possible tie vote regarding Resident Agent's proposed amendment

Started by BonnieG1 • 10 replies • 1564 views

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BonnieG1 (Nebraska)
Posts: 1,186

Posted:

Thank you for the responses regarding amending a contract after it has been signed. Now I have a sense that 2 board members will vote to accept the amendment and 2 board members will vote to reject the amendment. We have 5 board members with the 5th member being the Resident Agent who cannot vote on her own contract.
We have a management contract for maintenace and housekeeping with the adjacent Care Center. Could we ask the administrator of the Care Center to cast a tie-breaking vote if there is a tie?

TimB4 (Tennessee)
Posts: 21,061

Posted:

Bonnie,

Only members of the Board may to vote on the issue unless the Board decides to take the issue to the membership.

If there is a tie vote - the proposal failed to pass.

SusanW1 (Michigan)
Posts: 5,202

Posted:

I think this is the wrong way to go about this.

If a vendor is unable to keep the terms or job description of the contract, then it gets cancelled.

This RA says she does not want to do the things stated in the contract. She cannot fullfil the contract.

What is there to vote on?

The board is free to find another agent or they can vote to accept the NEW contract that she should offer to the board.

You don't need to make this a board problem. The vendor has the burden of proof that he/she can do the job offered by the board.

BruceF1 (Connecticut)
Posts: 2,535

Posted:

If the resident agent is unable or unwilling to fufill the terms of the contract, that party has breached the the terms of the contract. The question is, what do you do about it?

The offended party (the association) has the right to enforce the terms of the contract. But, to do that, you would have to go to court to force compliance. It sounds like you don't want to do that.

The offended party can also choose to simply ignore the breach. That, however, places at risk the ability of the association to enfore the remaining terms of the contract. The contract becomes practically worthless.

The association can re-negotiate and amend the contract. Sounds like you already tried that.

You can terminate the contract. Hopefully, you have a termination clause in the contract. You should be able to terminate the contract without paying any penalty to the resident agent, and possibly may be due a penalty from them.

You then are free to contract with another party.

In the first place, the resident agent should never have agreed to a contract that he or she was unable or unwilling to perform.

You should have never entered into a contract with one of your own. The present situation you find yourself in is one reason why. Obviously, no one saw this coming.

FredS7 (Arizona)
Posts: 927

Posted:

If possible, it seems to me that a mutually agreed upon cancellation of the contract would be best for all parties.

Then start over and do it right. (Without the conflict of interest would be best).

BonnieG1 (Nebraska)
Posts: 1,186

Posted:

This resident agent is also a Board member. We could not vote on her proposed amendment because there were only 2 other Board members present at the meeting when she presented it and she couldn't vote on her own contract. We have to wait until we have at least one of the other two members present to vote. I think the members that were out of town may vote no, but I am not certain.

SusanW1 (Michigan)
Posts: 5,202

Posted:

Please use the word "revision" when talking about changing the terms of a contract.

"Amendment" is such a specific word when talking about an HOA that you don't want the members to feel you are changing amendments.

But before you even consider signing a contract with a board member to act as your property manager, the board needs to discuss conflict of interest. This member needs to resign if he/she is awarded a contract that is funded by the very board on which she sits.

CarolR11 (Colorado)
Posts: 2,563

Posted:

Someone can correct me if I'm wrong, but I believe that if the director-agent along with two other directors were present at the meeting, you had a quorum. So, if the two directors voted yes, and the agent abstained, the motion is approved.

But I guess this depends on how your Bylaws are written. In our HOA, if a majority of a quorum of the board votes, say, yes, the motion carries.

I agree with those who say that the agent should resign from the board if you revise her contract and keep her.

BonnieG1 (Nebraska)
Posts: 1,186

Posted:

Long story, but we have this Resident Agent and another Board member who is the paid Bookkeeper. One reason I wanted to be on the Board is to correct this situation. But it is easier said than done. This has caused an enourmous amount of internal strife.
We had major trouble with the previous bookkeeper and the Board at that time had us vote to pull away from the management company we were with. We just got to the annual meeting and were told we were having a vote. Nothing in writng prior to the meeting and almost nothing in writing at the meeing. Very confusing. I was not on the Board at that time. We voted for the Board to enter into contracts. Well, just 14 days after this vote was taken, the Board appointed the Secretary as Manager and the Treasurer as paid bookkeeper. I was hoping I could find a law that forbids this type of situation. (We were established in 1981 and have not voted to be under the newer laws) I also have been reading our insurance policy. I want to have all ducks in a row when and if I make a big stink about this situation. I have mentioned it a few times.

Do any of you know of any law in Nebraska against this type of situation?? I certainly couldn't find want and I have the link to the laws on my computer.

BonnieG1 (Nebraska)
Posts: 1,186

Posted:

We have 5 Board members so we need at least 3 yea votes to pass anything.

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Quote:

Posted By BonnieG1 on 08/21/2011 6:07 PM
We have 5 Board members so we need at least 3 yea votes to pass anything.

Not necessarily true. It depends on how your bylaws are worded.

Your bylaws can be worded in a variety of ways. They might say simply "a majority is required to pass a motion." In parliamentary procedure, a simple "majority" refers to the number of votes cast (See, for example, Roberts Rules, 10th ed., page 387). A majority means more than half of the votes cast. Your bylaws could also be worded as "a majority of the board members present" or a "majority of the board members." These all mean different things.

An abstention is not a vote, and is never counted as such.

Thus, under normal parliamentary procedure, if there are 5 members and only 3 votes are cast (2 members abstain and do not vote), only 2 yes votes will pass a motion (Two is more than half of the 3 votes cast). However, if the bylaws specify that it must be a majority of the members present (assume all 5 are present) and only 3 members vote with 2 members abstaining (as before) and the vote is the same as before (2-1), the motion would fail because 2 is not more than half of 5.

Look carefully at the section of your bylaws that specifies how voting is to be determined for your board.

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