Conduct HOA Election for Interim Board Members

Started by KellyC6 • 11 replies • 3220 views

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KellyC6 (Virginia)
Posts: 37

Posted:

Our 5 member Board recently had 3 resignations. The remaining 2 Board members were unable to appoint a new member to the board (in accordance with the Bylaws) in order to establish quorum and conduct business as usual. Now we are moving forward with a Special Meeting and Election. It is understood that anyone who is elected will serve out the remaining term of the vacancy/vacancies (in this case until September's Annual Elections).

However, as the remaining senior officer and a member of the Board for only the past 8 months, I have never conducted an election and we must do so without the cooperation and assistance of the managing agent. Proper notice of the meeting has already been hand delivered as required. It is also my understanding that we can receive nominations from the floor and write-ins because as yet there have been no nominations to put on the ballot. I have requested a sign in sheet, ballot(s), and a delinquency report from the managing agent.

Is there anything else I need to do/have in order to conduct the meeting and hold an interim election?

Also, the vacancies were for President, Treasurer, Secretary. Is my understanding correct that once elections are complete (whether one, two , or three vacancies are filled), the Board can move directly into Executive Session and the Board decides among themselves who fills which position. (In other words, the vacancies are being filled, not necessarily the specific positions.)

Thanks for any help anyone can provide, KellyC6

TimB4 (Tennessee)
Posts: 21,059

Posted:

Kelly,

Wow, a lot of questions. If I understand it correctly,

You had a 5 member board and 3 resigned. The remaining 2 were unable to come together to appoint individuals to fill the vacant seats (as authorized under VA law and your governing documents). You didn't explain why you were unable to appoint people to fill the vacancies (no one volunteered or unable to agree with each other) but you decided to hold a special meeting for the purpose of having the membership vote the replacement directors. Good.

Why the managing agent isn't assisting the Board with this doesn't make sense. Perhaps you should remind them that they work for the Board. However, it sounds like your on the right start.

I am going to make the following expectations:

a) You are incorporated in the State of VA as a non-profit and are therefore subject to the Virginia Nonstock Corporation Act

b) You are an HOA and not a condo therefore subject to the the Virginia Property Owners' Association Act

Based on these expectations, The typical procedure in Virginia is:

1. Notice of the special meeting, identifying where, when and why needs to be sent to all members. Per VA § 13.1-842 this notice must be no less than 10 days and no more than 60 days prior to the meeting. This notice must also comply with any notice requirement in your Governing documents.
So if your documents say 30 days notice is required, because this time frame complies with VA law, then the notice must be 30 days in advance.

2. Gather a members list for the meeting identifying who may vote. This list must be present at the meeting and is used to verify the voting eligibility of those attending. It appears you have already requested this from your manager. Specifics can be found in VA § 13.1-845. Members' list for meeting.

3. Prepare the agenda which is similar to an annual meeting but will not require all the reports. A typical agenda for this type of special meeting would be:

Call to Order
Certification of Quorum present in person or by proxy
Proof of Notice (Copy of notice and statement when it was sent)
Election of Directors -
- Explain that 3 resigned
- Identify known nominees
- Request for nominees from the floor (have something to write names on)
- Perhaps a short introduction for each nominee
- Close the nominations
- Distribute the Ballots (if not provided when members checked in) - One per lot
- Close the polls Collect the Ballots
- count the ballots
Announce the results at the meeting
Adjourn the meeting

4. Prepare the Ballots It's easiest to hand these out as people check in, one per lot is typical but check your governing documents.

5. Hold the Meeting Identify someone to take the minutes (these will be approved at your annual meeting). Identify someone to check people in and verify proxies. Identify 2 or 3 people to count the ballots.

6. Gather contact info from newly elected directors

7. Set date and provide proper notice of your first board meeting NOTE: this is an open meeting. VA law § 55-510.1. Meetings of the board of directors. is very specific about what can be discussed in executive session. Appointing officers is not one of them.

8. Notify the State Corporation Commission of the new officers

Here are additional links that might be of assistance:

The Fairfax County Community Association Manual which provides general information and guidelines concerning the legal authority, structure, and management procedures for mandatory-membership property and condominium owners associations. Great even if you are not in Fairfax County.

Virginia State Corporation Commission Web Site forms and fees for Nonstock Corporations

Tim

KellyC6 (Virginia)
Posts: 37

Posted:

TimB4,

Thanks very much for your extremely helpful reply. Yes, you are correct that we are a VA nonstock corporation and an HOA. You are also correct that the remaining two members of the Board could not appoint anyone to fill the vacancy/vacancies because no one volunteered.

The managing agent is demonstrating fierce loyalty to the former board members who resigned by withholding communication and information, which essentially puts me in the position of flying solo. The only way I am getting anywhere at all is to show up in person at their offices. (I know I have the right to file a formal complaint with the Common Interest Community Board, but I need to get through this meeting/election first.) There has also been limited communication with our Association's attorney due to my understanding that it must be done with the full agreement of the other remaining member of the Board, who is also being uncooperative.

I do not possess encyclopedic knowledge of applicable VA Code or the POA Act, and it is a known fact within our community that our Association's documents were poorly written by the builder (in terms of the Declaration and Bylaws). In the past, there has been a lot of reliance on personal interpretation of the documents which has contributed to a considerable amount of animosity within the community. I do not want to make similar mistakes and am also keenly aware that all eyes are/will be upon me as I proceed to conduct this meeting/election.

Since the three resignations -- which occurred exactly one month ago -- I have been thrown into the deep end of the pool, and am trying to get myself up to speed on applicable statutes, etc.. But it is a very tall order to try and do so in such a short amount of time. I am not complaining; just doing my best to keep my head above water.

But without any expertise or resources to rely on from the managing agent or the Associations' attorney, it has been a Herculean task to mine through the documents, VA Code, and the Act to determine a procedure or checklist to conduct this meeting/election -- so I greatly appreciate the help you have provided.

With regard to item #7 in your reply: "Set date and provide proper notice of your first board meeting..." Yes, it is understood any future meeting will be an open session. However, the reason I asked about an Executive Session immediately following this meeting/election is because that is what was done immediately following the Annual Meeting last September (which is when I was elected to the Board). The now former President moved us directly into Executive Session specifically for the purpose of the old/new members of the Board to determine who would fill each office. Based on that prior President's action at that previous meeting, I assumed I could do the same now.

If you are telling me that this cannot be done, then when/how does it happen (when/how do Board members decide who fills what position)?

Thanks again, KellyC6

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By KellyC6 on 04/04/2011 12:16 PM

With regard to item #7 in your reply: "Set date and provide proper notice of your first board meeting..." Yes, it is understood any future meeting will be an open session. However, the reason I asked about an Executive Session immediately following this meeting/election is because that is what was done immediately following the Annual Meeting last September (which is when I was elected to the Board). The now former President moved us directly into Executive Session specifically for the purpose of the old/new members of the Board to determine who would fill each office. Based on that prior President's action at that previous meeting, I assumed I could do the same now.

If you are telling me that this cannot be done, then when/how does it happen (when/how do Board members decide who fills what position)?

Thanks again, KellyC6

Yes, the assignment of officers should not have been done in executive session. You may certainly have a board meeting immediately following the annual meeting. That meeting would be an organizational meeting and must be an open meeting.

Basically, the way it was done in the past was not in compliance with the law. It doesn't make any decision out of those meetings illegal. It just indicates that the Board was not complying with existing VA laws and might have issues if it was ever challenged in court. Therefore, you just need to start doing things correctly from this point forward.

The easiest way would be to include in your notice that a board meeting will be held immediately after the annual meeting. Then after you end the annual meeting, say that all members who desire to stay for the Board meeting may, but it is not required. We will begin the Board meeting in 10 min.

I would expect everyone but the board to leave.

VA § 55-510.1. Meetings of the board of directors specifies that executive sessions are only for:

The board of directors or any subcommittee or other committee thereof may convene in executive session to consider personnel matters; consult with legal counsel; discuss and consider contracts, pending or probable litigation and matters involving violations of the declaration or rules and regulations adopted pursuant thereto for which a member, his family members, tenants, guests or other invitees are responsible; or discuss and consider the personal liability of members to the association, upon the affirmative vote in an open meeting to assemble in executive session

I suppose that an argument could be made that the appointment of officers could be considered personnel matters but I believe personnel matters infers employees or independent contractors. The key word is "may" which indicates it's an option but not a requirement.

Tim

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By KellyC6 on 04/04/2011 12:16 PM
then when/how does it happen (when/how do Board members decide who fills what position)?

My Association holds a board meeting within one week of the election. The outgoing president would chair the meeting until the appointment of officers is completed. At that time, the outgoing President turns the meeting over to the new president.

I'm sure other Associations may do this differently. This is how we do ours.

I've attached a copy of the Agenda from our last organizational meeting (if your interested).

Tim

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KellyC6 (Virginia)
Posts: 37

Posted:

Thanks again for your help. Greatly appreciate your time!

PamelaM5 (Florida)
Posts: 85

Posted:

Tim has covered almost everything quite well, and the only advice I'd give the new board is to start shopping for a new management company. They should not become involved in association politics and their refusal to help out in the election is unprofessional, insubordinate and grounds, IMO, for being replaced.

Good luck to you.

SusanW1 (Michigan)
Posts: 5,202

Posted:

I am confused: if the board could not find any volunteers to simply fill in for 6 months, how are you finding candidates for the election?

KellyC6 (Virginia)
Posts: 37

Posted:

TimB4 -- Thanks for your help/advice. Conducted successful interim elections. Board back up to five members.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By KellyC6 on 04/10/2011 11:26 AM
TimB4 -- Thanks for your help/advice. Conducted successful interim elections. Board back up to five members.

Kelly,

FANTASTIC !

I'm glad to hear it. Please continue to be a part of this forum and to pass on things you have learned in the process so others can benefit.

Tim

CharlesB17
Posts: 112

Posted:

I read so many people recommending to find a CAM (Community Association Management). I so disagree with that line of thought. Why pay a CAM for ???
Most CAMs care less about the community and almost all drive up the cost of the dues. I just met with a friend that is a CAM. And we got on the topic of what he does. And the bottom line was collects the dues,and basically runs the office stuff. So I asked him what he actually does for the community he manages. He said he "is suppose to " ride through the neighborhood and look for CC&R violations and tke notice of the common aereas. So, I asked him if he did that. He replied, as time permits. I asked him to expound upon that statement. He contined on telling me he has multiple associations and spends most of his time behind his desk answering phone calls, crediting accounts. He contineud to tell me he has to consult with the BODs before anything is done on the agenda, and sometimes the common areas go overlooked.
So, I basically said to him, all he did was get paid to be the HOA's personal secretary. He smiled and said "something like that"
I know every association has a BOD and is required to. But, usually I have seen someone on the board is friends with this attorney that is friends with a CAM and they all figure out how to get more money and do the least amount to get it.
For those that have a CAM, go look at the bo0oks and see where your money is going!
Self Manages HOAs are far better off with a private attorney and the software of their choice.
Just my 2 cents

TimB4 (Tennessee)
Posts: 21,059

Posted:

I thought Charles statement deserved a new topic, therefore I copied it to this thread:

http://www.hoatalk.com/Forum/tabid/55/forumid/1/tpage/1/view/topic/postid/111437/Default.aspx#111441

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