Board Member has Never Attended a Meeting

Yesterday our BOD had an executive session to review the negotiation of a contract. One director in the meeting was participating via a conference call. I do not think we have restrictions concerning participating via telephone in our governing docs, however the director that was on the call has never attended a board meeting. We are 10 months into the term and nobody knows what this guy even looks like. The absent director did not write a candidacy statement and was not on the ballot during the election- (his votes were written in apparently). We do not have a provision in our Gov.Docs. stating attendance is a requirement to serve on our board, however home owners have been asking for our governing docs to be amended to add guidelines.

A group of us are outraged but not sure what next steps to take. Personally I don’t want a person that is uninformed making important decisions concerning our HOA.

RT4

Well if you attend via a conference call then you attended the meeting.
I would guess most documents don't require "in person" head check required.

In today's world many positions are held via long distance communication with litle if any face to face interaction. I would not decide based on the information provided this Board member is unfit to serve.

Truth is I have served with MANY members who offered and did little even though they sat in on every monthly meeting.

Before you decide the grass is greener by changing things think long and hard. I wonder why the other members of the Board have not raised this issue if they saw it as problematic.

Just like in school attendence is not a guarantee of high performance.

IMO this is a non-issue if in fact the member participates by other means.

***For Clarification***

I'm not saying he attends meetings by phone, and is absent physically. The director has never attended in person or by phone for 10 months until yesterday.

It just so happened that his first 'appearance' ever was by phone.

RT4

Do your bylaws have a provision for removal of a director who misses a certain number of meetings? From what I have seen in my own association and others, missing three meetings without explanation is grounds for removal from the board. I assume that you have had ten regular board meetings since this person was elected to the board and he missed the first nine of them.

RT4. No your call for candidates and election rules (which are required by the CA Davis-Stirling Act, are not "governing documents." Your governing documents are your Articles of Incorporation, CC&Rs (Covenants, Conditions & Restrictions; aka Declaration), bylaws and in some cases, like our HOA, your Rules & Regulations. Again, I suggest you go to davis-stirling.com to learn more.

To whom will you send your written request to review the ballots? Do you have a property manager? If you're uncomfortable requesting that review on your own, get a few more Owners to sign the request.

Owners, by Davis-Stirling must be permitted to observe the tabulation of the ballots. Also the results, including the vote count for each candidate, must be make public either by posting in a prominent area, or by newsletter, etc.

Please tell us how many are on your Board? How many units/homes are there in your HOA?

RT

Do you not think the BOD is made up of adults that should be able to handle it?

The way that directors, in this case, would breach confidentiality, is if they reveal to non-directors something "unethical" that was done or said that was discussed or some sort of behavior in executive session.

If M. X's "unethical" behavior is already known by non-directors because it wasn't in executive session, there's no confidentiality issue. How do you define "unethical"?

I think that in davis-stirling.com there's a "dictionary," where you can learn the basic language of HOAs.

If directors want to join you and other non-directors in asking Mr. X to resign, they may add signatures to the letter. If a majority of directors at a meeting vote that they want him to resign, they should write there own letter to him.

But, like Jon, I'm curious to know why your spouse does not know if Mr. X was legitimately elected??

CarolR11
[If M. X's "unethical" behavior is already known by non-directors because it wasn't in executive session, there's no confidentiality issue. How do you define "unethical"? ]

In this case I am not referring to the behavior of Mr X as being unethical- I am saying it is unethical for someone that has never attended a meeting to be included in voting on important association issues. As I see it- that is why many other HOA's have restrictions regarding this in their G.D's (such as having attendence rules and having the ability to remove non-attending board members).

[If directors want to join you and other non-directors in asking Mr. X to resign, they may add signatures to the letter. If a majority of directors at a meeting vote that they want him to resign, they should write there own letter to him. ]

I think that is a great idea- for each of the members to write a letter.

[But, like Jon, I'm curious to know why your spouse does not know if Mr. X was legitimately elected??]

We have not actually seen the votes so can only assume his name was written in on enough ballots to win the seat. Our election was not run correctly, starting with not having an inspector of elections. We are in the middle of a lot of turmoil right now. We view the usage of this person to vote on board issues as an act of desperation.

As of yesterday the board VP resigned (so I did not send the letter out about requesting the tabulation). He is (was) a favored and knowledgable board member and those that know are in shock. We assume it is because the turmoil. Now it no longer matters how Mr x votes.
RT4

RT4, You say it's unethical for Mr. X to vote on matters when he, due to nonattendance, is uninformed. But how in the world did he vote if he has not attended? Did he only vote at that E.. that he attended by phone? You also wrote: "We view the usage of this person to vote on board issues as an act of desperation." Who is acting in desperate ways? Because your VP resigned, you wrote that: "Now it no longer matters how Mr x votes." What does that mean? If he's not present by phone or in person, he cannot vote.

Why not go through with asking to review the ballots just because the VP resigned? I don't get it.

If you had no inspector(s) of Election, as you know CA requires one or three, who tabulated the ballots?

Though I disagree with Jon's unpleasant approach, he is right to ask why you think that you & your spouse can instruct your HOA's attorney to do anything, e.g., begin the process to amend your bylaws? As I pointed out way above, it's not a simple or cheap process.

CarolR11-
Yes- Mr x only voted in exec. session that he attended by phone. I think it's unethical because it would seem that he would have to be coached on which way to vote. The vote by the way was for a new management company, and any board member attending for the last 10 months would know how unhappy the members are with the current company. Half of the board is voting to keep the current M.C. and the other half for a new M.C.
This is the reason I stated that including him was an act of desperation. Their side of the table needed another vote. Now our board has 8 members which changes everything.

Many members feel that (half) the board members and P.M. have something to hide prompting the board members to try hard to keep the current company (this is the turmoil). There is no proof so far of any criminal activity, however there is a serious lack of professionalism (for example not having an inspector of elections- at least I don't think it's criminal). The current company/manager has been in place for 15 years and there are way too many questionable stories.

And- I do not know who tabulated the votes. We have talked to a personal attorney (meaning not the HOA sttorney) concerning our observations and they are willing to represent us. However we view that as a last resort. We have been focused on replacing the management company giving us a fresh start.

I do still think reviewing the ballots is a good idea. I have to gather up my courage.

RT4

"And- you are very presumptuous when you read. What my husband specifically asked the attorney- in an email with all board members CC'c, was what the cost would be to perform an alignment of our current CCR's with the current california code. He did not instruct the attorney to ammend our G.D's to our specs. We tried to get the ball rolling, instead of sitting around for 10 months doing nothing as you imply."

RT your observation or suggestion of my being "presumptuous" is brought into question by your own words. Seems your two posts conflict with each other. In one you suggest the attorney was to start the process and now your husband was merely looking for pricing information as to the process. Tough for me at least to follow your version of the facts when they change.

"My husband and I email the associaion attorney asking to start the process to have our docs ammended to include that and other Davis-Sterling election provisions, but there was some opposition however I bring it up at every meeting."

"And the answer to your simple question- what do I hope to get out of correcting this issue? The ability to live in a community that follows rules. Isn't that why we are all on this forum, or am i missing the point of your question?"

I sense you have some belief that the "rules" some rules will resolve all of the issues facing your property. IMO amending your By-Laws to mirror Davis-Sterling is redundant. And as Carrol has already pointed out, in a far to pleasant manner for my liking, this can be a long road and expensive. And from what you have posted just what "rules" have been violated other than your sense of what is right and wrong. You have a Board member who was somehow elected to the Board. One group agrees with his being on the Board the other needs their vote to get their way. So now lets rewrite the By-Laws to cover this problem. IMO laws and rules are guidelines and when necessary people will find a way to work around them or in your case make rules that suit YOUR purpose. Neither one is positive for the property. If you want change then get people voted out do the hard work and don't rely on Davis-Sterling to give you what you desire.

And as a general comment this site is for people who volunteer their time as Board members to share ideas and information about managing and serving the best interests of their property. NOT how to use the system in place to obtain YOUR personal agenda. Like adding a rule concerning Board emeber attendance.

I have NO idea whether you and your side are doing more good or more harm to your property. Suffice it to say, for me, presenting incomplete details and questionable information rasies doubts as to your honest purpose.

As Jon said:

Now RT like many folks comes to this site gives a partial story about an absent Board member and her plan to resolve the issue by enforcing HER version of some new rules. And after quite a few posts the true picture begins to emerge. This is a power struggle among members of the Board and the enraged, angry side wants to rig the rules to serve their purpose. Not the first time. Lets all follow rules as long as they serve MY goals.

This is how it appears to me also.

RT4. Amending either your CC&Rs or your bylaws, as Jon points out is redundant. You say you've studied davis-stirling.com. If so, you should know that CA statutes take precedence over your HOA's bylaws or CC&Rs (unless the former is worded in certain ways).

I'd say that many Calif. HOA's G.D.s are out of date regarding, for example, elections. Still, the HOA must comply with the laws concerning elections. No need to go to the time/expense to revise them for such clear cut matters. Inspectors of Election are required. Double envelopes/secret ballots are required. counting ballots where any Owner can observe the tabulations is required.

John & Jon are right to observe that you should have let us know at the outset that what's really going on is a struggle over the PM or MC.

I am not trying to hide any facts. I really had no idea the details of our associtaion would be needed to give advice.

The bottom line is:
1) Our BOD had an executive session
2) A board member attended the meeting, having never attended a meeting in this term
3) Voting took place concerning association business
4) Our governing docs do not mention requirements of board member attendence at meetings.

How have other HOA's dealt with this situation? Is this common? Uncommon? Normal? Unethical?

I would never suggest rigging rules to suit my purpose and I don't understand how this series of discussions has evolved to that. I have heard that some HOA's have attendance policy's that clearly state the number of meetings that a board member can miss before they are asked to leave the board. I view most of the state code that is written about HOA's is to protect the homeowners. Our HOA needs this protection right now.

RT4

Well RT I guess everyone gets to have their own view of reality.

You had no idea details needed to be given for any of us to offer advice worth more than a wooden nickel????? Come on.......I didn't fall off the turnip truck LAST night......

And your bottom line details leaves far to much out.

Perhaps this representation might have been a more honest approach.

We have a 9 person Board now reviewing the contract renewal of our MC that has served our property for 15 years. One half of the Board wishes to have them replaced because we feel not having election monitors violates the law ( overlooking the fact that the BOARD themselves failed to assure state laws were followed) and there are lots of questionable stories as to their actions just like people tell about those they have a bone to pick with.Stories, fairy tales as long as they make it sound like the MC is not doing their job. Might even be illegal too if that helps.

Well now here's the issue, in order to get enough votes to have things our way we need to have one Board member out. So after 10 months we decide to "discover" one member has not attended to our satisfaction enough Board meetings. And to go along with that this proves to our satisfaction this Board member is uninformed and unqualified to serve.
BUT, our By-Laws don't give us any reason to remove them as currently written. So I have read and re-read and read Davis-Sterling and they suggested we could amend the By-Laws to make this person's membership prohibited and then the majority of the Board can vote to change MC companies.

Now lets set aside the fact no current rules have been violated. Lets just understand these new rules once passed and paid for over months ( who cares how much that costs the property) will give one side the authority to do what we want by following OUR new rules. Simple......

And of course I would NEVER rig any rules to suit my agenda rather just doing what's right to protect the poor homeowners. (Including those that oppose the removal of the crooked, illegal acting MC.) Those homeowners and their opinions don't really matter afterall.

So please advise...................

Some people become so blinded by their agenda and their view of what's right that they become unable to judge and honestly evaluate their own actions.

As I myself like to dig just a little deeper several questions come to my mind.

1) If the absent Board member supported RT's agenda would that still now be a problem? My guess probably not.

2) In the event RT were successful does she or any of those supporting her have ANY idea who would take over as MC? Based on what? My guiess probably not.

3) How does an MC manage a property for 15 years and then suddenly become undesirable? Did this happen over night?

4) How does someone who claims they have studied Davis-Sterling through and through don't understand those guidelines are in force NOW on their property as the state law not needing to be added to revised By-Laws?
And this same person would have you believe they know what best serves the property????????

Same old same old I want my way so lets change the rules in my favor and then claim we acted in the best interest of the property.......

I not buying it.