What is considered a quorum of the board?

Started by ShelleyD • 24 replies • 24127 views

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ShelleyD (Florida)
Posts: 42

Posted:

We have 6 board members and only 3 showed up last month for the meeting along with several residents. One of our board members said we cannot vote on anything because we don't have a quorum. At our annual meeting we had 7 board members voted in but one resigned the next day because our now new president did not vote properly with the proxy's. Yes, nothing was done about that and she even admitted it. Our treasurer decided to just delete that position because he did not want the next guy in line of votes to be on the board. Yes, no vote was taken for this either. So now we have an uneven number. All I want to know is: Can anyone tell me if half of the board shows is it considered a quorum? Thank you for your replies.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Shelly,
First of all, what number of Board members is required per your documents? That is the number of Board members required to have a full board. The number should be stated in your Articles of Inc. That will also be the place for a Board quorum number. We cannot give those numbers to you, only your documents can but working with an even number of board members in usually not advisable because of tie vote possibilities.

The Treasurer decided to delete that position? Because he did not want the next guy in line to get it? No single Board member has the authority to "hire and fire" positions on the board. You need to have a valid system for appointing members to fill Board positions and resolve this. But you do need to follow your documents for numbers.

ShelleyD (Florida)
Posts: 42

Posted:

Hi Donna,

Thank you for your reply. Our documents states: The number of directors shall be (5). Each director shall hold office until the next annual meeting of members and until his successor shall have been elected and qualified, or until removed at a special meeting. Vacancies: A vacancy in any office because of death, resignation, removal, disqualification, or otherwise, may be filled by the BOD for the unexpired portion of the term. One elected BOD resigned 2 days after election. We did not even have our BOD meeting yet to vote on positions. We would have had 7 BOD. Thank you again.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Hi Shelly,
If your documents say that the number of Board directors shall be 5, then how did you end up with 7 and then 6 when the one guy resigned? 5 is the number of BOD unless there is an amendment to change that number. Please explain that. Thanks.

SusanW1 (Michigan)
Posts: 5,202

Posted:

Maybe there are officers elected, and then 5 directors. That's how it's done in our HOA.

RogerB (Colorado)
Posts: 5,067

Posted:

Shelly, refer to your Bylaws. Usually it takes a majority (over 50%) of the current Board members to have a quorum for a Board meeting. In which cas in your example 3 out of 6 would not be a quorum. However, if you are only allowed to have 5 Board members then one of those elected was not eligible to be a Director. In which case you may have had a quorum of 3 out of 5 were properly elected. BTW why did your HOA elect more Board members than authorized? Perhaps some of your Board members need an education on your governing documents.

KirkW1 (Texas)
Posts: 1,665

Posted:

It could be that there is a missing amendment to the by-laws making for 7 positions. But at any rate, I totally agree that the Treasure has no authority to "delete" a position. Nor should the BOD as a whole decide to leave a position open. The position should be filled.

Unfortunately, it would appear that your Board is another case of the "blind leading the blind." There should be something to document the increase in the number of positions. Further, the open position should be filled. But the position would not have to be given to the person with the next number of votes. It is up to the BOD how to fill a vacant position.

As to how to get out of the quagmire you appear to be in, that is a good question. But you really do need to dig out.

As a note, unless otherwise stated a quorum is normally a majority (more then 50%) and you lacked it in light of having 6 members. And while it is customary to have a odd number of members, it is not a requirement and is done because of a logical fallacy. Quite simply when a motion has a tie vote, the motion is defeated because a majority is required to pass. Also consider that even if you have the magical odd number, one person missing makes it an even number of votes and thus giving rise to a tie vote.

LoriC8 (Washington)
Posts: 3

Posted:

In our Bylaws it specifically states that at a meeting of the members, ten (10%) of the total membership present in person or represented by proxy in writing shall constitute a quorum for the transaction of any business. We have a total of 20 homes. Some with one owner not two. So we always look for at least 10 homes present to vote, which is above 10%. Hope this helps.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Lori,

Sorry, but you're comparing apples to oranges. Shelly was referring to the quorum for a board meeting; you are referring to the quorum for a meeting of the members -- 2 altogether different things.

The quorum for a 5-member board is 3.

The quorum for a 6-member board is 4.

The quorum for a 7-member board is 5.

IMO, if the board has too many board members, the last person elected should step down. Can't understand how the board could allow this to happen, unless they think they have the authority to just increase the number of board members at will. Shelly should take a good look at the bylaws to determine if they do have this authority.

ShelleyD (Florida)
Posts: 42

Posted:

Sorry it took so long to get back to those of you who have responded to my post. Again, thank you. Here is how my By-laws read, I hope I am providing you with the correct information;
General Powers: The affairs of the corporation shall be managed by its BOD, who shall have complete charge and control of the entire property of the Association and its decision in matters relative to such property shall be final. The general management of the affairs of the Association shall be within the jurisdiction of the BOD. The directors of the Association and each of them in the management committees, and of the affairs and agents of the Association, shall give the attention and exercise the diligence, care and skill that prudent men use in like or similar circumstances.
Offices: The officers of the corporation shall be a President, a Secretary, a Treasurer, and such other officers as may be elected in accordance with the provisions of this article. The BOD may elect or appoint such other officers, including one or more assistant treasurers and one or more assistant secretaries , as it shall deem desirable, such officers to have the authority and perform the duties prescribed, from time to time, by the BOD. Any two or more offices may be held by the same person, except the offices of President and Secretary.

Election and Term of Office: The officers of the corporation shall be elected annually by the BOD at the regular annual meeting of the Board of Directors. If the election of officers shall not be held at such meeting, such election shall be held as soon thereafter as conveniently may be. New offices may be created and filled at any meeting of the BOD. Each officer shall hold office until his successor shall have been duly elected and shall have qualified.

Number,Tenure and Qualifications: The number of directors shall be five(5). Each director shall hold office until the next annual meeting of the members and until his successor shall have been elected and qualified, or until removed at a special meeting.
Our board had 7 members/ no amendments, one BOD resigned the day after election. The treasurer said we will only have 6 positions now because our attorney advised us that we should only have 5 members. TO BE CONTINUED next page

ShelleyD (Florida)
Posts: 42

Posted:

Our treasure likes to use the phrase "Our attorney advised us" to scare people. Some of us are not easily scared and are looking into his funny business now. I found minutes from 2 years ago, just an outline of what was in there. 1. Preparing proxies for election next month, which there is no mention of proxies in out by-laws or restrictions.
2. President makes a motion to add two members to the BOD.
3. President appoints the two people that were guests that day and homeowners also the two new positions that day.

Now the following month is elections of officers and now they are voting for new BOD of (7) which they never had a quorum before I moved in so everyone that was listed was automatically the BOD. There was never an amendment to our by-laws. Please read above. I am confused as the language of the part that says: Officers. Is all that mumbo jumbo still only talking about (5) board members. Our board added a Communications Director and a Maintenance Director which I hold that position at the time of MD.

Thank you again everyone for all your help.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Shelly,

What you need to do is take a look at the article of the bylaws entitled "amendments". If it says the board may amend w/o a vote of the members, then the addition of 2 members to the board was not a violation of the bylaws. However, this action should have been voted on by the whole board and this change to the bylaws should have been made a part of the bylaws and given to all members of the assn. There should have been some procedure to it. Also, I'm not familiar with the laws of your state so I don't know if bylaws are required to be recorded. If they are, then the amendment should also have been recorded.

Now, regarding a quorum. IMO, the quorum is based upon the number of positions that are filled. If it is a 7-member board, but only 6 positions are filled, then the quorum is based on 6, not 7. And to answer your initial question, "No", 3 is not a quorum for a 6-member board; the quorum is 4.

ShelleyD (Florida)
Posts: 42

Posted:

Thank you Mary for your reply. Amendments to BY-LAWS: These by-laws may be altered, amended or repealed and new by-laws may be adopted by a majority of the duly constituted members present at any annual or special meeting of the members where a quorum is present, or by a majority of the directors present at any special meeting, if at least four days written notice is given of intention to alter, or repeal or to adopt new by-laws at such meeting.

We do not have any amendments to our by-laws on record. Now what?

MaryA1 (Arizona)
Posts: 7,043

Posted:

Shelly,

If you are a board member it will be much easier to correct this problem. The board should be notified that since the members did not vote to amend the bylaws to increase the size of the board, only 5 positions are allowed. At the election next month this can be corrected by ensuring that only enough candidates are elected to fill 5 positions. IMO, those who were elected last year to fill the 2 extra seats should resign, but that may cause more hard feelings that it's worth. Depending upon the number of seats that are up for re-election this year, it could really mean that there are NO seats to fill this year (i.e., 6 seats and one up for re-election would mean none to fill)!

EllenS1 (Florida)
Posts: 1,148

Posted:

I always thought a quorum was a majority. If you have 5 board members and 3 show up that's a quorum. If you have 100 members and 51 show up that's a quorum. Right?

DonnaS (Tennessee)
Posts: 5,671

Posted:

Ellen,
Not nescessarily. Our quorum of the Board is specifically mentioned by a number--3 out of 5. But our quorum to hold an annual meeting is 30%, specifically written in the Articles.

I copied this as it makes sense.

---"The minimum number of members required for a group to officially conduct business and to cast binding votes, often but not necessarily a majority ...
en.wiktionary.org/wiki/quorum

EllenS1 (Florida)
Posts: 1,148

Posted:

Donna,

I learn something new every day. Thanks

DonnaS (Tennessee)
Posts: 5,671

Posted:

Ellen,
That's our job, to learn from each other.

DwightT (Idaho)
Posts: 664

Posted:

Quote:

Posted By MaryA1 on 01/22/2009 7:27 AM

The quorum for a 5-member board is 3.

The quorum for a 6-member board is 4.

The quorum for a 7-member board is 5.

Ok, picking nits here, but assuming that quorum is defined as X > 50%, then the quorum for a 7-member board is still 4, not 5. Quorum for an 8-member board would be 5.

Just bothered me seeing a math error.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Dwight,

Isn't a majority 50% plus 1? At least that's what I've always heard.

KirkW1 (Texas)
Posts: 1,665

Posted:

Quote:

Posted By MaryA1 on 01/24/2009 3:53 PM
Dwight,

Isn't a majority 50% plus 1? At least that's what I've always heard.

http://www.robertsrules.com/faq.html#4

Question 4:
In determining the result of a vote, what constitutes a majority?

Answer:
The word "majority" in this context means, simply, more than half. The use of any other definition, such as 50 percent plus one, is apt to cause problems. Suppose in voting on a motion 17 votes are cast, 9 in favor and 8 opposed. Fifty percent of the votes cast is 8 1/2, so that 50 percent plus one would be 9 1/2. Under such an erroneous definition of a majority, one might say that the motion was not adopted because it did not receive fifty percent plus one of the votes cast, although it was, quite clearly, passed by a majority vote. [RONR (10th ed.), p. 387; see also p. 66 of RONR In Brief.]

MaryA1 (Arizona)
Posts: 7,043

Posted:

Kirk,

Thx for that! I'd always heard 50 plus 1. Those halves are the problem!

RobertR1 (South Carolina)
Posts: 5,164

Posted:

To all,
Well, you got me going in circles and since we have 5 members, not likely to get any more, I don't see anything that changes our required 3.

However, did we drop a stitch here when we didn't mention the legality of this last election here. If I recall right , the Pres did some back door stuff with some proxies and the Board ignored it, as well as the membership. So does the question exist that this was not a legal election? How does the OP feel about that?
Or, is that little item just getting in the way of "progress" as declared by the pres.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

To all,
I am bring this quorom item back up theBoard so I can include a SC Lawyers input on the subject.
Please note left side of this screen with link to Aouth Carolina Attorney. Lord I hope this don't break any laws. I signed up for e-mail notification from this link and find it to be most informative.

Need for Quorum at Association's Meetings

Owners of an association might challenge a decision taken at a meeting without a quorum—a minimum number of votes required to be present for a decision to be valid. The governing documents usually prescribe the voting procedures and set the quorum.

If a quorum is not met, the governing documents may allow for the meeting to be adjourned within a specified time. Associations may also reduce the quorum to increase the chance that a dec! ision taken at a meeting will be valid. The quorum sometimes is as low as 10% or 15% votes present out of all votes entitled to be cast.

Associations may also ensure that a quorum is reached by enacting and enforcing procedures for proxy voting. This process allows owners who are unable to be physically present at the meeting to vote by delivering their proxy or their vote to the authorized person. The association may also provide rules for issues such as proper proxy execution, proxy cancellation or expiration, and other aspects of voting while absent from the meeting.

Permalink: sccommunityassociationlaw.com/2009/01/31/need-for-quorum-at-associations-meetings.aspx

MaryA1 (Arizona)
Posts: 7,043

Posted:

I was reading over the AZ nonprofit corp statutes and came across some very interesting info regarding board quorum. Unless the assn bylaws require a different number, a quorum of the BOD consists of either:

1) a majority of the FIXED number of directors if the corp has a fixed board size
2) a majority of the number of directors prescribed, or if no number is prescribed, the number in office immediately before the meeting begins, if the corp has a variable range size board.

So, the info we've been giving may or may not be correct, depending upon what the bylaws say regarding the number of board members and the quorum for a board meeting. I had always thought the quorum was determined by the number of board members actually serving, not the number of board members called for in the bylaws. Of course every state has different laws so this all is determined by your particular state laws.

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