board election questions

Hi,

I have some quick questions regarding the election of board directors at HOA annual meeting:

1) The bylaws (old and never amended, even after the new CA law of HOA election) states that "Members may so cumulate their votes ONLY IF at least one Member has given notice AT THE MEETING, prior to the voting, of his intention to cumulate votes." I assume this bylaws is set for the elections taken before the new law regarding "mail-in secret ballot", i.e., people go to the annual meeting and vote by "voice" or ballot (everyone votes at the meeting). Now the association follows the new law and send ballot packages to members 30 days before the meeting. Can the association put the instruction stating cumulative voting is allowed in the ballot even when the meeting does not take place yet?

2) The bylaws state that "Every person entitled to vote or execute consents may do so either in person or by proxies." The bylaws also state that "The presence at any meeting, in person or by proxy, of members entitled to cast at least 51% of the total votes of all members shall be a requisite to and shall constitute a quorum... If such a quorum is not present at a meeting, the meeting may be adjourned, by the vote of a majority of the votes present in person or by proxy, to a date not less than 5 nor more than 30 days from the date of the adjourned meeting. The quorum of such adjourned meeting shall be 51%, except that a majority of those present at the original meeting may establish a lower quorum, not less than 25%, for such adjourned meeting."
Questions: A) What happens if say 20% voters mail in their ballots and another 10% voters bring their ballots and cast at the meeting? There are 30% votes, which is under the regular quorum (51%). Can the 10% voters present at the meeting, by the bylaws, vote to reduce the required quorum to 25% and so make it proceed to finish the election? or they have to vote to reduce the quorum AND extend the voting period, so to adjourn the meeting? What about the 20% voters who mail-in their ballots, but absent at the meeting? Do they have a say to the reducing quorum and extending voting?
Question: B) If it is required to vote on reduce quorum and/or extend voting by the whole 30% voters who turn in their votes (by mail and in person at meeting), can a member request for proxy paper sent to all members if the association does not send proxy forms to members? (the purpose of proxy is to establish the whole 30% voting at the meeting for reduce quorum and/or extend voting) Can the association reject the request and not send proxy out?

This should help you. Look at the question for Reduced Quorum.

http://www.davis-stirling.com/Newsletters/2010Newsletters/BouncedChecks/tabid/3013/Default.aspx

So in my example, only those 10% present at the meeting in person can vote for/against reduce quorum/extend voting. Those 20% mail-in voters have no voting power for that. Right?

Can those 10% voters present at the meeting ONLY vote to reduce the quorum and finish the election at the same meeting without adjourning the meeting to a later date (extend voting)?

That is all they can do. No other business may be conducted becuase you have NO meeting.

KW,

The reason for having the requirement to adjourn the meeting is so that the BOD may have time to contact members who did not attend or send in their proxies to do either so that a quorum may be reached. Allowing those 10% at the meeting the ability to vote to reduce the quorum defeats the purpose of reaching a required quorum. Quorums are set so that elections are not held by a small minority of members such as the 10% that you want to have the ability to reduce the quorum.

It was proper for the board to state in the election packet that cumulative voting is allowed otherwise the members would not know how they can cast their vote if they are not going to attend the meeting. DS allows cumulative voting if so stated in the bylaws and it shall be carried out by secret ballot. Also, since the bylaws allow for proxies, a proxy form should also be included in the meeting packet.

Richard, I believe for this you are talking about the matter that the board takes away members' right/power of extending voting and takes by its own hand the unauthorized power. Unfortunately, this "improper" (I called it illegal) election is under way: I received the ballot that states so. I plan to get voters attend the meeting and make the challenge if the president decides to NOT extend the election and claims "no election" due no quorum. Any other idea to deal with this matter?

KW

As long as your Bylaws have a provision under the quorum at Member meeting to adjourn to a new date IF quorum is not reached, then it is the responsibility of the chair to make a motion to the Members present to set a new date. They may not want to especially if you're electing the same people again. Also, under your quorum section for member meeting you may have a provision that a new date can be called with a reduced quorum (something like 1/2 of the original number.

Cumulative voting, IF provided for in your Bylaws is only for election of more than two directors. If your election is for two directors only, then cumulative voting is not used. Cumulative voting was put into Bylaws, BY THE DEVELOPER TO GET THE DEVELOPER IN CONTROL OF THE BOARD WHILE THEY WERE BUILDING AND SELLING HOMES.