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help in interpretation of Nevada NRS 116. 31306

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WH1
Posts: 11
Posted:
I need help in the proper interpretation of NRS 116. 31306: Removal of member of executive board; indemnification and defense of member of executive board.
1. Notwithstanding any provision of the declaration or bylaws to the contrary, any member of the executive board, other than a member appointed by the declarant, may be removed from the executive board, with or without cause, if at a removal election held pursuant to this section the number of votes cast in favor of removal constitutes:
a) At least 35 percent of the total number of voting members of the association; and
b) At least a majority of all votes cast in that removal election.

We recently had a recall election of the entire board in our community of 264 homeowners. The total number of votes cast was 127. The number of votes in favor of getting the directors recalled are as follow: 79, 79, 77, 75, 60. None of the directors were recalled because according to the lawyer's office, 93 in favor ( 35% of 264 ) was needed. How do you figure in part b)-- At least a majority of all votes cast in that removal election? Doesn't part b mean 64 in favor or 51% of 127? If so, then the number of votes that were in favor of the recall far exceeded the 51% needed? If there's anyone out there who could shed some light on this, please.
SusanW1 (Michigan)
Posts: 5,202
Posted:

I didn't read it THAT way.

I see the requirement to hold the recall vote as:

At least 35% of the total members must be voting on the motion, AND the motion has to pass by a majority vote.

So . . . 35% of 264 is 93.

93 votes must be cast in EACH recall vote for EACH member.

A majority of votes to carry the recall would be 47.

WH1
Posts: 11
Posted:
Do you mean that our recall election was incorrectly processed? Our association is planning on another recall since this first one didn't pass.
Thanks Susan.
DwightT (Idaho)
Posts: 664
Posted:
According to your part a), 35% of those eligible to vote must actually vote in order for the election to be valid. So at least 93 people must cast either a yes or no vote in order for the election to be considered valid one way or the other. You had 127 people cast a vote, so the results of the election are valid.

According to part b), a simple majority of the actual votes cast determine the outcome of the question. You had 127 people vote on each recall election, so whichever answer received at least 64 votes is the decision. You actually had 5 elections (one for each board member), and according to the results that you posted, 4 out of the 5 were recalled (assuming that all 127 people cast a vote in each of the 5 elections).

Sounds like either way you need to find a new attorney.
MaryA1 (Arizona)
Posts: 7,043
Posted:
WH,

You attorney is only half right. The number of votes required to be cast is 93 (35% of the members); however a majority of the votes cast is required to pass. Since 127 people cast votes, 65 votes would have been required to recall (a majority is 50% + 1). Therefore, as Dwight stated, 4 of the 5 board members were effectively recalled.
WH1
Posts: 11
Posted:
MaryA1 and DwightT, thanks for clarifying...
I left a message with the Ombudsman's office for an explanation and am hoping to hear from them this monday. Also, a couple of other homeowners have gotten in touch with a lawyer -- not ours. Ours have made procedural errors in this recall right from the beginning when the petition went out. Dwight, you are right -- our association needs a new lawyer.
What do you think should the association's next step be?
MaryA1 (Arizona)
Posts: 7,043
Posted:
WH,

I think I would be inclined to push for a recount. Record the number of votes cast for each board member on the recall ballot. It could be that not all 127 members voting cast a vote for each board member. The majority requirement is based upon the number of members voting, with a minimum requirement of 93. A tally sheet should be prepared to show the number of votes cast for each board member and the number of votes required to recall that board member. For Example: Board Member A: Votes Cast = 125; Majority requirement = 64; Yes votes = 70; No votes = 55. Result: Board Member A recalled

The next order of business would be to hold an election to fill the positions of those board members who were recalled.

Then, the first order of business for the new board should be to terminate the contract of the attorney (if he is on a retainer) and find a new one who can read and interpret the gov. docs. correctly!
SusanW1 (Michigan)
Posts: 5,202
Posted:
This bylaws is even more confusing when looked at again.

"35% of the voting members" - What does that mean: must be in attendance or actually comprising the vote?

The bylaws does not say if the 35% is the quorum needed for the meeting to be valid. What if the 35% ARE in attendance, BUT not all vote?

Some re-wording needs to be done on this.

If any of the recall vote results was really close, and there is much confusion, that particular vote can be declared null and void by the Board - and held again.

Otherwise, if there was a landslide for getting rid of these people, then let the results stand unless you are challenged by the person recalled.

BruceF1 (Connecticut)
Posts: 2,535
Posted:
It sounds to me like WH1 is quoting from the state law and not the bylaws.

I believe the lawyer was correct. I don't think the 35% applies to the total number of votes cast. Here is that portion of the quote again, then I'll analyze it:

"if at a removal election held pursuant to this section the number of votes cast in favor of removal constitutes:
a) At least 35 percent of the total number of voting members of the association; and
b) At least a majority of all votes cast in that removal election."

The key is in the first sentence that states "the number of votes cast in favor of removal". It applies to both parts a and b.

Part a refers to the total number of voting members of the association. This is not the same as the number of votes cast; it is the number of members of the association that are eligible to vote.

Thus, the requirement for removal is (part a) at least 35% of the total number of members of the association that are eligible to vote (35% of 264 or 93) AND at least a majority of the votes cast (greater than 50% of 127 or 64). With such a provision, the higher number prevails and is the deciding factor. This, in this situation, at least 93 votes are needed for removal.

If there were more than 186 members present and voting, then any person receiving a majority of the votes cast for removal (part b) would automatically meet the requirements of part a, so part b would become the prevailing factor.

A dual requirement such as this is a bit unusual, but it is not unheard of. It is intended to protect the interests of at least some minimum number of the total membership (ie, at least 35% of all the members that can vote).

When trying to determine what “voting members of the association” means, I believe the interpretation I have given is the one most commonly applied. An often overlooked section of some laws and bylaws, is the section titled, “definitions”. Sometimes that portion of the document may describe exactly what is meant by phrases like, “voting members of the association.”
MaryA1 (Arizona)
Posts: 7,043
Posted:
Quote:
Posted By BruceF1 on 06/10/2008 8:02 AM
It sounds to me like WH1 is quoting from the state law and not the bylaws.

I believe the lawyer was correct. I don't think the 35% applies to the total number of votes cast. Here is that portion of the quote again, then I'll analyze it:

"if at a removal election held pursuant to this section the number of votes cast in favor of removal constitutes:
a) At least 35 percent of the total number of voting members of the association; and
b) At least a majority of all votes cast in that removal election."

The key is in the first sentence that states "the number of votes cast in favor of removal". It applies to both parts a and b.

Part a refers to the total number of voting members of the association. This is not the same as the number of votes cast; it is the number of members of the association that are eligible to vote.

Thus, the requirement for removal is (part a) at least 35% of the total number of members of the association that are eligible to vote (35% of 264 or 93) AND at least a majority of the votes cast (greater than 50% of 127 or 64). With such a provision, the higher number prevails and is the deciding factor. This, in this situation, at least 93 votes are needed for removal.

If there were more than 186 members present and voting, then any person receiving a majority of the votes cast for removal (part b) would automatically meet the requirements of part a, so part b would become the prevailing factor.

A dual requirement such as this is a bit unusual, but it is not unheard of. It is intended to protect the interests of at least some minimum number of the total membership (ie, at least 35% of all the members that can vote).

When trying to determine what “voting members of the association” means, I believe the interpretation I have given is the one most commonly applied. An often overlooked section of some laws and bylaws, is the section titled, “definitions”. Sometimes that portion of the document may describe exactly what is meant by phrases like, “voting members of the association.”

Bruce,

I'm with you until you say the number of votes for removal is 93. The way I read the bylaws is that there are two determining factors which must be met to make the election legal:

1) at least 35% (93) of the total members must vote, and
2) each candidate must receive a majority of the votes cast

The 35% requirement is, more or less, the quorum. This figure has nothing to do with the number of votes required to elect a candidate. If 127 members voted that would mean 65 votes would be needed to be elected. If as you say, 93 votes are needed to elect, then subsection b is meaningless!

The term "voting members" oftentimes means those members eligible to vote. If you are not eligible to vote you cannot be a voting member at the meeting. Otherwise it would say, "the members of the assn".

BruceF1 (Connecticut)
Posts: 2,535
Posted:
Mary,

Subsection b is not meaningless at all. Explanation below.

First, the question does not refer to bylaws. It refers to a Nevada statute, section NRS116.31306. Read the title and the first sentence of the question. Actually, WH1 was dyslexic in his typing. It should have been NRS116.31036. You can look it up.

Where in the section quoted does it say anything about a quorum? If you check the statute, a quorum is defined in section NRS116.3109 which specifically covers that topic. There, it defines a quorum as 20%, unless the governing documents specify otherwise. In the same statute, the quorum cannot be both 20% and 35%. One has to be careful not to insert words that are not there. A quorum is a specific requirement and is generally referred to as such. In other words, the word “quorum” will usually appear in the section when that is the intention.

Subsection b only comes into play when there are more than 186 members that are eligible to vote present and voting (in person or by proxy – that is covered elsewhere in the statute). Otherwise, only subsection a applies. Suppose, for example, that there are 200 members present and voting. Suppose only 99 (or even 100) vote for removal. Clearly, 99 (or 100) is more than 35% of the total voting membership (more than 35% of 264 or 93), so the conditions of part a have been met. However, 99 (or 100, a tie) is NOT a majority of the total votes cast (200), so the requirement of part b (a majority needed for removal) has NOT been met.

So you see, both parts a and parts b are relevant. Which subsection applies depends on how many votes are cast. If there are fewer than 93 votes cast, there is no way for the requirement of part a to be met. Between 93 and 186 votes cast, as long as there are at least 93 votes for removal, the conditions of part a will be met and the conditions of part b will simultaneously be met because 93 is more than half of any number between 93 and 185. When the number of votes cast is 186 or more, the condition stated in part a is automatically met for any number that is more than half of the total votes cast. Pick any number higher than 186. More than half of that number will always be greater than 93, so only subsection b applies.

Just pick several examples and do the arithmetic. How the two subsections come into play will become much clearer.
MaryA1 (Arizona)
Posts: 7,043
Posted:
Quote:
Posted By BruceF1 on 06/11/2008 7:25 AM
Mary,

Subsection b is not meaningless at all. Explanation below.

First, the question does not refer to bylaws. It refers to a Nevada statute, section NRS116.31306. Read the title and the first sentence of the question. Actually, WH1 was dyslexic in his typing. It should have been NRS116.31036. You can look it up.

Where in the section quoted does it say anything about a quorum? If you check the statute, a quorum is defined in section NRS116.3109 which specifically covers that topic. There, it defines a quorum as 20%, unless the governing documents specify otherwise. In the same statute, the quorum cannot be both 20% and 35%. One has to be careful not to insert words that are not there. A quorum is a specific requirement and is generally referred to as such. In other words, the word “quorum” will usually appear in the section when that is the intention.

Subsection b only comes into play when there are more than 186 members that are eligible to vote present and voting (in person or by proxy – that is covered elsewhere in the statute). Otherwise, only subsection a applies. Suppose, for example, that there are 200 members present and voting. Suppose only 99 (or even 100) vote for removal. Clearly, 99 (or 100) is more than 35% of the total voting membership (more than 35% of 264 or 93), so the conditions of part a have been met. However, 99 (or 100, a tie) is NOT a majority of the total votes cast (200), so the requirement of part b (a majority needed for removal) has NOT been met.

So you see, both parts a and parts b are relevant. Which subsection applies depends on how many votes are cast. If there are fewer than 93 votes cast, there is no way for the requirement of part a to be met. Between 93 and 186 votes cast, as long as there are at least 93 votes for removal, the conditions of part a will be met and the conditions of part b will simultaneously be met because 93 is more than half of any number between 93 and 185. When the number of votes cast is 186 or more, the condition stated in part a is automatically met for any number that is more than half of the total votes cast. Pick any number higher than 186. More than half of that number will always be greater than 93, so only subsection b applies.

Just pick several examples and do the arithmetic. How the two subsections come into play will become much clearer.

Quote:
Posted By BruceF1 on 06/11/2008 7:25 AM
Mary,

Subsection b is not meaningless at all. Explanation below.

First, the question does not refer to bylaws. It refers to a Nevada statute, section NRS116.31306. Read the title and the first sentence of the question. Actually, WH1 was dyslexic in his typing. It should have been NRS116.31036. You can look it up.

Where in the section quoted does it say anything about a quorum? If you check the statute, a quorum is defined in section NRS116.3109 which specifically covers that topic. There, it defines a quorum as 20%, unless the governing documents specify otherwise. In the same statute, the quorum cannot be both 20% and 35%. One has to be careful not to insert words that are not there. A quorum is a specific requirement and is generally referred to as such. In other words, the word “quorum” will usually appear in the section when that is the intention.

Subsection b only comes into play when there are more than 186 members that are eligible to vote present and voting (in person or by proxy – that is covered elsewhere in the statute). Otherwise, only subsection a applies. Suppose, for example, that there are 200 members present and voting. Suppose only 99 (or even 100) vote for removal. Clearly, 99 (or 100) is more than 35% of the total voting membership (more than 35% of 264 or 93), so the conditions of part a have been met. However, 99 (or 100, a tie) is NOT a majority of the total votes cast (200), so the requirement of part b (a majority needed for removal) has NOT been met.

So you see, both parts a and parts b are relevant. Which subsection applies depends on how many votes are cast. If there are fewer than 93 votes cast, there is no way for the requirement of part a to be met. Between 93 and 186 votes cast, as long as there are at least 93 votes for removal, the conditions of part a will be met and the conditions of part b will simultaneously be met because 93 is more than half of any number between 93 and 185. When the number of votes cast is 186 or more, the condition stated in part a is automatically met for any number that is more than half of the total votes cast. Pick any number higher than 186. More than half of that number will always be greater than 93, so only subsection b applies.

Just pick several examples and do the arithmetic. How the two subsections come into play will become much clearer.

Bruce,

I had not taken a look at the state statute so I was not aware that the quorum requirements were contained in a different statute. I wasn't inserting something that wasn't there; just trying to make sense of what "was" there!

I can understand most of what you're saying, but I don't understand where 186 votes come into play. This figure represents 70% of the 264 total members. I don't see that % referenced anywhere.

The statute says 35%, of the total voting membership must vote, which equates to 93 members. Then the statute says: "AND" each candidate must receive a majority of the votes cast", which means each candidate must recieve 48 votes to remove if only 35% of the total membership voted. If more than 35% of the members voted then the majority would be based on the total number who voted to remove. If less than 35% of the members voted the election would be null and void.

To my way of thinking both (a) and (b) must always apply because the statutes says "and" not "or". If (a) isn't met (the % requirement) the vote is null and void. Likewise if (b) isn't met (the majority of vote cast requirement) the vote is null and void. Frankly, I cannot see any other way to interpret the statute.

The only thing I can think of that would cause the attorney to say none of the board members were recalled is that the figures Daryl posted only represented the number of votes cast but not the number of votes cast to remove. I think the key to the whole thing is the number of votes to remove which in all likelyhood is different than the number of votes cast.
KirkW1 (Texas)
Posts: 1,665
Posted:
a) At least 35 percent of the total number of voting members of the association; and
b) At least a majority of all votes cast in that removal election.

I would read that to mean that 35% of the membership must vote for a legal vote. (Thus you must have 93 votes.) And a majority of those votes cast must be for removal. Thus if 127 votes were cast (through person or proxy) then 64 votes would mean removal. Thus at this time four of the five board members have been removed.

You should set a mandate for the new board to find a better attorney. You might also want to contact your state's bar association about the level of advice offered by the guy. If he is intentionally mis-interpreting the documents then he could lose his license.

I can say that I think the intent is pretty obvious here. What I can't say I understand is why the board doesn't step down. Quite honestly if a petition with enough signatures showed up for my recall I would simply step down. If I believed that it was a vocal minority then I would certainly run for the vacant position with a huge push to get my support to show up.

Of course in your case, the next question is how are vacancies filled. From what I gather it is not uncommon that vacancies are filled by the board until the next election. If that is the case, then does the one remaining member choose the four replacements? (Not that I would do that as the one remaining member.)
BruceF1 (Connecticut)
Posts: 2,535
Posted:
Mary, Kirk,

You are both misinterpretating part a. The lawyer interpreted it correctly and I have tried to explain why the lawyer's interpretation is correct.

Let's start over. I'll try again.

First, I agree that technically, both parts a and b always apply. It just turns out that when you apply the statute to a particular case, one part, either part a or part b, becomes the dominant, or controlling factor, and that, in turn, depends on the number of votes that are actually cast. That is always true when there are two conditions to be met simulataneously, whether you are talking about votes or anything else.

When there are two statements, either of which can be either true or false, there are only four possible outcomes: 1) a is true and b is false, 2) a is true and b is true, 3) a is false and b is false, or 4) a is false and b is true. In order to remove a board member, a must be true and b must be true. That is, both a and b must be true simultaneously. No other outcome can result in the removal of a board member.

Thus, here is the statute again:

"1. Notwithstanding any provision of the declaration or bylaws to the contrary, any member of the executive board, other than a member appointed by the declarant, may be removed from the executive board, with or without cause, if at a removal election held pursuant to this section the number of votes cast in favor of removal constitutes:

(a) At least 35 percent of the total number of voting members of the association; and

(b) At least a majority of all votes cast in that removal election."

I can re-write this as follows without changing the meaning (this is a method of interpretation taught to me by an English professor):

"1. Notwithstanding any provision of the declaration or bylaws to the contrary, any member of the executive board, other than a member appointed by the declarant, may be removed from the executive board, with or without cause, if at a removal election held pursuant to this section:

(a) The number of votes cast in favor of removal constitutes at least 35 percent of the total number of voting members of the association; and

(b) The number of votes cast in favor of removal constitutes at least a majority of all votes cast in that removal election."

Notice I did not add or change any words. I simply took the words "the number of votes cast in favor of removal constitutes" out of the lead paragraph and inserted them into both parts a and b. This is a perfectly acceptable grammatical substitution taught to me by an English professor. It is a method of analyzing the meaning of a paragraph and it's subparagraphs. It's sort of a divide-and-conquer approach. Whenever you have a main paragraph that pertains equally to two or more subparagraphs, you can apply the main paragraph to each subparagraph individually, as if each of the others was not there. Often, this is the best way to make sense out of what otherwise might be confusing language, which is the case here. (In other words, I might also agree this whole thing could be better stated).

Thus, the number of VOTES CAST IN FAVOR OF REMOVAL (call that number "N") must meet two conditions simulataneously:

Part a, "N" must be at least 35% of the total number of voting members of the association (total number of members eligible to vote = 264, 35% of 264 = 92.4, so "N" must be equal to or greater than 93). (Note, this does NOT mean that at least 35% of the total number of voting members must vote. It doesn't say that at all.) It means exactly what it says, that to remove a board member, the number of VOTES CAST IN FAVOR OF REMOVAL must constitute (be) at least 35 percent of the total number of voting members of the association. That is a board member must receive a minimum of 93 votes in favor of removal (not that there must be at least 93 votes cast, period). The key here is the phrase IN FAVOR OF REMOVAL.

AND

Part b, "N" must be at least a majority of all votes cast in the removal election. (127 votes were cast, so a majority of 127 would be any number equal to or greater than 64).

To remove a board member, BOTH a AND b MUST BE TRUE.

So, for this particular case, no board member was removed because part a was never true. Each board member to be removed must have had to receive at least 93 votes in favor of removal for part a to be true. And, for part b to be true, each member to be removed needed at least 64 votes. So, only part b was ever true. Part a was never true, so no board member was removed.

What about the number 186? Yes, that's 70& of 264. (Well, actually, it's not. 70% of 264 is 184.8 or 185 to the next highest whole number.) The number 186 results from simple arithmetic. It doesn't appear anywhere in the statute. It is a "magic number" such that as long as 186 or more total votes are cast, whenever the conditions of part b are met (there is a majority of votes in favor of removal) the conditions of part a are also automatically simultaneously met (there will be at least 93 votes in favor of removal). Try it. Do the arithmetic. Choose any number greater than 186. Let's say 187 total votes are cast. A majority of 187 required for removal would be 94, and 94 is greater than 93, isn't it?

Unfortunately, though, although by using the "magic number" of 186, instead of clarifying things, I might have made them more confusing.

The key to understanding what the statute is saying is that the words VOTES IN FAVOR OF REMOVAL applies to BOTH parts a and b.

BruceF1 (Connecticut)
Posts: 2,535
Posted:
Posted By KirkW1 on 06/11/2008 6:44 PM
a) You should set a mandate for the new board to find a better attorney. You might also want to contact your state's bar association about the level of advice offered by the guy. If he is intentionally mis-interpreting the documents then he could lose his license. div>

The attorney is not the one misinterpreting the statute here. What would be the attorney's motive for "intentionally" misinterpreting the statute? No attorney is so stupid as to put his license in jepordy by intentionally giving false and misleading advice. Don't you think he is qualified to interpret the statute? Don't you think he has at his disposal volumes of court decisions to refer to? Don't you think he possibly has some experience in these matters?

I think shopping around for an attorney who agrees with anyone's personal interpretation of a statute is dangerous. That's why we go to attorneys. To tell US what the statute says.

One would look terribly foolish complaining to the bar association only to have them reply, "the attorney's advice is correct."
BruceF1 (Connecticut)
Posts: 2,535
Posted:
Quote:
Posted By KirkW1 on 06/11/2008 6:44 PM
You should set a mandate for the new board to find a better attorney. You might also want to contact your state's bar association about the level of advice offered by the guy. If he is intentionally mis-interpreting the documents then he could lose his license.

The attorney is not the one misinterpreting the statute here. What would be the attorney's motive for "intentionally" misinterpreting the statute? No attorney is so stupid as to put his license in jepordy by intentionally giving false and misleading advice. Don't you think he is qualified to interpret the statute? Don't you think he has at his disposal volumes of court decisions to refer to? Don't you think he possibly has some experience in these matters?

I think shopping around for an attorney who agrees with anyone's personal interpretation of a statute is dangerous. That's why we go to attorneys. To tell US what the statute says.

One would look terribly foolish complaining to the bar association only to have them reply, "the attorney's advice is correct."
BruceF1 (Connecticut)
Posts: 2,535
Posted:
I think we need to remember one other thing here.

WH1 already has a perfectly good, and most likely correct, interpretation of the Nevada statute. It's the one from the lawyer's office. Who, besides a lawyer in Nevada, is better equipped to interpret Nevada law? He has the education, the training, the experience, and the resources to do a far better job at that than any of us in this forum does. Unless you believe he is a crook or has some sinister motive, then how can we not accept his interpretation as most likely being a correct one?

I think what many people have done here is post THEIR interpretation of the statute. That's OK, but how can our qualifications possibly compare to WH1's lawyer's qualificatons?

I think what WH1 wanted was to try to understand how the lawyer came to his conclusion. As it happens to turn out, I was able to come to the same conclusion as the lawyer. So, I was hoping that by explaining the reasoning behind my conclusion, we might all get a better handle on WH1's lawyer's interpretation.
MaryA1 (Arizona)
Posts: 7,043
Posted:
Bruce,

I can't tell you how many times I read that statute and each time didn't pick up on the fact that "the number of votes cast in favor of removal" applies to the 35% also. It's right there in the very first para and I just didn't see it! Golly, I must be getting old! Thank you for your patience, Bruce. Remember, you'll be in my position one day! LOL

Now with ref to you remark about attorney's interpreting laws. I've seen it so many times here in AZ; the HOA attorneys continually put their own spin on a law and it's not always the right "spin". Case in point: 2 yrs ago I informed our mgr that IAW current law nominations from the floor could not be taken at the annual meeting. I was told our attorney told the board they can be taken. At this year's annual meeting, our Pres announced they had been informed by their attorney that, IAW current law, there would no longer be nominations from the floor. No change to the state law; same attorney! Bottom line: just because a person is an attorney, doesn't mean he's always right.
BruceF1 (Connecticut)
Posts: 2,535
Posted:
Mary,

I think I'm already there. I can't count how many times I get up from my desk and go into another room for something only to realize I have no idea why I went there!

As far as lawyers go, I have a pet joke (no offense to any lawyers out there).
Basically, in almost any court case, one lawyer wins and another loses. So, does that imply that lawyers are right only half of the time?

:-)
MaryA1 (Arizona)
Posts: 7,043
Posted:
Bruce,

Yeah, I've heard that joke b/4. In fact, I was thinking of it as I typed my response to you! Guess we're on the same wave length too (at least some of the time).

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