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RobertG
(Arizona)

Posts:396

03/17/2008 6:48 AM
We recently had the annual election for board of directors. Our documents do not say exactly how the process of getting a slate of candidates is to be done. There is no state law (that I can find) that says anything about it. We haven't adopted Robert's Rules. The only thing that was done was a notice was sent to each homeowner stating that if they wanted to have their name on the ballot, they must respond to the management company (address given) by Friday at 6:30pm. There are 7 open positions. Four people apparently got their information in and were put on the ballot. We must allow absentee ballots so the ballots were sent out with the four people on the ballot. At the annual meeting several other people were nominated from the floor. Seven people were elected which included the four people from the ballot. All seems ok. One of the elected board members who were part of the 4 on the ballot has since told several homeowners that he couldn't really decide if he wanted to put his name in the pot and waited until the end of the deadline for consideration (Friday at 6:30pm). For some reason, he then decided he did want to run and sent in his name to the management company. The result (who did what is unknown) was the he was placed on the ballot and got elected even though he failed to comply with the rule of when the closing time was to be placed on the ballot. So, now we have a homeowner as a board member who was elected without following the rules of the nomination process. What do we do? Do we have to have a new election? The board member can't just resign as they were not fairly elected in the first place. What happens to any action the board takes with an invalid board member? Is if fair to just take the next highest vote getter? How would you suggest we proceed?

BruceF1
(Connecticut)

Posts:696

03/17/2008 7:03 AM
RobertG, While this may seem inappropriate, is there really anything wrong here? True, the homeowner in question waited until after the deadline to put his name in, but couldn't that homeowner also have gotten someone to nominate him from the floor during the annual meeting? Couldn't that have ended up with the same result? Can you prove that it wouldn't? You may say that you haven't adopted Robert's Rules, so what rules have you adopted? What do you do when something comes up that isn't covered in your CCRs. bylaws, or state law? Where do you turn for the answer? Is it what you've been doing for years? How do you know that's right? What do you point to to prove your case when it isn't covered somewhere? As for absentee voting, that's a bad idea because it deprives the absentee voters from voting for a candidate that's nominated from the floor. They might have liked one of those candidates better.

RobertG
(Arizona)

Posts:396

03/17/2008 7:20 AM
Bruce, I will wait for other comments before I respond to the first part. However, absentee voting is required by law. There is no choice so it is not debatable. The four people who were on the ballot got the most votes since the majority of the votes came from the absentee votes. Had the person not been on the ballot there is a likelihood they would not have gotten elected. Who knows?

BruceF1
(Connecticut)

Posts:696

03/17/2008 7:43 AM
Robert, Is it true absentee voting or voting by proxy that's required? They're not the same thing. To require absentee voting AND allow nominations to be made from the floor seems inconsistent and contradictory. I doubt that your state lawmakers have overlooked that. I think you should dig deeper. I'll bet its supposed to be proxy voting that's required. But, I did do a quick check of Arizona law and discovered that proxy voting is covered under Arizona corporate law. I found nothing concerning absentee voting, so I am guessing that somewhere along the line someone has confused the two. As I said, I think you should did deeper. I agree, it's always a good idea to get several opinions. I don't have access to your documents, even though I can look up your state laws. I can only tell you what I see there and point you in a direction where you might find the answers you are looking for.

RobertG
(Arizona)

Posts:396

03/17/2008 7:49 AM
Even though this digresses from the question I posed, Arizona has banned proxies. We are required to use absentee ballots. That is not the issue of the question.

GeraldT4

Posts:934

03/17/2008 8:25 AM
RobertG - Your association does have a process that it utilized. Send out a notice seeking candidates to respond by a certain deadline. The issue is that you believe a candidate was added to the ballot after the deadline, and was therefore one of the 4 declared candidates and considered for election. There were 3 additional seats available for nominations from the floor. If the candidate was not added, there would have been 4 seats available to be nominated from the floor. Since we were not flies on the wall or present on what transpired at all levels in your election process, it's almost impossible to know exactly what happened. An objection, or point of order should have been raised the night of the election. At the end of the day, the people voted so to undo what they did is not the path I would take. Seems the matter is a technicality and not really fixing the election as your subject suggests occurred. However, answer us this. Were there more than 3 nominations from the floor the night of the election? If not, if only 3, than I don't see how the one candidate that you say was added late would have had an unfair advantage over anyone not declared.

PaulM
(Pennsylvania)

Posts:1347

03/17/2008 8:47 AM
RobertG: IMO, there doesn't seem to be a problem. You had 7 open Board positions and 4 got their nomination in by the deadline; that left 3 open positions with no candidates as of Friday, 6:30pm. At the actual meeting, several other people were nominated from the floor and the 7 open positions were filled. You state one nominee was 'put on' the ballot though he waited until the last minute. Whoever put him on the ballot made the decision to accept his nomination even though it was past the deadline; however it was in enough time for someone to actually include him with the rest of the nominees. The person who was in charge of receiving the nominations and preparing the ballots is the person in question, not the nominee. He was a nominee, he was put on the ballot along with the others, was voted upon and was elected to a seat on the Board. Perhaps you would want to direct your energy to a review of the nomination process, and establish controls in place with those who are in charge of the next election to avoid problems. You are fortunate to have had willing candidates to fill 7 seats on the Board. Move on from here; good luck!

BruceF1
(Connecticut)

Posts:696

03/17/2008 8:49 AM
RobertG, Yup. It's there alright. Title 33, paragraphs 33-1250 and 33-1812 forbid proxies and require absentee voting after period of declarant control. Strange. I don't know how this works with nominations from the floor, because, as I said, it deprives abstentee voters from voting for those candidates. Do you allow absentee voters to write in the names of individuals who are not on the ballot? If not, why not? Shouldn't they have that right? As for your present question, we had a similar occurance with our last annual meeting. Someone submitted his name past the deadline and ended up on the ballot. In our case, however, the names on the ballot aren't officially nominated until the annual meeting when someone make a motion to nominate all the names on the ballot. Thus, the last-minute person's names gets "nominated" along with all the rest. Then we take individual nominations from the floor.

BruceF1
(Connecticut)

Posts:696

03/17/2008 9:04 AM
RobertG, Just a suggestion. If you have trouble finding people to fill your vacancies on the board, why not amend your bylaws to have a nominating committee? If your state laws don't forbid you from doing this, maybe you can do it that way. Normal parliamentary procedure, though, says that the president shouldn't be a member of the nominating committee. So, be careful if you go this route to avoid doing that. The nominating committee finds enough people who are willing to serve so that, at least, all of the vacancies are filled, and then comes up with a "slate" of candidates. At the annual meeting, the chairperson of the nominating committee then presents the slate of candidates and moves that the slate be accepted. Once that is done, you open nominations from the floor. This gives everyone a chance to be nominated, if they want, and you are certain of at least having enough people to fill all the vacancies. After nominations are closed, you then vote as normal on the candidates. It's a fair way of doing things if you have trouble filling vacancies Many organizations (not necessarily HOAs) fill their board vacancies this way. If it's allowed under your laws and documents, you might think about doing it this way.

RobertG
(Arizona)

Posts:396

03/17/2008 11:29 AM
Posted By GeraldT4 on 03/17/2008 8:25 AM RobertG - Your association does have a process that it utilized. Send out a notice seeking candidates to respond by a certain deadline. The issue is that you believe a candidate was added to the ballot after the deadline, and was therefore one of the 4 declared candidates and considered for election. There were 3 additional seats available for nominations from the floor. If the candidate was not added, there would have been 4 seats available to be nominated from the floor. Since we were not flies on the wall or present on what transpired at all levels in your election process, it's almost impossible to know exactly what happened. An objection, or point of order should have been raised the night of the election. At the end of the day, the people voted so to undo what they did is not the path I would take. Seems the matter is a technicality and not really fixing the election as your subject suggests occurred. However, answer us this. Were there more than 3 nominations from the floor the night of the election? If not, if only 3, than I don't see how the one candidate that you say was added late would have had an unfair advantage over anyone not declared. There could not have been a point of objection at the night of the election as no one knew (except the nominee and the manage company that put him on) that the person was late. Only a week or so after the election did the elected person reveal that he was accepted late. There were at least 6 nominations from the floor so there were people who got nominated and didn't get elected.

HaroldS
(Arizona)

Posts:904

03/17/2008 11:33 AM
Robert - I thnk you have a bigger problem than stated. How could you elect floor nominated board members? ARS 33-1812 states: "1. The absentee ballot shall set forth each proposed action. 2. The absentee ballot shall provide an opportunity to vote for or against each proposed action." Obviously the floor nominated people were not on the absentee ballot. So electing them by those in attendance disenfranchises those not in attendance. It also precludes any floor action requiring members' vote. Check with your legal council for guidance.

RobertG
(Arizona)

Posts:396

03/17/2008 11:33 AM
Posted By PaulM on 03/17/2008 8:47 AM RobertG: IMO, there doesn't seem to be a problem. You had 7 open Board positions and 4 got their nomination in by the deadline; that left 3 open positions with no candidates as of Friday, 6:30pm. At the actual meeting, several other people were nominated from the floor and the 7 open positions were filled. You state one nominee was 'put on' the ballot though he waited until the last minute. Whoever put him on the ballot made the decision to accept his nomination even though it was past the deadline; however it was in enough time for someone to actually include him with the rest of the nominees. The person who was in charge of receiving the nominations and preparing the ballots is the person in question, not the nominee. He was a nominee, he was put on the ballot along with the others, was voted upon and was elected to a seat on the Board. Perhaps you would want to direct your energy to a review of the nomination process, and establish controls in place with those who are in charge of the next election to avoid problems. You are fortunate to have had willing candidates to fill 7 seats on the Board. Move on from here; good luck! I never implied the nominee is to blame. I agree completely that next year it should be done differently. However, imagine that this board awards a contract to a new landscape company which is for >$100K per year. A different company bids and looses and then hears there is a board member that wasn't elected according to the rules. The second company could claim that the vote was improper and the fight begins. Maybe it won't happen, but should the HOA be put in this position?

RobertG
(Arizona)

Posts:396

03/17/2008 11:39 AM
Posted By HaroldS on 03/17/2008 11:33 AM Robert - I thnk you have a bigger problem than stated. How could you elect floor nominated board members? ARS 33-1812 states: "1. The absentee ballot shall set forth each proposed action. 2. The absentee ballot shall provide an opportunity to vote for or against each proposed action." Obviously the floor nominated people were not on the absentee ballot. So electing them by those in attendance disenfranchises those not in attendance. It also precludes any floor action requiring members' vote. Check with your legal council for guidance. I think most people would agree with the unfairness of the absentee ballot method, but we are stuck with it. I think you have an interesting point in that #2 above implies that the ballot should be limited to only what is on the written ballot and negates the idea of write-ins. I will do some research on that point. However, that doesn't quite help the problem at hand. In fact, it might make it even worse since #2 might invalidate the 3 other people who were nominated from the floor. Sounds like some legal person is going to make some money off this problem. Or, we can all call it a day and think we are better off and let it ride.

HaroldS
(Arizona)

Posts:904

03/17/2008 11:52 AM
"Or, we can all call it a day and think we are better off and let it ride." All it takes is a disgruntled vendor as you suggested who might challenge any decision made by this alleged illegal board. Or any owner can take this to an Arizona OAH judge for clarification - Which could cost you, if they win, their $550 filing fee and any attorney fees you might have defending it. I'm not sure why you want to ignore this, hoping it will go away.

RobertG
(Arizona)

Posts:396

03/17/2008 11:56 AM
Posted By HaroldS on 03/17/2008 11:52 AM "Or, we can all call it a day and think we are better off and let it ride." All it takes is a disgruntled vendor as you suggested who might challenge any decision made by this alleged illegal board. Or any owner can take this to an Arizona OAH judge for clarification - Which could cost you, if they win, their $550 filing fee and any attorney fees you might have defending it. I'm not sure why you want to ignore this, hoping it will go away. Why do you think I am asking for other people's opinions? I don't want to call it a day, but I don't know what to suggest to resolve the current issue. The future is different, but I agree with you on the risk.

GeraldT4

Posts:934

03/17/2008 12:00 PM
RobertG - Your concern should not be in a contractor biding that may somehow find out that the Board is not correctly constituted. The more likely and actionable scenario is that a member of your association will contest the election, which you seem to be on the path of doing. I'm not advocating you do this, however in order to pursue the matter you must put it in writing and send it certified letter return receipt requested to the Board care of the MC. You would contest it based upon the grounds that a declared candidate did not meet the submission requirements by his own admission, it seems this may have presented an unfair advantage to the others members that were nominated from the floor the night of the meeting, and that in there interests of fairness you feel compelled to call the election results into question and count any absentee ballots, and ballots cast at the meeting to verify. What may be achieved is that a vacancy could occur and depending on your gov. docs. the Board may be able to appoint whomever they wish. However, were all candidates declared or otherwise nominated from the floor the night of the meeting? If there were a large enough number of people present in person and the person that didn't meet the requirements was chosen by them, you may not have much, if any ground to stand on.

MikeS1

Posts:0

03/17/2008 12:29 PM
Robert - We had a similar scenario where the some candidates bailed out at the last minute and others were added, so on the advice of the HOA attorney we mailed out new ballots, new proxies and just had another, second election. Old proxies were considered valid unless replaced with a new proxies with a later date. "RE-DO"...... It worked out ok. We even had people at the meeting that were sneaking out and then back in ... on their way back in, they tried to submit another ballot. What are they thinking?

RobertG
(Arizona)

Posts:396

03/17/2008 12:31 PM
Posted By MikeS1 on 03/17/2008 12:29 PM Robert - We had a similar scenario where the some candidates bailed out at the last minute and others were added, so on the advice of the HOA attorney we mailed out new ballots, new proxies and just had another, second election. Old proxies were considered valid unless replaced with a new proxies with a later date. "RE-DO"...... It worked out ok. We even had people at the meeting that were sneaking out and then back in ... on their way back in, they tried to submit another ballot. What are they thinking? As much as it sounds similar, it isn't. You folks caught the problem before the election. Our problem surfaced days after the election.

HaroldS
(Arizona)

Posts:904

03/17/2008 12:36 PM
"If there were a large enough number of people present in person and the person that didn't meet the requirements was chosen by them, you may not have much, if any ground to stand on." Not so Gerald. I would suspect that even if the entire membership was in attendance, the fact those floor nominated bodies were not on the absentee ballot, would preclude them from being elected. Why would you send a letter to the MC and tip your hand? This board seems to be doing whatever it wants to do. If truly interested in solving this, I would file directly with the Arizona OAH judge. You don't need to "inform" anyone beforehand that you are doing so either. Then they can defend their position, and let the judge decide if they are in violation of Arizona statutes.

RobertG
(Arizona)

Posts:396

03/17/2008 12:53 PM
A small group homeowners discussed this issue yesterday. We are not sure what we want to do. We tend to think that the problem was caused by the management company, but I would surprised if members of the board don't know about the problem now. I am reasonably sure that no one other than the board, management company an us few homeowners even know. If we take the approach as Harold suggests and go the Administrative Judge route, we don't know what the outcome is and may loose our $500 fee. If we win, then it comes out of our pockets anyway as we are part of the HOA that has to pay the fees (even though the cost is spread among 800 homeowners). We seem to think the principal is more at issue. Rules weren't followed and there should be consequences. It is just a messy way to start a new board that we actually might get something accomplished. I am not necessarily saying someone should be punished, but I sure don't want this to bite the HOA later in something that is really significant.

GeraldT4

Posts:934

03/17/2008 12:54 PM
HaroldS - You may wish to escalate matters without first trying to resolve them internally. I disagree with that method. My comment is that the numbers of those present, may outweigh those voting by absentee ballot. Those voting by absentee ballot only know who is running, not who isn't. An important question is how many votes did the candidate (who was added after the deadline) get from absentee ballots and ballots cast at the meeting. It is very important in pursuing the matter because if the votes of those in attendance would not have had an impact on the absentee ballots, what leg does anyone really have to stand on in pursuing the matter legally? Other than a procedural flaw which I agree there was one, or more for that matter. RobertG, and or a group of owners must get a count of all the votes and how those votes were derived before pursuing the matter towards a legal end.

RobertG
(Arizona)

Posts:396

03/17/2008 1:02 PM
Posted By GeraldT4 on 03/17/2008 12:54 PM HaroldS - You may wish to escalate matters without first trying to resolve them internally. I disagree with that method. My comment is that the numbers of those present, may outweigh those voting by absentee ballot. Those voting by absentee ballot only know who is running, not who isn't. An important question is how many votes did the candidate (who was added after the deadline) get from absentee ballots and ballots cast at the meeting. It is very important in pursuing the matter because if the votes of those in attendance would not have had an impact on the absentee ballots, what leg does anyone really have to stand on in pursuing the matter legally? Other than a procedural flaw which I agree there was one, or more for that matter. RobertG, and or a group of owners must get a count of all the votes and how those votes were derived before pursuing the matter towards a legal end. I don't have the exact numbers so I am only guessing at this moment. The person who got the most votes received about 140 votes. In fact, the 4 people on the ballot got the top 4 vote counts and all were in the same range. Based upon a visual guess of the number of people at the meeting, I would estimate about 50 homeowners voted in person. That implies about 90 people voted for those on the ballot who were not at the meeting. The top vote getter was the person who we are talking about. I don't know how many votes the top person that was nominated at the meeting got, though I could probably find out. Again, I am just guessing on the numbers but I am reasonably close.

GeraldT4

Posts:934

03/17/2008 1:36 PM
RobertG - Just curious, how many units/dwellings are in your community? How many votes is each unit/dwelling permitted to cast? One vote each?

RobertG
(Arizona)

Posts:396

03/17/2008 1:44 PM
Posted By GeraldT4 on 03/17/2008 1:36 PM RobertG - Just curious, how many units/dwellings are in your community? How many votes is each unit/dwelling permitted to cast? One vote each? There are close to 800 homes. Each gets just one vote.

HaroldS
(Arizona)

Posts:904

03/17/2008 2:32 PM
"My comment is that the numbers of those present, may outweigh those voting by absentee ballot." And what bearing does this have on the Arizona law? It doesn't say, "unless there are more present than voted by absentee ballot." The fact remains seven were "elected" of which three came from illegal floor nominations. By law, only the four who were on the absentee ballot should be considered elected. If one of the four did not comply with the documents, then he should be disqualified. To seat those other three is inviting a lawsuit. I'm not sure what good going thru "channels" would be either, since Robert suggested that some suspect the MC as being the problem. And if the board is allowing the MC to wag the dog, then they would be useless to contact also.

SusanW1
(Michigan)

Posts:2316

03/17/2008 3:26 PM
If you are going to declare this election "null and void" you'd better have the facts i.e. the exact ballot counts. It may be too late if the ballots are destroyed. He is ONE of seven votes, for goodness sake! More Importantly: You need to resolve this absentee (mail-in) balloting and the floor nomination issue before the next election. Have a Nomination Committee accept or recruit candidates, mail out a ballot, and do not accept nominations from the floor. You can't have it both ways (Did you combine mail-ins, floor nominations and write-ins, too?)

RobertG
(Arizona)

Posts:396

03/17/2008 3:39 PM
Posted By SusanW1 on 03/17/2008 3:26 PM If you are going to declare this election "null and void" you'd better have the facts i.e. the exact ballot counts. It may be too late if the ballots are destroyed. He is ONE of seven votes, for goodness sake! More Importantly: You need to resolve this absentee (mail-in) balloting and the floor nomination issue before the next election. Have a Nomination Committee accept or recruit candidates, mail out a ballot, and do not accept nominations from the floor. You can't have it both ways (Did you combine mail-ins, floor nominations and write-ins, too?) To answer the last question, yes, mail-ins, floor nominations and write-ins all counted.

GeraldT4

Posts:934

03/17/2008 4:15 PM
Posted By HaroldS on 03/17/2008 2:32 PM "My comment is that the numbers of those present, may outweigh those voting by absentee ballot." And what bearing does this have on the Arizona law? It doesn't say, "unless there are more present than voted by absentee ballot." The fact remains seven were "elected" of which three came from illegal floor nominations. By law, only the four who were on the absentee ballot should be considered elected. If one of the four did not comply with the documents, then he should be disqualified. To seat those other three is inviting a lawsuit. I'm not sure what good going thru "channels" would be either, since Robert suggested that some suspect the MC as being the problem. And if the board is allowing the MC to wag the dog, then they would be useless to contact also. HaroldS - The law may be black and white, however the process of getting a verdict in your favor is not so easy. Especially when it comes to association related matters. Surely you know this. Mine is just an opinion and a recommendation. You take it for what you want. However, RobertG realizes as most do that pursuing the matter means it also costs him in the end. Right is right, and I'll give you that. Many owners don't pursue the legal route and many Boards bank on that fact. If the number of those present outweighed those voting by absentee ballot and if all the candidates were re-nominated from the floor, they are all declared. It kind of negates the procedural breakdown. Kind of. However, I would attempt to first handle it internally by making it crystal clear that going forward all declared and published candidates comply with submission deadlines and more importantly the MC or PM not permit late entries. Additionally I'd try to get an exact vote count. The facts regarding RobertG's circumstances have unfolded as we've all been responding. RobertG needs to get an exact count, not a close approximation. Now, see what the facts are that I've elicited from RobertG? There are 800 in his association. Apprx. 140 voted by person or proxy. That tells me there may be, I re-write may be an issue with the quorum of the community. Only RobertG can now tell us what quorum (the percentage of the voters present in order to even hold an election meeting) is. 140 out of 800 is 18%. If the quorum necessary in RobertG's association is greater than 18%, there may be a method to challenge the entire election without even getting into any of the late submission drama, or just one more piece of wood to add to the fire. In my association quorum is 25%. Is there an Arizona state law pertaining to quorum?

PaulM
(Pennsylvania)

Posts:1347

03/17/2008 4:20 PM
RobertG: You have presented your situation thoroughly and have received many responses with varied points of view. Let's recap the important points: - 7 open Board positions - 7 nominees, 4(only) listed on ballot; 3 nominated from the floor You have a mgmt. company who made the decision to allow a nominee, though he was late, to be included on a ballot which was being used as an absentee ballot for those who were not attending the meeting. Further, at the meeting, 3-nominations from the floor were accepted which allowed a total of 7 nominees to fill 7 seats on the Board. IF there had been more nominees than were needed to fill 7 seats, I could understand your concern over the lateness of the nominee getting on the ballot. But, he Did Get on the Ballot! and he didn't boot any other nominee off in the process. It was the 'process' by which his name was included that was not handled according to the pre-determined guidelines (by mgmt. company??)--these were guidelines only, not official dictates from your docs. The late nominee received the most number of votes; you have the correct number of seats filled. Work on getting your processes organized and communicated correctly. Your Board will have their hands full with all of them being new to the task.

RobertG
(Arizona)

Posts:396

03/17/2008 4:29 PM
Posted By GeraldT4 on 03/17/2008 4:15 PM Posted By HaroldS on 03/17/2008 2:32 PM "My comment is that the numbers of those present, may outweigh those voting by absentee ballot." And what bearing does this have on the Arizona law? It doesn't say, "unless there are more present than voted by absentee ballot." The fact remains seven were "elected" of which three came from illegal floor nominations. By law, only the four who were on the absentee ballot should be considered elected. If one of the four did not comply with the documents, then he should be disqualified. To seat those other three is inviting a lawsuit. I'm not sure what good going thru "channels" would be either, since Robert suggested that some suspect the MC as being the problem. And if the board is allowing the MC to wag the dog, then they would be useless to contact also. HaroldS - The law may be black and white, however the process of getting a verdict in your favor is not so easy. Especially when it comes to association related matters. Surely you know this. Mine is just an opinion and a recommendation. You take it for what you want. However, RobertG realizes as most do that pursuing the matter means it also costs him in the end. Right is right, and I'll give you that. Many owners don't pursue the legal route and many Boards bank on that fact. If the number of those present outweighed those voting by absentee ballot and if all the candidates were re-nominated from the floor, they are all declared. It kind of negates the procedural breakdown. Kind of. However, I would attempt to first handle it internally by making it crystal clear that going forward all declared and published candidates comply with submission deadlines and more importantly the MC or PM not permit late entries. Additionally I'd try to get an exact vote count. The facts regarding RobertG's circumstances have unfolded as we've all been responding. RobertG needs to get an exact count, not a close approximation. Now, see what the facts are that I've elicited from RobertG? There are 800 in his association. Apprx. 140 voted by person or proxy. That tells me there may be, I re-write may be an issue with the quorum of the community. Only RobertG can now tell us what quorum (the percentage of the voters present in order to even hold an election meeting) is. 140 out of 800 is 18%. If the quorum necessary in RobertG's association is greater than 18%, there may be a method to challenge the entire election without even getting into any of the late submission drama, or just one more piece of wood to add to the fire. In my association quorum is 25%. Is there an Arizona state law pertaining to quorum? Quorum is 10%. Quorum was not an issue.

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