Actions by Board President

Started by FayH • 13 replies • 2294 views

💬 Join us to post & get advice from 50,000 HOA & Condo leaders.

⚡ Takes 30 seconds

Already a member? Log in

FayH (California)
Posts: 1

Posted:

I am on the board of our HOA (Calif). We are a CID with 466 units and a board of 5. Once the election is over and we have the 5 board members we decide who will hold what position during our next open monthly meeting.

For the second time this year, the President has contacted the other members of the board to either push for or ask approval for 2 different projects. I’d rather not discuss the details of the projects but one was absolutely necessary and the other not so much.

I will say something to the board in general at our next executive session but I was wondering if I have more options should this behavior continue. Are there laws that specifically prohibit a board member from being excluded or am I on my own trying to correct this?

Thanks! Any advice is greatly appreciated!

BrianB (California)
Posts: 2,820

Posted:

well, in california, a board member who is seeking approval for some actions outside the board meetings is likely in violation of the Davis Stirling act (the law governing HOA behavior). That would be my first strike point, looking at the law and seeing if this person violated the open meeting/meeting notice requirements of the law.

If so, i would arm myself with copies, and go educate my other board members about it, and stop having illegal meetings.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Brian

I would say seeking approval versus casual/general/social discussions are very, very different animals.

I call a fellow BOD Member to enquire about her health. We chat. We close in on a "general" subject...yada...yada...

Are we guilty of collusion? We may collude to disagree.

I think the OP is maybe being a bit naive about how "business/politics/HOA's, etc." really works or if not naive, then appearing to be so. Like allow me to ask the dumb question can often be far from being dumb. It is often a tactic from the smartest and/or most devious person.......LOL

Remember one thing about some lawyers/law firms. Billiable hours come first.

LawrenceC1 (Georgia)
Posts: 480

Posted:

Brian is right that you will likely find something in Davis-Sterling that makes illegal business deliberations outside of a board meeting.

The question is what do you do then? A lawsuit against another board member is impractical, costs money, causes a great deal of disruption, and in the end may mot accomplish anything.

So rather than going the route of finding this behavior illegal, I suggest you start by bringing this up with the full board, identifying the problem, explaining why it is not right, and seeking an agreement from all 5 members to deliberate only at a duly called meeting.

In a face-to-face meeting you may get the agreement you seek because bad behavior is hard to maintain when it's out in the open.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By LawrenceC1 on 05/09/2012 4:33 PM
Brian is right that you will likely find something in Davis-Sterling that makes illegal business deliberations outside of a board meeting.

The question is what do you do then? A lawsuit against another board member is impractical, costs money, causes a great deal of disruption, and in the end may mot accomplish anything.

So rather than going the route of finding this behavior illegal, I suggest you start by bringing this up with the full board, identifying the problem, explaining why it is not right, and seeking an agreement from all 5 members to deliberate only at a duly called meeting.

In a face-to-face meeting you may get the agreement you seek because bad behavior is hard to maintain when it's out in the open.

Lawrence

Nothing personal about you nor Davis-Sterling, but (to use your words in a different light, I think you will find somrething in Davis-Sterling that makes outside of a board meeting discussions between board members not illegal.

That is the point of my post. It is quite possible for many to read the same thing and interpert/understand it quite different.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Fay,

Is the individual actually seeking permission (an action without a meeting) or just trying to gain support for an issue to be voted on at the next meeting? They are two different things.

Is your issue with the e-mails that you feel that your not being included, that laws are being violated or something else?

Personally, I believe that an email from one board member to another should be copied to all. That said, there is nothing to force this to occur or to prevent two members (who happen to sit on the board) from discussing an issue outside of the meeting.

E-mails between Directors, are discussed on the Davis-Stirling.com site and part of what they provide is:

"fewer than a majority of directors may discuss or comment on an item of business so long as the email exchange does not become a "series" of emails involving a majority of the board. Civ. Code §1363.05(k)(2)(A)"

Therefore, it's possible that the individual knows your position on the issue and has chosen to exclude you (and/or others) from the e-mails in order to comply with CA code and still try to gain support for their position on the issue. In my opinion, this would likely be legal providing that the vote for the issue is taken at the meeting.

If you are feeling out of the loop, I'd suggest that you just make the proposal when one board member e-mails another, all board members are copied on it in order to keep everyone informed. Of course you do run the risk of violating CA law if this proposal passes.

If the e-mails in question are soliciting an action without a meeting, then you may want to remind the Board that unanimous consent is needed for such an action.

Hope this helps,

Tim

CarolR11 (Colorado)
Posts: 2,563

Posted:

Welcome to the Forum, Fay.

Both Brian & Lawrence are correct with respects to your examples. In CA, neither the pres., nor any director, may discuss with a quorum of directors (3 in your case) HOA business outside of a duly noticed Board meeting. This no-discussion law includes email discussions and phone calls.

This may be stated in your Bylaws--it is in ours--or go to the excellent davis-sterling.com and go to "meetings" for more.

The section about Meetings is short and clear. So, as Brian & lawrence also suggest. Place the topic on your next executive session and ask that your fellow directors comply with it. Get them to agree and note their consensus in the minutes. Also see if you can get at least one other director to agree with you prior to that meeting that you all should follow the law.

If one of the president's pet projects is/was an emergency, he or any two directors should call an emergency meeting, which requires no notice to HO's. If a non-emergency, you directors must wait for a proper meeting to be held.

If you have a property mgr., perhaps s/he can help explain the law-- the Open Meeting Act-- to the Board.

But please clarify a couple of things for me, Fay. Are you saying that elections have been held, but not the organizational meeting where the board selects officers? Is that why the current president is in such a rush? Perhaps your board needs a different president!

Are you also saying that the pres contacted all directors except for you to discuss the two projects?

John46 is correct that we directors can visit socially among ourselves, but we cannot discuss HOA biz.

LawrenceC1 (Georgia)
Posts: 480

Posted:

Quote:

Posted By CarolR11 on 05/09/2012 6:36 PM
...we directors can visit socially among ourselves, but we cannot discuss HOA biz.

The spirit of all this is that deliberations over HOA business should be done in the open. Members ought to hear what is discussed when it concerns them -- and not just be given the result of a vote.

Each board member should have the opportunity to argue their position, and not be shut out by a majority that decides an issue before the meeting even occurs. The more brains that come to bear on a problem, the better the solution will be.

CarolR11 (Colorado)
Posts: 2,563

Posted:

Oh, I did not see Tim's reply. And, it's true, if one director mails another and copies all other directors about a HOA business matter, you all are ignoring the Open Meeting Act. I would not be a part of that, Fay. The key is that discussions outside of meetings may only occur among a minority of directors (2 in your case).

If a homeowner finds out that the board is acting illegally, the entire Board, and more importantly, your HOA runs the risk of being sued because business has been conducted behind homeowners' backs. Here in CA, deliberations, discussions, lobbying, etc., among a majority of directors on HOA business is not permitted even if the actual vote occurs at a duly noticed board meeting.

In CA, by the way, taking action without a meeting no longer is permitted except in emergencies.

JonD1
Posts: 2,350

Posted:

This topic brings up many areas of discussion for me.

I would wonder just how long the OP has served on their Board.
I would also wonder what their role on this Board has become.

Some times people join a Board and announce by their actions and deeds they will not play a role on the Board in a positive manner but rather serve as the member who swims upstream on each and every issue. Human nature, despite Davis-Sterling, would require action that cures this behavior. Now it is suggested the OP intends to "lecture" the Board on their understanding of the law. That should improve things going forward?

I would like to know what types of issues were discussed? And if you agree with the decisions then your only problem would be you were not in the loop? Did they agree to purchase a can of bug spray or perhaps spend $100,000 on flowers? Sounds to me like their may be more to this situation than a percieved violation of some state guidelines. Their is a reason the President is working to gain the necessary support for items they wish to move on. IMO there is a reason the OP is not included in that process. I would think knowing why would be important.

For those of you in Ca. just what are he enforcement provisions in the Davis-Sterling Act if any? As this would not be a violation of the criminal code just who and how would these guidelines be enforced? Has this ever even happened?

Gladly, here in NY we do not operate under similar rules. To eliminate discussions or e-mails in the name of being proper is IMO silly. What other oganizations if any would operate under such restrictions and rules?

And finally, my bottom line is how is this affecting your property? Just what sort of job is being done by this Board? Is the property being effectivily managed? Is the President doing an acceptable job? Better than acceptable? IMO to raise his sort of issue when you have 450 units to manage seems to be taking your eye off the ball.

Sometimes in the name of being "proper" and transparent we become rigid and immobile.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By JonD1 on 05/10/2012 6:25 AM
This topic brings up many areas of discussion for me.

I would wonder just how long the OP has served on their Board.
I would also wonder what their role on this Board has become.

Some times people join a Board and announce by their actions and deeds they will not play a role on the Board in a positive manner but rather serve as the member who swims upstream on each and every issue. Human nature, despite Davis-Sterling, would require action that cures this behavior. Now it is suggested the OP intends to "lecture" the Board on their understanding of the law. That should improve things going forward?

I would like to know what types of issues were discussed? And if you agree with the decisions then your only problem would be you were not in the loop? Did they agree to purchase a can of bug spray or perhaps spend $100,000 on flowers? Sounds to me like their may be more to this situation than a percieved violation of some state guidelines. Their is a reason the President is working to gain the necessary support for items they wish to move on. IMO there is a reason the OP is not included in that process. I would think knowing why would be important.

For those of you in Ca. just what are he enforcement provisions in the Davis-Sterling Act if any? As this would not be a violation of the criminal code just who and how would these guidelines be enforced? Has this ever even happened?

Gladly, here in NY we do not operate under similar rules. To eliminate discussions or e-mails in the name of being proper is IMO silly. What other oganizations if any would operate under such restrictions and rules?

And finally, my bottom line is how is this affecting your property? Just what sort of job is being done by this Board? Is the property being effectivily managed? Is the President doing an acceptable job? Better than acceptable? IMO to raise his sort of issue when you have 450 units to manage seems to be taking your eye off the ball.

Sometimes in the name of being "proper" and transparent we become rigid and immobile.

Well said, especially the last comment.

JM10 (California)
Posts: 503

Posted:

The Davis Stirling Act is a matter of civil law (not criminal). Parts can be enforced through small claims court (such as production of documents).

Open meeting violations are for limited/unlimited civil court. Usually mediation/arbitration is required first.

Yes, such things are enforced.

Certain projects require a 30-day notification to members before a decision. Members must be allowed to speak before the vote.

I see no point in pre-deciding or attempting to create a voting block prior to the meeting. For transparency, all sides should be heard and members should be there to hear them, not just directors.

If the president is shutting off or excluding a board member, how much easier it is to shut out members.

JonD1
Posts: 2,350

Posted:

The structure under which most properties operate is with a Board of Directors who are given the power to make decisions in the operation of the property. IMO to engage each and every member in every decision is counterproductive and slows any real progress you might attempt to make.
IMO some Board members lack the knowledge or pertinent information upon which to make an informed decision why then allow them to take part in the decisio making process?

Over my years serving on our Board I have used phone call, e-mails and private conversations to facilitate geting things done. One reason being to PREPARE for the items on our monthly agenda. Rather than starting from A and working through Z which IMO is less than productive.

Too many chiefs and not enough Indians is a problem.

IMO many of the laws and requirments which exist in Florida, California and other states are counterproductive to the management of any property.
But poliical correctness and a desire to include everyone rules the day in some states. I for one am glad not to reside in those states that have such demanding, limiting rules of operaion for HOAs.

Most business entities use e-mail on a daily basis as a modern useful form of communication. Not every member of every group needs to be involved in the decision making process. How would GE or Apple do business if every shareholder were required to have a voice in daily decisions? Ridiculous.............

CarolR11 (Colorado)
Posts: 2,563

Posted:

I do want to hear from Fay--is this a personal issue? Or is the pres. so blatantly opposing the Open Meeting Act for other reasons? "Expediency," "getting everyone on the same page," preparing for meetings," are the usual excuses for operating behind homeowners' backs.

"Efficiency" formed the "rationale" for previous Boards here behaving in such a secretive way, and those Boards made serious and stupid mistakes that we were able to correct when others of us got elected and within a year, became a majority on the board. Had homeowners been able to see and hear the deliberative processes at open meetings, our HOA wouldn't have been in the mess it was in. (No, despite their supreme efficiency, the trains most certainly did not run on time.)

Since the end of '07, when we became the majority on the board, we've built a culture of openness. We have NO problems complying with Davis-Sterling. We've accomplished a great deal including initiating and being awarded a settlement on construction defect litigation. We're in the midst of 2 major reconstruction projects in the low-mid 6 figure ranges. Yes, lots of work, proposals, etc. But we make decisions about these at meetings--not by email, on the phone, etc. I can't imagine why this is some sort of example of "political correctness"!! Owners get to see & hear our deliberative processes; they can see that we're not making snap, arbitrary decisions.

We have an onsite PM & her assistant; we have two onsite engineers, who have budgets for light bulbs, etc., etc. Our landscape committee has a budget and can buy as many flats of flowers as it likes--within budget. If our HOA needs a new piece of mechanical equipment or the landscape committee has an unexpected expense, of course their requests come to the Board. We directors have board packets a week before the monthly meeting, so there's plenty of time to prepare.

I can see, though, how the Open Meeting Act could be a problem for small boards that meet quarterly, for self-managed HOAs, for HOAs where directors mainly don't reside there, etc.

🎯 You've read this entire discussion

Join the conversation with 50,000 HOA & Condo Leaders:

✓ Ask follow-up questions
✓ Share your experience
✓ Get expert advice
✓ Access 350,000 discussions

Create Free Account →

⚡ Takes 30 seconds

Already a member? Log in here