How to Handle a Blind-Side at an Assembly
There are some issues that are complex enough that you want to make sure they pass an assembly vote without needing changes at the assembly. These issues are just too complex to deal with at an assembly.
Complex wording shouldn’t be thrashed out at an assembly
For example, let’s say you need to change your condo by-laws.
By-law changes are a complex issue. They’re a legal document that will govern your condo for years to come. You need to get them right.
You definitely do not want to make quick changes under the pressure of an assembly. Changes that have not had the benefit of thorough thought and analysis. A hasty rewrite at an assembly can turn out later to have imprecise wording, conflict with another part of the by-laws, or be contrary to the condo law or another law.
It’s important that these changes be properly thought-out and vetted before the assembly, and that they’re approved without unexpected quick changes that you could regret later.
You’ve done everything right
You’ve struck a committee to examine your by-laws, and propose changes. You’ve invited all owners to come to these committee meetings. You’ve send out several stages of draft versions of the proposed by-law changes to the community for the owners’ inspection and feedback. You’ve responded to each owner who took the time to comment. You’ve incorporated some of these owner suggestions. For those you didn’t incorporate, you contacted the owner, talked it over with them, and explained your reasons for not using their suggestion.
You might have run them past a lawyer to make sure they didn’t contradict the condo law, any other laws, or other parts of the by-laws.
The result of your lengthy and public process is a set of proposed by-laws that has been thoroughly studied and vetted by the community. Approving them at your upcoming extraordinary assembly should be a smooth and easy process. After all, everyone’s had input, the community has “bought into” the changes, so how could anyone object?
An owner who, for some inexplicable reason known only to themselves, didn’t take part in any of the committee meetings or the public feedback process, but stands up at the assembly and rattles off a list of six or seven changes they demand you make to the proposed by-laws!
The unfortunate truth about human nature
In any community, there can be people who’ll be opposed to some of your by-law changes (or any changes), but who won’t take part in your review and feedback process, and who’ll voice their objections for the first time at the assembly.
I won’t tell you what I think of these people, but the fact is they’re out there. I sincerely hope you don’t have any in your condo!
Be proactive and have a plan
If you’ve carried out a thorough and public review, in all likelihood, your vote to adopt the new by-laws as presented will pass with no problems.
That said, you do need to be prepared for the eventuality of someone trying to thwart the process solely to bolster their own ego. This is a slap in the face to everyone who worked so hard on this project, and to those owners who did give comments and suggestions, but these individuals don’t care about others.
To help pave the way for dealing with this problem in case it comes up, I recommend that you announce at the beginning of the assembly that:
- because of the complex nature of the vote, you’ll be following Robert’s Rules of Order Newly Revised;
- there’s a time-limit for speakers of five minutes;
- during discussion, each person can only speak twice to a motion;
- they cannot speak a second time until everyone else who wishes to speak has had their first opportunity, and their second speech must have new information (cannot be what they already said);
- rules of decorum will be enforced: if a speaker strays from the topic, makes comments that are a personal attack on another person, questions someone’s motives, refers to someone else by name, is rude, or uses profane language, then the Chair of the Assembly will either sanction them or rescind their speaking privilege.
If you say this at the beginning, and if no one objects, then these rules are in force for the assembly. If someone does object, have a quick vote – one vote per attendee, majority rules.
Before the motion to approve the proposed by-laws is made, give a brief introduction. Summarise the process you went through, stressing the amount of time and effort that went into it, the number of people who worked so hard, and the many opportunities every owner had to give their feedback and to voice their concerns or objections. If you used a lawyer, explain that the scrutiny of a lawyer was needed because of the complex nature of the by-laws, and to make sure that they were legal, and that parts didn’t contradict other parts.
Dealing with changes presented during the motion
When the motion to adopt the new by-laws comes up, you should then open the motion for discussion before it’s put to a vote as a resolution of the assembly.
It’s possible that you could have someone there who wants to blind-side the process. They will now bring up one or more changes.
If someone does stand up with a list of changes, then I suggest you tell them that the time for changes has passed. Explain that there were many opportunities during the lengthy public feedback process to give their concerns and changes, and say that the by-laws are too complex to make changes on-the-fly at an assembly without studying their legality or their impact on the rest of the by-laws.
Hopefully, they’ll then see reason and sit down. Remember that discussion doesn’t mean that the assembly has to entertain their changes unless they make some sort of formal motion.
Dealing with an amendment
If they do propose an amending motion (following the proper procedure as outlined in Robert’s Rules Newly Revised §12. AMEND), then their amendment must be voted on.
To make this potentially complex process much simpler, insist that each of their proposed changes be stated as a separate amendment, and deal with each one in turn.
They’ll then make their first motion to amend, citing the first change they want to make.
For example, assume that the original motion was, “To approve and adopt the proposed by-laws as presented.”
The amending motion could be, “To approve and adopt the proposed by-laws as presented with a change to the second paragraph of Article 12 as follows, ‘blah blah blah’.”
A seconder is necessary for the assembly to consider the amendment. If there’s no seconder, the amendment disappears, and you can move on.
If the amendment is seconded, then the attendees have a right to speak to the amendment before it’s voted on. One or more of the by-law’s supporters (the more the better) should be prepared to make a clear case about why unreviewed changes must not be made. If a committee member is there who knows that the proposed change is illegal, badly worded, or in conflict they should rise and say so.
When everyone has spoken (no more than twice!), then the amendment is voted on. Just before this vote is taken, the Chair has the right to explain the impact of this change to the assembly, and can restate any concerns about the proposed amendment.
Remember that proportional voting by condo rights only applies to any final resolution that will be adopted by the assembly.
Incidental votes of a procedural nature (such as on an amendment) can be a simple one vote per attendee, and the majority carries.
These motions to amend (and the voting on them) won’t appear in the registered assembly minutes (if you include them, your notario will most likely remove them during the protocolisation process). All the notario wants to see is the wording of the final resolution as it was voted on. He doesn’t care about the process that led up to its final wording.
Once an amendment has been moved and defeated, it cannot be discussed or brought up again.
There could be enough people to defeat one or more of these amendments if they already agree with the new by-laws, and understand that off-the-cuff changes to the governing legal document are ill-advised.
If any amendment passes, you have no choice but to accept it, and the wording of the motion to approve the by-laws will then have the added change for the vote.
Each new amendment that passes will add some new text onto the end of the original motion.
Passing an amendment does not make it a resolution of the assembly. The amendment just amends the original motion (to approve the by-laws), and, once all amendments are finished, the amended motion must still be voted on by the assembly before it becomes a resolution of the assembly.
I realise that this is complicated, but this is such a critical issue that you need to do everything you can to make sure your by-laws are correct. While a deliberative assembly lets someone blind-side you, it also gives you the tools to do everything possible to try to undo any damage they might be causing to the condo through these actions.
The end result of this series of amendments could be a highly changed motion, a slightly changed motion, or the original motion to approve the by-laws (unchanged).
Before the final vote takes place on the amended motion, discussion can continue on the motion as amended. This is because the discussion on this motion was put on hold by the amendment process. If the amended resolution contains changes that are harmful, possibly illegal, or damaging to the condo, then you should be prepared to have people stand and say this. If these changes have a significant negative impact on the by-laws, you might now want to lobby to have the amended by-laws defeated for the sake of the condo. Remember that the mover of the original motion can have the last word before the vote.
This final vote does use condo rights, because this is a resolution of the assembly that’ll be in the minutes and will be binding on all.
If an amendment passes, and then the amended resolution also passes, this could be unfortunate (depending on the nature of the changes), but you have no choice but to accept the outcome.
Hopefully, this worst-case scenario is extremely unlikely, and you won’t experience this behaviour in your condo. It is, however, best to be prepared.
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