Revote after No Quorum

Started by EdithK • 19 replies • 2588 views

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EdithK (California)
Posts: 4

Posted:

After no quorum (greater than 50%) is reached for a Board meeting and there is a second meeting to try to achieve quorum (lower requirements, now only greater than 25%), can the original votes be kept unopened and used for the revote wherein the Board would send ballot out again, but request only those homeowners who did not vote to vote. These new votes would be added to old votes to determine outcome. Or, should all votes be trashed and all homeowners be allowed to vote again?

RickR7 (California)
Posts: 10

Posted:

Edith,

You really need to do some research on this. You are governed by the Davis-Stirling act and of course your CC&R's. From what I know you won't be able to add the old votes and new votes together, even if you could the opportunity for bad things arise very quickly.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Rick,

I believe that you are correct. Ballots are dated for specific dates and purposes and would not carry over under those circumstances. It would call for a revote IMHO.

EdithK (California)
Posts: 4

Posted:

Thank you for your responses. Have looked at CC&R's, By-Laws for our HOA as well as other HOA's and other organizations. Nowhere is this issue even mentioned!! Any suggestions on where/how to get a definitive clarification?

DonnaS (Tennessee)
Posts: 5,671

Posted:

Edith,

Copied below is the "Elections" menu from the Davis-Sterling Act.
You can chose what you think might pertain and read this information to become more enlightened. It's a hand full.

Election Menu
Acclamation

Election rules required

Failure to hold election

Director qualifications

-delinquent directors

-felons

-joint owners

-realtors

-renters

-resigned directors

-relatives

-spouses

Uncontested election

#1 Preliminary Issues

Appointing inspectors
Board Configuration
-reducing size of board
-too many directors
Bylaw amendments
Cumulative voting
Election entirely by mail
Good standing
Notice of meeting
Special meetings
Suspend voting rights
Term Limits
-four year maximum

-staggered terms
-term limits
Term of office

Timeline
Write-in candidates

#2 Nominations

Call for candidates
Candidate application
Candidate biographies
Floor nominations
Holding multiple seats
Nominating committees
Self-nomination
Write-in candidates

#3 Campaigning
Board endorsements
Campaign funding (§1363.04)
Candidate biographies
Email list
Equal access
Free speech
Liability for content
Meet the candidates forum

No redacting
Right to campaign
Soliciting votes
-electioneering
-improper ballot solicitation
-membership list
-official ballots only
-political signs
-voter tally

#4 Inspectors of Election
Appointing inspectors
Authority/Duties of Inspector
Inspector assistants
Number of ballots returned
Selecting inspectors
Volunteer liability
Voter tally
When to appoint?
Who may be an Inspector
Voter sign-in

#5 Ballots
Ballots count toward quorum

Cumulative voting
Distributing ballots

-who distributes ballots?

-30 days prior to meeting

Ballot in lieu of meeting
Elections requiring secret ballot

Form of ballot
-cumulative ballot
-regular ballot
-mailing labels
-required information

Incumbents
Irrevocable ballots
Keeping ballots secure
Official ballots only
Returning ballots
Secret voting

-numbered ballots
-secret ballot required
-signed ballots

Solicitation
Write-in candidates

#6 Proxies

*Defined

Automatic proxies?
Board proxies
Elimination of proxies
Expiration of proxy
Form of proxy
-cumulative

-noncumulative

Optional
Proxy rules
Proxyholder

-management proxies

-who may serve as proxy
Revocation
Signed proxies
Who may serve as proxy?

#7 Voting
"Approval" defined
Cumulative voting
-defined

-petition to eliminate

-voting formula

Delegate voting
Electioneering
Good standing
"Majority" defined
Official ballots only
One vote per unit
Shared membership
Suspend voting rights
Tenant voting rights
Tie votes
Unequal voting rights
Voting entirely by mail
Write-in candidates

#8 Annual Meeting
Adjourned meetings
Agenda
Electronic meetings
Meeting restrictions
Minutes
Parliamentary procedure
Revenue Ruling 70-604
Sign-in list
Who may attend

#9 Quorum

*Defined
Ballots count toward quorum

Court reduction of quorum
Eliminating quorum

#10 Counting Ballots
Announcing results
Duplicate ballots
Opening ballots
Pre-Counting security
Tie votes
Witnessing the counting
Zero votes for a candidate

#11 After the Election
Selecting officers
Signature cards
Seating directors
Secretary of State
Storing ballots

#12 Contesting Elections
Contesting election results

Enforcement provision

Inspection of ballots - Recount

EdithK (California)
Posts: 4

Posted:

Read Davis-Stirling on election rules. It, too, fails to mention whether votes from first meeting can be kept, unopened, and used at second meeting with lower quorum requirements. It is possible and even likely that while there are insufficient votes to satisfy the 51% of voters quorum requirement at the 1st meeting, those votes may well satisfy the lower 25% quorum requirement for the 2nd meeting. Another balloting to get votes of those who did not vote the first time around would add to the vote count. But the question is: can old and new ballots be added to determine the outcome of the election?

SusanW1 (Michigan)
Posts: 5,202

Posted:

IMHO - you can use the old sealed ballots (absentee or mailed in ballots) AND combine with LIVE vote ballots.
(If I understand our question right)

DonnaS (Tennessee)
Posts: 5,671

Posted:

Edith,

I must have been on "Duh" mode yesterday. I believe that your answer is simple according to the normal.

If you failed to obtain a quorum for the meeting, then there was NO MEETING, therefore any voting was null and void. In other words, NO MEETING, NO ACTION including voting. Should you save those ballots? IMHO--NO!

SusanW1 (Michigan)
Posts: 5,202

Posted:

That's what's not clear. Are these mail in or absentee ballots that the secretary held until the vote?

I agree, with no quorum, there should have been NO vote taken, thus no ballots from that meeting can be used. however, if these were other kinds of ballots, there's no reason why they are not tranferred to the meeting where they could be opened and counted.

MichaelK11 (Texas)
Posts: 432

Posted:

Quote:

Posted By EdithK on 10/06/2009 8:19 AM
After no quorum (greater than 50%) is reached for a Board meeting and there is a second meeting to try to achieve quorum (lower requirements, now only greater than 25%), can the original votes be kept unopened and used for the revote wherein the Board would send ballot out again, but request only those homeowners who did not vote to vote. These new votes would be added to old votes to determine outcome. Or, should all votes be trashed and all homeowners be allowed to vote again?

Our HOA has a similar provision for second meetings in the event a quorum is not present at first meeting. In our case, the quorum is 10% and the second meeting requires 5%. I suspect such provisions are common for Associations.

Our Bylaws also do not specify whether to re-use mailed votes or proxies. However, the standard proxy form that we use contains the language that the proxy is intended for the specific meeting and is valid for any continuance or second meeting, but shall not be valid for more than [I think it was a year].

If your mailed votes are actually proxies and they contain this language, then I think that is valid, unless prohibited in CA. You mentioned that the Davis-Sterling act does not address this; if this is not addressed by other statute, then it's not prohibited. If your proxies do not contain this language, then you probably need to mail new forms. Even if it is arguable whether you can use the old forms, if it's not explicit you should do-over to avoid future challenges to the results. (I'm sure many HOA's might decide to do it quick-and-dirty, if they think no one will care or object. Do so at own risk.)

Our proxies for Annual Meetings also contain ballots, and language that the designated Proxy (usually the HOA Secretary) is directed to vote in Director elections as specified on the ballot, but may vote the proxy at own discretion on other matters. I think the language in the proxy makes these votes transferable to a second meeting. I think that's also covered in the carry-over language (I suppose technically these are not ballots but directed proxies), although that may be a separate legal question.

MichaelK11 (Texas)
Posts: 432

Posted:

Quote:

Posted By MichaelK11 on 10/07/2009 5:31 AM
However, the standard proxy form that we use contains the language that the proxy is intended for the specific meeting and is valid for any continuance or second meeting, but shall not be valid for more than [I think it was a year].

If your proxies do not contain this language (or if you are using ballots instead of proxies), then proxies with this language may be a good solution for future years (but not for your second meeting, this year).

Our Bylaws do state the quorum requirement in terms of "the presence at the meeting of Members, or of proxies, entitled to cast 10% . . ." We have always taken that to mean the combined presence of Members and of proxies.

EdithK (California)
Posts: 4

Posted:

Whoa! Thanks for the responses. This is a tough one, with some saying use old votes for the second meeting, others believing it is best to trash the old votes. The votes under discussion were ALL the votes cast for the first meeting: mail in, proxies, delivered in person at meeting.

SusanW1 (Michigan)
Posts: 5,202

Posted:

It will be a problem OMLY if someone complains.

Call your meeting and encourage LIVE attendees. Use the mail-in ballots and/or signed proxies and conduct your business. If someone objects with a point of order, then ask to see something in writing that prohibits the use of these kinds of ballots for meeting business that was not able to be conducted due to lack of quorum.

You MUST get your business conducted.

(I am ssuming that these ballots/proxies are under the care of the secretarynot counted, AND sealed until ready for use)

MaryA1 (Arizona)
Posts: 7,043

Posted:

I've looked around and cannot find an answer to your question. IMO, the ballots and proxies (if they haven't already expired) could be used for the second meeting; however, steps must be taken to ensure that no member has voted twice. Make a list of the names of the members whose ballots and proxies you have on hand and check them off the sign-in list that will be used at the meeting. Of course, that would only apply to ballots that have not already been opened. If they have been opened, IMO, they should be null and void.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Edith,

I still stand on my take on these ballots. You had ("The votes under discussion were ALL the votes cast for the first meeting: mail in, proxies, delivered in person at meeting.)" The proxies might be the only votes to be counted (unless they have a date that has expired) and are open proxies, which they would have to be classified and stated so on the proxy. In person votes should not be counted because THERE WAS NO MEETING! YOU CANNOT HOLD ONTO VOTES UNTIL IT IS CONVIENENT TO USE THEM.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Edith,

I certainly do agree with Donna's statement: "YOU CANNOT HOLD ONTO VOTES UNTIL IT IS CONVIENENT TO USE THEM". When I stated I thought it would be OK to use the ballots already received, I meant for the second meeting. If a second meeting is not called then the ballots should be shredded. Obviously they cannot be held until next year's election. And, if your bylaws allow a second meeting to be called it generally must be called within a month at most from the original meeting.

Regarding proxies, I've never heard of an "open" proxy. From info I've gathered over the years, there are 3 types of proxies:

1) directed -- the proxy holder votes as directed by the person giving the proxy
2) general -- the proxy holder votes on all issues as they feel appropriate
(this is the most common type)
3) specific or limited -- the proxy holder only votes on specific issues as directed by the person giving the proxy

EllenS1 (Florida)
Posts: 1,148

Posted:

Donna,

Don't proxies show the meeting date for which they are eligible? I'm quite sure ours do and I think they should.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Ellen,

Yes, the State of Florida only allows a certain type of Proxies, which is from 720:306-(8)

8) PROXY VOTING.--The members have the right, unless otherwise provided in this subsection or in the governing documents, to vote in person or by proxy. To be valid, a proxy must be dated, must state the date, time, and place of the meeting for which it was given, and must be signed by the authorized person who executed the proxy. A proxy is effective only for the specific meeting for which it was originally given, as the meeting may lawfully be adjourned and reconvened from time to time, and automatically expires 90 days after the date of the meeting for which it was originally given. A proxy is revocable at any time at the pleasure of the person who executes it. If the proxy form expressly so provides, any proxy holder may appoint, in writing, a substitute to act in his or her place.

KirkW1 (Texas)
Posts: 1,665

Posted:

I think it all depends on wording. I think it would be entirely possible to word the ballot/proxy to allow use through a failed quorum attempt as long as the next attempt is in a reasonable time frame.

Proxies typically are valid for thirty days or until a meeting with quorum is met (whichever comes first). I suspect that in most cases the absentee ballot serves as a directed proxy. And if it is in fact a directed proxy, then it would be subject to the rules of a proxy.

Certainly an owner should have the ability to change their vote in the case of a failed quorum, but I see no reason moral reason that the vote should not carry over to the new attempt unless the owner directed otherwise.

MichaelK11 (Texas)
Posts: 432

Posted:

Quote:

Posted By KirkW1 on 10/11/2009 7:00 PM
I think it all depends on wording. I think it would be entirely possible to word the ballot/proxy to allow use through a failed quorum attempt as long as the next attempt is in a reasonable time frame.

Our HOA does this. Our proxies have been general (except for the Director ballot, which is directed. They specify the noticed meeting, but with the following language:

"This designation of proxy shall be effective for the [designation] Meeting of the Members of the Association to be held on [date], at [time] (the "[designation] Meeting"), at all adjournments and resets of such [designation] Meeting, and for a subsequent second meeting, if necessary, due to lack of a required quorum at the [designation] Meeting or due to other failure to conclude a vote on any issue at the [designation] Meeting."

The designation is usually "Annual" but could probably be "Special" or something else, as appropriate.

Also, Members can resubmit proxies: "By this designation of proxy, the Member hereby revokes any prior designation of proxy that the Member may have given previously with respect to their membership vote."

I see no language in our proxy about Members being permitted to revoke proxies, but our Bylaws require that this be allowed. The point is that Members can submit proxies in case they cannot attend the meeting, but if they attend their vote in person supersedes their proxy.

This is probably fairly standard. Hope this helps.

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