"Temporary Waiver" of Bylaws

Sounds like you have quite a predicament.

I am sure the nominee would have the votes needed to get elected, the problem probably is that quorum won't be reached, therefore, no ballots can be opened.

The other misunderstanding is that the membership elects Directors, and Directors elect Officers.

The question you need to answer is "How many votes will you need to approve the temporary waiver?"

The answer is 50+1 (or more depending on the requirements in your docs).

No way you can avoid getting 50+1 votes.

How is it possible that if three positions are open and you have only one candidate that you would even have an election? In most associations when the number of candidates is equal to or less than the number of open seats the candidate(s) are elected by acclamation.

The one person who is elected by acclamation would then need to appoint someone to fill at least one vacant position to create a quorum to conduct business.

Thank you everyone. First, we are going to pretend we have a quorum to be able to conduct business and open the ballots. Sadly, in the fifteen years of Minutes we have, half reflect business, including elections, being conducted without a proper quorum, and half with a proper quorum. Should there be no quorum and the Board has already resigned, we can either conduct business anyway, as we have done in the past, or shut the whole thing down and go to court. But for now, let's assume we have a quorum as we did the last election, so the current Board is legal.

I've attached the language, crappy as usual, from our Bylaws regarding conducting business, which would mean elections, and you'll note there is no specific mention of "election," anywhere. We have always operated with the interpretation that 50% or more of the association is required for any action, and a majority vote of that quorum would determine the result of a vote on any business, including election of officers.

E. Delegation: In the case of absence or inability to act of any officer of the Association and of any persons herein authorized to act in his/her place, the Board may from time to time delegate the powers or duties of such officer to any other officer or other Association member whom it may select. This section also authorizes the appointment by the Board of an Assistant Vice President/Secretary or Assistant Treasurer or other agent to act on their behalf as may be necessary from time to time. These appointments shall not exceed the terms of the elected officers.

F. Compensation: The Board may authorize the payment of reasonable compensation to any officer or agent who performs substantial services for the Association in carrying out management functions.

G. Change of Number: The number of officers may at any time be increased or decreased by amendment to these Bylaws, but no decrease shall have the effect of shortening the term of any incumbent officer.

H. Vacancies: All vacancies on the Board, whether caused by resignation, death or otherwise, shall be filled by the affirmative vote of the majority of the remaining officers. An officer elected to fill any vacancy shall hold office for the unexpired term of his/her predecessor and until a successor is elected and qualified.

E. Quorum: The quorum of Owners at any annual or special meeting of the Association shall be the presence, in person or by proxy, of persons holding fifty percent (50%) or more of the total votes, unless otherwise expressly provided herein. If a quorum is present at any such meeting, any action may be taken by an affirmative vote of a majority of the total votes cast at the meeting on the issue subject to a vote, except as otherwise expressly provided in the Act, the Declaration or these Bylaws.

Also, we do not have "Directors," just three officers. If the three officers have announced their official resignation at the end of the term, which means at the close of the annual meeting in December, then they cannot "delegate, appoint, or authorize" anyone to assume an officer's position. There is nothing in our Bylaws that allow for "acclamation," nor is their anything in our Bylaws that allow for temporary waivers.

Of course, I suspect someone could make the claim that since there is precedence for operating in violation of our Bylaws (no quorum for half the years of operation), what's to stop us for doing it (allowing the temporary waiver) in this "emergency" situation? Is it better to do that than incure legal costs by suing ourselves into receivership? This is not my position. I am just trying to forsee possible scenarios before I officially resign, which I've not done yet.

Dorothy,

Based on your posts, my advice would be to apply for relief through the courts and ask that a receiver be appointed.

Your problem is not that your members cannot govern themselves but, instead, you are hamstrung by horrendous bylaws that do not work and fail to address normal situations. Your various boards over the years certainly had the opportunity to rewrite the bylaws but did not for whatever reasons.

The fact that you have officers but no directors is strange, as is the provision for paying officers (who perform the duties of the directors), and the requirement of 50% of the owners for a quorum (many states allow as few as 10% to form a quorum).

You need a receiver who can, with the court's authority, rewrite your bylaws and maybe your declaration to reflect the reality of operating a condo association.

DorothyO,
If voting by proxy is allowed I would first knox on doors and get a petition signed by atleast the percentage of members required to call a Special meeting. The stated purpose of the Special members meeting would be to elect Board members to fill the open positions on the Board. The petition could also state the date, time and loction to hold the Special meeting. At the same time as getting the petition signed I would knox on enough doors to secure a sufficient number of proxies to achieve a quorum at that Special meeting and to assure the elections of members to the Board of Directors. This will require someone taking the lead; getting precommitments of member who would be willing to be candidates for the election of Board members, lots of preplanning; and putting up the funds needed for printing and mailing the notice of the Special meeting. If successful perhaps the new Board would reimburse all out of pocket expenses.

Larry

If there are some who care and are willing to try I see no need for receivership. Receivership can be a costly and time consuming process. I see it as the last course of action with most anything else being better maybe even including violating/bypassing the Bylaws for the greater good of the association.

D
How can people vote against someone? On a ballot for the BOD, you either do not vote, vote for someone or vote for someone else. There is not a vote against someone.

It is not like a ballot question such as do we pass this tax or not.

Dorothy, you should read the WA HOA statutes, they may provide the answers you seek. http://apps.leg.wa.gov/RCW/default.aspx?cite=64.38

RCW 64.38.040
Quorum for meeting.

Unless the governing documents specify a different percentage, a quorum is present throughout any meeting of the association if the owners to which thirty-four percent of the votes of the association are allocated are present in person or by proxy at the beginning of the meeting.

RCW 64.38.030
Association bylaws.

Unless provided for in the governing documents, the bylaws of the association shall provide for:

(1) The number, qualifications, powers and duties, terms of office, and manner of electing and removing the board of directors and officers and filling vacancies;

(2) Election by the board of directors of the officers of the association as the bylaws specify;

(3) Which, if any, of its powers the board of directors or officers may delegate to other persons or to a managing agent;

(4) Which of its officers may prepare, execute, certify, and record amendments to the governing documents on behalf of the association;

(5) The method of amending the bylaws; and

(6) Subject to the provisions of the governing documents, any other matters the association deems necessary and appropriate.

JohnC46, yeah, our ballots are goofy, but it is what it is and no one has ever challenged it. As for calling for volunteers from the floor (our docs are silent on this), or any other way, we have never NOT called for volunteers. Every year, before the ballots go out, and no one, I repeat, no one, except for me and the guy no one else wants anywhere near the Board ever volunteers. I have always had to reach out to individuals and ask to please serve. And it's not like this is a big, complicated association! Like I said, we only have 42 houses, one meeting a year, one Board meeting a year, unless there is an issue, one small park, no pool, tennis courts, etc., to maintain. It's a quiet, respectful, very beige neighborhood. Until every now and then, the same one guy who runs, decides to puff out his chest, pop off a few buttons in Libertarian outrage and and hang out his "Don't Tread on Me Flag," about this or that he thinks this "Hillary of the neighborhood," (that'd be me), has inflicted upon us. His diatribes, bad enough in their ill-informed, non-sensical content, and border-line illiterate form, smack everyone and anyone back behind their pretty front doors and six-foot high privacy fences in retreat from having to deal with this idiot. And that one irritation, infrequent as it may be, has been enough to maintain the stasis in management. Of course, there is always the very real knowledge that the reason problems are rare in the 'hood, is that the management is run extremely well. No one has to think about the street lights being maintained, or the park being mowed, or the garbage cans being stowed, or unsightly vehicles being parked. The covenants are being honored and enforced and that is want they want. Why rock the boat by volunteering?

Larry, we actually have amended the 0riginal 1992 Bylaws, in 2005, just not all of them. It might be interesting to not resign but work on clarifying these, as you say, near-impossible" Bylaws to a more coherent state, and presenting for approval to amend. As Glen revealed, we are actually in violation of the RCW HOA Act, by not clearly defining the procedure for officer election. HA! Scenario #10!!

RCW 64.38.030
Association bylaws.

Unless provided for in the governing documents, the bylaws of the association shall provide for:

(1) The number, qualifications, powers and duties, terms of office, and manner of electing and removing the board of directors and officers and filling vacancies;

(2) Election by the board of directors of the officers of the association as the bylaws specify;