Election by Acclamation - multiple questions

Started by JanineR • 15 replies • 312 views

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JanineR (Tennessee)
Posts: 259

Posted:

Election by acclimation may or may not work with our bylaws

We have 4 open seats and 4 candiates

First question is:

If there is only 4 candiates at the time of voting, must each member vote for 4?

Our bylaws read as follows:
-------------------
(b) The election shall be by ballot and by a plurity of the votes cast, each member voting must cast his or her vote(s) for as many nominees as there are vacancies to be filled, but there should be no cumulative voting.
-------------------

Does that mean if Joe, Jane, Jim, and John are on the ballot,
Member Mary can't vote for Joe, Jane and Jim, but say no to John. Her option is to choose all 4?/b>

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By JanineR on 09/24/2023 11:18 AM
Election by acclimation may or may not work with our bylaws

We have 4 open seats and 4 candiates

First question is:

If there is only 4 candiates at the time of voting, must each member vote for 4? ''
Ou'
Our bylaws read as follows:
-------------------
(b) The election shall be by ballot and by a plurity of the votes cast, each member voting must cast his or her vote(s) for as many nominees as there are vacancies to be filled, but there should be no cumulative voting.
-------------------

Does that mean if Joe, Jane, Jim, and John are on the ballot,
Member Mary can't vote for Joe, Jane and Jim, but say no to John. Her option is to choose all 4?/b>

If cumulative is not allowed, you just can't give more than one vote to any candidate but you don't have to vote for all 4. If you only like 1 candidate, you could give one vote to him/her and none to the others. Or of you like only 2, you could give 1 vote to each. You just can't give more than one to any candidate.

KerryL1 (California)
Posts: 14,550

Posted:

Jeanine asks:" If there is only 4 candiates at the time of voting, must each member vote for 4?" Owners may cast (only) one vote for any candidate they wish. Terri explains this well.

Our HOA has openings for 3 candidates and only three applied. I only voted for two because I think the 3rd--an incumbent-- is a lousy director. I'm hoping other will not vote for him too and MAYBE send him a message to improve. Sigh.

The wording in the Bylaw is very poor by stating a voter "must" cast a ballot "for as many nominees as there are vacancies to be filled." Was this wording actually written by an attorney? I do not believe any higher level TN statute--say corporate codes-- forces voters to vote for a particular candidate.

Whoever counts the votes should count all that were cast. I'm pretty sure there will be different totals because not every voter will vote for all 4 candidates.

JanineR (Tennessee)
Posts: 259

Posted:

Our Bylaws are 20 years old, written by the Delevoper's attorney at the time, which then transitioned into Condo.

They are poor and outdated. A lot of them need to be rewritten, but they are still our current standard until 67% of members change them.

This is where the debate is:

Quote:
Posted By KerryL1 on 09/24/2023 11:54 AM
a voter "must" cast a ballot "for as many nominees as there are vacancies to be filled."

currently it does say a voter "must" cast a ballot "for as many nominees as there are vacancies to be filled."

Bylaws say:
each member voting must cast his or her vote(s) for as many nominees as there are vacancies to be filled

There are 4 vacanices to be filled, so does "as many as" equal = 4?
What would be the meaning of "as many as"?

TN statutes generally say refer to bylaws.

I'm not looking for a certain outcome, just differant sides of the debate.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By JanineR on 09/24/2023 12:26 PM
Our Bylaws are 20 years old, written by the Delevoper's attorney at the time, which then transitioned into Condo.

They are poor and outdated. A lot of them need to be rewritten, but they are still our current standard until 67% of members change them.

This is where the debate is:

Posted By KerryL1 on 09/24/2023 11:54 AM
a voter "must" cast a ballot "for as many nominees as there are vacancies to be filled."

currently it does say a voter "must" cast a ballot "for as many nominees as there are vacancies to be filled."

Bylaws say:
each member voting must cast his or her vote(s) for as many nominees as there are vacancies to be filled

There are 4 vacanices to be filled, so does "as many as" equal = 4?
What would be the meaning of "as many as"?

TN statutes generally say refer to bylaws.

I'm not looking for a certain outcome, just differant sides of the debate.

This must have been a mistake; otherwise, the election itself would have no meaning and there would be no winner. I think the word meant is plurality, and there can be no majority if all candidates get the same number of votes.

TerriS6 (California)
Posts: 3,284

Posted:

Does TN have HOA laws? If not, check your corporations code re elections for clarification since the law would override your governing documents.

TerriS6 (California)
Posts: 3,284

Posted:

Also, the word "vote" would have no meaning if the HOA required you to vote for the 4 candidates. Voting is your individual right and no plurality could be reached without it.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

I say that with 4 vacancies and only four running, there does not need to be an election. Nomination by Acclamation.

ElleN (Idaho)
Posts: 4,420

Posted:

-- Is absentee voting allowed?

-- Are nominations from the floor allowed?

-- Do the bylaws state that the board can amend the bylaws?

-- What exactly do the bylaws say about amending? I ask this because, depending on the bylaws wording, the Tn Nonprofit Corporation statute may have something to say about amending.

-- To me the problem that arises is when there are x openings on the board and an owner only votes for y, with y being less than x. Is the ballot disqualified? Arguably yes. How to deal with this so there is as little conflict as possible? Instruct owners that the bylaw says what it says. If they do not want to vote for a candidate, then they must write-in the name of a fellow owner. Inform owners that ballots not complying with the requirement in the bylaws (as quoted above) will not be counted.

TerriS6 (California)
Posts: 3,284

Posted:

Acclamation is vocal, not written.

JanineR (Tennessee)
Posts: 259

Posted:

Quote:

Posted By TerriS6 on 09/24/2023 12:38 PM
Does TN have HOA laws? If not, check your corporations code re elections for clarification since the law would override your governing documents.

There are two acts that apply to our association, the first being the Tennessee Hortizonal Act, the second being Tennesse Non Profit.

https://law.justia.com/codes/tennessee/2019/title-48/nonprofit-corporations/chapter-57/part-2/section-48-57-204/

Quote:
Posted By ElleN on 09/24/2023 2:58 PM
-- Is absentee voting allowed?

-- Do the bylaws state that the board can amend the bylaws?

-- What exactly do the bylaws say about amending? I ask this because, depending on the bylaws wording, the Tn Nonprofit Corporation statute may have something to say about amending.

The board can not change these bylaws, it requires 67% vote from the members to change the master deed or bylaws.

Quote:
Posted By ElleN on 09/24/2023 2:58 PM
-- Is absentee voting allowed?

-- Are nominations from the floor allowed?

-- To me the problem that arises is when there are x openings on the board and an owner only votes for y, with y being less than x. Is the ballot disqualified? Arguably yes. How to deal with this so there is as little conflict as possible? Instruct owners that the bylaw says what it says. If they do not want to vote for a candidate, then they must write-in the name of a fellow owner. Inform owners that ballots not complying with the requirement in the bylaws (as quoted above) will not be counted.

We have a community where most people do not live there, therefore virtual meetings get the best quorum, which is allowed.
The deadline to submit nominations passed a few weeks ago. But since our bylaws are silent on taking nominations from the floor, to be safe the chair will ask if there are any nominations from the floor. For the sake of this debate, let's assume there is not, and that there are only four nominations for four empty seats.

Quote:
Posted By ElleN on 09/24/2023 2:58 PM
-- Is absentee voting allowed?

-- To me the problem that arises is when there are x openings on the board and an owner only votes for y, with y being less than x. Is the ballot disqualified? Arguably yes. How to deal with this so there is as little conflict as possible? Instruct owners that the bylaw says what it says. If they do not want to vote for a candidate, then they must write-in the name of a fellow owner. Inform owners that ballots not complying with the requirement in the bylaws (as quoted above) will not be counted.

We have electonic ballots, so turning on min of 4 works so they can't choose 3. If that is the way to go.

If they have to choose 4, and there are only 4 choices, it does seem a waste of their time to vote in an uncontested election, where the chair simpy says
""Without objection, all nominees to be elected as Directors are elected by acclimation since the number of nominees is no greater than positions to be filled."
However, the bylwas say vote must be by ballot: "The election shall be by ballot and by a plurity of the votes cast"

New question:
Pluratity or Majority?
The bylaws say pluratity, but the non-profit code says
"If a quorum exists, action on a matter by a voting group is approved if the votes cast within the voting group favoring the action exceed the votes cast opposing the action, unless the charter, bylaws or chapters 51-68 of this title require a greater number of affirmative votes."
https://law.justia.com/codes/tennessee/2019/title-48/nonprofit-corporations/chapter-57/part-2/section-48-57-204/

So lets say the quorum is 40, it would seem that at least 21 people would need to vote the 4 new directors in? Thoughts?

TerriS6 (California)
Posts: 3,284

Posted:

I think your last code section reference does not refer to director elections.

JanineR (Tennessee)
Posts: 259

Posted:

Quote:

Posted By TerriS6 on 09/24/2023 4:30 PM
I think your last code section reference does not refer to director elections.

You are correct.

https://law.justia.com/codes/tennessee/2019/title-48/nonprofit-corporations/chapter-58/part-1/section-48-58-104/

So then the bylaws stand, and it is plurity not majority of the vote of the members present

JanineR (Tennessee)
Posts: 259

Posted:

So basically, let’s say there are 50 members in 'person' or present.
Even after asking the floor, there are still 4 nominees for 4 open positions.

Vote needed or not:
Since the bylaws say votes must be by ballot, then we still have to go through the vote process, which takes time,
instead of simply announcing an uncontested vote and election by acclimation which would be simpler

Must choose 4:
Joe, Jane, Jim, and John
Can't choose just Joe, Jane, Jim as the bylaws say "each member voting must cast his or her vote(s) for as many nominees as there are vacancies to be filled"
and there doesn't seem to be any state statutes that supercede that

Plurality not Majority
Bylaws say "The election shall be by ballot and by a plurality of the votes cast"
So the threshold is not 26 out of the 50 members present. It is just any plurality.
For example, if there were 5 nominees for 4 open positions, then it would be the most popular 4 out of the 5. They would not have to have majority of votes.

Apologies for:
a) Misspellings
b) Our lousy Bylaws
c) Repeating the same things in different ways to get different opinions

Thanks for your thoughts

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By JanineR on 09/24/2023 4:40 PM

https://law.justia.com/codes/tennessee/2019/title-48/nonprofit-corporations/chapter-58/part-1/section-48-58-104/

For future reference, this is not necessarily the latest version of the statute. Note the date in the link. Justia lists the 2021 version of the statute, which may or may not reflect the latest changes to the statute.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By JanineR on 09/24/2023 4:13 PM

The board can not change these bylaws, it requires 67% vote from the members to change the master deed or bylaws.

From the Tn Nonprofit Corporation Act:

Section 48-60-202 - Amendment of bylaws by board of directors or members
(a) A corporation's board of directors may amend or repeal the corporation's bylaws unless:
(1) The charter or chapters 51-68 of this title reserve this power exclusively to the members in whole or in part; or
(2) The members in amending or repealing a particular bylaw provide expressly that the board of directors may not amend or repeal that bylaw.

"Charter" is synonymous with the Articles of Incorporation.

To establish whether the Board has the legal right to amend the bylaws, you would have to quote verbatim what, if anything, the corporate charter says about amending the bylaws.

Quote:
Posted By JanineR on 09/24/2023 4:13 PM
The deadline to submit nominations passed a few weeks ago. But since our bylaws are silent on taking nominations from the floor, to be safe the chair will ask if there are any nominations from the floor.
At the moment I do not consider this "safe." This is because "permitting nominations from the floor" creates a rule without a basis in the governing documents.

Quote:
Posted By JanineR on 09/24/2023 4:13 PM
If they have to choose 4, and there are only 4 choices, it does seem a waste of their time to vote in an uncontested election, where the chair simpy says
""Without objection, all nominees to be elected as Directors are elected by acclimation since the number of nominees is no greater than positions to be filled."
However, the bylwas say vote must be by ballot: "The election shall be by ballot and by a plurity of the votes cast"
I tend to agree that the wording in the bylaws says the vote must still happen (so election by acclamation is not allowed).

Quote:
Posted By JanineR on 09/24/2023 4:13 PM
New question:
Pluratity or Majority?
The bylaws say pluratity, but the non-profit code says
"If a quorum exists, action on a matter by a voting group is approved if the votes cast within the voting group favoring the action exceed the votes cast opposing the action, unless the charter, bylaws or chapters 51-68 of this title require a greater number of affirmative votes."
https://law.justia.com/codes/tennessee/2019/title-48/nonprofit-corporations/chapter-57/part-2/section-48-57-204/
I do not think this section applies. Why? Because in a board election, people are not casting votes opposing a candidate. Contrast this with say a vote for adding a covenant/restriction like "no smoking in the common areas." The ballot would offer people the chance to vote yes or no.

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