Can your Voting Ballot change on Election day

Want to ask a simpler version of my last question.

Do any associations allow the voting ballot "articles" to be changed/modified on the day of the election?

My association does and it causes issues especially with "directed proxies", but I this ISN'T a proxy question.

At our annual meeting each voting ballot article is debated. A motion from the floor to tweak/change the wording of an article happens on about 10% of the articles.

My feeling is the voting ballot should not be allowed to change on the day of the vote. Seems crazy to me, but wanted to see if others do this as well.

Thanks
John

Our controlling instruments include by-laws, usage regulations and our declaration. So a ballot article could be related to any of these documents.

For example.

Article 1 - New by-law to restrict outdoor fires after 10pm.

In our HOA this article could be changed/modified by a floor motion/vote right before the vote. So, the owners could vote to change the article on election day to something like this.

New/changed Article 1 - New by-law to restrict outdoor fires after 1AM.

The ability to change an article right up to the minute of the vote on said article causes many issues.

Thanks
John

Thanks, You are extemely helpful as always.

And once again, you identified the issue I'm trying to resolve. My directed proxy is voting on specific wording that shouldn't change. We currently allow the article to change and that has people saying "directed" proxies can't be used. My argument is that 2 wrongs, don't make a right. directed proxies can't be denied, the law protects my rights to vote.

Sounds like we are conducting our elections like nobody else and the process needs to change.

Thanks
John

Not sure if it's Tim's point, but many states have statutes about how much time must occur between when a notice is sent to Owners about what is on an agenda, and the meeting to vote for directors or for changes to the governing documents. Your Bylaws may have this required notice period in them too. Notice is required so that all Owners have time to make arrangements to vote.

I have never heard of an HOA in which a brand-new motion to change anything in the declaration or bylaws is introduced AT the meeting and owners vote on it. Again, most states have notice requirements.

Your declaration (CC&Rs) states in it the % of owners who must vote to approve any amendments You must adhere to that. It might be very high, e.g., 67% or 75%.

Your Bylaws have within them what % of Owners must vote to approve amendments. Often that is just 50% + 1. In some associations, the Board alone may amend Bylaws. By the way, when fires can be restricted is not normally found in bylaws, but in your "usage regulations," which many HIs call Rules & Regulations. Generally, only the board needs to act to amend Rules.

I was unable to follow your previous post because of terms like " voting ballot 'articles,'" which don't have any mean in HOA life.

Are you on the board? What size is your assn.?

The above bold is the answer so no, changes cannot be made at the meeting. Typically owners must receive a copy of the Meeting Agenda. In our case, 30 days before.

Thanks for the response,

I am a member of the robert's rules forum you mentioned. When I asked a question about "directed proxies" on the Robert's Rule forum the unanimous response I received was that they can't comment on "proxies" since proxies are not allowed in a Roberts rule meeting. I use both forums and both are very good.

I agree that Robert's Rules are subservient to our by-laws, but according to the lawyer I spoke with Robert's rules prevails UNLESS our by-laws state something different. So, our by-laws prevail, but if the by-laws are silent on an issue then Robert's rules prevail.

Thanks
John

To say that Robert's Rules prohibits the use of proxies is flatly incorrect.

Do you have a copy of Robert's Rules of Order, Newly Revised? If not, then since it is not on the internet (except for excerpts here and there, go to your library and get one.

To repeat from the other thread:

RONR 45:70-71 - "Proxy Voting. A proxy is a power of attorney given by one person to another to vote in his stead; the term also designates the person who holds the power of attorney. Proxy voting is not permitted in ordinary deliberative assemblies unless the laws of the state in which the society is incorporated require it, or the charter or bylaws of the organization provide for it. Ordinarily it should neither be allowed nor required, because proxy voting is incompatible with the essential characteristics of a deliberative assembly in which membership is individual, personal, and nontransferable. In a stock corporation, on the other hand, where the ownership is transferable, the voice and vote of the member also is transferable, by use of a proxy. But in a nonstock corporation, where membership is usually on the same basis as in an unincorporated, voluntary association, voting by proxy should not be permitted unless the state’s corporation law—as applying to nonstock corporations—absolutely requires it.

If the law under which an organization is incorporated allows proxy voting to be prohibited by a provision of the bylaws, the adoption of this book as parliamentary authority by prescription in the bylaws should be treated as sufficient provision to accomplish that result (cf. 56:49n1)."

To really break this down for you: Note the qualifiers "ordinary," "ordinarily" and "on the other hand" above. These phrases are indicating that a stock corporation (which a HOA/COA is) is not ordinary when it comes to deliberative assemblies.

You know who cannot use proxies? The U. S. Congress. State Legislatures. City Councils.

HOAs/COAs are in a different category of governance. Like many (all?) corporations with shareholders, proxies are usual.

I have found the main value of https://robertsrules.forumflash.com/ is when posters there cite specific sections of Robert's Rules. Folks there otherwise IMO tend to be ignorant of the HOA/COA legal structure and corporate law. Lke the little factoid that HOAs/COAs are for the most part, stock corporations. It's a shame, because many HOA/COA members post to forumflash, and they are getting bad information, typically based solely in Robert's Rules without an understanding of what is usual for HOA/COA Bylaws and state statutes. The better posters at forumflash qualify their remarks, but because the better posters are pretty clueless about the legal structure of HOA/COAS, the qualifications are not emphatic. Instead, the qualifications are extremely easy for those new to HOA/COA structure to miss.

Do you need the specific section of Robert's Rules that states that Robert's Rules is subservient to state law?

What is your question at this point?

Please understand that what some of the people here at hoatalk.com are posting is a result of years of study of governing documents, state law, a bit of case law, and exchanges with HOA/COA attorneys. It may take awhile for things to make complete sense to you.

I do recommend that you start adopting the position of asking whomever making whatever claim to show you where it says such-and-such.

Did you show this attorney, who claims that changes can be made to amendments right up to the vote, Bylaw 10-100? To review:

10-100 Amendments to the By-Laws. 𝗧𝗵𝗲𝘀𝗲 𝗕𝘆-𝗟𝗮𝘄𝘀 𝗺𝗮𝘆 𝗯𝗲 𝗮𝗺𝗲𝗻𝗱𝗲𝗱 𝗮𝘁 𝗮𝗻𝘆 𝗿𝗲𝗴𝘂𝗹𝗮𝗿 𝗼𝗿 𝗦𝗽𝗲𝗰𝗶𝗮𝗹 𝗠𝗲𝗲𝘁𝗶𝗻𝗴 𝗼𝗳 𝘁𝗵𝗲 𝗔𝘀𝘀𝗼𝗰𝗶𝗮𝘁𝗶𝗼𝗻, 𝗽𝗿𝗼𝘃𝗶𝗱𝗲𝗱 𝗮 𝗰𝗼𝗽𝘆 𝗼𝗳 𝘁𝗵𝗲 𝗽𝗿𝗼𝗽𝗼𝘀𝗲𝗱 𝗮𝗺𝗲𝗻𝗱𝗺𝗲𝗻𝘁 𝗵𝗮𝘀 𝗯𝗲𝗲𝗻 𝗶𝗻𝗰𝗹𝘂𝗱𝗲𝗱 𝗶𝗻 𝘁𝗵𝗲 𝘄𝗿𝗶𝘁𝘁𝗲𝗻 𝗻𝗼𝘁𝗶𝗰𝗲 𝗼𝗳 𝘁𝗵𝗲 𝗺𝗲𝗲𝘁𝗶𝗻𝗴

Dig in. Make the attorney explain in plain English why he says what he says.

Granted HOA/COA directors tend to be unskilled, and you may be fighting a losing battle on the realpolitik front.

Two things matter here: (1)𝗧𝗵𝗲𝘀𝗲 𝗕𝘆-𝗟𝗮𝘄𝘀 𝗺𝗮𝘆 𝗯𝗲 𝗮𝗺𝗲𝗻𝗱𝗲𝗱 𝗮𝘁 𝗮𝗻𝘆 𝗿𝗲𝗴𝘂𝗹𝗮𝗿 𝗼𝗿 𝗦𝗽𝗲𝗰𝗶𝗮𝗹 𝗠𝗲𝗲𝘁𝗶𝗻𝗴 𝗼𝗳 𝘁𝗵𝗲 𝗔𝘀𝘀𝗼𝗰𝗶𝗮𝘁𝗶𝗼𝗻, (2) 𝗽𝗿𝗼𝘃𝗶𝗱𝗲𝗱 𝗮 𝗰𝗼𝗽𝘆 𝗼𝗳 𝘁𝗵𝗲 𝗽𝗿𝗼𝗽𝗼𝘀𝗲𝗱 𝗮𝗺𝗲𝗻𝗱𝗺𝗲𝗻𝘁 𝗵𝗮𝘀 𝗯𝗲𝗲𝗻 𝗶𝗻𝗰𝗹𝘂𝗱𝗲𝗱 𝗶𝗻 𝘁𝗵𝗲 𝘄𝗿𝗶𝘁𝘁𝗲𝗻 𝗻𝗼𝘁𝗶𝗰𝗲 𝗼𝗳 𝘁𝗵𝗲 𝗺𝗲𝗲𝘁𝗶𝗻𝗴.

1. The easy one. Bylaws articles or sections can only be amended (changed) at certain kinds of meetings of Owners (Special mtg. or regular meeting of the assn.)

2. Every single proposed Bylaw amendment /change must be in writing in the written notice AND AGENDA sent to Owners at the required 21 days before the meeting. Once that notice with all of the proposed changes listed on the agenda is sent to Owners, nothing different about any Bylaws articles can happen at the meeting. Owners may only vote on the amendments' wording that's listed in the notice & agenda that Owners received.

Is the attorney you're asking an HOA attorney? Or some other kind?

You wrote, JohnC re: Tim's point: " Our annual meeting agenda has to be sent out 21 days prior to the annual meeting. The agenda can't be changed after the 21 day window closes. If the agenda is changed then the notification clock is reset and the annual meeting date might have to change to meet the 21 day notification requirement."

Before you see the attorney and given your healthy newbie skepticism that people here are telling the truth, I suggest you google and see the buzillion law firm sites that give the hierarchy of documents that is so frequently given at this forum and which was reproduced in one of your threads yesterday.

Interesting post. Thanks

Thanks, now I have an ice cream head ache! I'm stuck on a few words.

We have a long history of allowing day of meeting changes to properly noticed articles. A few years ago the owners/voters got confused after an article was changed/amended at the meeting. The owners were so confused that they voted to eliminate dogs from the park. The association attorney running the meeting told the President what just happened and the President made a motion to reconsider the vote.

I used another example on our social media page. On the day of the annual meeting all the "dog lovers" were at the dog lovers convention. This left only the "dog haters" being in attendence during the annual meeting.

In our environment, if we had an article on the properly noticed agenda to "limit dogs to 2 per condo" this article could be changed/amended at the meeting by the "dog haters" to say "limit dogs to ZERO per condo". The "dog haters" could remove all dogs from the park without the "dog lovers" even being notified of the vote.

Convincing owners our system is messed up is my challenge.

THanks
John

Thanks,

I am stepping up and running for the BOD. 3 seats are open and 4 candidates running for them. 3 of the candidates are current BOD members, 2 of which were NOT ELECTED, but appointed to a 6 month term2 to fill 2 vacancies.

John

So in this case, your bylaws “state otherwise” because you can only vote on amendments with 21 days notice.

David is correct, JohnC73. Whatever the written notice & agenda of the meeting says, is solely what is permitted at the meeting. ZERO can be added or changed to that agenda.

Robert's is subservient to your Bylaws as Robert's itself says repeatedly.

Thanks to you and all the other responders. You have confirmed what I believed to be true. I posted here because I wanted to be at least 90% sure before I challenged the BOD/Secretary on this. Not sure how the policital current is in other associations, but I am going to be portrayed as the bad guy here. I'm also running for the BOD, so have to chose my battles wisely, but this is one worth fighting for regardless of the BOD election.

Thanks
John

I predict the HOA will not change how the HOA does things for owners' meetings based on what the OP "explains" to the Board. I am so sure that I am ready to bet money on it.

Thanks. I agree.

John

I am admittedly a newby, no denying that. If I had full command of all of the intricacies of Condo living I would have no need to come to this page and ask a quesiton. I'm trying to learn and sorry if you are offended by that. I assumed, perhaps incorrectly, that this forum was to ask quesitons.

My Condo association is a vacation property and not residential. We have no full time residents and most of the owners are weekend warriors that spend about 50 days a year at the condo. 95% of the owners do not even pay attention to the politics in the park and up until just a few years ago the BOD didn't even follow the law. An owner(not me) challenged the BOD in court and now they have to follow the law.

My initial quesiton was very simple. Just asked if other association allowed day of meeting changes to proposed by-law articles. The overwhelming response was "NO". Armed with this response I am now diving deeper to figure out how to fix our process.

Do you know what "a-hole" means?

no worries, you were right about my lack of knowledge, that is why I cam here.

I have done some additional reseach and have different, contradicting responses on the Roberts rules forum. And yes, I am consulting a lawyer as now I'm not sure.

First, here is the Robert's rules excerpt that states that amendments to proposals are allowed. The caveat is that the changes/amendments have to be within scope of the original, properly noticed article. I didn't post the entire excerpt from RROO, would have taken over the post.

57:10      While amendments to a proposed bylaw amendment can be made in both the first and the second degrees (as applicable) and can be adopted by a majority vote without notice, they are subject to restrictions on the extent of the changes they propose.

57:11      If the bylaws require previous notice for their amendment (as they should), or if they do not but notice has been given and a majority of the entire membership is not present, no amendment to a bylaw amendment is in order that increases the modification of the article or provision to be amended (see 35:2(6)). This restriction prevents members from proposing a slight change and then taking advantage of absent members by moving a greater one as an amendment to the amendment.

Thus, if the bylaws place the annual dues of members at $10 and an amendment is pending to strike out 10 and insert 25, an amendment to change the 25 to any number between 10 and 25 would be in order, but an amendment to change the number to less than 10 or greater than 25 would not be in order, even with unanimous consent. Had notice been given that it was proposed to increase the dues to more than $25 or to reduce them below $10, members who opposed such a change might have attended the meeting to vote against the amendment.

So I have mixed opinions. I like the opinion I received here the best that we SHOULD NOT change things the day of the annual meeting.

The Roberts Rules forum told me that 'day of meeting" changes to proposed by-law changes are perfectly legal and don't violate our by-law stating that written notice is required. The "day of meeting" changes have to be within scope of the written proposal. So, I couldn't take a proposal to limit dogs to 2 per site and change it do say "no dogs. That would be outside of the scope of the original article.

The big question is what to do with "directed proxies" now. The scope of the article can't change, so a reasonable person would come to the conclusion that the "directed proxy" vote wouldn't change.

Thanks again
John

Thanks,

i agree 100%.

Today I learned this thing called "scope" and that day of meeting changes had to be within scope of the properly noticed article. Is this true or just the opinion of the Robert's rule forum - who knows. What are the chances that the BOD, owners or even the lawyer moderating the meeting knows about this limitation? I can say from experience at my association that nobody knows about "scope of change". It is good information, but just makes things much more difficult. Who determines if a proposed amendment to a by-law proposal is within scope. The annual meeting is like breathing out of a firehose. Things happen fast and people vote without much thought.

You mentioned if a proposed change has Zero effect on the article then it might be lawful. I'm thinking if the proposed change has Zero effect then "directed proxy" votes should count.

My overarching goal with my original quesiton was how to handle "directed proxies" in the event of a 'day of meeting' change. The BOD wants to thrown them out, now I think we just keep them as the scope of the proposal has to stay the same.

I agree with the Roberts Rules forum. I typcally just search and don't post, but today I posted.

I guess at this point I need a lawyer or just live with things as is. The better I understand it the more I'm thinking just live with it.

Thanks again
JOhn

Thanks,

Yes, I was thinking that if the Scope of the proposal can not change then it stands to reason that the "directed proxy" vote should also not change or be voided.

This is way over complicated and simplified by simply NOT ALLOWING amendments on election/meeting day.

I just looked back at our meeting archives and I see that we have broken the "scope" requirement many times on amendments.

Looking at this from a legal challenge perspective, it sounds expensive and maybe not worth it for the < 10% of the articles that might get changes. The $$ would be coming out of my pocket or the group that I'm working with.

Thanks
John

Thanks for going the extra step and looking at my Roberts rules forum post.

This is why I'm not a lawyer - lol. Nothing is clear cut and one could argue either side of this issue and probably make a good case.

The only thing I know for certain is that 95% or greater of the association owners probably don't care. This is a vacation destination and they consider it their "happy place". I was one of those owners for my first 10 years of ownership, then a friend became BOD president and he nominated me for Secretary. I was clearly over my head, but was willing to learn and I have been trying to learn ever since.

Thanks
John

That is funny and now you understand my ice cream headache. I can't win here, the case is a coin toss.

My reading of John's RRForum example is that some Bylaws or state codes were potentially violated. THEY are legal documents. Robert's is not. Joh, Robert's are procedures to follow at meetings. CONTENT is not determined by Robert's but by your documents and state codes., e.g., motions, 2nds, tabling, etc.

In my opinion, you've gotten too hung up on Robert's, by far. You already have notice requirements, why search further? Why get further & further into some weeds that aren't helping, imho.

1. There was no 21-day notice of THIS Bylaw amendment. "Scope" seems to be irrelevant.

2. There most likely were not 2/3 of all Owners at the meeting to vote on this "invalid" amendment to the properly-noticed agenda items. Pretty sure that NH requires 2/3 of owners, not 2/3 of voters to approve amendments to Bylaws.

John, do you have a plan? Will you, for instance, take a written opinion from the HOA attorney you'll meet with soon to the Board? And to the HOA's attorney?

I wish I could go back and review all of your writing on this topic, John, but I'm in the middle of some serious HOA stuff myself. It's not that I'm THAT busy but I am very slow.

Kerry,

I agree, I was getting too hung up on Robert's Rules. That is because I lack the confidence that comes from experience and education that you and Augustin have. You have cemented in my head that Robert's Rules are simply procedures to follow and not legal rules. Our by-laws and the NH Condo act ALWAYS overrule any of the procedural guidance of Roberts Rules.

Thanks
John