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Subject: Nominations from the Floor
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NpB
(Arizona)

Posts:134


02/10/2020 11:41 AM  
My HOA's CC&R's permit nominations from the floor, but my state's statute A.R.S.. 1812(A2) states “The absentee ballot shall provide an opportunity to vote for or against each proposed action.” That statement alone in my opinion precludes nominations from the floor and write-in candidates. Permitting nominations from the floor is contrary to this statute, since those who are not physically present at the annual meeting would not have the names of candidates nominated at the annual meeting. Therefore, those absent from at the annual meeting will not have the opportunity to vote for anyone nominated at the meeting by those present.

The HOA's management company's opinion is that the statute does not preclude nominations from the floor and that those physically present at the annual meeting, will be able to "write-in" someone nominated from the floor.

What are your opinions?

DeidreB
(Virginia)

Posts:31


02/10/2020 11:57 AM  
My opinion since you asked NpB

If you have a larger HOA and enough participation, try appointing an election committee well in advance of the election in accordance with your association By Laws. The election committee should be directed to your state property association laws and your association By Laws, Articles of Incorporation and Declaration for guidance. The management company should also be worked with closely but keep in mind some of the management company personnel know less about the legal requirements than some members and are just doing what they always do the way they always do it.

Yes -- nominations from the floor are healthy outlets for the association. It opens the door to people who are timid about running but who may step up at the last minute. It might increase the number of candidates which could potentially open the door to the types of philosophical statements and discussions you alluded to in your other thread. It could even lead to a productive debate between candidates regarding those elephant in the room issues that no one ever wants to talk about in the meeting!

Nothing says open, inviting and fair more than allowing nominations from the floor in my opinion.

One thing I would also recommend is that when the ballots go out along with proxy forms, ensure you include a statement that nominations from the floor will also be allowed (if your association documents and state law allows it or perhaps better stated, do not prohibit).

One segue topic this will almost certainly come up in my experience is how to vote for multiple candidates running for one director position. Your association documents should state clearly how it may be done (verbal ballot, closed ballot, etc..). Some people may feel uncomfortable not raising their hand for their pesky neighbor.
AugustinD


Posts:2574


02/10/2020 12:15 PM  
I see that ARS 33-1812 A. also disallows proxies once the declarant is no longer in control and the HOA/condo is not a timeshare:
"A. Notwithstanding any provision in the community documents, after termination of the period of declarant control, votes allocated to a unit may not be cast pursuant to a proxy."
...
C. Notwithstanding subsection A of this section, an association for a timeshare plan as defined in section 32-2197 may permit votes by a proxy that is duly executed by a unit owner."

Regarding write-in candidates: I think you are reading something into "shall provide an opportunity to vote for or against each proposed action" that I do not see. If some among the membership want to get someone on the ballot after the ballots have been distributed, I think it's up to these folks to get the word out to write-in someone.

I would find it unfairly limiting to say people could neither (a) write-in someone; nor (b) nominate someone from the floor.

As long as the absentee ballot provides (1) space for a write-in candidate; and (2) states that the covenants permit nominations from the floor, then I think the HOA should do as the covenants require and, at the annual meeting, ask whether anyone has a nomination from the floor. This way, all know in advance what rights they have. By filling out the absentee ballot, I think they have consented to not being able to vote for a floor nomination.

Also to be as clear as possible: I think write-in candidates do not, and should not, count as 'nominations from the floor.'
NpB
(Arizona)

Posts:134


02/10/2020 12:49 PM  
Just also wanted to add that our HOA well in advance of the annual meeting (approximately two months prior) requests nominations for the ballot. I think it's discriminatory to have one set of ballots for owners who aren't physically present at the annual meeting and one ballot for owners who want to vote in person at the annual meeting that has an opportunity for a "write-in" of candidates who are nominated from the floor.
AugustinD


Posts:2574


02/10/2020 1:01 PM  
Maybe I am not following you, but: Couldn't the absentee ballot be exactly the same as the ballot offered members who are physically present at the meeting?

Then the only discrimination is that the absentee owners do not get to nominate someone from the floor.

Yet the absentee voters do have a chance to write-in whomever.

Else I do not see enough of a conflict (between statute and covenant) to justify throwing out the covenant permitting nominations from the floor. If your HOA threw out the covenant on floor nominees, and subsequently someone hired an attorney and challenged the latter, then if I were the judge in a court deciding this dispute, no way could I see throwing out the covenant and refusing to allow floor nominees.

I think a lot of this is about giving as much proper (and legally required) notice as possible but also consistent with the covenants. If those folks thinking of nominating someone (who is presumably willing) from the floor cannot get their act together to solicit votes from absentee members and campaign, then I think this is their problem. Floor nominees often get view votes precisely because their supporters have not taken the trouble to campaign. It's the price of exercising the 'floor nominee' option.
CathyA3
(Ohio)

Posts:737


02/10/2020 1:27 PM  
"“The absentee ballot shall provide an opportunity to vote for or against each proposed action.” "

I'm hung up on using the phrase "proposed action" to describe candidates, unless your election process allows people to vote against nominees and have that No vote count against the person's total.

I've never heard of anything like that. Which suggests to me that this wording applies to issues only (such as approving a budget) and not to the election of directors. So I'm not seeing that this contradicts nominations from the floor.

(Also, if absentee voters assign their voting rights to another attendee, then they have in fact been given the right to vote for someone who was nominated from the floor. If they do not do this, then not knowing about all potential candidates is a consequence of using an absentee ballot. The process is completely transparent.)
NpB
(Arizona)

Posts:134


02/10/2020 1:30 PM  
Posted By AugustinD on 02/10/2020 1:01 PM
Maybe I am not following you, but: Couldn't the absentee ballot be exactly the same as the ballot offered members who are physically present at the meeting?

Then the only discrimination is that the absentee owners do not get to nominate someone from the floor.

Yet the absentee voters do have a chance to write-in whomever.

Else I do not see enough of a conflict (between statute and covenant) to justify throwing out the covenant permitting nominations from the floor. If your HOA threw out the covenant on floor nominees, and subsequently someone hired an attorney and challenged the latter, then if I were the judge in a court deciding this dispute, no way could I see throwing out the covenant and refusing to allow floor nominees.

I think a lot of this is about giving as much proper (and legally required) notice as possible but also consistent with the covenants. If those folks thinking of nominating someone (who is presumably willing) from the floor cannot get their act together to solicit votes from absentee members and campaign, then I think this is their problem. Floor nominees often get view votes precisely because their supporters have not taken the trouble to campaign. It's the price of exercising the 'floor nominee' option.






I think each ballot, whether you vote absentee or physically present at the meeting should be the same. For years with an old management company, there was a half hour period before the meeting began where owners could sign in and then vote. A ballot was mailed to each owner. Most owners mailed-in their ballots, some hand-carried the ballot to the annual meeting and some owners showed up with no ballot and voted before the meeting started. All owners received the same ballot, with names of candidates who wanted to be to the ballot, plus a space for "write-ins." There was never a period during the meeting for "nominations from the floor."

Now, the new management company apparently has two sets of ballots. One for those who wish to mail-in their ballot. It has no space for a "write-in." The other ballot for those who wish to vote at the meeting will have a space to vote for those who are nominated from the floor halfway during the meeting. Separate and unequal ballots.
AugustinD


Posts:2574


02/10/2020 1:37 PM  
Posted By NpB on 02/10/2020 1:30 PM
Now, the new management company apparently has two sets of ballots. One for those who wish to mail-in their ballot. It has no space for a "write-in."
Is there something in the covenants that could be interpreted to prohibit write-ins?
NpB
(Arizona)

Posts:134


02/10/2020 1:44 PM  
Posted By AugustinD on 02/10/2020 1:37 PM
Posted By NpB on 02/10/2020 1:30 PM
Now, the new management company apparently has two sets of ballots. One for those who wish to mail-in their ballot. It has no space for a "write-in."
Is there something in the covenants that could be interpreted to prohibit write-ins?





No.
BarbaraT1
(Texas)

Posts:271


02/10/2020 1:56 PM  


For elections,our meeting notice includes a disclaimer that if members vote by absentee ballot they will not have the opportunity to consider candidates nominated from the floor. It's the risk they take, and there's just no way around that.

For amendments or other ballot measures requiring homeowner vote, things are a bit stickier. If that is amended or the wording is altered of whatever is being voted on, the choice is to discard the absentee ballots (which could affect quorum) or adjourn the meeting and call a new meeting with the revised wording in the notice and collect new absentee ballots based on the modified ballot measure.
AugustinD


Posts:2574


02/10/2020 2:06 PM  
Posted By BarbaraT1 on 02/10/2020 1:56 PM
For amendments or other ballot measures requiring homeowner vote, things are a bit stickier. If that is amended or the wording is altered of whatever is being voted on, the choice is to discard the absentee ballots (which could affect quorum)
There is no "choice" to this. At the meeting of the members, the membership cannot lawfully alter the wording of an amendment or any other ballot measure without proper notice to all members.
BenA2
(Texas)

Posts:560


02/10/2020 5:41 PM  
I think your assessment is correct. The code seems clear that any proposal has to be on the ballot which would rule out a vote on a motion or nomination at the meeting. The fact that 33-1812 also prohibits proxy votes suggests votes on motions at the meeting would not be allowed since a proxy would be the only way for an absentee owner to have a vote on a motion from the floor.

That being said, there could be other laws or case law that affects this. I suggest asking an attorney.
AugustinD


Posts:2574


02/10/2020 6:35 PM  
Posted By BenA2 on 02/10/2020 5:41 PM
The code seems clear that any proposal has to be on the ballot which would rule out a vote on a motion or nomination at the meeting.
I think a nomination from the floor is fine, since the covenants provide for a floor nomination. But any other action is not.
JohnC46
(South Carolina)

Posts:9121


02/11/2020 11:27 AM  
When we send out the notice of our Annual Meeting (US Mail, 30 days prior) we include information on the Bod such as whose term is up and who remains on the BOD. We ask that anyone interested in running submit their name to our MC (who runs our elections) to be included on the ballot. The MC has his assistant bring a PC and printer to the meeting. As we allow nominations from the floor, a ballot is subject to change. Once the nominations are closed, his assistant prints out the ballots and we vote.

Having said all that, only once in 5 elections (our first) did we ever have to use a ballot and a nominee form the floor won a spot. Since then, we have never had more run than we had open spots so no balloting. Those that run are on the BOD. We usually have to go begging at the meeting for someone to run.

When nominations from the floor are not allowed, people can always say the slate was fixed.

When nominations from the floor are allowed, people will feel it is an open election.
NpB
(Arizona)

Posts:134


02/11/2020 12:05 PM  
Posted By JohnC46 on 02/11/2020 11:27 AM
When we send out the notice of our Annual Meeting (US Mail, 30 days prior) we include information on the Bod such as whose term is up and who remains on the BOD. We ask that anyone interested in running submit their name to our MC (who runs our elections) to be included on the ballot. The MC has his assistant bring a PC and printer to the meeting. As we allow nominations from the floor, a ballot is subject to change. Once the nominations are closed, his assistant prints out the ballots and we vote.

Having said all that, only once in 5 elections (our first) did we ever have to use a ballot and a nominee form the floor won a spot. Since then, we have never had more run than we had open spots so no balloting. Those that run are on the BOD. We usually have to go begging at the meeting for someone to run.

When nominations from the floor are not allowed, people can always say the slate was fixed.

When nominations from the floor are allowed, people will feel it is an open election.





In my opinion, advanced notification sent to owners two months before the annual meeting indicating if they wish to run for the Board, please submit a one page candidate statement to the management company within 30 days, should preclude nominations from the floor. Anyone recorded owner who submits a candidate statement is automatically on the ballot. Having a floor nomination is moot because the nomination process has already taken place and most likely those nominated from the floor would not be interested in accepting the position.
CathyA3
(Ohio)

Posts:737


02/11/2020 12:18 PM  
Posted By JohnC46 on 02/11/2020 11:27 AM

... snipped for brevity...

When nominations from the floor are not allowed, people can always say the slate was fixed.

When nominations from the floor are allowed, people will feel it is an open election.




Adding on to this: do your governing docs require a nominating committee? Some states prohibit them (Florida for condos but not HOAs?), but many allow or require them.

One argument against them is that they can be misused to keep people out. If your community does use a nominating committee, I think it's even more important to allow people to nominate from the floor to ensure you have a fair and open election process.
JohnC46
(South Carolina)

Posts:9121


02/11/2020 2:01 PM  
Posted By CathyA3 on 02/11/2020 12:18 PM
Posted By JohnC46 on 02/11/2020 11:27 AM

... snipped for brevity...

When nominations from the floor are not allowed, people can always say the slate was fixed.

When nominations from the floor are allowed, people will feel it is an open election.




Adding on to this: do your governing docs require a nominating committee? Some states prohibit them (Florida for condos but not HOAs?), but many allow or require them.

One argument against them is that they can be misused to keep people out. If your community does use a nominating committee, I think it's even more important to allow people to nominate from the floor to ensure you have a fair and open election process.




Our docs call for a Nominating Committee and we appoint our MC as such but all he does is check the status of anyone wanting to run. If not behind in dues, they are nominated. We did have one person nominated form the floor and he had to be called aside and told he could not run as he was behind in his dues. He politely withdrew.
JohnC46
(South Carolina)

Posts:9121


02/11/2020 2:06 PM  
Posted By NpB on 02/11/2020 12:05 PM
Posted By JohnC46 on 02/11/2020 11:27 AM
When we send out the notice of our Annual Meeting (US Mail, 30 days prior) we include information on the Bod such as whose term is up and who remains on the BOD. We ask that anyone interested in running submit their name to our MC (who runs our elections) to be included on the ballot. The MC has his assistant bring a PC and printer to the meeting. As we allow nominations from the floor, a ballot is subject to change. Once the nominations are closed, his assistant prints out the ballots and we vote.

Having said all that, only once in 5 elections (our first) did we ever have to use a ballot and a nominee form the floor won a spot. Since then, we have never had more run than we had open spots so no balloting. Those that run are on the BOD. We usually have to go begging at the meeting for someone to run.

When nominations from the floor are not allowed, people can always say the slate was fixed.

When nominations from the floor are allowed, people will feel it is an open election.





In my opinion, advanced notification sent to owners two months before the annual meeting indicating if they wish to run for the Board, please submit a one page candidate statement to the management company within 30 days, should preclude nominations from the floor. Anyone recorded owner who submits a candidate statement is automatically on the ballot. Having a floor nomination is moot because the nomination process has already taken place and most likely those nominated from the floor would not be interested in accepting the position.




Nominations from the floor is a 3 step process:

1: You cannot self nominate. A fellow owner must nominate you.

2. You can accept or refuse the nomination.

3. If you accept our MC (our designated Nomination Committee) will verify you are eligible as in not behind on your dues.
AugustinD


Posts:2574


02/11/2020 3:40 PM  
Posted By NpB on 02/11/2020 12:05 PM
In my opinion, advanced notification sent to owners two months before the annual meeting indicating if they wish to run for the Board, please submit a one page candidate statement to the management company within 30 days, should preclude nominations from the floor. Anyone recorded owner who submits a candidate statement is automatically on the ballot. Having a floor nomination is moot because the nomination process has already taken place and most likely those nominated from the floor would not be interested in accepting the position.
How come you do not care that your HOA has a covenant requiring that members be allowed to nominate from the floor? Is it just because you cannot understand this covenant? Or is it because you do not feel that covenants are contractual rights belonging to the owners? Or something else? One purpose of nominations from the floor is that it recognizes that new information may come out making some candidates undesirable.
JohnC46
(South Carolina)

Posts:9121


02/11/2020 3:45 PM  
NpB wants things to be the way he believes they should be. Not that his beliefs are wrong, actually some are good, but he wants to disregard/work around his docs to suit himself.
AugustinD


Posts:2574


02/11/2020 3:49 PM  
Are you saying NpB's other threads have indicated this is a habit?
MarkW18
(Florida)

Posts:476


02/11/2020 4:26 PM  
My opinion is that if an association send out nomination forms and votes with a ballot, then there should be no need for nominations from the floor. I also believe if one homeowner can nominate another homeowner by sending a candidate form in, then write-in candidates can/should also be eliminated.
NpB
(Arizona)

Posts:134


02/12/2020 11:06 AM  
Posted By MarkW18 on 02/11/2020 4:26 PM
My opinion is that if an association send out nomination forms and votes with a ballot, then there should be no need for nominations from the floor. I also believe if one homeowner can nominate another homeowner by sending a candidate form in, then write-in candidates can/should also be eliminated.





Completely agree.
NpB
(Arizona)

Posts:134


02/12/2020 11:07 AM  
Posted By AugustinD on 02/11/2020 3:49 PM
Are you saying NpB's other threads have indicated this is a habit?





Same with your posts.
NpB
(Arizona)

Posts:134


02/12/2020 11:08 AM  
Posted By JohnC46 on 02/11/2020 3:45 PM
NpB wants things to be the way he believes they should be. Not that his beliefs are wrong, actually some are good, but he wants to disregard/work around his docs to suit himself.





Incorrect.I am astute on state laws, which I mentioned in the OP.
AugustinD


Posts:2574


02/12/2020 11:10 AM  
Anytime I argue that a covenant is not valid, I try to back up my claim with statute, case law et cetera.
NpB
(Arizona)

Posts:134


02/12/2020 11:14 AM  
Posted By AugustinD on 02/12/2020 11:10 AM
Anytime I argue that a covenant is not valid, I try to back up my claim with statute, case law et cetera.




So do I.
AugustinD


Posts:2574


02/12/2020 11:23 AM  
You're saying the statute makes the covenant invalid. You have my opinion that this is a stretch. Whatever.
NpB
(Arizona)

Posts:134


02/12/2020 11:40 AM  
Posted By AugustinD on 02/12/2020 11:23 AM
You're saying the statute makes the covenant invalid. You have my opinion that this is a stretch. Whatever.





State law supersedes HOA covenants and IMO it places doubt into validity of nominations from the floor.
AugustinD


Posts:2574


02/12/2020 11:57 AM  
In a conflict between state law and a HOA covenants, state law wins. I see no conflict. Plus it's easy to comply with the covenant and have no problems.

Go ahead and convince the board to do as you want. At least you asked what people thought and presumably realize this is no slam dunk.
NpB
(Arizona)

Posts:134


02/12/2020 2:47 PM  
https://www.parli.com/newsletter/arizona-hoa-s-change-from-proxy-voting-to-absentee-ballots


"Many associations have covenants or bylaws that state nominations shall be allowed from the floor at the annual meeting where the election takes place. What this law does is make this a moot procedure because the ballot will have already gone out for people who are absent to vote for a slate of candidates. Those absent will not have the opportunity to vote for any one nominated at the meeting by those present. In fact, it would be out of order to have nominations from the floor because once balloting has begun it is out of order to discuss further or make changes to the motion (in this case nominations)."


Referring to A.R.S. 33-1812
AugustinD


Posts:2574


02/12/2020 3:26 PM  
NpB, the 2005 Roberts Rules web site you linked seems to be powerful-looking ammo for your position regarding nominations from the floor (but not write-ins). But I find it contradicts itself.

First the site notes:
"In fact, it would be out of order to have nominations from the floor because once balloting has begun it is out of order to discuss further or make changes to the motion (in this case nominations)."

Second the site notes:
"Then it could state that the following nominations have come in from the members. Then the ballot would list all those nominated for each office. The letter could also state that any member is able to write in a name on the ballot. This would allow for a write in campaign."

The site seems to me to be saying it is okay to make changes to the "motion," via a write-in. I guess this is why you want to disallow write-ins altogether.

Write-ins seem to me to be customary in any election, including national elections. (In my mind a write-in is no different from a nominee.)

In the interests of (1) allowing last minute nominees (which the original covenants require); (2) observing that the statute does not explicitly disallow floor nominations; and (3) given that parli.com says write-ins should be allowed under the statute (with said write-ins changing the proposed action), I would argue to allow write-ins on both ballots; to allow floor nominations; and make sure communications to all are clear that this is what is happening.

I am sure whatever of the two or so routes you choose the chances of a challenge are slim to none.



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