Being booted for doing the right thing

Started by PH • 30 replies • 2772 views

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PH (Delaware)
Posts: 32

Posted:

Hi
I am in the process of being extracted from the HOA I am a board member of. Upcoming BOD meeting only to cast me off. I will be outvoted 3-1
I cant go into everything here just the latest. The community is torn because of having no HOA action for a couple years and now the self appointed BOD run it like a prisoner of war camp. I came on board to be a voice of reason and to try my best at trying to offer another perspective on things. I tried many times to reason with this board, consists of CEO, VP and the CFO follows whatever they do. The missing position is mine. They have no regard for the covenant trying to force residents to do what they (BOD) want regardless if it is supported by the covenant. The VP had instructed me to force residents to comply with her rules regardless if they were supported by the covenant.
The residents for the most part are so tired of what has happened in the past they almost all have given up.
Meetings when called have 15 in attendance at most and they are the friends of the BOD.
The BOD are aggressive and have no clue how to approach anyone or talk to them. They charge and yell. They play favorites to their friends and themselves and wonder why they are not liked.
I was meeting all the residents and spoke to them with respect no matter what their grievance letting them know I would be fair and always willing to talk to them not yell. I have been getting a great response.
Have spoken to 30 out of 150 so I do not have enough support to fend off the upcoming storm. Had I had the time I would have many to back me.
My question, the CEO and VP have been spying on me and have heard I am making people calm and willing to work with me on covenant violations which is also my job. The feedback I have been getting about the CEO and VP is horrible. I begged these people (residents)to give me a chance to try to make things right.
I had to fight to get these board members to allow me, I know that seems nuts but yes they told me I cant do anything without their approval, and after several heated meetings they were forced to allow me to introduce myself to the community. Now I have been told I am to stop all contact with residents, do not give out my email address or phone number. The VP told me the only email address I can give is hers! Yes that is what she said. She does not want me to have any contact with the residents. I was told the only way I can is if the CEO and VP are with me when I make contact with the residents.
This is the tail end of everything but I could not type everything in this post. I have been told by a few friends that the BOD feel I am after their seats and want to get them tossed. This couldn't be furthest from the truth. I just want them to be fair and do the right thing. I want them to be civilized not barbaric with their approach.

My question
Do I have any recourse against them when they toss me? I am willing to sue if I have a strong case. I cant afford to throw away cash on a suit I cant win. For the sake of the community I feel I need to keep my position because I have to live here too.
I know many will say contact an attorney. Unfortunately I have never had an attorney tell me I should not hire them as long as they knew I was going to pay them.
I am hoping for some here to tell me if they know of anything like this and if I have a shot.
Also I have the meeting upcoming shortly, is there a special way to handle myself or maybe suggest an action. This BOD do not follow rules and have already told me that do not care about legality.
This is the first time I have been in this position. I have been on boards before but they always had a few people that were level headed not a dictatorship like these guys.

as my user name states "please help."

GlenL (Ohio)
Posts: 5,491

Posted:

First off, is your HOA still under Declarant control or do the homeowners control.

Second, were you elected to the Board or were you appointed to fill a vacancy? Usually whoever put you on the Board is the only one who can remove you from the Board.

Studies show that 5 out of 4 people have problems with fractions

PH (Delaware)
Posts: 32

Posted:

Hi Glen

The HOA is under homeowner control.
Weird thing how I got in. I attended a meeting and when I questioned the board and was not allowed to ask a question until I just outright rudely forced them to hear me about unwarranted spending they wanted to do, they could not answer my questions. They were somewhat dumbfounded and aggressively yelled at me asking well are you willing to help? I said yes, then I was asked if I wanted to fill a board position. I said if that is what it took to get things fixed. The VP asked the members in attendance all 15 of them, if anyone had a problem with me filling the position and no one objected.
That is how I was brought on board.

PH (Delaware)
Posts: 32

Posted:

Hi Glen
If you need further specific info I will need to do that in email if possible. Things are heating up and I do not want to give away my defense. SC is not correct

JohnC46 (South Carolina)
Posts: 14,265

Posted:

PH

It seems the BOD appointed you and in most cases, the BOD can remove those they appointed.

They cannot remove (actually some exceptions) someone who was elected.

Get yourself elected to the BOD.

Hope this helps.

TimB4 (Tennessee)
Posts: 21,061

Posted:

Quote:

Posted By PH on 10/14/2012 6:11 PM

Do I have any recourse against them when they toss me?

Based on what you posted, as John said, it appears that you were appointed to the Board (vs. being elected by the membership). You did not specify if you were in a condominium development or not. If not, then SC doesn't have any HOA statutes that would be applicable. However, since most Associations are incorporated as a nonprofit, SC Corporate laws would apply.

The question is, were you appointed to fill a vacancy that was created by a resignation or removal of a Director who was elected by the board OR were you appointed to fill a vacancy that was created because no-one ran for it?

I ask that question because SC law has a special clause in it. Per the SOUTH CAROLINA NONPROFIT CORPORATION ACT, specifically SECTION 33-31-808 [emphasis added]:

(h) A director elected by the board may be removed without cause by the vote of two-thirds of the directors then in office or such greater number as is set forth in the articles or bylaws. However, a director elected by the board to fill the vacancy of a director elected by the members may be removed without cause by the members, but not the board.

If that section is applicable, before the vote is actually taken you may want to call for a point of order and specify that per SC law you don't believe the Board has the authority to remove you (then cite the law).

If you were just appointed to a vacant seat because no-one ran for the seat, then that section wouldn't apply and the Board could remove you.

Quote:

Posted By PH on 10/14/2012 6:11 PM

I am willing to sue if I have a strong case. I cant afford to throw away cash on a suit I cant win. For the sake of the community I feel I need to keep my position because I have to live here too.

I am glad to see that you realize that there are consequences with every decision and that it might be better to use other options than to seek legal action.

You always have the option to mount a campaign to recall the board and/or just gather enough proxies to not reelect them at the next meeting. How successful you are will depend on how apathetic the membership is.

Quote:

Posted By PH on 10/14/2012 6:11 PM

I am hoping for some here to tell me if they know of anything like this and if I have a shot.

Any legal action would depend on the answer to the question I asked initially:

Were you appointed to fill a vacancy created because no-one was elected to fill it (at the last election) or because the someone was elected but resigned?

The answer to that question will determine if you "have a shot" at winning. Determining that answer may require a review of Association minutes. Even if you do have a shot it's a 50/50 chance and a legal action might take more time than holding a recall election or waiting until the next election.

Quote:

Posted By PH on 10/14/2012 6:11 PM

Also I have the meeting upcoming shortly, is there a special way to handle myself or maybe suggest an action. This BOD do not follow rules and have already told me that do not care about legality.

The rules only work if both sides are willing to follow them. If one side chooses to ignore the rules the other options are to live with it or fight it (through the courts or within the membership).

I would suggest that you act like you normally do. It's very possible that they have the authority to remove you. If they do, there is not much you can do to prevent it. If they don't have the authority and choose to remove you anyway, there are few options and those options have their own issues (pros and cons).

You may want to bring someone with you to the meeting as a disinterested witness (if you do decide to bring legal action). If you decide not to go with legal action (due to cost, timeline, etc.) then you might just want to go and plead your case and see what happens. Then decide if you will gather support for a recall or just to keep them from being re-elected.

Hope this helps,

Tim

JeanneK3 (Maryland)
Posts: 562

Posted:

PH:
It is always interesting to me how different bylaws are. My bylaws say that a member of the Board of Directors can be removed only by a majority of the homeowners at a duly called meeting for that purpose. An officer can be removed by a majority of the board but that person is still on the board of directors.
Take a good look at your bylaws and bring the appropriate section to the board meeting.
Jeannne

PH (Delaware)
Posts: 32

Posted:

Thanks everyone for your help. I have asked for bylaws several times only to be told that no one knows if there are any. I contacted the Sect of State who is searching for me as I write this.
The CC+Rs do not address board members voting or being voted in or out. It only addresses how the board deals with assessments and the voting requirements for that.
This is what I am about, to find out how things are required to be handled and then carry them out in a fair responsible manner. I have been stopped repeatedly by this BOD because they do not want me to know.
I truly think they do not know and if they do, they certainly do not care.

To answer Tim...I chuckled when you mentioned calling for a point of order, these guys would think that means calling for pizza takeout...for real. There is no order at all to their meetings. They start by yelling at anyone who attends and then say we are going to do this, that , the other thing. If anyone has an objection (another term they do not know) then they ignore you and change subjects or just keep yelling and then say we are through goodbye.

They treat everyone the same, except for their friends who they allow to park their cars anywhere and then tag and tow another car for parking the same as the way their friend parks.

I have visited many of the homes here and hear all kinds of issues and really can't believe these guys think they have this kind of power to do with as they please.

At this point I do not know what procedures they can follow and what they can or cannot do to me.

They tell me to handout letters describing how violations will be handled (my idea actually) but the BOD forced me to add verbiage directed at renters forbidding them from certain actions that homeowners are not forbidden from doing. None of this is supported by the CC+Rs. Then the renters come screaming to the BOD for this letter and the BOD blames me for it. This is what this meeting to kick me is founded on.

And some wonder why HOA's have a bad name.....

At this point I have no clue what I can expect in this meeting.

I can say that the community overall is just plain fed-up and they no longer get involved. Most will not abide by rules and I am trying to change that. I have had many conversations with the owners, who seem to like me and wish me luck but will not attend a meeting and just live with blinders on. I have to live there too and do not want to quit.

Any other suggestions would be appreciated.

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Quote:

I have to live there too and do not want to quit.

Well they may force you out of the board, but dont worry about it. You can easily start your own group and do whatever you want. At .45 cents per stamp, you can send out a mailing to all 150 residents for $68. Waaaay cheaper than a lawyer. You could attend meetings and collect your own donations from residents and use them for stamps and let people know what is going on in the HOA and important votes they need to attend. Write your own newsletter, etc. Eventually people will get involved and want their HOA back.

You may be kicked off the board, but your involvement in the HOA has just begun.

JeanneK3 (Maryland)
Posts: 562

Posted:

PH:
Just because the board is saying there are no bylaws doesn't mean it is so. They probably don't want you to know that what they are doing is illegal. Ask your neighbors if they have them. Someone probably does. And I bet the bylaws say the board can't remove you from the board without a vote.
Jeanne

PH (Delaware)
Posts: 32

Posted:

Hi JeanneK3

I have asked others and so far I am told no by-laws. The Sect of State scanned all filed documents for me and made them available online and there are no by-laws. I do not know where else to look.

PH (Delaware)
Posts: 32

Posted:

OK a stupid question here. Are the Pres. VP, Sect and Treasurer are these positions Officers or Directors? After reading hundreds of pages of GA code I am confused what these positions fall under.

TimB4 (Tennessee)
Posts: 21,061

Posted:

Directors and Officers are two different positions.

The Directors are elected by the membership (or appointed by the board to fill a vacancy) and make the decisions for the Association.

The Officers (Pres, VP, etc) are appointed by the Board and implement those decisions. Typically Officers are appointed from amongst the Directors. When this happens, that individual is doing two jobs and each job has it's own authority level.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

PH
You are confusing us. Your signature says you are in SC yet you ask about GA code. Which is applicable to your situation/issues?

Thanks

PH (Delaware)
Posts: 32

Posted:

Sorry
I am visiting my brother, I am from the Augusta GA area.

GlenL (Ohio)
Posts: 5,491

Posted:

PH if they don't have By-laws then they are in violation of GA code. (Not a legal opinion) Emphasis added

14-3-206. Bylaws

(a) The incorporators or board of directors of a corporation shall adopt bylaws for the corporation.

(b) The bylaws may contain any provision for regulating and managing the affairs of the corporation that is not inconsistent with law or the articles of incorporation.

Studies show that 5 out of 4 people have problems with fractions

TimB4 (Tennessee)
Posts: 21,061

Posted:

PH,

If your development is in GA, obviously my references and advice based on SC code is invalid.

Tim

TimB4 (Tennessee)
Posts: 21,061

Posted:

PH,

When I was of the expectation that you were in SC I gave certain advice. In reviewing GA Corporations Code for Non-Profit Corporations, § 14-3-808 and 809. I was surprised to find that they have the same language. Therefore, my earlier advice appears to still be applicable.

GA § 14-3-808. Removal of directors

Unless the corporation's articles or bylaws provide otherwise:
(8) A director elected by the board may be removed with or without cause by the vote of two-thirds of the directors then in office; provided, however, that a director elected by the board to fill the vacancy of a director elected by the members may be removed without cause by the members, but not the board; and

(9) If, at the beginning of a director's term on the board, the articles or bylaws provide that the director may be removed for missing a specified number of board meetings, the board may remove the director for failing to attend the specified number of meetings. The director may be removed only if a majority of the directors then in office vote for the removal.

MikeS1
Posts: 521

Posted:

Tim - Referencing #8 above - Does VA have a such a provision that allows for a two-thirds vote by the directors?

TimB4 (Tennessee)
Posts: 21,061

Posted:

Quote:

Posted By MikeS1 on 10/16/2012 5:07 AM
Tim - Referencing #8 above - Does VA have a such a provision that allows for a two-thirds vote by the directors?

CarolR11 (Colorado)
Posts: 2,563

Posted:

Hello, PH. I've been away and can't participate regularly or in depth right now.

But, Steve offers good advice. We did pretty much what he suggested and turned our HOA around by getting rid of the jerks & getting ourselves elected in a one-year period (2 elections). But it does take work and, most important, banding together with other likeminded owners.

PH (Delaware)
Posts: 32

Posted:

People here have become complacent. After years of this same thing most have withdrawn and tend to ignore everything until it directly affects them. The bad apples on the board have been doing superficial things like yard work and fix up trying to win the minds of the owners. It is working on a small scale. No one knows the behind the scenes stuff yet. I have been collecting evidence and if forced to expose the ill deeds I will but I do not feel this place is ready for that yet. I feel the residents would rather sweep everything under the rug to avoid getting involved.
I am not sure I have the energy to go full tilt and really rather not struggle for the majority because I will not receive help along the way except from a small group. This group is too small and would not have a chance to make anything happen right now.
My problem is my evidence has a shelf life and if not used now may not have much punch if used at a later date.
We are talking about supposed church going people that use religion as a crutch. I am sure in their Sunday school class they are revered but get in their way outside of church and they take the form of Satan. I apologize if I offended anyone just cant explain it in any other way.
I am not sure any real laws have been broken well maybe a couple, maybe Corporation laws and maybe personal civil liberty's have been trashed but nothing I am aware of that could be used in court except for the threat. I tried so many times to get them to play fair and now they are coming for me full bore. No violence has occurred although one of the board members has already threatened to kill an owner to his face. I am sorry I cant really get into specifics for I fear they have or will see these postings here.
I am tired of the masses that cry the blues and when it comes time to step up and get involved they run like cowards.
Right now I fight for myself. Maybe I need to release my evidence and move to a place where I can be self governed (no HOA)and let the cowards reap what they sow.
Yeah, I am not the lone ranger just a person that cant stand to be stepped on.

TimB4 (Tennessee)
Posts: 21,061

Posted:

PH,

It took me three years before I knew I was making a difference when I fought my Board with an unsanctioned newsletter. I published my newsletter as needed (but typically after every board meeting) and identified what the board did and how it did or did not violate the governing documents and/or State laws (HOA and corporate). I kept opinions out of it and just published the facts and provided references to the laws, documents or minutes of the meeting so these facts could be verified. During that whole time I felt I was in the fight alone.

One day a meeting was called which had a vote on an issue I was against and had been writing about in my newsletter. I made up my mind earlier (and even told my wife) that if this issue passed, I would stop printing the newsletter as it would have been obvious that I was the only person concerned about the issue and decided that I would just keep quiet at the meeting and see how things turn out. I honestly went to the meeting expecting the vote to pass. In the meeting the board gave the story that my newsletter was the work of a disgruntled owner who didn't have things go his way (I kept quiet).

You could have knocked me over with a feather as I sat there surprised and delighted as the membership asked (and demanded answers) the board the exact questions I had raised in my newsletter. End result, the issue failed and the board was dumbfounded that the membership reacted the way they did and didn't just follow their lead.

I offer this story as encouragement. Even if you think you are in it alone because others are silent, you probably have allies. If you are doing things that are in the best interest of the membership, you will discover support where you didn't think you had any. It may take years before this support is known.

PH (Delaware)
Posts: 32

Posted:

Thanks
This HOA meets once a year so your approach would require a very young person. Just kidding but I would need another way to approach it because of the lack of meetings.
Your story is truly inspiring because it does show doing the right thing is sometimes rewarded even if only by the person trying eventually seeing that others do care.
All contact here has been cut so not sure what is up.

DaveD3 (Michigan)
Posts: 796

Posted:

Under what authority does a SELF APPOINTED board act?
Seems as though they'd be on shaky legal ground if they're collecting dues and attempting to act on behalf of the owners.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

PH

Most documents present a way for members to call a BOD meeting. Me thinks you need to better understand your docs and ways to do things.

There is more hen one way to skin a cat.

PH (Delaware)
Posts: 32

Posted:

Hi John
You are so right.. I need to learn how things need to be done..that's why I am asking questions here and reading anything I can that relates to it.
As mentioned earlier I am not aware of by-laws, the state said none are on file and the CC+Rs do not address it. So then I have to go to state code which does give the way to call a meeting.
Must have people show up to have a meeting.

At this time I have been blocked from everything so this is going to call for different measures.
I am open for those other ways to skin cats,,,do you know a few?

Dave.. I have been into this for maybe 4 weeks now and I am tired. I really only mentioned what happened before to try to paint a picture of who I am dealing with. At this point I really do not care about that old stuff because there is so much new stuff that I am directly involved with I have enough just dealing with that. They brought their friends to the meeting (no one else showed) and stacked the deck and got voted in. Legal I think so, sneaky, underhanded, and a load of other words I won't use....yes.

Anymore I am starting to feel the owners are getting what they deserve. They sit back and do nothing and when things go out of control they complain but still do nothing.
Reap what you sow, as wise men say. You can only get out what you put in.

Tomorrows another day.

PeterD3 (Florida)
Posts: 708

Posted:

I'm sure you are convinced you are doing the 'right thing'. NO judgement here.

But then, so are the others I would guess.

You are enguaging in community/neighborhood politics; the complex or aggregate of relationships of people in society (your community) esp. those relationships involving authority or power.

You'll have to 'collect' support of others who feel that you are doing the 'right thing' as well and make the changes desired.

This may take time and effort.

TimB4 (Tennessee)
Posts: 21,061

Posted:

This issue has been resolved and an update was posted in a new thread:

Subject: Former HOA Members being investigated by Sheriff and FBI

JohnH38 (South Carolina)
Posts: 100

Posted:

Tim

The BOD can always amend its BYLAWS and allow it to dispatch a director by vote. The BYLAWS are deemed amended once the new document is registered at the Recorder of Deeds office.

JohnH38

TimB4 (Tennessee)
Posts: 21,061

Posted:

Quote:

Posted By JohnH38 on 12/02/2012 6:57 PM

The BOD can always amend its BYLAWS and allow it to dispatch a director by vote. The BYLAWS are deemed amended once the new document is registered at the Recorder of Deeds office.

John,

I expect that your commenting on the following:

Quote:

Posted By TimB4 on 10/16/2012 3:08 AM

GA § 14-3-808. Removal of directors

Unless the corporation's articles or bylaws provide otherwise:
(8) A director elected by the board may be removed with or without cause by the vote of two-thirds of the directors then in office; provided, however, that a director elected by the board to fill the vacancy of a director elected by the members may be removed without cause by the members, but not the board; and . . .

Quote:

Posted By TimB4 on 10/16/2012 6:31 AM

Posted By MikeS1 on 10/16/2012 5:07 AM
Tim - Referencing #8 above - Does VA have a such a provision that allows for a two-thirds vote by the directors?

The authority for a Board to amend Bylaws without membership vote varies from State to State and Association to Association. I agree with you that Bylaws could be amended to add such a provision providing they are not in conflict with existing laws. For my Association, the Directors do not have the authority to amend the Bylaws as any amendment requires membership approval.

Mike had specifically asked about VA law. In VA, VA 13.1-860 specifies that "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." Since Mike asked specifically about VA, that was the basis for my answer.

Again, I agree that the Bylaws could be amended to provide such a provision (be it by the BOD or Membership - whichever is required). However, any amendment must comply with existing laws and, as I read it, in VA, such a provision may be in violation of VA Nonstock (nonprofit) Corporate Law.

Tim

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