Voting/appointing new member after vacancy

[Maxwell Jump]

I'm currently on a very dysfunctional board with a president that is hated by the majority of the community because he has continuously made disgusting and condescending remarks on social media, including calling a homeowner a c*nt. There seems to be no recourse for that as the majority of the board doesn't see that as being enough of a problem to vote him out.

Recently, a board member stepped down because they couldn't stand what was going on with the board not working together on things after a fresh election where 2 new people were elected. This now leaves the board with a 3-3 vote on almost any topic now. My concern is how voting should be handled for appointing a new board member as per Robert's Rules of Order, as a I saw a section that doesn't seem to apply to appointing new members but seems to indicate the president is able to break a tie vote (chapter 13, section 44, tie votes). Can anyone help me understand if that's the case? It seems to read that this is true if there needs to be a majority vote but in this instance, I don't believe there needs to be a majority vote on adding another board member, we can proceed as 6 until such a time as we agree on a replacement.

I'm also looking for some clarity as to how this new member selection should work. The president has called (without a vote from anyone) for an email vote on a candidate after a 2 week open application period. It's very unlikely there will be common ground to break from a 3-3 vote, but I want to ensure that there is no funny business from the president trying to pull something and just stating he's going to appoint someone since he's the president. Is there a way homeowners can vote instead of it being decided by the board?

Really looking for any help here that I can get, the community is suffering and nothing is getting done. We really need to move on and start helping the community. Thank you!

[Guest Anon]

The rules for election of new board members will be laid out in your bylaws. You would also want to see if they lay out some process for removing a board member for misconduct.

Unless your bylaws say otherwise, the board chair has the same right to vote as anyone else. Often the chair will not vote unless his vote will affect the outcome. This is sometimes misstated as voting when it would break a tie. In fact, a tie just means that the motion does not pass. So in your situation, if 3 vote for and 2 against (without the chair), the chair could then vote against and prevent adoption of a motion. In short, there does need to be a majority vote for a motion to be adopted, as long as RONR applies and your bylaws don't say something different. 

Your bylaws will need to lay out how an email vote would work, as RONR does not allow such a thing unless the bylaws or state law authorize it.

[Gary Novosielski]

Well there are a number of factors working here. 

• First, what are the rules for filling vacancies? It is not necessaritly true that the president can simply decide on a method and use it. 
• Second of all, e-mail votes are prohibited if the rules in RONR apply, unless authorized in your bylaws. Are they?
• Third, the rule about the president's vote would not apply in a small 6-person board where the president typically votes along with other members.  A tie vote is simply a failure to reach a majority, so the question fails, just as if everyone voted No. The president (or anyone else for that matter) never gets two votes. 
• In a large group, where the president's job is to appear impartial, he votes only whenever that one vote would make a difference in the outcome.  This may mean voting to break a tie and pass the motion, voting to create a tie to defeat the motion, or any other situation where one more vote could affect the outcome, except of course that the president would not exercise this right if he were already happy with the outcome.  But in your small board situation, the president may simply vote or abstain just as any other member may.

Let's start with how vacancies are filled:  What do you bylaws say about vacancies?  If nothing, then what do they say about the powers of the board?  And we'll work from there.

 

 

Edited February 1, 2024 at 03:58 PM by Gary Novosielski

[Maxwell Jump]

Thank you Guest Anon and @Gary Novosielski for the replies and clarification. Here is what it says in our bylaws about vacancies, there are 2 mentions in 2 different sections:

Any Director elected by the Members may be removed, with or without cause, by the vote of Members holding a majority of the votes entitled to be cast for the election of such Director. Any Director elected by the Members whose removal is sought shall be given notice prior to any meeting called for that purpose. Upon removal of a Director elected by the Members, a successor shall then and there be elected by the Members entitled to elect the Director so removed, to fill the vacancy for the remainder of the term of such Director.

The officers of the Association, shall be elected annually by and from the Board of Directors at the first meeting of the Board of Directors following each annual meeting of the Members, as set forth in Article Ill above. A vacancy in any office arising because of death, resignation, removal, or otherwise may be filled by the Board of Directors for the unexpired portion of the term.

Our bylaws are very old and pre-date email, so it sounds like it wouldn't be allowed in our bylaws. This has been common practice, what would need to be done to stop this?

Two questions:

• Could you elaborate on what chapter 13, section 44, tie votes would apply to and what powers that provides the president? I don't believe it applies to this, but I want to make sure.
• Is there a process by which the community can vote on appointing someone after a resignation and not the board?

Thank you!

 

Edited February 1, 2024 at 04:14 PM by Maxwell Jump

[Guest Anon]

On 2/1/2024 at 10:11 AM, Maxwell Jump said:

Our bylaws are very old and pre-date email, so it sounds like it wouldn't be allowed in our bylaws. This has been common practice, what would need to be done to stop this?

I would tell the president that his email vote is invalid. If he persists with it, you would raise a point of order at the next meeting, that the new member was invalidly elected. If he ignores that, you appeal his decision and the board would vote on your appeal.

You also should look at what your bylaws say about calling a special meeting of the association since it sounds like your association would like to remove the board president. Then a majority of your association can vote to remove him, despite the board's desire.

On 2/1/2024 at 10:11 AM, Maxwell Jump said:

Could you elaborate on what chapter 13, section 44, tie votes would apply to and what powers that provides the president?

I'm not sure what edition you're using. That section does not exist in the 12th edition. As @Gary Novosielski mentioned, any mention of a chair's votes in relation to ties can probably be ignored in a small board (sometimes the chair in a small board still refrains from voting unless it affects the outcome, contrary to Gary's statement, but he's correct that that's not really necessary). A tie vote means the motion fails, the president has no "power" different from anyone else with respect to voting.

[Maxwell Jump]

Quote

I would tell the president that his email vote is invalid. If he persists with it, you would raise a point of order at the next meeting, that the new member was invalidly elected. If he ignores that, you appeal his decision and the board would vote on your appeal.

Things are voted on by email all the time, not just this. If I would point this out at the next meeting, I think we'd have a 3-3 vote on it because half of this board is not objective, they merely are loyal to the president.

Quote

You also should look at what your bylaws say about calling a special meeting of the association since it sounds like your association would like to remove the board president. Then a majority of your association can vote to remove him, despite the board's desire.

This has been talked about, we have enough people per our bylaws to call the special meeting (10% of the community is what is needed). What I'm not sure of is how many people need to be in attendance to call for the president to be removed. For example, to change our bylaws we need either 67% or 75% (I forget which) to make changes to bylaws and we will never get that type of participation in our community of 100+ homes. At the annual meeting, they tried to remove the president with 35-40 people present and the attorney for the HOA stated that they needed either 67% or 75% of the homeowners to vote on that. The community felt as if that wasn't an accurate statement and he was just protecting the board. I would love some clarity on this as well.

Quote

I'm not sure what edition you're using. That section does not exist in the 12th edition. As @Gary Novosielski mentioned, any mention of a chair's votes in relation to ties can probably be ignored in a small board (sometimes the chair in a small board still refrains from voting unless it affects the outcome, contrary to Gary's statement, but he's correct that that's not really necessary). A tie vote means the motion fails, the president has no "power" different from anyone else with respect to voting.

This is in my 12th edition paperback, I only know of this because I wanted to clarify with our management company about what happens if it's a tie and I was sent back this section on tie votes and was able to reference it in my copy.

But thank you again for the clarification that a tie is a tie and the president cannot turn into a dictator and hand pick someone.

Edited February 1, 2024 at 04:55 PM by Maxwell Jump

[Atul Kapur]

On 2/1/2024 at 11:53 AM, Maxwell Jump said:

At the annual meeting, they tried to remove the president with 35-40 people present and the attorney for the HOA stated that they needed either 67% or 75% of the homeowners to vote on that.

You quoted your bylaws as saying

On 2/1/2024 at 11:11 AM, Maxwell Jump said:

Any Director elected by the Members may be removed, with or without cause, by the vote of Members holding a majority of the votes entitled to be cast for the election of such Director.

The wording is not entirely clear, but I would interpret that as meaning a majority of the entire membership. Assuming 100 members and no weighted voting, that would require 51 votes to remove the president from the board.

It sounds like your organization is an HOA. You should see what laws apply to your organization as they would supercede your bylaws and RONR.

In referencing RONR, the common practice is to cite the section and paragraph, rather than the Chapter and Section. 44:12 says (emphasis added) "the presiding officer, if a member of 
the assembly, can (but is not obliged to) vote whenever his vote will affect the result—that is, he can vote either to break or to cause a tie; or, in a case where a two-thirds vote is required, he can vote either to cause or to block the attainment 
of the necessary two thirds."

BUT 49:21(7) tells us that in small boards this rule is not in effect "If the chairman is a member, he may, without leaving the chair, speak in informal discussions and in debate, and vote 
on all questions."

[Guest Anon]

On 2/1/2024 at 10:53 AM, Maxwell Jump said:

half of this board is not objective, they merely are loyal to the president.

That is unfortunate. There is not much you can do besides attempting to persuade or remove them.

On 2/1/2024 at 10:53 AM, Maxwell Jump said:

The community felt as if that wasn't an accurate statement and he was just protecting the board. I would love some clarity on this as well.

We can't give legal advice, but as a matter of parliamentary procedure, your association interprets your bylaws. If the lawyer has some rationale for his statement, he should present it to the association. Your quote of the bylaws said "majority." It's a bit unclear whether "vote of Members holding a majority of the votes entitled to be cast" means majority of those voting or majority of the membership, but it can't mean 67% or 75%. This should be worked out through the same point of order and appeal process described earlier.

On 2/1/2024 at 10:53 AM, Maxwell Jump said:

This is in my 12th edition paperback

Ah, I see we are talking about 44:13 rather than 13:44. This would only apply to an appeal. So, in the scenario where you appeal the chair's decision against your point of order, you will need a majority to overturn the chair, and a tie sustains the chair's decision against your point of order.

[Maxwell Jump]

On 2/1/2024 at 12:18 PM, Atul Kapur said:

You quoted your bylaws as saying

The wording is not entirely clear, but I would interpret that as meaning a majority of the entire membership. Assuming 100 members and no weighted voting, that would require 51 votes to remove the president from the board.

It sounds like your organization is an HOA. You should see what laws apply to your organization as they would supercede your bylaws and RONR.

In referencing RONR, the common practice is to cite the section and paragraph, rather than the Chapter and Section. 44:12 says (emphasis added) "the presiding officer, if a member of 
the assembly, can (but is not obliged to) vote whenever his vote will affect the result—that is, he can vote either to break or to cause a tie; or, in a case where a two-thirds vote is required, he can vote either to cause or to block the attainment 
of the necessary two thirds."

BUT 49:21(7) tells us that in small boards this rule is not in effect "If the chairman is a member, he may, without leaving the chair, speak in informal discussions and in debate, and vote 
on all questions."

Thank you, Atul!

On 2/1/2024 at 12:20 PM, Guest Anon said:

That is unfortunate. There is not much you can do besides attempting to persuade or remove them.

We can't give legal advice, but as a matter of parliamentary procedure, your association interprets your bylaws. If the lawyer has some rationale for his statement, he should present it to the association. Your quote of the bylaws said "majority." It's a bit unclear whether "vote of Members holding a majority of the votes entitled to be cast" means majority of those voting or majority of the membership, but it can't mean 67% or 75%. This should be worked out through the same point of order and appeal process described earlier.

Ah, I see we are talking about 44:13 rather than 13:44. This would only apply to an appeal. So, in the scenario where you appeal the chair's decision against your point of order, you will need a majority to overturn the chair, and a tie sustains the chair's decision against your point of order.

Really appreciate the clarification here!

[Josh Martin]

On 1/31/2024 at 11:24 PM, Maxwell Jump said:

There seems to be no recourse for that as the majority of the board doesn't see that as being enough of a problem to vote him out.

On 2/1/2024 at 10:11 AM, Maxwell Jump said:

Any Director elected by the Members may be removed, with or without cause, by the vote of Members holding a majority of the votes entitled to be cast for the election of such Director. Any Director elected by the Members whose removal is sought shall be given notice prior to any meeting called for that purpose. Upon removal of a Director elected by the Members, a successor shall then and there be elected by the Members entitled to elect the Director so removed, to fill the vacancy for the remainder of the term of such Director.

It seems to me that your bylaws provide that it is the members of the organization which vote on removing directors, not the board. So whether this person will be removed will depend on whether the members see this person as a problem.

On 1/31/2024 at 11:24 PM, Maxwell Jump said:

My concern is how voting should be handled for appointing a new board member as per Robert's Rules of Order, as a I saw a section that doesn't seem to apply to appointing new members but seems to indicate the president is able to break a tie vote (chapter 13, section 44, tie votes). Can anyone help me understand if that's the case? It seems to read that this is true if there needs to be a majority vote but in this instance, I don't believe there needs to be a majority vote on adding another board member, we can proceed as 6 until such a time as we agree on a replacement.

If your board only has six members, the President should simply vote along with everyone else. And if he does, he doesn't get to vote again to break a tie.

"In a board meeting where there are not more than about a dozen members present, some of the formality that is necessary in a large assembly would hinder business. The rules governing such meetings are different from the rules that hold in other assemblies, in the following respects: ...

7) If the chairman is a member, he may, without leaving the chair, speak in informal discussions and in debate, and vote on all questions." RONR (12th ed.) 49:21

"The chair cannot vote twice, once as a member, then again in his capacity as presiding officer." RONR (12th ed.) 44:12

The rules on the subject of the chair breaking ties are more about the chair of a large assembly, in which event the chair does not vote unless it would affect the result (or if a vote is taken by ballot). So no, I don't think rules pertaining to the chair breaking a tie are applicable here.

If there is a tie in an election, then you keep voting again, and again, until the assembly learns how to compromise and you reach a majority vote.

On 1/31/2024 at 11:24 PM, Maxwell Jump said:

Is there a way homeowners can vote instead of it being decided by the board?

Doesn't look like it. Your bylaws provide "A vacancy in any office arising because of death, resignation, removal, or otherwise may be filled by the Board of Directors for the unexpired portion of the term."

On 2/1/2024 at 10:11 AM, Maxwell Jump said:

Our bylaws are very old and pre-date email, so it sounds like it wouldn't be allowed in our bylaws. This has been common practice, what would need to be done to stop this?

Voting by email is permitted only if authorized by your bylaws or applicable law.

On 2/1/2024 at 10:11 AM, Maxwell Jump said:

• Could you elaborate on what chapter 13, section 44, tie votes would apply to and what powers that provides the president? I don't believe it applies to this, but I want to make sure.

The rules on the subject of the chair breaking ties likely will not apply at all for a board of six members, since the chair simply votes along with everyone else. The chair doesn't get to vote twice. Ever.

There's nothing necessarily exempting elections from the tiebreaker rules. The chair could break a tie in an election in a larger assembly - provided, of course, that the election was not held by ballot, in which event the chair would vote along with everyone else.

On 2/1/2024 at 10:11 AM, Maxwell Jump said:

• Is there a process by which the community can vote on appointing someone after a resignation and not the board?

No. Your bylaws provide that the board fills vacancies.

On 2/1/2024 at 10:53 AM, Maxwell Jump said:

Things are voted on by email all the time, not just this. If I would point this out at the next meeting, I think we'd have a 3-3 vote on it because half of this board is not objective, they merely are loyal to the president.

Well, then I guess the chair's ruling will be upheld. A majority vote in the negative is required to overturn the chair's ruling. And ultimately you'll have to take your case to the membership.

In the long, if the organization wants to be able to have email voting, the bylaws should be amended to provide for it.

On 2/1/2024 at 10:53 AM, Maxwell Jump said:

What I'm not sure of is how many people need to be in attendance to call for the president to be removed. For example, to change our bylaws we need either 67% or 75% (I forget which) to make changes to bylaws and we will never get that type of participation in our community of 100+ homes. At the annual meeting, they tried to remove the president with 35-40 people present and the attorney for the HOA stated that they needed either 67% or 75% of the homeowners to vote on that. The community felt as if that wasn't an accurate statement and he was just protecting the board. I would love some clarity on this as well.

Your bylaws provide the following:

"Any Director elected by the Members may be removed, with or without cause, by the vote of Members holding a majority of the votes entitled to be cast for the election of such Director. Any Director elected by the Members whose removal is sought shall be given notice prior to any meeting called for that purpose. Upon removal of a Director elected by the Members, a successor shall then and there be elected by the Members entitled to elect the Director so removed, to fill the vacancy for the remainder of the term of such Director."

So it would seem to me that a majority of the entire membership is required to vote in the affirmative for removal, and you'd therefore need at least that many present (probably more, because some people will vote no). Which is still a lot. But less than 67% or 75% of the membership.

[Gary Novosielski]

On 2/1/2024 at 11:11 AM, Maxwell Jump said:

The officers of the Association, shall be elected annually by and from the Board of Directors at the first meeting of the Board of Directors following each annual meeting of the Members, as set forth in Article Ill above. A vacancy in any office arising because of death, resignation, removal, or otherwise may be filled by the Board of Directors for the unexpired portion of the term.

That looks like the applicable one, since this person was apparently not removed involuntarily.  So the Board (not the president alone) has the right to fill the vacancy.   Previous notice to all board members of intent to fill the seat is required in advance of that meeting.

On 2/1/2024 at 11:11 AM, Maxwell Jump said:

Could you elaborate on what chapter 13, section 44, tie votes would apply to and what powers that provides the president? I don't believe it applies to this, but I want to make sure.

Chapter numbers are not used in citations. Section number and Paragraph number are used.

So you're talking about 44:12, and the rules there apply to votes in any context.   A majority is defined as more than half the votes cast, and since a tie (half) is not more than half, the motion fails, just like any motion that does not have majority support.

The only exception is noted in the following paragraph 44:13, which notes that on Appeal votes, where the question is: Shall the decision of the chair stand as the decision of the assembly?, a majority in the negative is required to overrule the chair, so a tie vote would sustain the chair's ruling.  But in this case just as with the others, the chair might well vote to create a tie, and tip the balance in his own favor, if that one vote could change the outcome.  But in no situation does anyone ever get two votes.

[Maxwell Jump]

On 2/1/2024 at 2:34 PM, Josh Martin said:

It seems to me that your bylaws provide that it is the members of the organization which vote on removing directors, not the board. So whether this person will be removed will depend on whether the members see this person as a problem.

Thank you for your reply. That section was for members in our bylaws, we have a section under officers which states:

Any officer may be removed by the Board of Directors whenever in its judgment the best interests of the Association will be served by that action.

On 2/1/2024 at 4:08 PM, Gary Novosielski said:

That looks like the applicable one, since this person was apparently not removed involuntarily.  So the Board (not the president alone) has the right to fill the vacancy.   Previous notice to all board members of intent to fill the seat is required in advance of that meeting.

Chapter numbers are not used in citations. Section number and Paragraph number are used.

So you're talking about 44:12, and the rules there apply to votes in any context.   A majority is defined as more than half the votes cast, and since a tie (half) is not more than half, the motion fails, just like any motion that does not have majority support.

The only exception is noted in the following paragraph 44:13, which notes that on Appeal votes, where the question is: Shall the decision of the chair stand as the decision of the assembly?, a majority in the negative is required to overrule the chair, so a tie vote would sustain the chair's ruling.  But in this case just as with the others, the chair might well vote to create a tie, and tip the balance in his own favor, if that one vote could change the outcome.  But in no situation does anyone ever get two votes.

Really appreciate your continued help and responses, thank you!

[Gary Novosielski]

On 2/1/2024 at 11:11 AM, Maxwell Jump said:

Is there a process by which the community can vote on appointing someone after a resignation and not the board?

Well, there's no question that your Board has the power to fill vacancies, but I'll leave it as an open question to others whether the Membership can instruct the Board whom to select.  I think an argument could be made that this is possible but the timing would be a problem unless a Membership meeting could be called before the Board acts.

In the usual course of business under RONR, a Membership can Rescind a decision of the Board, but only if the motion has not yet been carried out, and once the Board fills a vacancy, that action has been completed.

It's just an idea.  However from your bylaws, the Membership does have the power to remove officers.  And of course there's always the normal election process for removing dead wood.  If the membership seems unwilling to go that route, you have three choices:

• Give up;
• Vote with your feet; or
• Organize!

[Josh Martin]

On 2/1/2024 at 3:14 PM, Maxwell Jump said:

Any officer may be removed by the Board of Directors whenever in its judgment the best interests of the Association will be served by that action.

Thank you for the clarification. So as I understand it, the directors are elected by the members and the officers are, in turn, elected by the board. And the board is empowered to remove its own officers. So I suppose you were correct when you stated "There seems to be no recourse for that as the majority of the board doesn't see that as being enough of a problem to vote him out."

I suppose the membership could, however, remove the President from the board altogether.

Edited February 1, 2024 at 09:24 PM by Josh Martin