Help with BOD vs Officers

Hi all
I am having a real issue with the term BOD and Officers. Our HOA is in the middle of some really bad stuff. I alone have been tasked (no one else will do anything) with fixing this major mess.
I have posted the issues I am dealing with here on this forum in other posts but my question here is as follows;

Please note I registered as SC because I was seeking help and did not want to give away my strategy, I am from GA

My understanding goes like this....The HOA is listed as a non profit corp. The state of GA in its code states all corp. have to have a BOD. These BOD's nominate officers to run day to day business. The state requires the Officers to be registered as CEO, CFO, and Secretary. Does this sound correct so far?..............

Our HOA does not have a BOD only officers. We have NO BY-LAWS but I did find the articles of incorporation. We need to first be sure we are legal, next we need by-laws, and I need to fix this before any of that can happen.

The articles of incorporation state the association will be governed by a BOD consisting of 3 people. They need not be members. Here is my first issue. How can this be done? They say the members are to elect the BOD's. The state requires registration of Officers. Does this mean that the members elect BOD's who then nominate officers?

Our HOA has only had officers except for the founding three who started it in 1989. It was turned over to the community in 1995. Since then the HOA was only governed by Officers. Does this mean we have not been in compliance with state code from 1995? Would this mean all business conducted pertaining to the HOA is illegal?
I feel that the term BOD and Officers was thought of to be the same thing.

The state will not help with these questions, they tell me to see an attorney but now since all our funds have been stolen by the recently ousted three officers we have no money and I am unable to pay for help.

I had an attorney willing to help but they backed out when they found out the trouble we are facing with many problems and the recent officers stealing leaving us with no money.

Can anyone help me with this. I need to know what to do and how to proceed.

Thanks this forum has been such a great help to me as I struggle to keep my sanity.

PH,

Officers and directors are two different categories. In the real world, where I normally live and work, the board of directors' job is to generally establish policies and goals for the corporation. The officers are hired/appointed by the board of directors to run the corporation on a day-to-day basis. This rooted in the for-profit business world where the investors, who may lack time or skills needed to run a business, elect the directors to oversee their investments. The directors, as the investors' representatives, then hire officers with the required skills to run the business on a day-to-day basis.

In the amateurish world of HOA's, things get muddled by the fact that the incorporated association normally falls into the hands of directors whose sole qualification for the job is that they own a home. Thus, people who could not get a job as a janitor at their local bank may hold millions of dollars of real estate hostage.

Members of the association normally elect directors and the directors hire or appoint the officers. Since most of directors know no better, they appoint themselves to the various positions of officers. Thus, officers end up being both the chiefs and the Indians.

Apparently your predecessors did not understand the difference between directors and officers and never bothered to ask. While technically the previous method of electing officers instead of directors may not have met the legal requirements, it is doubtful that anyone is really going to challenge the legality of what was done in the past. This assumes, however, that the owners voted those officers in and that the officers did not just continue to operate as a self-appointed body.

This is just one more reason why you should seriously consider seeking a court-appointed receiver so that this kind of mess can be resolved.

So I guess what is being said is a non profit's BOD can also appoint themselves as officers. So when the BOD is required by law to set by-laws, the officers in turn can do them since they are also the BOD. My question would be why does the code specify only the BOD can set by-laws?

This is very confusing and I wonder why there is no law against it. Seems there would be no need for code on how the officers and BOD are to act and perform if both can be the same person. Their roles are handled and governed differently.
I am not saying I know anything about this but I must assume if the state of GA spent countless hours differentiating the roles of officers and BOD's why would they not have a code that separates them. Maybe that answers my question, since the state does specify the roles of each and the differences between the two and job functions would that not in itself be the governing law?

Wow nothing I am dealing with has an easy answer or seems to be an easy fix.

Ok I understand your explanation if there are by-laws that lay out how the HOA operates because the by-laws trump state code. But in our case with no by-laws we refer back to state code which are quite explicit defining the job duties of Directors and Officers. Seems like a waste of code if they can be held by the same person. How do you decide when the person is in the role of the Officer or Director? How does the Director tell him/herself what to do?

This is the part I do not understand. I know our situation may be outside the norm but we have to figure it our regardless.

no no no ..... the corporation bylaws must be compliant with state corporate law

Hi JohnC46

We only have the state corporation laws to follow that are 14--3-840 for officers and 14-3-206 by-laws, and 14-3-801 for Directors and the rest of that section.
Our HOA was formed pre POA and the law states that any HOA formed pre POA has to vote to adopt the POA. Our HOA never did so we have to refer back to corp code.
I have been down this road already.

JohnB26 you are right except much of the code allows variations of the code if those variations are written in the by-laws like when determining how many directors you can have or how many officers. If the by-laws say you need (3)directors and the state code says only (1) is required than you follow the by-laws. There are a ton of this type of variation. that is what I was relating too.

This adds to our trouble because we are using the loose corp code that was not written for HOA's and therefore we should have used them to form by-laws but never did and to make things worse we are not obligated to follow any of the later code sections that deal explicitly to HOA's because our HOA was formed before any of them were written. Our HOA never adopted them so that is why we are where we are right now.

Glen thanks for the input. Our CCR's ONLY dictate how the members are to conform. There is nothing related to BOD or Officers for that matter. It does not give anything for voting except when the dues are to be raised. That is the only topic they cover for any board or officer policy.

They cover infractions for members dictating how to keep your yard, house color, they actually follow all county codes. The only requirement that it dictates that is not a county code is house color.

Remember our HOA was one of the first in our area and there were no laws pertaining to HOA's at that time. The Olympics in 1996 is what started the big boom here and that is when HOA's sprung up everywhere. We have been around since 1989. It is very hard for most involved today with HOA's to realize that we are so far behind in all aspects of proper governing its outright outlandish. Mainly because those who volunteered had no clue how anything worked.

When I was voted on, my first meeting was something I will never forget. When I discussed the lack of proper functioning by the then current officers and told them that the HOA was a corporation and was supposed to be run like a not for profit business they argued with me saying I did not know what I was talking about. They said it is no business its an HOA. I swear this is what they said.