President (on a standing basis) as chair of any members' meeting.

To be clear, what is meant by RONR being "incorporated" into the bylaws is whether the bylaws contain a statement that RONR is the organization's parliamentary authority. If the organization's bylaws do not already contain such a statement, this should be corrected as soon as possible. See here for more information. It really is not a good idea to have the chair choose what rules to use on a whim.

My responses here are all based upon RONR, so I do not know to what extent they are applicable in an organization where "the selected rules of procedure for meetings as determined by our President (on a standing basis) as chair of any members' meeting."

On 12/8/2022 at 4:00 PM, Jeff Kuperstock said:

"Except where a greater number is required by law, the Declaration, the Articles or these Bylaws,  Owners holding more than one-half of the aggregate  membership votes present in person or by proxy at a duly convened meeting at which a quornm is present ("Majority of Owners"), are required to adopt decisions at any meeting of the Association."

Well, this is a bit of a pickle, because the rule in your bylaws does not, in fact, include absentee ballots in this calculation. But state law says that you must include absentee ballots unless they are expressly prohibited, which is not the case.

I again repeat my recommendation to consult an attorney.

Edited December 8, 2022 at 11:27 PM by Josh Martin