BarbaraD6 (Florida)
Posts: 347
Posts: 347
Posted:
I voted to abstain on an issue involving a close friend, the manager said I needed a reason for the record, I said personal and she advised me to vote no. Is this true?
Barbara
A service of:
Community123.com
Professional websites for HOAs & condos, since 2004
Professional websites for HOAs & condos, since 2004
🎁 1st year FREE for HOATalk members! →
vote to abstain
Started by BarbaraD6 • 20 replies • 2888 views
💬 Join us to post & get advice from 50,000 HOA & Condo leaders.
Create Free Account →
⚡ Takes 30 seconds
Already a member? Log in
I voted to abstain on an issue involving a close friend, the manager said I needed a reason for the record, I said personal and she advised me to vote no. Is this true?
Barbara
RichardP13 (California)
Posts: 1,767
Posts: 1,767
Posted:
You have every right to abstain from voting and you are not obligated to disclose the reason. If you had 5 Board members present at a meeting and a motion came to a vote, if two members voted yes and three abstained, the motion fails because it did not obtain the majority of eligible votes.
If you chose to recuse yourself because of a "conflict of interest" then you wouldn't be counted as a eligible vote.
If you chose to recuse yourself because of a "conflict of interest" then you wouldn't be counted as a eligible vote.
DonnaS (Tennessee)
Posts: 5,671
Posts: 5,671
Posted:
That depends Barbara. What was this about? Why would a vote be taken about a person at a Board meeting? Unless it is something legal, like to start a lein , violation or other issues like that? If your abstaining tied the vote, then that would have caused a problem and I see where your P.M. would not like that but I also see that you would feel bad if you needed to vote against a friend.
But remember, you must wear 2 hats when being a Board member. Board duty dictates that you follow the documents and do what is right for your association and keep personal matters removed from your obligation to the community. Sorry, this is tough sometimes but you have to do it right.
DonnaS (Tennessee)
Posts: 5,671
Posts: 5,671
Posted:
Barbara,
As Richard has said, you do have the right to abstain. I should have closed with that.
BarbaraD6 (Florida)
Posts: 347
Posts: 347
Posted:
You are right Donna, it was a vote to start a foreclosure. The other 4 Board members voted yes so I was going to abstain. These people have had financial problems due to medical issues, which was information that I knew about because they are my friends. Do you have to have a reason for the record?
Barbara
DanielH1 (California)
Posts: 482
Posts: 482
Posted:
Even though the person is a close friend, this is not a conflict-of-interest. (I assume that your close friend is not a relative, employer or business partner.) If it was a vote to foreclose on your own house or on your sister-in-law's house, that would be. So, you didn't need to abstain or withdraw. Even if it had been a conflict-of-interest, you might have been able to if you revealed the conflict and could reasonably believe that you could make an impartial judgement.
I agree that recusal/withdraw is more appropriate than abstaining.
Abstaining is casting a vote ... but not a yes or no vote. You don't need a reason why you voted yes. You don't need a reason why you voted no. And, you don't need a reason why you abstained. Your manager is just wrong.
I agree that recusal/withdraw is more appropriate than abstaining.
Abstaining is casting a vote ... but not a yes or no vote. You don't need a reason why you voted yes. You don't need a reason why you voted no. And, you don't need a reason why you abstained. Your manager is just wrong.
AnnJ1 (Florida)
Posts: 122
Posts: 122
Posted:
Hi Barbara,
One of the "rights" listed in Roberts Rules of Order is the "right of abstention" page 394 of the latest edition.
You are not "voting" to abstain and would merely be abstaining.... meaning that the results of the vote (in the record or in the results announced by the chair) would indicate X # voted affirmatively and X # voted against the motion with X # of abstentions.
There is no reference in Roberts stating a reason must be supplied and if your manager stated she needed a "reason", I would request her to give a source of reference for this information. Nor can she request someone voting (yay or nay) give a reason.
Your manager was "absolutely in error" by requesting you to vote no. You cannot be compelled to vote per Roberts (same page as above).
HTH,
Ann
One of the "rights" listed in Roberts Rules of Order is the "right of abstention" page 394 of the latest edition.
You are not "voting" to abstain and would merely be abstaining.... meaning that the results of the vote (in the record or in the results announced by the chair) would indicate X # voted affirmatively and X # voted against the motion with X # of abstentions.
There is no reference in Roberts stating a reason must be supplied and if your manager stated she needed a "reason", I would request her to give a source of reference for this information. Nor can she request someone voting (yay or nay) give a reason.
Your manager was "absolutely in error" by requesting you to vote no. You cannot be compelled to vote per Roberts (same page as above).
HTH,
Ann
SusanW1 (Michigan)
Posts: 5,202
Posts: 5,202
Posted:
1st - I don't know why your board is "voting" to start foreclosure. That action schedule should be covered in a policy and procedure and should be an objective process. If your board votes yes for one homeowner and no for another homeowner, that is treating homeowners unequally. Could get your board in trouble.
2nd - You may request a secret written ballot on this issue. Then no one would know your vote.
3rd - You have the right to abstain, but use this very carefully. You were elected to make the hard decisons. That's your role as a board member.
2nd - You may request a secret written ballot on this issue. Then no one would know your vote.
3rd - You have the right to abstain, but use this very carefully. You were elected to make the hard decisons. That's your role as a board member.
SusanW1 (Michigan)
Posts: 5,202
Posts: 5,202
Posted:
1st - I don't know why your board is "voting" to start foreclosure. That action schedule should be covered in a policy and procedure and should be an objective process. If your board votes yes for one homeowner and no for another homeowner, that is treating homeowners unequally. Could get your board in trouble.
2nd - You may request a secret written ballot on this issue. Then no one would know your vote.
3rd - You have the right to abstain, but use this very carefully. You were elected to make the hard decisons. That's your role as a board member.
2nd - You may request a secret written ballot on this issue. Then no one would know your vote.
3rd - You have the right to abstain, but use this very carefully. You were elected to make the hard decisons. That's your role as a board member.
MarkM19 (Texas)
Posts: 65
Posts: 65
Posted:
I have an additional question regarding abstaining from votes. I have a case coming up when I have a close friend that is in violation of a parking rule.
I would like to be part of the debate regarding the issues as a whole but am more than willing to abstain from the final vote that effects my friend. Is this within the rights as a Board member?
Thanks
I would like to be part of the debate regarding the issues as a whole but am more than willing to abstain from the final vote that effects my friend. Is this within the rights as a Board member?
Thanks
SusanW1 (Michigan)
Posts: 5,202
Posts: 5,202
Posted:
As a board member, don't defend the person, rather just ask the questions that clarify the situation.
If you feel strongly, then vote. Ask for a secret ballot, if desired.
Why take the chance that your view of the case will be shot down?
But to answer your questions, yes, you can abstain, but why???
If you feel strongly, then vote. Ask for a secret ballot, if desired.
Why take the chance that your view of the case will be shot down?
But to answer your questions, yes, you can abstain, but why???
SteveM9 (Massachusetts)
Posts: 3,699
Posts: 3,699
Posted:
DanielH1
Your link in your signature "hoavault" goes to a web site with nothing on it, why are you posting it?
Your link in your signature "hoavault" goes to a web site with nothing on it, why are you posting it?
RobW (California)
Posts: 279
Posts: 279
Posted:
Quote:
Posted By MarkM19 on 01/18/2011 6:42 PM
I have an additional question regarding abstaining from votes. I have a case coming up when I have a close friend that is in violation of a parking rule.
I would like to be part of the debate regarding the issues as a whole but am more than willing to abstain from the final vote that effects my friend. Is this within the rights as a Board member?
Thanks
I have an additional question regarding abstaining from votes. I have a case coming up when I have a close friend that is in violation of a parking rule.
I would like to be part of the debate regarding the issues as a whole but am more than willing to abstain from the final vote that effects my friend. Is this within the rights as a Board member?
Thanks
Welcome to the reality of self-governance! I think you might want to ask yourself what you would do if everyone in your association happened to be your friend. Another question is: Would you rather have your friends or your non-friends voting on your situation? If, as you say, your friend in this case has violated a parking rule, what is there to vote on?
Rob
MarkM19 (Texas)
Posts: 65
Posts: 65
Posted:
Rob,
The rule is regarding Commercial Vehicles. We do not allow them in the Community. We have about 8 to 10 people that have Vans that are not allowed. The Board has not enforced this rule for the last several years. My Friend who serves on two committees and give many hours a month to the HOA is in violation. He has a work truck that is owned by a Cable company.
The problem I have is he has very few choices. 1) He can quite his job and try to find another which is not easy. 2) He can sell his house for a hugh loss if anyone wants to buy it. 3) The HOA can work with the HOs and possibly modify the rule.
Before everyone jumps in I want to be clear. I love the rules that we have in our community. I think they are fair and do not like the idea of making exceptions for the minority.
Any thoughts
The rule is regarding Commercial Vehicles. We do not allow them in the Community. We have about 8 to 10 people that have Vans that are not allowed. The Board has not enforced this rule for the last several years. My Friend who serves on two committees and give many hours a month to the HOA is in violation. He has a work truck that is owned by a Cable company.
The problem I have is he has very few choices. 1) He can quite his job and try to find another which is not easy. 2) He can sell his house for a hugh loss if anyone wants to buy it. 3) The HOA can work with the HOs and possibly modify the rule.
Before everyone jumps in I want to be clear. I love the rules that we have in our community. I think they are fair and do not like the idea of making exceptions for the minority.
Any thoughts
DanielH1 (California)
Posts: 482
Posts: 482
Posted:
Generally, if you are remove yourself from the vote because you have a conflict, you should also remove yourself from the discussion.
You should not use your power or influence (such as it may be) to potentially sway other Board Members.
You should not use your power or influence (such as it may be) to potentially sway other Board Members.
JanetB2 (Colorado)
Posts: 4,219
Posts: 4,219
Posted:
Mark … this is becoming a sticky situation about vehicles in many HOA’s. I foresee more future potential litigation over this issue, but for what it is worth here are some opinions:
1. If the HOA is a gated community and owns or must maintain the streets, then they potentially would have more legal right in dictating parking on the streets. It is the HOA property, HOA money for maintenance, and HOA rules regarding said streets.
2. If the streets are owned and maintained by the local government, then everyone’s tax dollars are used and as long as the vehicle is properly registered and the local ordinances are not violated, then this is where it could potentially become an issue. However, there have been some legal cases that have ruled the HOA has the right to dictate even on public streets.
Now … here is where it can get even more sticky … let’s say someone from the next door neighborhood decides to park a commercial vehicle on a public street in your subdivision. He did not sign and is not required to abide by your rules and regulations, he has a legally registered vehicle, the vehicle is legally parked on a public street, and it is a public street paid for and maintained by his tax dollars … so now what would your HOA do?
On top of that we now have more and more homeowners who drive “company” vehicles and as you stated there can become the issue of denying them certain rights with regards to earning a living. You stated that these vehicles are “vans”, so my question would be can they at this time be parked within garages? Also, what do your documents state describing “commercial vehicles”. The following is an example of a potential fair rule regarding this issue:
“No commercial vehicle bearing commercial insignias or names shall be parked on any lot unless it is screened or garaged so that the insignia may not be seen from any neighboring lot or Common Area, except while temporarily parked for the purpose of serving such lot.”
This statute allows them, but they need to be garaged or the insignia covered. These residence owners have the option of possibly covering the insignia with maybe a blank magnetic type sign which can be placed over the insignia when parked and removed for work.
As far as your voting question … you became a member of the board and everyone is potentially a friend or neighbor. As long as you are considering objectively and following your HOA rules and regulations why abstain? I agree with Daniel that if you remove yourself from the vote you also should remove yourself from any and all discussion.
1. If the HOA is a gated community and owns or must maintain the streets, then they potentially would have more legal right in dictating parking on the streets. It is the HOA property, HOA money for maintenance, and HOA rules regarding said streets.
2. If the streets are owned and maintained by the local government, then everyone’s tax dollars are used and as long as the vehicle is properly registered and the local ordinances are not violated, then this is where it could potentially become an issue. However, there have been some legal cases that have ruled the HOA has the right to dictate even on public streets.
Now … here is where it can get even more sticky … let’s say someone from the next door neighborhood decides to park a commercial vehicle on a public street in your subdivision. He did not sign and is not required to abide by your rules and regulations, he has a legally registered vehicle, the vehicle is legally parked on a public street, and it is a public street paid for and maintained by his tax dollars … so now what would your HOA do?
On top of that we now have more and more homeowners who drive “company” vehicles and as you stated there can become the issue of denying them certain rights with regards to earning a living. You stated that these vehicles are “vans”, so my question would be can they at this time be parked within garages? Also, what do your documents state describing “commercial vehicles”. The following is an example of a potential fair rule regarding this issue:
“No commercial vehicle bearing commercial insignias or names shall be parked on any lot unless it is screened or garaged so that the insignia may not be seen from any neighboring lot or Common Area, except while temporarily parked for the purpose of serving such lot.”
This statute allows them, but they need to be garaged or the insignia covered. These residence owners have the option of possibly covering the insignia with maybe a blank magnetic type sign which can be placed over the insignia when parked and removed for work.
As far as your voting question … you became a member of the board and everyone is potentially a friend or neighbor. As long as you are considering objectively and following your HOA rules and regulations why abstain? I agree with Daniel that if you remove yourself from the vote you also should remove yourself from any and all discussion.
RobW (California)
Posts: 279
Posts: 279
Posted:
Mark,
I have two questions and three points to make.
Question 1: Is the Board singling out your friend, or is it suddenly going to uniformly enforce restriction for all commercial vehicles parked on the property?
Question 2: You say the Board has not enforced this rule for several years. Has it been as many as 5 years?
Point 1: The Board is skating on thin ice if it's singling out one homeowner for violation, while deliberately allowing other homeowners to skate. This is illegal, but hard to prove. According to Davis-Sterling, Boards must be even-handed and consistent in their enforcement.
Point 2: According to California Civil Code, if the restriction has not been enforced for 5 years from the time a violation was noticed, or should have been noticed, the Board may lose the right to enforce it:
Statute of Limitations
Boards must timely enforce violations of the association's governing documents, otherwise they can lose the right to bring an action to enforce a particular violation.
The statute of limitations for violation of a CC&R provision or a rule is 5 years from the time the board discovers the violation or, through the exercise of reasonable diligence, should have discovered the violation. Code Civ. Proc. §336(b); Pacific Hills HOA v. Prun.
Point 3: If none of the above applies, or if there are no other mitigating circumstances, then we're left with the fact that this restriction against parking commercial vehicles was (I assume) in place when your friend bought into the association. Serving on committees or even as a Board member does not grant anyone any special treatment. (It shouldn't, anyway.) I like your idea of proposing that the Board work with the homeowners to possibly modify the rules to allow commercial vehicles to park on the property under certain conditions, perhaps based on size or in a special parking area set aside for that purpose.
If you want to go to bat for all of the commercial van owners who will benefit from your advocacy, then your friend's fortunes rise or fall on your campaign to find a solution palatable to everyone. And that's your job, right? If so, yiou don't need to recuse yourself from deliberations or a vote.
My 2 cents.
Rob
I have two questions and three points to make.
Question 1: Is the Board singling out your friend, or is it suddenly going to uniformly enforce restriction for all commercial vehicles parked on the property?
Question 2: You say the Board has not enforced this rule for several years. Has it been as many as 5 years?
Point 1: The Board is skating on thin ice if it's singling out one homeowner for violation, while deliberately allowing other homeowners to skate. This is illegal, but hard to prove. According to Davis-Sterling, Boards must be even-handed and consistent in their enforcement.
Point 2: According to California Civil Code, if the restriction has not been enforced for 5 years from the time a violation was noticed, or should have been noticed, the Board may lose the right to enforce it:
Statute of Limitations
Boards must timely enforce violations of the association's governing documents, otherwise they can lose the right to bring an action to enforce a particular violation.
The statute of limitations for violation of a CC&R provision or a rule is 5 years from the time the board discovers the violation or, through the exercise of reasonable diligence, should have discovered the violation. Code Civ. Proc. §336(b); Pacific Hills HOA v. Prun.
Point 3: If none of the above applies, or if there are no other mitigating circumstances, then we're left with the fact that this restriction against parking commercial vehicles was (I assume) in place when your friend bought into the association. Serving on committees or even as a Board member does not grant anyone any special treatment. (It shouldn't, anyway.) I like your idea of proposing that the Board work with the homeowners to possibly modify the rules to allow commercial vehicles to park on the property under certain conditions, perhaps based on size or in a special parking area set aside for that purpose.
If you want to go to bat for all of the commercial van owners who will benefit from your advocacy, then your friend's fortunes rise or fall on your campaign to find a solution palatable to everyone. And that's your job, right? If so, yiou don't need to recuse yourself from deliberations or a vote.
My 2 cents.
Rob
DonnaS (Tennessee)
Posts: 5,671
Posts: 5,671
Posted:
Barbara,
Somewhere you got lost among the responses. As Susan brought up, your association should have a policy of forclosures already in place which floows Florida forclosure laws. With those being followed by the Board, there would be no need to "VOTE" on a forclosure. Every one should be treated and judged equally which removes the need for your Board to vote yes or no on individual cases. That would be selective and is certainly against the law.
SusanW1 (Michigan)
Posts: 5,202
Posts: 5,202
Posted:
Thank you Donna1 I thought the point had been lost. The Board should not be voting whether or not on such issues.
It should have a policy and procedure already in place. No decisions to be made, it's all very objective.
It should have a policy and procedure already in place. No decisions to be made, it's all very objective.
MarkM19 (Texas)
Posts: 65
Posts: 65
Posted:
I will try and clear up a few questions thatwere asked in a few of the posts. Thanks for asking so many great questions and giving such great advice. This site ROCKS for this kind of stuff.
We have over 400 Single Family Homes. We are not gated yet but we own and maintain our streets.
Our rules are pretty clear about comercial vehicles that have logos and ladder racks. We have had our attorney look into this issue and they claim that if they are parked int he driveway we can not do anything other than send them a violation letter and invite them to a hearing.
This person does seem to be getting singled out by a person on our ARC committee that keeps reporting them to the PM. We have several others that have never been sent the first letter to my knowledge.
I have only lived in the community for 3 years. The person in question about 2 1/2 years. I have been on the board for 1 year and all that I talk to say that this has never been a high priority of past Board members. That is not to say that they did not take action against some owners.
We have over 400 Single Family Homes. We are not gated yet but we own and maintain our streets.
Our rules are pretty clear about comercial vehicles that have logos and ladder racks. We have had our attorney look into this issue and they claim that if they are parked int he driveway we can not do anything other than send them a violation letter and invite them to a hearing.
This person does seem to be getting singled out by a person on our ARC committee that keeps reporting them to the PM. We have several others that have never been sent the first letter to my knowledge.
I have only lived in the community for 3 years. The person in question about 2 1/2 years. I have been on the board for 1 year and all that I talk to say that this has never been a high priority of past Board members. That is not to say that they did not take action against some owners.
BarbaraD6 (Florida)
Posts: 347
Posts: 347
Posted:
Donna and Susan,
I see the subject was changed again. We were in a financial disaster a prior Board didn't want to allow an automatic foreclosure because we couldn't afford it. Our automatic procedure ends when a lien is put on the unit, then we vote to foreclose or not.Their was no selective votes, anyone that had a lien was voted on to be foreclosed.(The manager said it would cost us about $600.00 per unit)
Thanks for the advice as always
Barbara
I see the subject was changed again. We were in a financial disaster a prior Board didn't want to allow an automatic foreclosure because we couldn't afford it. Our automatic procedure ends when a lien is put on the unit, then we vote to foreclose or not.Their was no selective votes, anyone that had a lien was voted on to be foreclosed.(The manager said it would cost us about $600.00 per unit)
Thanks for the advice as always
Barbara
🎯 You've read this entire discussion
Join the conversation with 50,000 HOA & Condo Leaders:
- ✓ Ask follow-up questions
- ✓ Share your experience
- ✓ Get expert advice
- ✓ Access 350,000 discussions
Create Free Account →
⚡ Takes 30 seconds
Already a member? Log in here