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NancyD5 (Wisconsin)
Posts: 71
Posted:
For years our small condo association of 20 units has had an annual meeting where we elect board members and approved the proposed budget. Our Bylaws state that "the members may review and modify the proposed budget prior to the Board of Directors issuance of any assessments. So normally after group discussion at the meeting the members then vote on whether or not to approve the budget. The voting has always taken in person at the meeting and by proxy.

The situation I don't understand is that the newly elected board from last year has now sent out to us a "written" ballot rather than proxies and is also telling us that we must vote on the new Board and also on the proposed budget now and send the ballot back a week before our annual meeting. They also said that there will be NO voting at the meeting itself. This is certainly odd for us in that we are used to using proxies and having our questions answered and some clarification made on the new proposed budget before we vote on its approval.

Our Bylaws say under the heading "Annual Election of Officers/Directors, that "Officers of the Association shall be elected annually by the Members, at their annual meeting, or by written ballot in lieu of the annual meeting. And under the heading, "Vote by Written Ballot" it says “votes may be taken by written ballot in lieu of the annual meeting unless one-third (⅓) of the Members object in writing to the ballot and request that the annual meeting actually be held”.

With this information can anyone answer me if we have to blindly vote early like this without having any budget discussion or questions answered beforehand like we normally had at the actual annual meeting?

Thank You
ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By NancyD5 on 11/20/2023 5:18 PM
The situation I don't understand is that the newly elected board from last year has now sent out to us a "written" ballot rather than proxies and is also telling us that we must vote on the new Board and also on the proposed budget now and send the ballot back a week before our annual meeting. They also said that there will be NO voting at the meeting itself. This is certainly odd for us in that we are used to using proxies and having our questions answered and some clarification made on the new proposed budget before we vote on its approval.

Our Bylaws say under the heading "Annual Election of Officers/Directors, that "Officers of the Association shall be elected annually by the Members, at their annual meeting, or by written ballot in lieu of the annual meeting. And under the heading, "Vote by Written Ballot" it says “votes may be taken by written ballot in lieu of the annual meeting unless one-third (⅓) of the Members object in writing to the ballot and request that the annual meeting actually be held”.

With this information can anyone answer me if we have to blindly vote early like this without having any budget discussion or questions answered beforehand like we normally had at the actual annual meeting?
I think you are trying to ask the following --

-- Is voting as described above for the upcoming election and budget ratification yada a violation of the bylaws? In my opinion, yes, it is. Why? Because there is no "in lieu of" here. The board is either supposed to have the annual meeting and allow voting at it, or the board is supposed to cancel the annual meeting and just issue ballots (assuming one third of members do not object).

-- Do owners have to put up with this bylaw violation? No. Owners can write a polite but firm letter to the board informing them of the bylaw violation and instructing the board to fix this. Owners can also lawyer up. Lastly owners can start campaigning immediately to replace this board, possibly at the upcoming election.
KerryL1 (California)
Posts: 14,550
Posted:
I agreeing with Elle's reply...so far. Need a little more info.

In your documents, probably your Bylaws, how is "written ballots" defined? How are they supposed to be delivered to the Assoc.? To whom? How must they be tabulated? By whom? May owners watch the tabulation?

Are there by chance any elaborations in Wisc. nonprofit Corps Code? Or are there Wisc. HOA statutes?
NancyD5 (Wisconsin)
Posts: 71
Posted:
Thank you very much for your replies. Our documents do not have a definition for "written votes" and they say that the written votes are to have an addressed return envelope included in them. Our envelope says its going to the Secretary. There is nothing mentioned in the documents as to how they are to be tabulated or who can be present when they are tabulated.

I forgot to mention this other Bylaw which says: Proxies. In any vote taken of the Members of the Association, each Member may vote in person or by proxy. All proxies shall be in writing and filed with the Secretary of the Association either prior to or at the same time of the vote in question.

Hope this answers your questions
NancyD5 (Wisconsin)
Posts: 71
Posted:
Oops I forgot to add, the State Statues say nothing about voting and the Non-Stock Corporation just talks about the right to vote by proxy.
ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By NancyD5 on 11/20/2023 6:14 PM
I forgot to mention this other Bylaw which says: Proxies. In any vote taken of the Members of the Association, each Member may vote in person or by proxy. All proxies shall be in writing and filed with the Secretary of the Association either prior to or at the same time of the vote in question.

Quote:
Posted By NancyD5
Non-Stock Corporation just talks about the right to vote by proxy.


To review what the Wisconsin nonstock corporation statute says:

181.0724 Proxies. (1) RIGHT TO VOTE BY PROXY. Unless the articles of incorporation or bylaws prohibit or limit proxy voting, a member may appoint a proxy to vote or otherwise act for the
member by signing an appointment form either personally or by an attorney−in−fact.


"May" here translates to "has the legal right to."

Add these violations to the list of violations you ask the board to fix in your emotion-free, just-the-facts letter, sent certified mail, return receipt requested to the manager or board. In the letter remind the board that you believe failure to comply with the bylaws would likely result in the election being deemed legally invalid.

One other thing that may end up becoming relevant: According to the Bylaws and the association's Articles of Incorporation, who has the authority to amend the bylaws?

Keep in mind this from the Wi nonstock corporation statute:
181.1021 Amendment of bylaws by directors and members.
(1) BY BOARD. A corporation’s board may amend or repeal the corporation’s bylaws or adopt new bylaws except to the extent that any of the following applies:
(a) The articles of incorporation or any other provision of this chapter reserves that power exclusively to the members.
(b) The members, in adopting, amending or repealing a particular bylaw, provide within the bylaw that the board may not amend, repeal or readopt that bylaw.
(2) BY MEMBERS WITH VOTING RIGHTS. A corporation’s members with voting rights may amend or repeal the corporation’s bylaws or adopt new bylaws even though the board may also
amend or repeal the corporation’s bylaws or adopt new bylaws.
ElleN (Idaho)
Posts: 4,420
Posted:
Oops; add this important qualifier on amendments to bylaws, from the Wi nonstock corporation statute:
181.1022 Class voting by members on amendments of bylaws.
(1) WHEN CLASS ENTITLED TO VOTE. The members of a class in a corporation are entitled to vote as a class on a proposed amendment to the bylaws if the amendment does any of the following:
(a) Affects the rights, privileges, preferences, restrictions or conditions of that class as to voting, dissolution, redemption or transfer of memberships in a manner different than such amendment would affect another class.
(b) Changes the rights, privileges, preferences, restrictions or conditions of that class as to voting, dissolution, redemption or transfer by changing the rights, privileges, preferences, restrictions or conditions of another class.
[snippage]


See https://docs.legis.wisconsin.gov/statutes/statutes/181.pdf

In other words, the OP's board had better not get cute about its power to amend bylaws pertaining to owners' voting rights.
NancyD5 (Wisconsin)
Posts: 71
Posted:
First again I'd like to thank everyone for helping me to understand what our rights as members are. As far as what do our Bylaws say about amending Bylaws, this is what is written:

Section 6.2 Review of Budget. "The members may review and modify the proposed budget prior to the Board of Directors issuance of any assessments.

Section 6.3 Votes on Other Matters. "The members shall vote on amendments to these Bylaws and the Declaration and on such other matters as may from time to time be requested by the Board of Directors"

The written ballot that was sent to us also stated that if we don't return it by the deadline (7 days before annual meeting) our votes will not count.
We also just received a email yesterday saying he wanted to make it clear that there will be no voting taking place at the meeting. In our 15 years of existence we have never had our election and budget approval done is this way so a couple of us are baffled at this.

All feedback is very helpful. Thank you
NancyD5 (Wisconsin)
Posts: 71
Posted:
First again I'd like to thank everyone for helping me to understand what our rights as members are. As far as what do our Bylaws say about amending Bylaws, this is what is written:

Section 6.2 Review of Budget. "The members may review and modify the proposed budget prior to the Board of Directors issuance of any assessments.

Section 6.3 Votes on Other Matters. "The members shall vote on amendments to these Bylaws and the Declaration and on such other matters as may from time to time be requested by the Board of Directors"

The written ballot that was sent to us also stated that if we don't return it by the deadline (7 days before annual meeting) our votes will not count.
We also just received a email yesterday saying he wanted to make it clear that there will be no voting taking place at the meeting. In our 15 years of existence we have never had our election and budget approval done is this way so a couple of us are baffled at this.

All feedback is very helpful. Thank you

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