Q&A: Is That Vote Legal?

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Q. I have a question about what constitutes a legal vote by the board. What I am seeing at meetings is that a member makes a motion, it is seconded, and then the president declares it passed. Shouldn’t there be an actual vote with a recording of how members voted? I have attended a number of meetings of our association board, and in the past, votes were taken after some debate, with members indicating yes or no. It seems to me, however, that our current board must be holding private meetings before the public meetings, discussing the issues that are on the agenda, and deciding in advance how they will vote. There never seems to be any opposition to motions, or even any discussion of the merits, in the public meeting.  I would like to hear some discussion and see how individual members really feel, and see those votes recorded for future reference. Am I wrong in wanting more transparency?

                                            —In the Dark

A. “Transparency is becoming increasingly important in almost all aspects of life lately,” notes Gary M  Daddario, a partner at the Merrimack, New Hampshire offices of Marcus, Errico, Emmer & Brooks, PC.  “It is natural to seek it. 

 “As to the specifics, the obligations of the board will vary from state to state.  Some state condominium statutes do not even require that meeting minutes be taken. Other states govern meeting minutes, voting, access to meetings and minutes to high levels of detail. 

 “Meeting minutes need not identify each board member specifically and how they voted. However, if meeting minutes are taken, there should be mention of the vote and the tally (e.g. ‘motion passed 3-2’).  If a board has five members and the voting standard is ‘majority,’ the president may announce ‘motion passed’ if the president sees that the motion has been made and seconded, and if the president also supports the motion (as this would result in three votes in favor). 

 “It would still be appropriate, however, for each board member to be asked to cast a vote one way or the other. If the board is discussing issues in meetings without the community, this raises questions about the extent to which the applicable law of your state allows ‘closed’ meetings and/or the extent to which your state governs ‘executive sessions’ (where board members speak privately).  

 “Again, some states address these issues only very broadly (e.g. with statements such as, ‘as set forth in the association’s bylaws’) and other states regulate these issues in detail (e.g. New Hampshire provides four reasons, appearing in the Condo Act, for which executive sessions may occur).  In addition to reviewing the requirements of the applicable condominium statute, boards must also adhere to the requirements of their association’s governing documents. 

 “Typically, bylaws contain provisions that do address topics like board meetings, community meetings, and voting. If a unit owner wishes to be part of a discussion about a particular subject matter, another option is to submit a request, in advance of the meeting, either asking for that topic to be on the agenda or, if the topic is already there, specifically asking for the ability to address the board on that topic during the meeting.”

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