Absentee ballots and quorum in membership meetings

[pabigot]

I've read this related question.

In this case Bylaws say of meetings of the members:

Quote

For there to be a quorum present at any meeting, twenty-five percent (25%) of the Members entitled to vote, must be represented either in person or by absentee ballot.

What can happen if quorum is 25% of 136 = 34, there are 60 absentee ballots, and exactly one additional entitled-to-vote member shows up to the meeting (61 "present" >= 34 quorum)?

It seems reasonable that one option is the entitled member declines to call the meeting to order and matters proceed as if nobody showed up.

But (Q1) can that person call the meeting to order, go through the agenda including receiving and reading the teller's report, and adjourn the meeting with the ballot items determined by that report?

Or (Q2) could that person call the meeting to order and make whatever decisions they wish unanimously (as long as their actions comply with all other rules)?

If the answer to either question is "No" solely because any of (a) the member doesn't meet the criteria to chair the meeting, or (b) the member can't make a motion while chairing the meeting, or (c) there's nobody to second a motion, then:

(Q3) Can the president and two members be sole attendees and proceed to execute the meeting as described?

I think the answer to Q3 is yes, to Q1 probably yes, and to Q2 also probably yes (yikes), but would appreciate explanations if an answer is "no".

 

[Caryn Ann Harlos]

I honestly am thoroughly confused by this whole question.

[Josh Martin]

On 12/21/2022 at 9:40 PM, pabigot said:

For there to be a quorum present at any meeting, twenty-five percent (25%) of the Members entitled to vote, must be represented either in person or by absentee ballot.

I will note this is a very unusual provision. A somewhat more common provision is that a quorum is based upon members present in person or by proxy. Shareholder corporations and HOAs, for example, often have provisions like this. While the scenario you describe (in which only a single member is present) is rather extreme, it is often the case that at such meetings, the persons present "by proxy" vastly outnumber the persons present in person.

It must also be noted, of course, that RONR does not permit voting in this manner and strongly advises against it.

On 12/21/2022 at 9:40 PM, pabigot said:

What can happen if quorum is 25% of 136 = 34, there are 60 absentee ballots, and exactly one additional entitled-to-vote member shows up to the meeting (61 "present" >= 34 quorum)?

Likely what should happen is a very short "pro forma" meeting in which the member announces the results of each item.

On 12/21/2022 at 9:40 PM, pabigot said:

It seems reasonable that one option is the entitled member declines to call the meeting to order and matters proceed as if nobody showed up.

No, this is not reasonable. When a meeting is required to be held by the bylaws, the meeting must be called to order. This is the case even if a quorum is not present, and is certainly the case if a quorum is present. Under the rules in RONR, the results of absentee voting must be announced at a meeting, unless the bylaws provide otherwise. Additionally, organizations with a provision like this often hold an annual meeting because they are required to do so by law. (This is not legal advice and I express no view on whether this is required for particular organizations or in particular jurisdictions. I simply note that this is sometimes a requirement.)

On 12/21/2022 at 9:40 PM, pabigot said:

But (Q1) can that person call the meeting to order, go through the agenda including receiving and reading the teller's report, and adjourn the meeting with the ballot items determined by that report?

Yes, and this is likely exactly what should happen. The one caveat to add is that the tellers' report itself does not include a declaration as to whether a motion was adopted or lost (or which candidate was elected, in an election), so the member should add that information for each item for a complete announcement of the results.

On 12/21/2022 at 9:40 PM, pabigot said:

Or (Q2) could that person call the meeting to order and make whatever decisions they wish unanimously (as long as their actions comply with all other rules)?

(Q3) Can the president and two members be sole attendees and proceed to execute the meeting as described?

Theoretically, the member(s) could do so, but only for items where no absentee ballots have been cast.

In practice, it is doubtful that this will be an option. In organizations which have provisions like this, generally the organization's rules limit the annual meeting to only considering particular items of business which are determined well in advance (such as elections of officers, bylaw amendments, and the like), for which members have had an opportunity to cast votes in advance, and considering motions "from the floor" is often strictly regulated or even prohibited outright.

On 12/21/2022 at 10:52 PM, Caryn Ann Harlos said:

I honestly am thoroughly confused by this whole question.

This arises from a question from over five years ago in which an organization held an annual meeting, generally for the sole purpose of electing officers. The organization's bylaws authorized mail-in voting, however, the bylaws also prescribed a quorum of 15 members, and the organization apparently had difficulty meeting this requirement. The OP wondered whether mail-in votes counted toward the quorum. Members of the forum correctly responded that they do not, unless the organization's bylaws so provide, and recommended other solutions to the problem, such as lowering the quorum to something more attainable for the society.

The OP in this thread appears to be asking about the possibility of instead amending the bylaws to provide that mail-in votes do count toward the quorum, and correctly illustrates reasons why doing so is a very bad idea, unless this is also coupled with strict limitations on the business which may be conducted at the annual meeting.

While it would be quite unusual for an organization to provide that "mail-in votes" count toward the quorum, providing that proxy votes count toward the quorum is not unusual and is a somewhat similar situation. Such organizations generally limit the business which may be conducted at the meeting. In such cases, the business portion of the meeting is generally a formality.

Edited December 22, 2022 at 12:55 PM by Josh Martin

[Caryn Ann Harlos]

Okay proxy would have made this made sense, so the one attending member would have held all of those proxies?

[Josh Martin]

On 12/22/2022 at 6:54 AM, Caryn Ann Harlos said:

Okay proxy would have made this made sense, so the one attending member would have held all of those proxies?

Yes, a similar situation may well be one in a shareholder corporation in which the one attending member is the agent of the corporation and is the proxy holder for all submitted proxies. The particular rules for the organization in its bylaws and applicable law would specify the manner in which such votes may be cast. Often such rules provide that proxies may be "directed" to be cast in a certain way on particular matters. Whether votes for other matters are cast as abstentions or at the direction of the proxy holder on other matters tends to vary depending on applicable rules and the instructions on the proxy.

Edited December 22, 2022 at 01:02 PM by Josh Martin

[pabigot]

On 12/22/2022 at 5:47 AM, Josh Martin said:

I will note this is a very unusual provision.

Indeed, and thank you for your response.  I apologize for not including the full text because I didn't anticipate an answer that the meeting must be called to order even if only a single member is present:

Quote

For there to be a quorum present at any meeting, twenty-five percent (25%) of the Members entitled to vote, must be represented either in person or by absentee ballot. In the event a quorum is not present, another meeting may be called subject to the same notice requirements and the required quorum shall be one-half (1/2) of the required quorum at the first meeting. No such subsequent meeting shall be held more than sixty (60) days following the original meeting.

So we do have instructions on what to do if a quorum is not present.

But in my hypothetical meeting there is a quorum with one member present.  My reasoning that that member could decline to call the meeting to order was based on an incomplete reading of RONR (12th ed.) 47:11 in a case where the member is not an officer.  I now see in clause 3 how the member can become chair in that case, and agree the meeting must be held.

On 12/22/2022 at 5:47 AM, Josh Martin said:

In organizations which have provisions like this, generally the organization's rules limit the annual meeting to only considering particular items of business which are determined well in advance (such as elections of officers, bylaw amendments, and the like), for which members have had an opportunity to cast votes in advance, and considering motions "from the floor" is often strictly regulated or even prohibited outright.

This absolutely makes sense, but in this case the bylaws also specify the order of business for regular annual meetings and it includes "New Business" without any specific restrictions. This has created problems in the past where the attending membership adopted motions with fewer attendees than the quorum. We will have to work to amend the bylaws to fix this and other problems.

On 12/22/2022 at 5:54 AM, Caryn Ann Harlos said:

Okay proxy would have made this made sense, so the one attending member would have held all of those proxies?

These are HOA bylaws in a state where proxy voting is explicitly excluded by state law (A.R.S 33-1260(C)).  Absentee ballots serve as the way to ensure members who cannot attend can be represented.

[Shmuel Gerber]

On 12/22/2022 at 7:47 AM, Josh Martin said:

 

On 12/21/2022 at 10:40 PM, pabigot said:

Or (Q2) could that person call the meeting to order and make whatever decisions they wish unanimously (as long as their actions comply with all other rules)?

(Q3) Can the president and two members be sole attendees and proceed to execute the meeting as described?

Theoretically, the member(s) could do so, but only for items where no absentee ballots have been cast.

Since this is apparently based on a legal provision, competent legal counsel should be consulted. However, what seems most reasonable to me is that if the presence of a quorum is established by the number of absentee ballots, it would be only with respect to the items of business on the ballot. 

It doesn't make much sense to count voters in the quorum who cannot possibly vote. 

Edited December 22, 2022 at 05:09 PM by Shmuel Gerber
Typo

[Josh Martin]

On 12/22/2022 at 9:13 AM, Shmuel Gerber said:

Since this is apparently based on a legal provision, competent legal counsel should be consulted. However, what seems most reasonable to me that if the presence of a quorum is established by the number of absentee ballots, it would be only with respect to the items of business on the ballot. 

It doesn't make much sense to count voters in the quorum who cannot possibly vote. 

That makes sense to me. That would also resolve the issue.

(I am also not certain whether this is in fact based on a legal provision or if it is just a hypothetical.)

[pabigot]

On 12/22/2022 at 10:07 AM, Josh Martin said:

(I am also not certain whether this is in fact based on a legal provision or if it is just a hypothetical.)

The bylaw quote is from the recorded document, the state law is current.  The only hypothetical is how many people show up in person at the meeting.

[Josh Martin]

On 12/22/2022 at 12:33 PM, pabigot said:

The bylaw quote is from the recorded document, the state law is current.  The only hypothetical is how many people show up in person at the meeting.

Thank you for the clarification. In that event, I concur with Mr. Gerber that it is first advisable to consult with legal counsel concerning the state law. I also concur that it would be reasonable to interpret the rule as providing that absentee ballots should be counted toward the quorum "only with respect to the items of business on the ballot." But it would be preferable in the long run to specifically amend the bylaws to say so.

Edited December 22, 2022 at 06:38 PM by Josh Martin

[Gary Novosielski]

On 12/22/2022 at 8:35 AM, pabigot said:

These are HOA bylaws in a state where proxy voting is explicitly excluded by state law (

On 12/22/2022 at 12:07 PM, Josh Martin said:

That makes sense to me. That would also resolve the issue.

(I am also not certain whether this is in fact based on a legal provision or if it is just a hypothetical.)

).  Absentee ballots serve as the way to ensure members who cannot attend can be represented.

The statute that was linked to explicitly provides that absentee ballots may be used to establish a quorum, and appears to provide that they are valid for the duration of the meeting, but there is some ambiguity there, since they are also said to apply only to the item of business for which they were cast.

It appears that the legislature, in their finite wisdom, did not fully appreciate the unintended consequences of their work.

In a sane world, it would be possible at the time of New Business for someone to suggest the absence of a quorum, and by counting only unexhausted absentee ballots, reach a different result.