Why Are We Voting?
The POA will shortly be sending out ballots for the election of directors. I have received several inquiries from readers questioning why we are bothering with the voting process at all. The Board recently sent an email giving its reasons, but I have included a bit more information here.
(Disclaimer: I am not an attorney. Part of what follows will include my interpretation of the By-Laws; but note that it is a lay interpretation. Please judge the information accordingly.)
Two sections of the By-Laws indicate that, for the election to be valid, a quorum of property owners must cast ballots. One lot equals one property owner equals one ballot. Every property owner can cast only one ballot, and each ballot can have up to three votes. In discussing this issue, we have to be clear on the difference between total votes and total ballots. I am dealing with ballots here, not votes.
Assuming a quorum must be met, the election will only be valid if somewhere between 120 and 130 property owners cast a ballot (10% of all property owners).
For those who are interested, I have listed the relevant sections of the By-Laws at the end of this post.
What Happens If a Quorum is Not Achieved?
If not enough ballots are cast, I believe the election would not be valid.
If that conclusion is correct, we would have three vacancies. However, the By-Laws allow the Board to appoint people to fill vacancies with a simple majority vote. Those appointed would serve as directors only until the next general election. In other words, they cannot appoint a person for three years; but only for one year until the 2016 election.
However, there is one twist. It appears that a directorship resulting from an increase in the authorized number of directors can only be filled by a general election. One of the three slots in this year’s election was, in fact, created in that manner. Therefore, if I am reading the By-Laws correctly, the Board would be able to appoint only two directors until the 2016 election, and the other slot would remain vacant until that time.
The Board can also choose to leave the two vacancies unfilled until the 2016 election, but I suspect that would not be considered a viable option.
Again, please note the disclaimer above when considering this assessment.
(Editorial Comment: I clearly stated my views on the entire nominating process in a previous post (9/30/15); and, even after considering the information in the Board’s latest e-mail, I will stand by those comments. But I don’t believe it appropriate to use this site to advise anybody on what to do in terms of voting. I believe everybody is capable of considering all the information and making their own decisions in that regard.
Two other unrelated points……
First, I have learned that only four or five people wrote the Board to express dissatisfaction with the nominating process. In light of that, I strongly suspect the Board believes all of you are happy with the way the nominating process and election have been handled.
Second, as part of justifying its actions, the Board continues to maintain that it amended the By-Laws to lengthen the time available for obtaining a write-in candidate by five days. This claim was again repeated during the “Meet the Candidates” session. The message has been clear. “We gave everybody five more days than you previously had to find a write-in candidate.”
Some may consider this a minor point, but I am very uncomfortable with the misleading nature of that claim; even if it might be unintentional. In an earlier post (9/3/15), I tried to explain why this claim was not necessarily true, and I will be the first to admit that it is not an easy concept to grasp; primarily because it is counter-intuitive.
Nevertheless, while the claim may technically be true, it is still misleading. Because, when coupled with the other amendments to the By-Laws, the time period for write-ins was effectively shortened; not lengthened. The proof is in the following indisputable, undebatable fact. Please read this carefully:
If the Board had not amended the By-Laws, the deadline for write-in candidates this year would have been October 7th, not September 27th. Therefore, those amendments cut ten days off the available time period this year.
And, had these changes been made in any of the prior three elections, the same thing would have happened. The write-in period would have been shortened by a similar amount depending on the date of the annual meeting.
That fact cannot be disputed. For anybody that has any doubts, I will gladly sit down with them, draw a chart and show why this is true. It will take ten minutes at the most. All you need to do is ask.
I find it uncomfortable and embarrassing to hear Board members continue to justify their actions using this claim and am puzzled as to why they have not quietly dropped it. I honestly do not like bringing this to your attention, but I don’t think it is fair for residents to be given the wrong impression; even if unintentional. In terms of this election, the Board’s intentions regarding that time period may have been good, but the result was not.)
Additional Information – Posted on 10-16-15
After this was posted, I was contacted by Dave Bursiek; who is the chair of the Nominating Committee. He said that he did, in fact, refer to the five day extension at the “Meet the Candidates” night but that he also made additional comments as follows:
With the possibility that only 3 candidates might be nominated, the Board made changes to the petition process:
The number of required signatures was cut in half.
The time available to nominate another candidate thru the petition process was increased when calculated from the meeting date.
When calculated from when nominees are typically announced there was no increase.
The Board will re-look at the time schedules to ensure that some extra time is provided for petition candidates.
I felt it was important to add this, as it seems to be an acknowledgement that the intention was not met and that there will be further study of the issue.
Relevant Sections Dealing with Quorums and Elections:
Article 3, Section 9:
At all meetings of the Members, the presence at the commencement of such meetings, in person, by proxy or by written ballot conducted in accordance with North Carolina law, of one-tenth of all Members entitled to vote thereat shall constitute a quorum for the transaction of any business…..
Article 3, Section 10; first and third paragraphs:
For purposes of determining quorum, any votes cast electronically will count towards
determining whether or not a quorum was present.
At least thirty (30) days before the annual meeting of the Members, but no more than
forty-five (45) days before such meeting, the Association shall mail or deliver a notice of election to all Owners entitled to vote thereon, along with a ballot which shall list all
candidates. The notice shall state the date and time by which the ballot must be
returned to the Association in order to be counted. Quorum shall be determined as of
the date and time stated in the notice of election for return of ballots.
Article 4, Section 3:
All Single-Family Member Directors shall be elected prior to the annual meeting in accordance with Section 10 of Article III and by strict plurality with those persons who receive the highest number of votes being deemed to have been elected.
Article 4, Section 5
Any directorship to be filled by reason of an increase in the authorized number of Directors shall be filled only by election at the next annual meeting or a special meeting of the membership.