Can agenda be updated prior to the hoa meeting

Started by LisaL10 • 22 replies • 3429 views

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LisaL10 (California)
Posts: 21

Posted:

1. I am in Cali and one of board members. We will have a hoa meeting on Oct 25, 2012. The agenda has been sent out. One of agenda is about appointing a board member to replace a vacancy. There is a homeowner who plans to take that position.

Today, on Oct 22, another board member resigned too. Luckily we have a homeowner who wants to join the board. We board member think he can replace new vacancy. Since we are a small community it's not easy to volunteers who like to serve the board.

HOA management company told me today that we are not allowed to update or change the agenda even prior to the meeting since it's out. I told the hoa company that it's just updated, not changed or added. They said it does not matter whether it's updated or changed. It's not allowed.

FYI, Regardless what hoa company mentioned to me, I posted the updated agenda in the public area on Oct 22, 2012. It's minor change as you see below.
Item 1 Board acceptance A was updated to Item 1 Board acceptance A & B
Item 2 Board approval to appoint members to fill vacancy was updated to Item 2 Board approval to appoint members to fill vacancies

What the hoa company told me is true?

2. We usually have 5 board members. As of today we have only 3 board members. In order to appoint a new board member at the upcoming meeting, we all 3 board member should agree or 2 board members agree then we can appoint new board members? How many board members need to agree to appoint a new board member?

Our CC&R does not state about details of hoa meetings or quorum.

Thanks you for your replies in advance.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Is this a general membership meeting or a Board meeting?

For meetings of the Board, per CA Civil Code §1363.05 the agenda is posted with the notice. Providing you are within the notice timeline (4 days unless your bylaws specify a longer notice time), you are fine. If the change/update occurred and there was less than 4 days notice you were not complying with the code. In the future, you may want to be a little more vague. Example: instead of an agenda item that says resignation of Director x, just list it as Board vacancies. This allows you to discuss any board vacancy.

For meetings of the membership, per CA Corporations Code §7511 a minimum of 10 day notice is required (unless your governing documents require a different minimum).

Hope this helps,

Tim

LisaL10 (California)
Posts: 21

Posted:

Thanks Tim.

It's board meeting.

Can I count 25th? Since I posted on 22nd it will be 3 days prior to the meeting if I don't count 25th.

Do you have any idea on how many board members agree to appoint new board members at the board meeting? At this time, we have only 3 board members. Two resigned.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Even if you count the 25th, that is three days and the statute requires four.

Therefore, your MC was correct that it was too late to change the agenda. Had the meeting been on the 26th, you may or may not have met the notice requirement.

As for filling vacancies, I suggest you review davis-stirling.com's appointment of Directors page.
The vote required is a simple majority of the remaining directors.

Fortunately, you still have a quorum (3 out of 5) so the Board can conduct business.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Lisa

Most docs call for a majority of the BOD to approve appointing one to fill a BOD vacancy thus 2 out of your 3 is a majority. Then 3 out of your 4 will be a majority.

I do not know if a BOD can make multi appointments at the same time meaning 2 out of 3 agree to bring two more on. The one time we did it, we brought the first on one, then we (including the new member) brought the last one on.

I would say if done one at a time, there can be no objections as to how done.

Hope this helps.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By TimB4 on 10/23/2012 3:48 AM
Even if you count the 25th, that is three days and the statute requires four.

For some clarification, I say it's three days because it's likely you didn't post the change at 12:01 A.M. on the 24th. When your close you need to start looking at the hours. 1 day = 24 hours. 4 days = 96 hours.

If your meeting was scheduled at 7 p.m. on the 25th, notice would have been required to be given by 7 p.m. on the 21st.

Now with all that being said, the reality of the issue is most people probably won't care. However, if someone wanted to challenge the notice requirement, the appointment of the second individual may be in jeopardy. However, if it's likely nobody will challenge the issue, you can probably get away with it. The Board will have to consider the risk and benefits when they make the decision to go with the new agenda or previous agenda.

Hope this helps,

Tim

LisaL10 (California)
Posts: 21

Posted:

It sounds like no agenda can be updated or changed within 4 days prior to the meeting.

Hoa company will challenge I am sure.

Based on the David Stirling Act, we still need all 3 board members to agree to appoint a new board member although two resigned.

one board member makes me concerned that he might not attend the meeting or does not agree to appoint the person.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By LisaL10 on 10/23/2012 4:07 AM

Hoa company will challenge I am sure.

The Management Company has no basis to challenge. They may point the issue out but they also work for the Board. Once they inform the Board of the requirement, it's the Boards decision.

Quote:

Posted By LisaL10 on 10/23/2012 4:07 AM

Based on the David Stirling Act, we still need all 3 board members to agree to appoint a new board member.

I didn't read that. Per the link I provided earlier [emphasis added]:

Unless otherwise provided in the articles or bylaws and except for a vacancy created by the removal of a director, vacancies on the board may be filled by approval of a majority of the remaining directors on the board.

A unanimous vote is needed only if there is no longer a quorum. Since you normally have 5 directors, 3 would be a quorum.

NancyG3 (North Carolina)
Posts: 342

Posted:

Can this meeting be cancelled and rescheduled with a new agenda?

LarryB13 (Arizona)
Posts: 4,099

Posted:

Lisa,

While your property manager's advice should be appreciated, it is not their position to tell your board what you may and may not do. The actions of your board are not subject to the approval of the property management company. You may want to add an item to your next agenda: finding a new management company.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By LisaL10 on 10/23/2012 4:07 AM
Hoa company will challenge I am sure.

The management company is not a member of the association. They have no legal standing to challenge. If they are unhappy, let them find another client while you find another management company.

LisaL10 (California)
Posts: 21

Posted:

Thank you for all replies .

- I spoke with an attorney after speaking with you yesterday to get his opinion on the agendas. He stated that the agenda may be revised as long as the requirement for re-distribution of the agenda is met. In other words, the revised agenda would need to be distributed no less than 4 days BEFORE the meeting, which would mean that any revised agenda would have needed to be posted and/or mailed by Sunday, the 21st. Since we did not receive B's resignation until yesterday, the time frame for posting the revised agenda had passed. Therefore, this item cannot be discussed at Thursday’s meeting, since the requirement would not have been made

This above email is from HOA company today. Since they will attend the hoa meeting, we won't able to appoint another BOD.

I am wondering since they know and can check with a lawyer, why this hoa company has sent the meeting notices late like the day before the BOD meeting? As a client, I am very tired of the way they handle matters.

All board members are new to serve the board. A lot of homeowners are first home buyers. HOA is 5 yrs old only.

LisaL10 (California)
Posts: 21

Posted:

FYI, This is one of a few times they sent a meeting notice 4 days before the meeting. They always send it late.

GlenL (Ohio)
Posts: 5,491

Posted:

Technically you could appoint one director, finish and close the meeting, then call an emergency meeting to appoint the other director. Or if the member is willing to wait until the next meeting, appoint them then.

Civil Code §1363.05. Open Meeting Act.
(g) An emergency meeting of the board may be called by the president of the association, or by any two members of the governing body other than the president, if there are circumstances that could not have been reasonably foreseen which require immediate attention and possible action by the board, and which of necessity make it impracticable to provide notice as required by this section.

Since "B" did not resign until yesterday, the Board could not reasonably foresee the need to appoint another director in time to notice it properly.

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

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By LisaL10 on 10/23/2012 8:55 AM
Thank you for all replies .

- I spoke with an attorney after speaking with you yesterday to get his opinion on the agendas. He stated that the agenda may be revised as long as the requirement for re-distribution of the agenda is met. In other words, the revised agenda would need to be distributed no less than 4 days BEFORE the meeting, which would mean that any revised agenda would have needed to be posted and/or mailed by Sunday, the 21st. Since we did not receive B's resignation until yesterday, the time frame for posting the revised agenda had passed. Therefore, this item cannot be discussed at Thursday’s meeting, since the requirement would not have been made

This above email is from HOA company today. Since they will attend the hoa meeting, we won't able to appoint another BOD.

I am wondering since they know and can check with a lawyer, why this hoa company has sent the meeting notices late like the day before the BOD meeting? As a client, I am very tired of the way they handle matters.

All board members are new to serve the board. A lot of homeowners are first home buyers. HOA is 5 yrs old only.

It is not their job to consult an attorney for you nor is it their job to relay legal advice. You do not know what was asked, who was asked, his credentials, nor what he actually said. The management company is asking you to take their word for it that they really did consult an attorney. If your board wants legal advice it should consult its own attorney.

Glen has pointed out that you may hold an emergency meeting without notice and that the best time to do it would be right after your regular meeting.

Your property management company is stepping way over the lines in handing out unsolicited legal advice while, as you point out, it has historically failed to perform their job within the legal time limits. The relationship between your board and the property management company is one of employer-employee. The board is the boss and the management company is the worker. Like any boss, your board has the right to terminate the worker when his work is not up to snuff.

CarolR11 (Colorado)
Posts: 2,563

Posted:

Your Mgmt. Co, attorney and other posters are correct about the notice requirement--4 days in Cali.

So at your 10/25 meeting, set a date for a meeting to appoint the 2nd new director. It'll be called a "special meeting of the board"; you, again, must ask director to bring their calendars to your 10/25 meeting so you can set the date on the spot. Pick a date that allows you to provide 4 days' notice. Setting a meeting date need not be on your 10/25 agenda.

You, in my opinion, cannot appoint the director at an emergency meeting. True that the resignation was "unexpected," but appointment of a new director to fill the vacancy is not an emergency because the matter doesn't require "immediate attention."

BradP (Kansas)
Posts: 2,640

Posted:

why not just always incorporate into your agenda a line item that says:

AS MAY ARISE

unless there is some legal reason why you can't do it, it would serve as a catch all for any last minute business that came up after the agenda was sent out.

Kind of like the line in a lot of job descriptions that says "other duties as assigned."

JM10 (California)
Posts: 503

Posted:

I don't think that's in the spirit of the law. I could see all sorts of things being put in under that if the board was really bad.

BradP (Kansas)
Posts: 2,640

Posted:

a lot of things happen that aren't in the spirit of anything...is there actually a law that would prohibit it? in my opinion it is not reasonable to expect agendas to be out several days in advance and then not be able to amend them to cover an important item that may have just surfaced...

CarolR11 (Colorado)
Posts: 2,563

Posted:

Say, Brad, here's what davis-stirling.com has to say:

VAGUE AGENDAS

QUESTION: If there are multiple items to be discussed under a category on our agenda (e.g., the Monitoring Committee), do we have to list each individual item or can the agenda just show "Monitoring Committee"?

ANSWER: All items scheduled for discussion must be listed. If you plan to discuss and vote on particular issues, the membership needs to be alerted so they can attend. By itself, "Monitoring Committee" has no meaning. If the board plans to vote on the installation of security cameras in the common areas, listing that as an agenda item is much more meaningful. The open meeting agenda needs to be specific enough to give owners the opportunity to attend and observe the board's discussion and votes.

Here in Calif., we may add items if they are emergencies or need immediate attention. But we may not have some sort of agenda item termed "Misc. Business," for example.

Lisa, davis-stirling.com is a wonderful site that'll help you and your director colleagues learn more about HOAs. It has a fabulous Main Index that you can scroll down to click on items that interest you. (No the firm that writes it and its weekly newsletter is not my HOA's attorney.) I have no connection with them whatsoever.)

BradP (Kansas)
Posts: 2,640

Posted:

thanks...not being in California I don't follow the Davis-stirling act closely...

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By BradP on 10/25/2012 2:19 PM
thanks...not being in California I don't follow the Davis-stirling act closely...

I thank my lucky stars we do not have to follow it.........LOL

BradP (Kansas)
Posts: 2,640

Posted:

Quote:

Posted By JohnC46 on 10/25/2012 2:35 PM

Posted By BradP on 10/25/2012 2:19 PM
thanks...not being in California I don't follow the Davis-stirling act closely...

I thank my lucky stars we do not have to follow it.........LOL

there are some good things in it and it is there for a reason, but sometimes common sense has to dictate. I run a ton of meetings every year and always have an As May Arise section for someone to bring up something on the agenda. Agendas are great but when meant to be a catch all it is unrealistic in my opinion.

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