What does it mean?

All,

A possible conflict has been discovered in our governing documents concerning elections. We have been electing directors based on our bylaws which basically works as: count the ballots and the top 5 candidates win. This is the way VA law says the election should be.

The possible conflict is in our Articles of Incorporation. VA law and our bylaws all state, very plainly, that the Articles control. The wording of the Articles is:

The Directors shall be elected by a majority vote of the membership.

The Directors shall be elected by a majority vote of the membership and shall serve a term of one (1) year. Any vacancy occurring in the Board of Directors shall be filled by the affirmative vote of a majority of the remaining Directors, though less than a quorum of the Board of Directors. There shall be no ex-officio Directors.

Personally, I believe that the paragraph was left over from the original Articles when the first board was elected. As I said, the way we have been holding elections is in line with VA law and as never been challenged. As a board member I would like to amend the Articles to remove the conflict.

The issue is defining what "a majority vote of the membership" means.

One Director (who discovered the conflict) believes that this is interpreted as anyone elected must have a majority of the votes cast. (10 people voting, only the top candidates (up to the five allowed) with 6 votes or more are elected). This director prefers this interpretation and wants to keep it.

Another Director interprets this to mean a majority of the entire membership (130 lots). Which would require only those candidates receiving a minimum of 66 votes can be elected.

I know that this will probably have to go to our lawyer for interpretation if the Board can not agree. In an effort to try and bring the board together, I am tossing this out to see what the "reasonable person" would interpret the wording to mean.

Thank you,

Tim

Without a specific statement such as 51% or two thirds (2/3), or without it saying "with a majority vote of all members", I would say it means the majority of the votes cast. I can see where it could be interpreted differently, especially if that is how I wanted to see it. And I bet your lawyer would argue it in whichever way the person with the checkbook told them to. (no offense to any lawyers).

Here, our members right to vote can be suspended if they are delinquent, (after notice and all that stuff of course), and we have about a third, (1/3) of members who don't vote at times. If that were the case for you, then you wouldn't be able to ever elect a board if you went with the interpretation that required a majority of all members.

I have seen many posts here were people complain that members don't participate in elections, and would be lucky to get 66 out of 130 people to vote at all, much less get 66 votes for the same 5 people.

My opinion

The first issue is whether a quorum has to be achieved in order for an election to even take place. Many HOA state that a majority either in person, by proxy or by ballot must be present. If that is met, then each candidate must receive a majority of the votes cast. Look at State or County Election Law. Didn't say it was perfect, but that is how it is supposed to be. Probably should say top vote getters, but it doesn't.

Lynette,

I agree with this statement. Hopefully by asking for an interpretation vs. asking for a defense of an interpretation will help.

I just don't want to spend the money from the Association if we don't have to.

Tim

Tim,
You may want to think of paying for the advice of a parlimentarion(sic).

Aside from that and outside the subject, have you given any thought to changing the term of your BOD. One year term for a board sounds short to me, if there is any involvement of the Board. If an MC is going to run the joint and the board knows enough about what is going on.............maybe.

But it seems it would be hard to find, say, a treasurer every year that knows the business. Also the President needs a least a year to really know which way to push to get the most out of the operation.

Tim,
From what I can read here you are doing this the way it has to be done. I have used the words "baby steps" many times. This kind of change takes a long time....years, some of it. Consider, in all possibility, who ever follows you will probably repeat what you all have set up.....good or bad. If you all set a good course it makes it much easier for someone to follow. I am sure you have found out how hard it is to push the ship around. It would be nice to have some help in all this and it sounds like you have gotten some oars in the water. It really is that bad some places, they just seem to drift around without a direction.

Tim,
If your docs allow the board to amend the bylaws, I think you could amend your bylaws, if needed, to show your interpretation of the Articles, as long as you don't contradict the Articles. For example, your bylaws could show the definition of "majority vote of the membership". This doesn't solve your problem today, but may keep it from becoming a problem every time there is a difference in interpretation.
Most of our Rules, and our Bylaw amendment were made to specify the details due to the other docs being too vague or because the language left them full of interpretation.

Tim,

I believe the articles are quite clear: "a majority vote of the membership" means exactly that -- a majority of the entire membership. If it meant a majority vote of the votes cast, or a majority vote of the members entitled to vote (those in good standing), or a majority vote of the members present, that is what would be stated. But, it clearly says a majority vote of the membership. Since you have 130 members, a majority vote would be 66 votes (50% (65) + 1 = a majority).

I definitely would consider amending the Articles of Inc. to take away the majority vote. IMO, it's much better to elect those candidates receiving the highest number of votes. Also, if the quorum requirements are less than a majority of the membership (66) then you could run into trouble having enough votes cast to elect. Amending the articles most likely requires a vote of the membership; however, IMO it would be well worth the effort.

Thanks to all who responded.

Jack,

To answer your question as to why spend money on an attorney:

As I said, there is a difference of opinion on the board as to what this statement means. If the board agreed, drawing up wording and holding a vote would be simple. Since there is disagreement on amongst the Board, the extra step will probably be needed to unify the Board.

Personally, I agree with those who posted that it means the entire membership. This of course presents it's own problems (is our board legal? were past boards legal? If they were not legal, can what was passed be enforced? etc. etc. [these questions are for demonstration purposes - it's not a can of worms I wish to open]}.

I don't want to spend the money if I don't have to and bringing this thread to the attention of the Board may help solidify the boards view and not require the interpretation. As Lynette said, sometimes you just have to spend the funds to CYA.

Tim

Again thanks to all for the responses.

Mary. I've always liked, in response to: "according to the manual, we need to", the reply,: "but we didn't have time, or this or that, so we couldn't".

Amen Mary. By the way I'm the person who came to all of you for advice (support really because I knew the answers) regarding two things our board was doing that were out of line. Those issues have been resolved (abandoned by the board) and largely due to homeowner apathy (lack of volunteers) I find myself on the board once again. It's nice to be able to participate in forums like this one. Our board refuses to start one (a homeowner communication system) even though such a means of open (two-way) communication is required by our state Property Owner's Association Act. I'll be working that issue while I'm on the board and will also be coming to you folks more often. Please be prepared to deal with me (provide good advice) in the future. I value that advice and "mentorship".