Can a Director recant a vote?

Started by RobertS27 • 8 replies • 2366 views

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RobertS27 (New Mexico)
Posts: 5

Posted:

Our HOA BOD, of which I am a new member, is trying to do work via email. I have a question:

I made a motion to create an annual meeting proxy, because most of our landowners live out of state, and we never get a quorum in the room. And even though there are options in the by-laws, the Directors haven't explored them. The motion was seconded, and a vote began. Now, one of the Directors says he recants his vote after further consideration. I say this is not acceptable, because how could anything stand?

GlenL (Ohio)
Posts: 5,491

Posted:

Robert, Mary is our resident New Mexico expert but from her posts I know that proxies are not allowed in NM and neither is the BOD conducting business by email. Since you stated the vote began (which is improper in itself) but not concluded then yes he can change his vote.

Studies show that 5 out of 4 people have problems with fractions

GlenL (Ohio)
Posts: 5,491

Posted:

Quote:

Posted By GlenL on 11/13/2009 12:01 PM
Robert, Mary is our resident New Mexico expert but from her posts I know that proxies are not allowed in NM and neither is the BOD conducting business by email. Since you stated the vote began (which is improper in itself) but not concluded then yes he can change his vote.

Strike that I had NM and Arizona mixed up (got to check my meds) but my opinion stands if the vote wasn't completed then yes he can change it.

Studies show that 5 out of 4 people have problems with fractions

SusanW1 (Michigan)
Posts: 5,202

Posted:

Robert - do your state statutes or your bylaws allow for email voting?

Anyway, NO - once a vote is cast, it stands on the record.

If his vote was the one that made a difference, then the motion can be amended and even recinded at the same meeting.

TimB4 (Tennessee)
Posts: 21,062

Posted:

Robert,

Per New Mexico Corporate code for non-profits, a member is entitled to vote by proxy unless your Articles of incorporation or bylaws prohibit it.

A Link to the law is:
http://law.justia.com/newmexico/codes/nmrc/jd_53-8-15-1182f.html

The section of the law:

53-8-15. Voting

B. A member entitled to vote may vote in person or, unless the articles of incorporation or the bylaws otherwise provide, may vote by proxy executed in writing by the member or by his duly authorized attorney-in-fact. No proxy shall be valid after eleven months from the date of its execution, unless otherwise provided in the proxy. Where directors or officers are to be elected by members, the bylaws may provide that such elections may be conducted by mail.

Hope this helps,

Tim

RogerB (Colorado)
Posts: 5,067

Posted:

Robert, at a Board meeting once the votes are counted a Director may not change their vote. The Director could make another motion which, if passed, could effectively supercede the previous motion. If voting is by mail once the deadline has passed to receive a new ballot which changes your vote, it can not be accepted. You could explore using a mail in ballot to allow every member to vote on important issues and a proxy which could count to achieve a quorum in order to hold a members' meeting.

In Colorado the Nonprofit Act does not allow proxies for Board meetings. However, proxies can be used at members' meetings when allowed by the Bylaws. The Associations we manage allow proxies for member meetings; otherwise it would be difficult to hold a members' meeting, Annual or Special, even thought almost all of the members live closeby.

DonN (Michigan)
Posts: 357

Posted:

The reference provided by TimB4 applies to members, not board members. I suggest that you check the section of the nonprofit act on board of directors.

A valid vote is a valid vote. A motion can be made later in the meeting, or at a subsequent meeting, to rescind or whatever. But until the subsequent motion is approved, the previous motion remains valid.

Don Nordeen
Governance of Property Owners Associations

RobertS27 (New Mexico)
Posts: 5

Posted:

Thank you for all your feedback.

So, if they are not following procedure/ articles of incorporation/ by-laws, etc what is my recourse?

MaryA1 (Arizona)
Posts: 7,043

Posted:

IMO, you have no legal recourse unless Robert's rules are to be followed and they haven't. But would you want to file a lawsuit over an issue such as this? You can speak to the other board members and hopefully get them to see the error. Other than that, just let it go and with your education on the subject perhaps they'll get it right the next time.

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