[Updated 10/05/2017 with additional Eligible Votes information.]
For those of you that took my survey on Board Elections – thank you! I still owe you a summary of the results, which I have to say were very interesting. I’ve also been unusually busy the last few weeks with some consulting work (custom programming and data analysis).
But I’ve also been “recovering” from my own HOA’s elections last week.
I say “recovering,” because in my opinion, the meeting was a horrific display of power by the President of the Association, in the face of the members. The following description is a little detailed, but I provide links to some helpful reference material, and believe that if you are interested and will take the time to read through it, you might be more prepared to handle similar situations you might encounter.
To start with… if you’d like to read a transcript of the pertinent portion of the meeting before continuing, see this. It is a factual account, with the only personal annotation being of the point in the proceedings when I just gave up trying. You’ll see a bunch of quotes here, as I explain what happened.
Disclaimer, As Usual
I’m not a lawyer, and nothing here is legal advice. It’s all my opinion of what happened (transcribed from an audio recording I made – as I do at every board meeting). And I’ve included my opinion of what some laws mean to me as a homeowner. If you don’t like my opinions here… I can offer several suggestions on where you can go – for support.
We’re a smaller community, with 345 homes (just over half of the survey respondents indicated “more than 2,500 homes” in their association). Our Bylaws call for a 10% quorum, stated as follows:
Except as otherwise provided in the Articles, the Declaration or these Bylaws, the presence in person or by proxy of Members entitled to cast one-tenth (1/10th) of the Eligible Votes shall constitute a quorum at all meetings of the Members.
The Bylaws must pre-date Arizona’s statute that prohibits proxy voting. Paragraph A of ARS 33-1812 states:
Notwithstanding any provision in the community documents, after termination of the period of declarant control, votes allocated to a unit may not be cast pursuant to a proxy. The association shall provide for votes to be cast in person and by absentee ballot and, in addition, the association may provide for voting by some other form of delivery, including the use of e-mail and fax delivery.
Further, Paragraph B states:
Votes cast by absentee ballot or other form of delivery, including the use of e-mail and fax delivery, are valid for the purpose of establishing a quorum.
So you can cast an absentee vote, and any member choosing to do so also counts toward the meeting quorum.
Call to Order!
So the President called the meeting to order at 7:07pm and asks the management representative about the quorum, and she indicates that there are 33 votes out of a required 35. (Easy math: to have at least 10% of 345 members requires 35 votes.)
[Side note: I requested and obtained a copy of the attendance register in accordance with ARS 33-1805. I verified the data, showing 33 votes: 22 absentee votes and not present at the meeting, 2 absentee votes and also present at the meeting, and 9 voters at the meeting who the record showed had not submitted an absentee ballot. But see “See Below” at bottom.]
… And Adjourned – Almost
At this point, the President proceeds to declare the meeting adjourned! So much for parliamentary procedure and the rights of the members.
At this point you might be asking, “Since you didn’t have a quorum, you can’t really have a meeting, can you?” Au contraire, my friend! You can’t conduct any new or unfinished business, but there are some things you can do. RONR (short for “Robert’s Rules of Order Newly Revised”, the newish title of the popular parliamentary guide first copyrighted in 1876 by Henry Robert) has a lot to say about not having a quorum, including (page 347 lines 30-32):
Even in the absence of a quorum, the assembly can fix the time to which to adjourn, adjourn, recess, or take measures to obtain a quorum.
RONR allows people to call a recess or adjourn to continue the meeting at a different date, time, and/or place, and in the ensuing time, make every effort to obtain additional attendees to bring the total number to the required quorum.
The President then said:
So since quorum has not been met at this time the official part of the meeting is now going to be closed and end at 7:08
Normal parliamentary process requires the chairperson to call for any further business and to obtain a motion, a second, and approval by majority vote before adjourning. He did nothing of the sort.
Keep in mind we weren’t short by 15 or 20… we were only short by two!
Before the President could fully adjourn the meeting, I interrupted (not, as I perhaps should, with a “Point of Order”, but then this Board has a custom of skipping formalities in their meetings). I explained that the meeting wasn’t just over:
But you can adjourn, you can pick another date and time to adjourn to, try and get the appropriate number of people to come at a different time. So maybe if we put the word out “Hey, let’s meet at the ramada on Saturday at 10,” maybe we’ll have enough people and we can re-establish the meeting at that time. And if we don’t…
He interrupted and said, “We’ve never done that.”
Mind you, I’ve done my research. A judge with the Arizona Office of Administrative Hearings stated (my emphasis):
Board members are bound by the unequivocal language of applicable statutes, CC&Rs, and bylaws. They are not bound by alleged past practices or policies of past boards that have never been reduced to writing and formally adopted.
Let’s Think Outside the History Book
I continued after the President’s objection (the first phrase admittedly spoken somewhat louder than actually necessary):
I don’t care whether you’ve never done that before, but that’s the appropriate thing to do, with any parliamentary procedure, I don’t care if it’s Robert’s Rules or whatever, that’s actually the way it’s supposed to be done. Just because you don’t have a quorum you don’t just go, “up, sorry, it’s done… we don’t have to do anything else.”
Years Ago Some Lawyers Told Me…
After a brief pause (the President had nothing to say!), the Association’s management representative chimed in:
HOA attorneys years ago said that we do not have to set another meeting time if you don’t make quorum, since there are two notices that are sent out to the homeowners, that their opinion is that’s adequate notice, so you don’t have to set another meeting time.
It then appears to me that the official position of our management representative (and by extension, her employer, which – with over 450 managed communities in the state of Arizona – should have some corporate stance on situations like this), is that “we’ve done our part, end of discussion!” No “power to the people”… no “let’s put this to a vote”. President declares victory, now go home.
Their Meeting Proceeds…
The President and management representative then went on to pat themselves on the back for doing such a great job the last year, then opened up the floor for questions.
What Just Happened?
One homeowner asked:
What happens as far as the election goes then?
The President replied:
It’s postponed until next year, next annual meeting… then the election will happen again next annual meeting.
A Lesson In Knowing Your Rules
He would not entertain my discussion of setting a time to continue the current meeting. He simply declared that the current board gets to stay put for another year, as if to say “you do not have any say in the matter.” Parliamentary procedure said I did, but he would have none of it.
You might say, “But Ray, you didn’t actually make a motion.” Technically, you might be right. And in most conversations I’d be likely to counter with something like “but they wouldn’t know what to do with parliamentary procedure if it fell on them from the sky.” But I have one better.
Back in February I supplied a Resolution regarding adoption of RONR to our management representative (another person from the same company, who unfortunately had to move out of our area – the transition to the current representative is another story, for another day). She provided the resolution to our board members who – you guessed it – rejected my Resolution, but included the following in the Meeting Minutes:
Robert’s rules of order – Board resolved to continue to use a modified version of Robert’s rules of order for future committee and board meetings
“Modified version” means what? I’m looking for the board’s documented “modifications” and find none. Someone familiar with RONR might say, “Oh, they probably mean the special procedures for small boards.” Yes, Virginia, there is relief from the full weight of RONR for small bodies, boards, and committees. The following two items are particularly interesting, and very often happens in our board’s meetings:
- Informal discussion of a subject is permitted while no motion is pending.
- When a proposal is perfectly clear to all present, a vote can be taken without a motion’s having been introduced.
Hey… that’s exactly what I tried to do earlier in the meeting, bring up the subject of other ways to handle obtaining a quorum and finishing our election! And other people in the room fully understood what I was talking about doing, as did the President, I believe! So the President could have taken a vote on how to proceed, but instead simply told us what was going to happen.
After a couple of additional homeowner questions (not related to elections, meetings, or parliamentary process), the President again declared the meeting adjourned without making or obtaining a motion, and without the permission of the people who should have been permitted to vote on the matter. Essentially, I declare the meeting over, you guys go home now!
Almost Short By Just One Vote
I learned the next day that the only board member who wasn’t present was in contact with one of the other board members in attendance, advising that she would be at the meeting in a matter of minutes. [She told me she had a job interview across town and was driving through Phoenix traffic. She hadn’t voted by absentee ballot, believing that she would be at the meeting, but the last-minute scheduling of the job interview was an important event.] So with the impending arrival of the other board member, we would have only been short by one vote. We could have easily found one more person to come to the meeting and voted… if the President didn’t basically shut that idea down.
What Is An “Eligible Vote” Anyway?
I’ve also taken another look at the quorum requirements, specifically:
Members entitled to cast one-tenth (1/10th) of the Eligible Votes shall constitute a quorum
What constitutes an Eligible Vote? A member who is delinquent in assessments for fines can have their voting rights suspended.
How do I know that there are some people that were suspended? First of all, I had an email discussion with our management representative early in the process, ensuring that if anyone was suspended, the Board followed the provisions of our Bylaws section 3.12, “Suspension of Member Rights or Privileges”. Her response was “Technically you don’t have legal Bylaws since they were never approved and signed”.
I attend every board meeting. Some things are said that I don’t follow up on because there’s just too much “under the covers” stuff I don’t know about. So at the previous meeting when the management representative mentioned to one of the board members that our lawyer was willing to create bylaws for us for $1,000, I didn’t pay much attention to it. Now it was beginning to make sense. You see, the Bylaws document I received in May 2016 when I bought my house was unsigned, but I assumed, of course, there was an officially signed and executed copy somewhere. The Board and management company apparently knew that a signed copy didn’t exist in our records for some time… so there was this chaotic panic to create some, with the notion that we didn’t have any in the meantime.
On learning their interpretation of “you don’t have Bylaws”, I set about to locate a copy of an officially signed and executed version – and I was able to locate a signed copy within 24 hours! One of the homeowners I contacted – one of the first people to buy directly from the developer – still had her signed copy of the Bylaws from her purchase in 2005!
Back to the management representative, who followed up on my original reminder to follow the Bylaws section 3.12 and told me “I sent a letter to everyone who was delinquent last week a letter explaining that they will not be able to vote if they do not bring their account current”.
Update: The REAL Quorum Requirements
I asked our management representative how many members had been sent letters telling them they were not eligible to vote, and I was surprised at the answer: 48! Forty eight!
With 48 people having their voting rights suspended, that puts the number of Eligible Votes to 297 (the original 345 minus 48). Our quorum should have been stated as 30 — which we met! — and we should have proceeded with the meeting, and the election.
More to come…
I’m not done pursuing the election process for this year. There are options! Stay tuned…
“See Below” Is Here… One Missing FAX – Could There Be More?
Above I gave a tally of voters registered. One of the 9 present with no absentee ballot came to me after the meeting and said she had faxed her absentee ballot in, but when signing in it showed she hadn’t voted; she was given another ballot to cast – if there was to be an election at all. Could be “just a clerical error”, but it’s one more thing that makes me concerned about the whole election process.