HOA Board meeting/elections

[ArmyJacket]

Thanks in advance - I serve on a small HOA Board.   We recently had our regular meeting (usually two a year) and for the most part things went according to plan.   The issue actually arose a couple of days after the meeting had concluded.   The officers (three of us + a non-voting treasurer) were originally elected to serve 3 year terms per our By-Laws and those terms actually expired last year but we had not had another meeting in the interim.   Nominations for new officers are to come from the floor.   As we concluded our reports and disposed of new business we expected that one or two of the members would bring up the topic and call for nominations.   We arrived at the agenda item for "Other Business" and while two additional topics were raised, not a single member called for nominations or elections.   We were getting short on time so we adjourned the meeting with the status quo in place.   I should also note that the By-Laws indicate that the officers will serve until their successors are elected and conduct their first official meeting.    On the ride home the three of us concluded that if the membership didn't raise the issue we would gladly finish out the projects for this year and spend the remaining time attempting to solicit some volunteers for next year.   

Two days after the meeting one of the attendees asserted that everything about the meeting was illegitimate and that we are not a properly authorized Board because we knew our terms had expired and didn't call for new elections from the Chair.    He is demanding a follow up meeting where elections can be held and then a complete do-over on all motions/votes from our meeting in March 2023 once new officers are selected.   

Our position is two-fold.   

• One, the meeting is legitimate because elections should be conducted after all other business is concluded.  Since this was the first opportunity to meet since our terms expired we are still the elected Board until successors are chosen.  Even if we had elections last month, the new Board would not be seated until they held their first official meeting so we conducted that March meeting properly within our By-Laws.   
• Two, the opportunity to call for nominations/elections was provided and the membership did not take it up.   Our reading of the By-Laws strongly suggest that nominations should come from the Floor and that was our expectation.   Since the membership didn't raise the issue when the opportunity existed then we believe we are still acting properly to continue as the elected Board until our next regular meeting in the Fall.  (about October)   

The question is this - are we reading things correctly?  Any additional comments/thoughts are also appreciated.

[Atul Kapur]

The details depend on the specifics in your bylaws but, No, you did not conduct things properly.

Whatever happened at the meeting is still valid.

However, you are incorrect that the membership had the obligation to take the initiative and make nominations.

If the bylaws call for elections at a certain meeting mean that the elections can be considered a Special Order and dealt under that item of business during the meeting. The chair would say something like, "The next item of business is elections. Are there any nominations for the position of president?" and work through all the positions.

And you are also incorrect that the elections should be the last item of business. RONR tells us that they should be held early in the meeting.

The officers of the meeting failed in their duty to conduct elections when they should have. A special meeting to conduct the elections is a possible solution, assuming your bylaws allow for them.

[Gary Novosielski]

No, you're not.  The election was not held as the bylaws require  If an election is set in the bylaws for a certain meeting, then it is General Special Order for that meeting.  It is the duty of the Chari, not the membership, to announce it as the next item of business at the appropriate time, to call for nominations from the floor, and to preside over the election(s).   Therefore the election is incomplete and must be completed as soon as possible. 

As the bylaws provide that officers serve until their successors are elected, the current officers remain in office for the present, but the bylaws are being violated every day that the election is past due.  When you adjourned, you should have adjourned to a specific time when the election would be in order.  Since you did not, you will need to call a special meeting for this purpose, and complete the election as required.

It is not the case that all the other business at that meeting was nullified by failing to hold the election, as long as it was otherwise properly considered, so all votes stand as originally announced.

 

Edited April 17, 2023 at 08:17 PM by Gary Novosielski
Correction.

[Josh Martin]

On 4/17/2023 at 1:03 PM, ArmyJacket said:

Thanks in advance - I serve on a small HOA Board.   We recently had our regular meeting (usually two a year) and for the most part things went according to plan.   The issue actually arose a couple of days after the meeting had concluded.   The officers (three of us + a non-voting treasurer) were originally elected to serve 3 year terms per our By-Laws and those terms actually expired last year but we had not had another meeting in the interim.   Nominations for new officers are to come from the floor.   As we concluded our reports and disposed of new business we expected that one or two of the members would bring up the topic and call for nominations.   We arrived at the agenda item for "Other Business" and while two additional topics were raised, not a single member called for nominations or elections.   We were getting short on time so we adjourned the meeting with the status quo in place.   I should also note that the By-Laws indicate that the officers will serve until their successors are elected and conduct their first official meeting.    On the ride home the three of us concluded that if the membership didn't raise the issue we would gladly finish out the projects for this year and spend the remaining time attempting to solicit some volunteers for next year.   

Two days after the meeting one of the attendees asserted that everything about the meeting was illegitimate and that we are not a properly authorized Board because we knew our terms had expired and didn't call for new elections from the Chair.    He is demanding a follow up meeting where elections can be held and then a complete do-over on all motions/votes from our meeting in March 2023 once new officers are selected.   

The member is correct to be upset about the fact that nominations and elections were not conducted. Holding elections is a requirement, and the matter should have been automatically raised by the chair rather than waiting for a member to raise it. It is not acceptable to simply skip elections because the meeting is running short on time. (As Mr. Novosielski notes, even to the extent this was necessary, the meeting should have adjourned to a later date in order to promptly complete the elections.)

The member is entirely correct that a new meeting should be held for the elections. The member is incorrect, however, to say that you are not a "properly authorized Board" or that there must be a "complete do-over on all motions/votes from our meeting in March 2023." While it was improper to skip the elections, because this nonetheless occurred, the officers would continue to serve until new officers are elected, as provided in your bylaws, and any business conducted by the board is valid.

On 4/17/2023 at 1:03 PM, ArmyJacket said:

• One, the meeting is legitimate because elections should be conducted after all other business is concluded.  Since this was the first opportunity to meet since our terms expired we are still the elected Board until successors are chosen.  Even if we had elections last month, the new Board would not be seated until they held their first official meeting so we conducted that March meeting properly within our By-Laws.   

I agree in part and disagree in part. I concur that the meeting is legitimate and that the board members are the elected board until successors are chosen and that, as a result, the March meeting was valid.

I disagree with the assertion that "elections should be conducted after all other business is concluded." RONR strongly recommends that elections be conducted as early in the meeting as possible. Regularly scheduled elections are to be considered under Special Orders, unless the organization's rules provide otherwise.

I am not certain whether it is correct that "Even if we had elections last month, the new Board would not be seated until they held their first official meeting." So far as RONR is concerned, newly elected officers take office immediately, unless the bylaws provide otherwise. But I don't think this makes a difference for purposes of the present situation.

On 4/17/2023 at 1:03 PM, ArmyJacket said:

Two, the opportunity to call for nominations/elections was provided and the membership did not take it up.

Was it? That's not how I read your post. You stated that "We arrived at the agenda item for "Other Business" and while two additional topics were raised, not a single member called for nominations or elections."

That's not how elections work. Regularly held elections required by the bylaws should automatically be taken up by the chair. It's not just an item of "Other Business" to be raised at the discretion of members.

On 4/17/2023 at 1:03 PM, ArmyJacket said:

Our reading of the By-Laws strongly suggest that nominations should come from the Floor and that was our expectation.   Since the membership didn't raise the issue when the opportunity existed then we believe we are still acting properly to continue as the elected Board until our next regular meeting in the Fall. 

In my view, the manner in which this was handled at the meeting was completely improper. Elections are required to be conducted, and the chair should not wait for a member to raise the issue. Notwithstanding this error, I concur that the current board members are "still acting properly to continue as the elected Board" until their successors are elected, however, I disagree that it is proper to wait until the next regular meeting in the Fall to resolve this matter. A special meeting should be called for this purpose.

On 4/17/2023 at 1:03 PM, ArmyJacket said:

The question is this - are we reading things correctly?

As noted in further detail above, I agree in part and disagree in part with your assessment. In my view:

• The chair erred by failing to specifically call for nominations and elections, rather than a generic call for "other business."
• Notwithstanding this error, the current officers are properly in office and can validly conduct business until the elections are completed.
• The matter should be resolved by completing the election as soon as possible.

Edited April 17, 2023 at 08:15 PM by Josh Martin

[ArmyJacket]

Gentlemen - thank you all for your input.   Personally a little disappointed we misread the rules but always good to get clarification and fix going forward.  We have called a follow up meeting early next month.

Two follow up questions - one, the allegation that all business conducted in the March meeting is invalid remains and has apparently persuaded some additional members beyond the gentlemen making the claim.   Any thoughts/advice on how to address this with the membership?  Should that conversation be had before or after the nominations/elections?

Thanks again - very informative forum.   

[Josh Martin]

On 4/18/2023 at 8:24 AM, ArmyJacket said:

Two follow up questions - one, the allegation that all business conducted in the March meeting is invalid remains and has apparently persuaded some additional members beyond the gentlemen making the claim.   Any thoughts/advice on how to address this with the membership?  Should that conversation be had before or after the nominations/elections?

If there is some desire to proactively address this, the chair could perhaps make some sort of comments to the membership on this matter. I doubt the membership will be interested in all of the detail we have provided here, but I think the general thrust of it is:

• The officers erred by failing to call for elections and apologize for this error.
• Notwithstanding this, the business conducted at the March meeting is valid.
• A Point of Order regarding this issue is no longer timely.

Potentially, that could be the end of it. But it may be that a member will nonetheless raise a Point of Order alleging that the business conducted at the meeting is invalid, in which event the chair would rule on the Point of Order not well taken. If a member appeals from the decision of the chair and the motion is seconded, then that places the question in the hands of the assembly, and after debate, a majority vote is required to overturn the chair's ruling. The assembly is the ultimate judge of the organization's rules. Whether this occurs before or after the elections (or at all) is difficult to predict and will depend on the actions of the members.

[Richard Brown]

On 4/18/2023 at 8:24 AM, ArmyJacket said:

Two follow up questions - one, the allegation that all business conducted in the March meeting is invalid remains and has apparently persuaded some additional members beyond the gentlemen making the claim.   Any thoughts/advice on how to address this with the membership?  Should that conversation be had before or after the nominations/elections?

Josh Martin posted his response as I was starting to type mine, so I will add that I concur with his response.

Elections should have been conducted at your last meeting. Since they were not, they should be conducted as soon as possible, with a special meeting if necessary. Additionally, all business conducted at the meeting is legitimate and valid notwithstanding the failure to hold the elections. I think a simple explanation to the membership that elections should have been conducted at the last meeting but that failure to hold the Elections does not invalidate anything that was done at that meeting and that all of the business conducted is valid and binding and that there is no need to “redo“ anything except to hold the elections.

However, I do have a concern about your statement that the officers serve until their successors are elected and they “conduct their first official meeting“.   Is that exact statement contained in your bylaws? The statement that the outgoing officers serve until the newly elected officers conduct their first official meeting is a most unusual provision and I have never before seen such a provision. Do your bylaws actually say that in those exact words? Not only is it unusual, it seems hard to carry out because it can be argued that the newly elected officers have no right to conduct a meeting until they have first taken office. It is much more common that newly elected officers take office upon adjournment of the annual meeting or the meeting at which they are elected or at some future specified date, such as January 1.

I find the language you quoted to be a very strange provision considering you only meet one or two times a year and I question whether the bylaws actually say that.

Edited to add: another problem with that language, if it is in fact in your bylaws, raises the question as to who are the officers between the adjournment of your annual meeting and the completion of your next meeting that may be six months or a year away? Who has the authority to sign checks? Does the outgoing treasurer remain treasurer for another six months or a year after a new treasurer is elected? if that is actually what your bylaws say, I think it is a provision that the HOA should consider amending.

 

Edited April 18, 2023 at 02:56 PM by Richard Brown
Added last paragraph

[ArmyJacket]

To Mr. Brown - thanks for the reply.   The exact wording is "The Directors shall hold office until their successors have been elected and hold their first meeting."

I can only speculate that the motivation here was to elect new officers (directors) near the end of a calendar year and then allow for a transition period between the outgoing and incoming Board.    Appreciate the input and once we have settled the issue of elections and new Board members will be glad to recommend your advice.

[Atul Kapur]

On 4/18/2023 at 9:24 AM, ArmyJacket said:

Any thoughts/advice on how to address this with the membership?

You may want to hire a professional parliamentarian to give you a written parliamentary opinion. This would go over the facts, review your bylaws and rules and RONR, and advise on the steps needed to progress from here. You could specifically ask whether the business conducted was valid. 

One of the benefits is that the opinion would come from someone outside of your organization and a professional parliamentarian is bound by a code of professional responsibility (assuming that they are a member of AIP, NAP, or both) so the opinion should not be "biased."

[Gary Novosielski]

On 4/18/2023 at 2:18 PM, ArmyJacket said:

The exact wording is "The Directors shall hold office until their successors have been elected and hold their first meeting."

Yeah, that's a problem.  They can't hold their first meeting until they hold their first meeting.  It's impossible to comply with.  Fortunately, there's a principle of interpretation that if there are two possible interpretations and one of them is absurd, use the other.  Unfortunately, this one seems absurd no matter how you look at it.

Perhaps it was meant to say until they are prepared to call their first meeting to order?

[ArmyJacket]

To Gary - that's funny.  Haven't heard that one before.   However, I am familiar with "you don't know what you don't know" and that seems applicable to our small board.   We'll work on cleaning that up once we clear this first hurdle.