Committee looks into how it needs to comply with law

By Greg Ellison

(March 12, 2020) The Ocean Pines Association Bylaws and Resolutions Committee last Friday proposed amending language concerning the Board of Directors’ ability to vote on matters outside of a public meeting to comply with state regulations.

Board member Dr. Colette Horn said procedural concerns surfaced following an initial 6-1 vote that was later conducted via email last month to purchase upgraded sound equipment for banquet facilities at the yacht club.

During the board meeting in February while considering the purchase of a new sound system, OPA President Doug Parks asked for an email vote on the matter, with Board member Tom Janasek requesting additional pricing information before eventually concurring by email.

Horn said after discussing the issue with Parks, but not to this point other board members, she opted to seek guidance from the bylaws committee.

“Did you ascertain a way to bring that up for board discussion,” she said.

Horn said the Code of Maryland Regulations (COMAR) states any action requested or permitted to be taken at a meeting maybe taken outside that context if there is unanimous consent which sets forth the action.

“That’s the consent that sets forth the action to vote on a motion,” she said. “We’re not looking for unanimity on the motion.”

Horn said in practice, despite the recent exception, prior unanimous consent to vote electronically failed to yield any discussion.

“We had a recent example with a no vote on the motion by email,” she said.

In this case the lack of concurrence was tied to Janasek lacking previous experience with email voting procedures, Horn said.

“If you’re voting no on the motion you obviously have a dissenting opinion that deserves to be aired in a public meeting,” she said.

Committee member Jeff Knepper said regardless of OPA bylaw procedures, the state code says the electronic vote on the action requires unanimous consent.

Horn suggested a potential distinction existed between agreeing to vote via email and actually reaching a decision on the related motion.

“The action that we’re taking at meetings are not the substance of the motion,” she said. “It’s the motion that directs an action.”

Knepper agreed the action to vote is a procedural decision.

“The substance of what you’re voting on is what needs to be unanimous under that statue,” he said.

Committee member Keith Kaiser said the majority of votes at issue involve matters only the board can move forward.

“That’s the action you’re taking … not to vote,” he said. “Everybody’s allowed to vote. We vote in here.”

Board committee liaison Camilla Rogers said the current email voting process involves two steps.

“I think our discussion was is it within our purview to say that we can take an email vote to vote our choice,” she said.

Knepper said the only portion requiring unanimous consent was the second vote to approve a motion outside of an open meeting.

Bypassing the meeting context limits a nuanced discussion with real time interactions, Knepper said.

“You lose any of the emotion … that doesn’t come through in email,” he said.

Horn agreed vital communication could be lost if a board member ultimately voted against a motion by email.

“If everyone is voting affirmative to the motion, there’s no heated discussion at all,” she said.

Horn said her impression was board members should vote down the option to decide by email if it is unlikely they would support the motion at hand.

Knepper said the concept was reasonable but not required.

“I don’t think there’s anything in the [governing] documents that say you have to do it that way,” he said.

Committee Chairman Jim Trummel agreed the two-step process was not required by the state code.

“What code says is unanimous consent to the action period,” he said.

Trummel said Ocean Pines is a homeowner’s association incorporated as a nonstock corporation.

“The informal action provision is an action as a corporation,” he said. “If you fail to do that, then you’re into the open- and closed-meeting provisions of the homeowners association act [and] when there was that no vote you did not comply with the documentation required of a closed meeting.”

Horn said the oversight was a regrettable misstep.

“We were blindsided by the fact that we had a negative vote because our assumption was if you vote ‘yes’ to the email vote, that means you’re also going to vote ‘yes’ to the motion,” she said. “I think it comes back to orientation and training.”