Question on HOA voting & Open Meetings laws

Hi everyone,

In the state of Virginia, all public meetings are subject to Open Meetings laws and there are specific provisions within the Virginia Property Owners Association Act (POAA) as indicated below.

§ 55-510.1. Meetings of the board of directors.

A. All meetings of the board of directors, including any subcommittee or other committee thereof, shall be open to all members of record. The board of directors shall not use work sessions or other informal gatherings of the board of directors to circumvent the open meeting requirements of this section. Minutes of the meetings of the board of directors shall be recorded and shall be available as provided in subsection B of § 55-510.

B. Notice of the time, date and place of each meeting of the board of directors or of any subcommittee or other committee thereof shall be published where it is reasonably calculated to be available to a majority of the lot owners.

Voting by secret or written ballot in an open meeting shall be a violation of this chapter except for the election of officers.

We now have an upcoming "special meeting" where our HOA needs to vote on an amendment to our Declaration and we are being told by the HOA Board of Directors that this will be a "confidential" and "anonymous" vote. However, since the vote is not for the election of members of the Board of Directors, many of us believe that making this vote anonymous is a violation of the Open Meetings law as stated above. Does anyone know if this is the case?

I see it the way that tim does, Tom. It's not unusual for folks to not see the distinction between meetings of the member(ship) and meetings of the board.

Folks also sometimes confuse "officers" with "directors. In general, directors are elected by the membership, while officers are elected by the Board of directors.

If VA law is like ours in CA. Members--homeowners-- must be permitted to observe the ballot tabulations--this cannot be done behind closed doors. Perhaps that's your concern?

Larry,

In 1993 my Association was able to record amendments with notarized signatures of the Board attesting to the voting results. It was done through the attorney, therefore, I expect that it was legal.

However, I like your method better.

It's not my method. Most declarations have some means to amend them and some procedures are more onerous than others. But if the declaration specifies one method of amendment I do not believe that the association can subsitute some other method, although from previous discussions on this forum it seems to happen a lot.

My own association put one amendment up for vote by the members in spite of a requirement for a different procedure. The amendment was demanded by a dissident group of owners who wanted to split the association and from the member vote it was clear that it had the support of maybe 5% of the owners. Putting the amendment up for a vote where the disgruntled owners lost took the wind out of their sails.

VA § 55-515.1 may provide more argument than it settles. It appears to defer to the Declaration for determining the "required majority" while overriding (or at least ignoring) the Declaration's other provisions for amending. It seems to set out two different avenues for amendments: first, a recorded document signed by the owners; and, second, a vote (ratification) certified and recorded by the principal officer.

The problems I see with that second method is that everyone must take the word of the association's principal officer, without any other evidence, that the required majority of owners approved. That opens the door to way too much abuse. A secret ballot, as the OP discussed, would provide no evidence of which owners approved or even that the ballots were cast by owners.

I agree


I agree that it wouldn't provide it to the recording office.
However, if challenged, the Association would need to produce the membership list, the sign-in sheet, proxies accepted and the actual ballots. Otherwise, it's likely that the Association might lose the challenge and have to do the whole thing all over again.

Tom,

John makes an excellent point.
You might want to offer to serve on the election committee.
They may turn you down but they might also say yes.

This means keeping all those supporting documents available forever versus recording signed amendments in the first place. In the long run, I don't think most associations will find "ratification" is a good idea. I also suspect that in the future there will be a lot of associations advancing the argument known to school children everywhere: the dog ate my homework.