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Voting irregularities

Started by JanS4 • 28 replies • 1736 views

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JanS4 (Michigan)
Posts: 14
Posted:
Our Condominium Bylaws state: "Votes may be cast in person or by proxy."

The BOD has now called for a vote to amend the Bylaws and included with the notice of meeting was a "Consent of Members" form requiring the date, name, address, and signature. The notice stated "Failure to vote in person or by proxy at the meeting, or failure to return a vote by October 28, 2008 will constitute a vote for approval of the adoption of the Restated and Amended Bylaws."

Amendment of the Bylaws requires the consent of 2/3 of our 174 unit owners in our 55+ community. The proposed Restated and Amended Bylaws is a 40 page document, written in legal mumbo-jumbo which the majority of our seniors cannot understand.

The "Consent of Members" form is not permitted by our documents. Counting a failure to vote as approval, IMO is definitely illegal.

Any suggestions as to what can be done to prevent this voting procedure?

SusanW1 (Michigan)
Posts: 5,202
Posted:
Ask your board WHERE they get the power to impliment this voting procedure.

The entire vote can be declared illegal and null and void if this isn't done according to your documents.
MikeS1
Posts: 668
Posted:
Obviously, it would appear that their attorney didn't write this. I seriously doubt that this will fly. It would seem that this goes against the Bylaws and if this is already addressed in the docs, wouldn't they need a 2/3's vote from all the members in order to do this?
BrianB (California)
Posts: 2,820
Posted:
i believe they can't do that...
ask the board if they would be willing to vote on the following:

With approval of the members of the HOA, the board will be taken outside on Monday, November 3rd, and beaten severely with a weed whacker until dead.

Remember, failure to cast a vote counts as a "yes" vote!

failure to cast a vote is failure to cast a vote. it is a withdrawl, not an approval. They cannot count those who do not participate as positive votes.
KirkW1 (Texas)
Posts: 1,665
Posted:
Wow, I know that there is nothing really new. But I would just never have guessed that I would really hear about this happening as often as it comes up. Unfortunately, your Board is not the first to come up with this idea.

The idea is at its heart a violation of the democratic process. An attorney would surely suggest not pursuing a defense of this action.

I would write a letter to the Board pointing out that for a vote to be legal they must secure the required number of yes votes. And that there is no legal means of turning a lack of vote to the affirmative. Further express concern that you would rather they seek a legal opinion before a lawsuit is filed.

Another point is that a suit might even win if enough people to otherwise make a quorum actually vote.
SusanW1 (Michigan)
Posts: 5,202
Posted:
The only time that I've seen this is when you REFUSE to take a breathalyzer - by saying no you mean, yes - you are guilty!

I would feel better if the Board had asked for a returned proxy in order that the Board could cast the vote as they see fit.

But to put parameters on the voting process that say if you don't vote, it's considered a YES vote is just not proper. Probably illegal.
JohnK3 (Pennsylvania)
Posts: 967
Posted:
>>>Amendment of the Bylaws requires the consent of 2/3 of our 174 unit owners in our 55+ community.<<<

Sounds pretty clear and unambiguous.

Somebody hawking the theory "We have your consent if you don't consent" is beyond ridiculous.
MikeS1
Posts: 668
Posted:
Maybe the BOD needs to be checked with a breathalyzer.
JanS4 (Michigan)
Posts: 14
Posted:
Thanks to all for your replies. I guess the best thing to do is sit tight, because it is highly unlikely that 2/3rds (116)of the unit owners will show up at the meeting to vote and the board members will not be soliciting proxies as they believe the "Consent" form is legal.

IF, the vote fails, can the BOD schedule another vote once they are informed by an attorney that what they did was illegal?

Again, thanks - Jan
SusanW1 (Michigan)
Posts: 5,202
Posted:
Don't even wait that long.

At the meeting, BEFORE the vote is taken, stand up and say,

"Mr. Chairman, I'd like to make a "Point of Order" on this motion. The voting system proposed by the Board for this motion is wrong and against all parliamentary procedures and our bylaws and the not for profit corporation laws. Every member is entitled to his/her own vote. The Board cannot take that vote away or claim it, or distort it, or assign it a YEA or NAY status. Therefore, this voting method proposed by the board for this motion is illegal and the motion must be withdrawn."

And Yes - this motion can be made again at another meeting.

KirkW1 (Texas)
Posts: 1,665
Posted:
I would seriously write to the Board and tell them that you do not believe this is legal. If you have a Property Manager (or M firm) then you should copy them as they will certainly tell the Board that this maneuver won't pass legal muster.

You could also look to collect directed proxy votes. I would print up a simple statement along the lines of the following:

I ______ a member and resident of "Wonderful Community" do hereby appoint JanS4 to serve as proxy on my behalf. This proxy is further directed to be cast as a "no" vote in relation to the approval of the restated documents. blah blah blah.

Name
Address
Date

If you want to further stir things up, then collect a petition for recall at the same time. I would be very inclined to recall our Board if they went for such a bone headed idea.
GlenL (Ohio)
Posts: 5,491
Posted:
If you think claiming a non-vote is a yes vote is bad, this is what our BOD tried to do about 10 years ago supposedly under advice of our attorney, only they could not provide it in writing:

The Xxxxx Xxxx Board of Trustees will be asking for a vote from unit owners (1 vote cast per unit) on the shared facility proposal. The unit owner is entitled to (1) one vote All ballots that unit owners do not cast, will become votes of the Board of Trustees.
Studies show that 5 out of 4 people have problems with fractions
JanS4 (Michigan)
Posts: 14
Posted:
Thanks for all the wonderful advice - but the Restated and Amended Bylaws were "approved" by counting the failure to vote as a vote of approval. Only 50 owners attended the meeting - not enough to meet the required approval of 2/3rds or 116.

The Restated and Amended Bylaws combined the Corporation/Association Bylaws with the Condominium Bylaws! As a result (once the Restated and Amended Bylaws are recorded)our documents will consist of only the Consolidating Master Deed and Condominium Bylaws, and the Articles of Incorporation. We will no longer have any Corporation/Association Bylaws. Again, IMO this does not appear to be legal or in accordance with Michigan laws.

Your comments/advice would be most welcome.
BruceF1 (Connecticut)
Posts: 2,535
Posted:
Quote:
Posted By JanS4 on 12/11/2008 3:16 AM
Thanks for all the wonderful advice - but the Restated and Amended Bylaws were "approved" by counting the failure to vote as a vote of approval. Only 50 owners attended the meeting - not enough to meet the required approval of 2/3rds or 116.

The Restated and Amended Bylaws combined the Corporation/Association Bylaws with the Condominium Bylaws! As a result (once the Restated and Amended Bylaws are recorded)our documents will consist of only the Consolidating Master Deed and Condominium Bylaws, and the Articles of Incorporation. We will no longer have any Corporation/Association Bylaws. Again, IMO this does not appear to be legal or in accordance with Michigan laws.

Your comments/advice would be most welcome.

Consult an attorney, preferably one knowledgeable in HOA law.

You may be able to get a consulation at no cost, and maybe all it will take is a letter from the attorney to the board indicating that further action will follow if the board does not abide by the law. Having an attorney draft and send the letter may not be free, however, but it shouldn't be terribly expensive. Perhaps you and a few neighbors could share the cost.
MaryA1 (Arizona)
Posts: 7,043
Posted:
Jan,

You said the vote passed; however, was there a quorum? Does only 50 members attending constitute a quorum? The board cannot count all those uncast votes toward a quorum even though they were counted to make up the "yes" votes.
JanS4 (Michigan)
Posts: 14
Posted:
Mary, Yes there was a quorum. Also, the attorney for the association was at the meeting to answer questions, but his responses were evasive and double-talk. The Prez told me after the meeting that it was the attorney's idea to combine the bylaws. The problem is the PM is the Chairman of the Board and it appears that he is the only one with contact with the attorney and so the elected Board gets filtered information second-hand. The Board does not question anything the PM tells them - guess he walks on water.
MicheleD (Kentucky)
Posts: 4,491
Posted:
Quote:
Posted By JanS4 on 12/11/2008 3:16 AM
Thanks for all the wonderful advice - but the Restated and Amended Bylaws were "approved" by counting the failure to vote as a vote of approval. {snip}

I have nothing constructive to add. However, I hate hate hate this particular form of "counting" votes where the absence of a vote equals ascent.

Very messy in my opinion.

MaryA1 (Arizona)
Posts: 7,043
Posted:
Jan,

Frankly I'm surprised the attorney would say this method (counting non-votes as yes votes) is OK. Also, why is the PM the chm of the board -- is he a member of the assn? While it's not unusual for the attorney to only talk to one board member, usually the Pres, the Pres. in turn should be reporting back to the board exactly what the attorney has advised. It's also not unusual for the board to take actions against the advise of the attorney. It really rankles me when I hear of a board that takes it's orders from the PM, instead of the reverse. Of course with the PM being the chm of the board, yours is a little different situation. But, even so, the other board members should realize that the chm is only one member of the board and the board should really operate as a whole -- everyone's opinion should count. Some people are just milque-toasts and are content to stand back in the shadows and let everyone walk over them!!
BruceF1 (Connecticut)
Posts: 2,535
Posted:
Imagine this on the ballot for the next election in your state:

"If you do not go to the polls and cast your ballot it will be considered as a vote for the incumbant."

Or, for a ballot question, say for an amendment to your state constitution:

"If you do not go to the polls and vote on the amendment, it will be considered as a vote in favor of the amendment."

A lawyer should know better.

Well, as I have observed before, in any case where there's a lawyer for the plaintiff and a lawyer for the defendant, one wins and one loses. Statistically speaking, either that means that lawyers are right only half of the time, or only half of the lawyers are ever right. (No offense to any lawyers out there).
BruceF1 (Connecticut)
Posts: 2,535
Posted:
Quote:
Posted By MaryA1 on 12/11/2008 10:05 AM
Jan,

Frankly I'm surprised the attorney would say this method (counting non-votes as yes votes) is OK.

Someone has to be last in the graduating class.
MaryA1 (Arizona)
Posts: 7,043
Posted:
Jan,

Just curious to know if anyone at the meeting questioned the attorney about the unusual voting requirement? Evasive answers and double-talk wouldn't fly with me!
JohnK3 (Pennsylvania)
Posts: 967
Posted:
Jan,

You wrote:

>>>The problem is the PM is the Chairman of the Board...<<<

You bet'cha. That's an accident waiting to happen, or possibly recurring.

Please explore alternatives.
GlenL (Ohio)
Posts: 5,491
Posted:
Jan, not being an attorney or having first hand knowledge of exactly what was said by the attorney but if things are indeed as you have posted them I would consider filing a formal complaint with the Michigan Bar Association over this "advice". And I would get as many of your neighbors to file as you can. http://www.michbar.org/

The Attorney Discipline Board is under the section Public Resources. You can also look to see if this particular attorney has ever been disciplined before.
Studies show that 5 out of 4 people have problems with fractions
SusannaM (Florida)
Posts: 366
Posted:
Guys, I had started another thread about our annual meeting/elections but it's getting too long, so I'm posting here 'cause I'd like to hear your opinions. Too bad Donna is in Barbados.

At Tuesday's elections we failed to meet the 30% quorum required by FL Statutes.
The Prez. presided and adjourned the meeting after about 45 min. I just got an email from PM saying there will not be further elections after all, and that the sitting board will appoint new board members at next assoc. meeting. Well, our proxy reads "...and any adjournement, change or continuation thereof...."

Our Bylaws are outdated, ambiguous, and inconsistent.
Article III reads "Election to the BOD shall be by secret ballot. At such election, the Class A members or their proxies may cast, in respect to each vacancy, as many votes as their are entitled to exercise under the provisions of the Declaration. The person receiving the largest number of votes shall be elected. Cumulative voting shall not be permitted."

I have the feeling it's all a farse.

Your thoughts.
MaryA1 (Arizona)
Posts: 7,043
Posted:
Susanna,

Do you bylaws say the board SHALL adjourn and call another meeting, or do they say the board "may" adjourn and call a second meeting? Perhaps the board has the option to do as they wish. Frankly, I don't think the board should make appointments if there were candidates (other than board members) on the slate, unless, of course, they are prepared to appoint those candidates.
SusannaM (Florida)
Posts: 366
Posted:
Mary, no, bylaws do not specify anything. The problem I have is that you either call for a 2nd shot at elections to hopefully meet the 30% required by FL 720 or, you allow people present at the meeting and their Proxy to cast their vote (with NO minimum number required) as Bylaws say. Yes, there were 2 official candidates but none of the board members volunteered to resign nor was an invitation to people from the floor. IMO, you can't have it both ways.
SusannaM (Florida)
Posts: 366
Posted:
Mary, furthermore, there is nowhere in Bylaws that "sitting board appoints" whoever they want.
MaryA1 (Arizona)
Posts: 7,043
Posted:
Susanna,

Well, it appears your board just makes it up as they go along! :-(
SusannaM (Florida)
Posts: 366
Posted:
I just made an appt. with an attorney who handles HOAs.

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