Director No Longer Meets Qualifications

Our Bylaws state that to be elected to the HOA Board of Directors a person must (1) be a member of the Association, and (2) be a resident of the Community.

Given the qualifications YOU posted, he is entitled to remain on the Board. To prevent this from happening in the future you should amend the by-laws to show what will disqualify a member from remaining on the Board. I'm assuming that he still owns the property in your HOA since most qualifications for serving on the Board start with "Must be a member in good standing".

You can marginalize his presence on the Board by removing any officer position he might hold and making him a "Member at Large", or if his term still has a long time to run, you can start to recall him.

Lawrence,

I would agree with Glen. The qualifications you quoted are the qualifications for being elected as a director; not the qualifications required to remain a director.

This one goes in the "oops" category. Sometimes when people write laws, bylaws, rules, regulations, etc., they fail to think things through thoroughly and fail to write exactly what they intended. These are called loopholes and are exploited by lawyers all the time.

We're in the same boat as you are, Lawrence. Our bylaws say only the qualifications, but not that directors must maintain them. (All other docs are silent.) Now, there is a directors who's no longer "in good standing." In fact, we just liened his condo.

We're in the process of amending our bylaws (11 years old), so we're specifying qualifications to continue serving on the board.

Lawrence

You say the person moved but does he still own the unit?

Lawrence,

Based on what you posted, the language of that section you cited makes the intent very clear. To be elected to the board you must 1) be a member and 2) be a resident.

Because the language chosen specifies elected vs. served, one could argue that the intend is to limit the number of nominees but does not prohibit an elected member to continue serving if they no longer meet the obligations of 1 or 2. Based on the language chosen, one could even argue that an individual appointed to fill a vacancy wouldn't even have meet either of those qualifications.

In my opinion, if you really want to address this issue, I not try to change what you are concerned with but correct the one item that caused that interpretaion of the Bylaws to be rendered. Specifically, the language used to make the qualifications.

This would be done by soliciting signatures to call a special meeting for the sole purpose of amending the Bylaws to remove the words "to be elected to" and replace it with the words "to serve as a Director on".

This language will show clear intend of the passage and minimizes any gray area. It would prevent this issue from being an issue in the future and, since O.C.G.A. § 14-3-808 defers to the bylaws, if you add that the Board shall have the power to remove and must remove anyone who does not meet the qualifications, then if this is adopted while the individual is still serving, they would be automatically removed from the board.

NOTE: Officers (President, VP, etc.) and Directors are different positions. The section you cited only address directors. My advice on how to address the issue would only address directors. Unless similar language is adopted as a qualification for officers, then anyone, including me, could serve as an Officer on your Board.

It never seems to be simple does it?

Tim

I was paraphrasing in my initial post. The actual text reads, "The affairs of the Association shall be governed by a Board of Directors. The directors must reside in the Community and shall be members or spouses of such members; provided, however, no Person and his or her spouse may serve on the Board at the same time." This makes the lawyer's interpretation that it applies only to elections all the more crazy. Even now it says specifically, "The directors must reside..."



I think this is what will have to be done, despite how much time, effort, and money it will cost.



We do have a section on officers in the Bylaws. For the most part they must be a Director first.



Amen to that!

I’m sorry my first post wasn’t complete. Thanks for a second opinion based on better data.

That’s the rub. The authority to remove a director is granted only in the cases of being 30 days late on dues or missing 3 meetings in a row. Because it doesn’t say the board can act to remove a director who no longer meets qualifications, we’re in this bind.

A recall campaign may be a little less trouble than amending the bylaws, but it will still be a lot of effort.

Thank you again for your advice

Kelly,

Sometimes in my zeal to make things right, I forget why I volunteered. Your post arrived just as I was starting to expend energy on all this. I think I may take a deep breath, and just move on. Thanks for your advice.

But I will make sure this loophole gets fixed in our bylaws so it doesn't happen again.