Chronic absences and member "friendships" hindering board

I have read a lot of the discussions on absences and removing members for unexcused absences but not really something like this case.
We have a board member who has missed 9 of the last 14 meetings. Including a 3 in a row stint. In that case he "may" have been removed according to our bylaws. The rule was strictly enforced but many members have softened over time on it. An ironic point here is that this guy’s wife was Secretary a few years back and she was known for having members kicked off for missing 3 meetings.

During our FY10 year this member was the President of the board. He accepted that officer role and then promptly told us that our meeting day will not work for him because he plays golf on that day in the Spring and Summer. Myself and another board member immediately moved to elect a new President. Motion Failed. Another board member motioned to move the meeting day for the months the President played golf which passed 4-2. I voted against. That vote screwed up everyone's schedule and the schedule for the meeting room. (We schedule 12 months at time) The President still missed meetings or showed up late, never prepared an agenda, his report, never read the minutes,…nothing. The VP (who is this guy’s close friend) would have to run the meetings even when the President was there. Every time I tried to bring it up for discussion it would get stonewalled. Same for the other board member who tried to bring it up. This whole time the VP stood up for this guy.

Fast forward and he finally misses 3 in a row including our annual meeting. Another board member and I bring up the missed meetings, lack of engagement and the 3 in a row rule as we are now electing new officers for FY11. We were short handed on the board and in all committees. We had to figure out how we were going to handle the work load. 4 board members absolutely refused to discuss removal. The VP refused to even entertain talking to the then President about his intentions.

We are in our FY11 now the former VP is now President. Another member who rejoined the board is VP. They are close friends. The other officer positions are filled. We are back on our Wed schedule. The absent member then hits with an email, “It is golf season again and I will be not be there the next 4 meetings. I don’t expect you to move the day but I won’t be there. I’ll read the minutes.” This reason is not excusable. This guy did show up in May because it was raining. I along with another board member tried to discuss this and we were stonewalled. We could not get the motion for removal on the table which is completely unacceptable. Now we are facing the President, VP, this guy who are all close friends. The secretary and another board member who stated, “having a volunteer who does nothing is better than a vacant position.” “He responds to the occasional email.” (What???) The current President finally agreed to talk with him to find out his intentions.

Our last meeting was this week and there we other homeowners there. The member was not there and he will miss Aug and Sept. That will be 4 in a row. Another board member brought it up. The President made it clear that she talked with the guy and he will be back in Oct and she will not vote to remove. After a heated debate we got the motion on the table calling for this guy’s removal on the grounds of the 3 consecutively missed meetings that happened earlier this year. Like clockwork it failed 2-4. The 4 who voted against sat in silence for 30-45 seconds before giving their votes. I have never experienced such a long uncomfortable silence. Reasons already stated. The homeowners in attendance were blown away and their comments truly indicated their disgust.

These members are so gung ho about applying the rules to the community but they are not willing to stick to the rules themselves. Yes our rule states,”….a board member may be removed after 3 consecutive missed meetings.” vice "will" be removed. The bylaws are poorly worded and people are now taking advantage. At the end of this golf season he will have missed 11 of 16 meetings! He has already shown a propensity to miss meetings at other times as well. We have some big items that need to be taken care of and I honestly don’t feel most of this board is capable.
After this rather long story (I apologize for the length) does anyone have suggestions? The friendships and lack of accountability is killing us. Personally, I have lost respect for almost all of the current members. I have told them that I will not take on any additional project activities.
Board make up - currently 7 elected members. 1 who never shows up. Offices - President, VP, Sec, Treasurer, 3 at large. I am an at large director but I handle the website and all communications. We have committees but all are under staffed.

Thanks in advance for your advice.

EW4.

I can understand your level of frustration. Unfortunately, despite your lengthy post, there is not the detail needed (at least for me) to give you direct advice. I'll try, using general terms. And, now I will be lengthy.

You state, "a board member may be removed after 3 consecutive missed meetings." Removed by whom? Where is this rule? Is it in your bylaws or is it in some subsidiary document? You caught the "MAY be removed" part as contrasted to "SHALL be removed." One ALLOWS it to happen (in accordance with some established procedure), the other DIRECTS it to happen.

I believe the most common arrangement is that the association members (homeowners) elect the members of the board (directors), and the board members elect the association officers. Is that what's in your bylaws? If so, then typically the board has the power to remove officers, and the homeowners have the power to remove board members. Put another way, the board cannot remove board members and the homeowners cannot remove officers. While an individual may wear two hats (board member and officer) they are not the same. Board members vote at board meeetings, officers do not.

If your bylaws are typical in this regard, then I would ask why is it that your homeowners are satisfied with this person being on the board? If I elect someone to be on the board I expect them to regularly attend meetings unless there is an acceptable excuse such as illness (or a prolonged illness in the case of several consecutive meetings). If the person I elected is unable or unwilling to fulfill his(her) duties, then I would expect this person to resign. How would you feel if your representative never sat in on a session in Congress? Why do your homeowners keep on electing this person to be on the board? I would suggest that you discuss this with your homeowners and either take steps in accordance with your documents to remove this person from the board, or at the very least, convince your homeowners this person should not be re-elected.

It's difficult, if not impossible, to raise an issue if the majority members of the board are "friends." They control the board, and you, as a minority member are powerless. Technically, the president has virtually no power to prevent a motion from being brought to the floor if accepted parliamentary procedure (like Robert's Rules) is being observed. Proper parliamentary procedure dictates that ultimately it is the assembly (the board) that decides what will and what will not be debated. Of course, if the majority of the board supports the president, then you can guess where that goes. Besides, most HOA boards do not follow accepted parliamentary procedure to the letter because most of them don't know it that well.

On the other hand, if a motion to remove so-and-so from the board because of chronic absences is made by a board member during a board meeting, the motion could be ruled out of order if the power to remove a board member lies with the homeowners. The board is powerless to do anything in the matter anyway, so it would be wasteful of the board's time to discuss it.

I think the power to resolve the issue lies with your homeowners.

Not my buddies. There is a lot to do including getting work done on all of our roads. They are not taking things seriously and that is going to cost this community dearly.

I intend to start learning them. I have not exactly had the time but I will find it.

EW4,

In my opinion, that's a very dangerous provision because it appears to violate due process. Normally, the board should not have the power to control its own membership, including the qualifications for membership, except to fill vacancies among its ranks for the unexpired term(s) of those vacancies.

Are there other provisions in your bylaws that might appear to contradict this one?

How are vacancies on your board filled? Does the board fill the vacancies or is a special meeting of the homeowners called and the homeowners elect new board members to fill the vacancies?

Motion to declare the position 'vacant" due to no-show. Then fill it immediately with someone who cares.

If the membership balks, then they can go thru the process of whatever . . .

It sounds like they also don't care that much.

And by the way, if a past president used that bylaw provision to remove board members who missed meetings, a knowlesgeable board member at that time should have made a "point of order" and appealed, if necessary, to prevent the motion from being debated. If in spite of that, the motion was brought to the floor and voted on, knowledeable members should have voted "no" and demanded that their votes be entered into the minutes.

It pays to be familiar with ALL your documents and relevant state laws.

BruceF1
Thanks for all of the advice. I am familiar with our documents. I did try to find the law on this but missed the mark. Our lawyer has reviewed our by-laws and I don't know why this was not addressed but it will be. I am trying to do the correct thing here despite who I have to work with. One of the reasons why I really like this forum.

Hi EW4, We had basically the same bylaw as you now have, but when I discovered it was in conflict with our state statutes, I proposed a change and brought it before the membership to vote on.

Here is the verbage we used to change it, {I have substitued your state statute to reflect what you may use to change your bylaw to comply with the state statute.} ( NOTE: Our associations legal council found nothing in the ammended by-law that was found to be inconsistant to state statutes. So, there is some free leagl advise for you!)

REMOVAL: Regular participation at board meetings by members of the Board of Directors is essential for the efficient condut of business of the Association. A Director can be removed only by the voting membership in accordance to W.V. State code §31E-8-809 Removal of Directors. Once a Director is removed by the affirmative vote of the members, the Director mau nopt serve as an elected or appointed Director.

It is important to have that they can not serve as an appointed Director, that way the majority of their "friendly" board members can't vote them back on as soon as they are removed!

I know this does not get you what you really want, immediate removal of dead wood, but it is a step in the right direction. Your next obstacle would be to determine WHO can call for a special membership meeting to have these directors removed. Look at your state statutes to find out if one or two members of the board can call for a special members meeting, (SMM). If not, you may have to petition the membership to call a SMM. REMEMBER: All pages of the original "Call" or Petition, must clearly state the reason for the "Call/Petition" which would be to: "Remove Board members Tommy Dolittle and D.O. Nothing,Jr." If it ai'nt at the top of the petition or "Call" where members can read the reason for the meeting before signing, it is not sufficient as a call for the removal of board members. (That is how it is in VA - but I would imagine the statues are very similar in WV for the call of a meeting to remove board members. )

Tim and Fellow Virginian~ Since 2007, your bylaws have been inconsistent with the state statutes. There are no provisions that state the board member can be removed after three consecutive absenses. If you were to remove a director according to your by-laws, it would be in violation of the codes. Strongly suggest you consult with legal advisor if you feel I have misrepresented what our legal counsel has stated.
I would suggest you amend your bylaws to reflect what the state statutes require for the removal of a director.

refer to § 13.1-860. Removal of directors.
A. The members may remove one or more directors with or without cause, unless the articles of incorporation provide that directors may be removed only with cause.
B. If a director is elected by a voting group of members, only the members of that voting group may participate in the vote to remove him.
C. If cumulative voting is authorized, a director may not be removed if the number of votes sufficient to elect him under cumulative voting is voted against his removal. If cumulative voting is not authorized, unless the articles of incorporation require a greater vote, a director may be removed if the number of votes cast to remove him constitutes a majority of the votes entitled to be cast at an election of directors of the voting group or voting groups by which the director was elected.
D. If a corporation has no members or no members with voting rights, a director may be removed pursuant to procedures set forth in the articles of incorporation or bylaws, and if none are provided, a director may be removed by such vote as would suffice for his election.
E. A director may be removed only at a meeting called for the purpose of removing him. The meeting notice shall state that the purpose or one of the purposes of the meeting is removal of the director.
F. Upon the removal of a director, the corporation may file an amended annual report with the Commission indicating the removal of the director and the successor in office, if any.

I agree that the word "may" can be problematic but it should be the boards option rather then an automatic process as there could be some very valid reasons for missing meetings (death in the family, work schedule conflict, etc.).

Tim,

I would agree with Bev that VA state law regarding corporations appears to conflict with your bylaws. Accordingly, any action taken under that bylaw provision would be automatically null and void.

Tim and EW4,

What I would suggest for a bylaw provision would be something similar to the following:

"In the event of three or more consecutive absences of any director, the board of directors may (shall) call a meeting of the general membership of the association for the purpose of seeking removal of the offending director from the board of directors in accordance with (insert here the number of the provision in the bylaws or articles of incorporation that describe how board members are to be removed)."

Use "may" or "shall" depending on whether you want it to be at the board's discretion, or you want it to be a requirement on the board.

This also does the following:

1. Complies with state law
2. Provides due process since the offending director can explain his/her absences at the special homeowners meeting
3. Puts the action into the hands of the homeowners where it belongs

Bev,

I certainly agree that only the membership may remove an elected board member. Based on your posting, I went back and reread that section of our bylaws. In reality, it allows the Board to declare the "office" of the board member vacant and not the actual seat on the board (office being President, Treasurer, etc.).

Here is our exact wording:

"The Board shall have the power to declare the office of a member of the Board of Directors to be vacant in the event such member shall be absent from three (3) consecutive regular meetings of the Board of Directors."

Bev, Thank you for having me re-read that section and correcting my bad advice.

Tim

This makes sense. For us this director is no longer an officer. The last officer election took care of that. Now we just have slot filled with a person who will not contribute. Looks like the community will have to make thier feelings known assuming enough care. This director still has 2 more years on the board. However, we do clearly document attendance.

EW,

Thank you for sharing your lawyers response. It appears that the lawyer is of the opinion that by not showing up for the meetings (at least without a valid reason - sickness, etc.), the Director basically resigned.

I believe that the intend of the provision in my bylaws was the same as the provision in your bylaws. However, your bylaws are well written and there is no misunderstanding on the intent (to declare the seat vacant). Based on your lawyers opinion, WV law defers to your bylaws therefore your Board may declare the seat vacant.

When you inform the individual, make sure that you add a line similar to: In accordance with State law, give statute number, and our Bylaws, [article, section] which states: [cite passage] the Board . . . . . .

This way, the Board is presenting all the legal basis for making such a move which should minimize any adverse reaction from the individual.

Tim