How would a Tie have been Resolved?

DMS General
#1

Continuing the discussion from 2017 Annual Election Results:

I note that we avoided a three-way tie for a director position by one vote (assuming that one vote went to another that was not part of the tie). What would have happened if this had actually happened, or just a more likely two-way tie? It does not appear that the bylaws provide a mechanism to cover or resolve this eventuality.

#2

Death match.

Nah, since our bylaws don’t specify, I suspect it would fall back to TX law. I’ve been told that would require a special election to fill the vacant seat(s).

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#3

In the absence of something in our certificate of formation or bylaws you’d look to what the state statute says. Since all terms had expired, there were five vacancies to fill. Here’s what I found in state statutues and our bylaws. I have only looked at bylaws since the statue refers specifically to them and not rules. Interpret as you will on how we would proceed.

Sec. 22.151. MEMBERS. (a) A corporation may have one or more classes of members or may have no members.
(b) If the corporation has one or more classes of members, the corporation’s certificate of formation or bylaws must include:
(1) a designation of each class;
(2) the manner of the election or appointment of the members of each class; and
(3) the qualifications and rights of the members of each class.
© A corporation may issue a certificate, card, or other instrument evidencing membership rights, voting rights, or ownership rights as authorized by the certificate of formation or bylaws.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Our bylaws have these

Sec. 22.161. ELECTION OF DIRECTORS. (a) A member entitled to vote at an election of directors is entitled to vote, in person or by proxy, for as many persons as there are directors to be elected and for whose election the member has a right to vote.
_(b) If expressly authorized by the corporation’s certificate of formation, the member may cumulate the member’s vote by: [ Note: DMS certificate of formation or bylaws do not expressly permit this.]
(1) giving one candidate a number of votes equal to the number of the directors to be elected multiplied by the member’s vote; or
(2) distributing the votes on the same principle among any number of the candidates.
© A member who intends to cumulate votes under Subsection (b) shall give written notice of the member’s intention to the secretary of the corporation not later than the day preceding the date of the election.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.

Sec. 22.206. ELECTION OR APPOINTMENT OF BOARD OF DIRECTORS. Directors other than the initial directors are elected, appointed, or designated in the manner provided by the certificate of formation or bylaws. If the method of election, designation, or appointment is not provided by the certificate of formation or bylaws, directors other than the initial directors are elected by the board of directors.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.

Our bylaws proivde for election by a specified member class. Looking what our bylaws do say about a vacancy

Sec. 22.212. VACANCY. (a) Unless otherwise provided by the certificate of formation or bylaws of the corporation, a vacancy in the board of directors of a corporation shall be filled by the affirmative vote of the majority of the remaining directors, regardless of whether that majority is less than a quorum. A director elected to fill a vacancy is elected for the unexpired term of the member’s predecessor in office.
(b) A vacancy in the board occurring because of an increase in the number of directors shall be filled by election at an annual meeting or at a special meeting of members called for that purpose. If a corporation has no members or has no members with the right to vote on the vacancy, the vacancy shall be filled as provided by the certificate of formation or bylaws.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.

B doesn’t apply in this case.

Section 2.1 Board of Directors
The activities and affairs of this corporation shall be overseen by the Board of Directors, subject to the provisions of the laws of the state of Texas and any limitations in the Articles of Incorporation and these Bylaws.

  1. The Board shall consist of five (5) elected persons who are members in good standing and of the age of majority in the state of Texas, with no limit to the number of appointed advisers.
  2. The Board will appoint all officers.
  3. The Board shall be elected at the annual meeting by a quorum of the members and their proxies. Their term of office shall be until the next annual meeting of members or until a successor has been elected.
  4. Advisers are non-voting members who are appointed to the board and who will act in an advisory capacity. The Board of Directors shall not be required to accept the advice of such advisers.
  5. Directors shall not be personally liable for the debts, liabilities, or other obligations of the corporation.
  6. The Directors shall be indemnified by the corporation to the fullest extent permissible under the laws of the state of Texas.

Section 2.2 Vacancies of Office

  1. A Director may resign by giving written notice to any member of the Board of Directors.
  2. A Director is also deemed to have resigned or is required to resign under the following provisions:
  3. Being absent from three Board meetings consecutively without the approval of the Board;
  4. Having failed to uphold a signed statement of intent;
  5. Removal by resolution in a general membership meeting, in which there is a quorum of two-thirds of the voting members;
  6. Becoming of unsound mind; or
  7. Death.

Our bylaws state election at annual meeting, or at least address resignations or resignations deemed resignations, removal or death, but not failure to elect. What happens if there isn’t a quorum of voters?

DMS bylaws
Section 4.6.3 Special Meetings

  1. A special meeting may be called by a majority vote of the Board of Directors, or upon written request submitted to the Board of Directors by not less than ten (10) percent of the full voting membership; such written request is to contain the subject or subjects to be covered. A meeting date shall be set by the Board of Directors within fifteen (15) days of receipt of the request and the date of the meeting shall not be set more than forty-five (45) days from receipt of the request unless a specific date is stated in said request.
  2. Unless otherwise provided by the Articles of Incorporation, these Bylaws, or provisions of law, notice stating the place, date, time and purpose or purposes for which the special meeting is called, shall be delivered not less than ten (10) days before the date of the meeting. This notice shall be given to each member entitled to vote at such meeting by the Board of Directors or the person(s) calling the meeting, and only matters that are contained in this notification shall be considered.
  3. A notice of any membership meeting in which the Board of Directors are to be elected must also state the names of each nominee or candidate for election.

I think we definitely need to address this issue of ties. Is it just the persons that tied? Or is it an open election or just those that ran in prior election? State statute and bylaws are silent. Thankfully it didn’t occur, but it has been close in sevral years of elections and is likely to happen at some point.

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#4

ALL ties can be resolved with a Rock/Paper/Scissor death match.

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#5

Clearly it would be a walk off
https://media1.popsugar-assets.com/files/thumbor/XzioN5zxWFv2TCkfjHCbO2xL0hI/fit-in/1024x1024/filters:format_auto-!!-:strip_icc-!!-/2014/09/16/655/n/1922564/c10ff0a785ee6ff3_giphy/i/Modeling.gif

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#6

Or a death match. Lol

Merely a flesh wound.

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#7

Hmmm…would something like the following be workable (suitable language for amending bylaws TBD):

  • In the event of a tie, a run-off would be held at annual election board meeting (in this case the one that was held on April 23).
  • Only candidates involved in the tie would be eligible to receive votes in second round.
  • If all candidates were present at meeting, they would be allowed to speak for a few minutes before the vote.
  • Voting cast only by voting members present at meeting.
  • Voting would be by show of hand and tallied there and then.
  • A second tie would again be attempted to be resolved by another voting round per above process.
  • And finally, a third tie would be resolved – clearly by popular demand – by a death match.
#8

You’re pretty much right, David. And maybe I can help clarify for others while keeping the legalize to a minimum.

  1. Anyone elected to their Board seat would begin serving their term on the day and time that their term was designated to begin.
  2. Any candidates who encounter a tie with another candidate would be considered not elected.
  3. Any already sitting board member would thereby continue their service until the end of the 365th day of office, and then automatically resign.
  4. As our Bylaws require five Board members, if any seat is vacated for any reason, then another election must occur until they are all filled.

I don’t recall if tie mechanics were thoroughly discussed before the Bylaws were ratified, but as written, it does implicitly require a runoff (edit: technically, it would be a new open election for unfilled seats) to occur under these circumstances.

This would also mean that, when electing multiple candidates, our standing election process is incomplete. For example, in case of a tie for one Board seat, only four Board members would be considered elected, and we would not necessarily know which one of the five Board members retained their seat because of the tie. In the past, all Board members have resigned together and have been elected together. We have never encountered a tie. Although we have an informal ranking based on number of votes, we’ve never actually tracked who is elected to which Board seat.

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#9

I support this if they can pick a champion.

#10

Read all the way through intending to answer, and then the very last post I read does it for me!

Though I’d just note: it is closer to a “new election” than a runoff, but technically it’s the same election. It would be a new ballot. Such a ballot would typically be held immediately after the determination of the first ballot, since one of the principal purposes of the meeting is to fill the open seats due to end of term and the meeting should not adjourn before such business is completed.

Which leads to an aside: these are not “vacancies” as far as this context goes, and should not be treated as such; termination of term is a set, scheduled event and is not treated the same as an open seat due to nonfulfillment of an existing term. A vacancy is formally exceptional, and using its rules to address issues whose resolving power is granted to the full organization at an annual meeting would be a violation of the assembly’s right to deliberative self-governance.

(There are further nuances, regarding for example what that ballot properly contains as its question, but I’m assuming I’ve bored everyone by now. And no, before anyone asks – none of this depends on Robert’s.)

#11

Such debates, I think, would further justify the need for a more explicitly defined and formalized process, as @Photomancer suggested.

#12

Pistols at fifty paces? Worked for Hamilton!

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#13

Since “Worked” in this case = “death by pistol” that’s perhaps not ideal!

#14

Rock Scissors Paper Lizard Spock

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#15

This is DMS. You’ll need guns and zombies too.

#16

Already have the gun, still need the ammo… http://www.hornady.com/ammunition/zombiemax

#17

Or a good shell game? Beer pong?

#18

Thunder dome! Two men enter, one man leaves…

#19

But our Thunder is a rectangle, not a dome?

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#20

We could build a very large vac-u-form machine and remedy that…