OVA board should not propose a 25 percent quorum for amending bylaws
By Don McPherson
Governance of the Oakmont Village Association (OVA) is controlled by three governing documents – the Articles of Incorporation, the Protective Restrictions (CC&Rs), and the Bylaws. The governing documents are subordinate to applicable law. Within the structure of OVA as a corporate envtity, the Bylaws are the frame of government establishing the rules, regulations, rights and responsibilities of Members and of the elected Board of Directors.
Frames of government (such as constitutions, bylaws, charters, etc.) are unique. They control all organizational activity with finality except for conflict with law. They are intended to be enduring in their essence because they represent a broad consensus of the will of the members to guarantee long-term stability in governance.
Although frames of government contain provisions for amendment in order to adapt to changed circumstances, such provisions intentionally make amending difficult through devices like quorums and/or extraordinary majorities. This is to ensure that the amended document retains widespread support of the membership.
Changing the current OVA Bylaws requires the affirmative vote of a majority of the total voting membership, approximately 3,200. So any proposed amendment requires at least 1,601 affirmative votes – not just 1,601 members voting – in order to succeed. In practice, 1,601 affirmative votes is a high bar and would require an extraordinary turnout as measured by Oakmont’s voting history. The threshold needs to be lower for the Bylaws to be reasonably possible to amend.
OVA’s current Bylaws are out-of-date. Numerous changes are necessary for “housekeeping” and for conformance to later statutes. Certain substantive changes also may be desirable. A Board-chartered Bylaws Revision Committee recommended numerous amendments to be placed before the membership in two phases. The first phase is a substantive change in the threshold for Bylaws amendments. The Committee recommended changing the threshold to a quorum of 25 percent of the voting membership (800 of 3,200) and a simple majority (as few as 401).
After considering the Committee’s recommendations and consulting OVA attorneys, the Board endorsed the recommended 25 percent quorum at its March 17, 2020 meeting. Recently the Board indicated an intention to decide, perhaps in the near future, to put that recommended change to a vote of the OVA membership.
This change would be drastic in its own right, and especially drastic compared with the current threshold. As a permanent change to the frame of government, a quorum of just 25 percent is self-evidently too low. It renders the Bylaws easy, rather than difficult, to amend in the future and undermines the very durability, stability and broad acceptability that the Bylaws are intended to provide.
The recommended change is being justified by legitimate, but essentially utilitarian, reasons – to pave the way for possible adoption of the other recommended amendments. Such a drastic and enduring substantive change should not be made for short-term utilitarian purposes when its effect on the Bylaws is long-term.
Approval thresholds for changes to Bylaws should fit the long-term electoral characteristics of a given community. Reasonable, widely acceptable alternatives have been urged in social media posts and communications by members to the Board. Choosing one of these alternatives will advance the prospect of having many of the needed proposed changes adopted without requiring an inappropriately extreme, permanent change to the Bylaws amendment provisions.
Choosing an alternative like a 50 percent quorum (1,600 of 3,200 members) with a simple majority (801) or a 60 percent super majority (960) for passage, or even a 40 percent quorum (1,280) with a 60 percent super majority for passage (768) would put the prospects for a supporting vote on the other changes within practical political reach. OVA voting history demonstrates that securing turnouts as well as affirmative vote totals in these ranges is appropriately challenging for amending Bylaws, but achievable. Such alternative thresholds preserve the principle that a frame of government should be possible, but difficult, to amend.
In an age when voter indifference is a serious problem in elections generally, the OVA Bylaws need to be modernized while continuing to guarantee widespread acceptability. Choosing one of the alternative thresholds makes it much less likely that the entire effort to modernize fails because securing the required 1,601 affirmative votes may be impossible in the face of strong, organized opposition to a 25 percent quorum, which is certain. Proposing a 25 percent quorum so that the Bylaws are easily amended in the future is a bad idea in principle, and also risks failure to achieve what is otherwise a necessary and widely acceptable objective. Choosing one of the alternative amendment thresholds is a wiser course of action.
The OVA Board should reconsider its announced intention and instead propose to the membership one of the reasonable, principled, and therefore widely acceptable higher thresholds for amending the Bylaws that appropriately addresses Oakmont’s long-term voting trends.