Board Member's Right to Attend a Meeting Via Teleconferencing

I was denied attending a Board Meeting via teleconference this evening. A co-owner in attendance placed me on her mobile speaker phone to listen in. It was unilaterally decided by the President at the beginning of the meeting, who himself teleconferenced in the prior meeting. He gave the reason that he was using Roberts Rules of Order and that there we too many items to be discussed. I had notified the management company and the Board that I intended to conference into the meeting well in advance. They never notified me that I would not be allowed to conference in. The first I suspected there was going to be a problem was earlier today when I requested the phone number to call in on and was denied a number and told it would be decided by the Board at the onset of the meeting. So, I checked our Bylaws, which are silent on the subject, our Michigan Condo Act, also silent, but in the Michigan Non-Profit Corporation Act, which our Association is incorporated under, it state the a member has the right to participate by conference telephone and that such presences is considered the same as being present in person (MNPCA 450.2405). Our Bylaws state that RROO should be followed unless in conflict with a State law/Act. I emailed this information to the Property Manager and the entire Board hours before the meeting. I am livid, does anyone know if I have any recourse?

Cindy,

Your recourse would be to seek some sort of court order that either allows all board members or allows no board members to teleconference. The fact that the board allowed one member to teleconference in one meeting while disallowing another member to do so at the next seems chaotic. Without a bylaw to permit teleconferencing, the board was wrong to allow the president to do so at the earlier meeting.

I wonder if the prez was out of order forbidding your conference call?? Normally the Board would decide such a matter. So, you probably could try to have the Board censor the president at an executive session, but that might things even worse, and he should have been called on his error when it occurred.

What, by the way, did the president mean when his excuse for not letting you meet by phone was that the agenda was too full, per Robert's Rules of Order (RONR). If he's really drawing from Robert's, he knows that the Board decides on the agenda, not the president. Did he quote RONR, or just spout off his opinion and intimidate everyone.

Sounds to me like a bigger problem is a president who's a bully.

If you wanted something on that agenda, can it be on your next meeting's agenda?

I agree with Glen that going to court about this is overkill.

Glen,
As pointed out by Jeff, the statute says that the board member MAY participate, not that the board itself may allow such participation.

Recourse? What recourse would one have if they tried to attend a meeting in person and were effectively locked out? I would think it would be the same.

Look I'm not saying it was fair, I'm not saying it was right, what I am saying is that there is no need to make a mountain out of a molehill. Should they have allowed it? IMO yes. Were they required to? Not an attorney but the statute says they may allow it, not that they are REQUIRED to allow it. Change the by-laws to require it and move on.

Cindy,

I understand the frustration when what was allowed for one isn't allowed for all.
I understand fighting things like this for principal alone.

I urge you to ask yourself if there was a decision, budget, etc. that was adopted or rejected at this one meeting which your vote would have made it go the other way.

If there was, then challenge that decision based on you being refused to attend and ask that the decision be revisited.

If you being in attendance would not have made a difference (or you agree with the decisions made), then heed Glen's advice and modify the governing documents as needed to prevent this from happening in the future and move on with business.

Good observation, Kevin. I'd assumed Cindy is a director.

Whoops--I see Cindy's subject has "Board Member's" in it so she must be a director, Kevin.

I do not understand Melissa's reply.

Cindy, Tim's approach sounds good IF the Board voted to make a decision with which you disagree. Place the matter on the agenda for the meeting expressing your desire to reconsider a decision previously made.

I don't know about your bylaws, Cindy, but ours are fairly difficult & expensive to change. So, perhaps your Board would simply like to direct the president to permit teleconferencing for all directors, or not. Or does your Board go along with this president no matter what?

Jeff this is exactly why attorneys get rich, we'll just have to agree to disagree. I'm not an attorney but you need to read the statute in it's entirety not the parts you like.

(1) A corporation may provide in its articles of incorporation or in its bylaws for a shareholder's or member's participation in a meeting of shareholders or members by a conference telephone or other means of remote communication

The OP doesn't say anything about the option being in her by-laws.

(3) Unless otherwise restricted by any provisions of the articles of incorporation or bylaws, the board of directors may hold a meeting of shareholders or members conducted solely by means of remote communication.

Again her documents are evidently silent on the issue but the use of the word may implies that they can if not forbidden but they don't have to.

But lets say they are required to and failed to. You'll notice that there are no fines for not following the statute, so you would have to litigate it in court. An expensive and time consuming process which will cost the OP time and money, the HOA time and money*. And what is the most likely outcome? The judge tells the HOA to allow it in the future and maybe if she's lucky awards legal fees to the plaintiff.

*Theoretically the D&O insurance would pay to defend the Board and any award, then pass the costs onto the HOA in the form of higher premiums.

All

Remember the difference between your scumbag lawyer and my scumbag lawyer. One of them is my scumbag.

Jeff in the immortal words of Emily Litella: "Never mind." I took the statute the OP posted and ran with it. It should have been allowed, that and $5.00 will get you a small cup of coffee. The OP should bring up not being allowed to participate at the next meeting and read the statute to the Board.

I did find this topic interesting enough to go take a layman's peek at what is being discussed (editted for brevity):

450.2405 Shareholder or member participation in meeting by conference telephone or other means of remote communication; conditions; participation as presence in person at meeting; participating and voting by remote communication.

Sec. 405. (1) A corporation may provide in its articles of incorporation or in its bylaws for a shareholder's or member's participation in a meeting of shareholders or members by a conference telephone or other means of remote communication by which all persons participating in the meeting may hear each other if all
participants are advised of the means of remote communication in use and the names of the participants in the meeting are divulged to all participants.

450.2521 Regular or special meetings of board; location; notice; waiver; participation by means of conference telephone or other remote communication.

(3) Unless otherwise restricted by the articles of incorporation or bylaws, a member of the board or of a committee designated by the board may participate in a meeting by means of conference telephone or other means of remote communication by which all persons participating in the meeting can communicate with each other. Participation in a meeting pursuant to this subsection constitutes presence in person at the meeting.

Not thatg MI law interests me, but both say "MAY" so the issue is what does "MAY" mean. I would assume "MAY" means if anyone requested, it must be allowed.

It does not say "COULD" be allowed in which case the arguement then is who has the right to say not allowed?

Personally I believe when you start shutting people out of participating, seeing, hearing, etc. you are headed down a slippery slope. Even if you have the right it is one that should be used very, very, very carefully. Shutting out a Chief Complaining Officer all know of is one issue. Shutting out a BOD Member is quite a different issue.

Carol

I understand they are different articles in the same document. One addresses BOD Member Meetings and the other addresses shall we say non-BOD Members rights at a BOD Meeting.

My point is that as far as tele-conferencing, they both say the same thing as in "MAY" be allowed. I say as I read the articles, the bottom line is nobody can be denied access to a BOD meeting be they a Member of the BOD or not.

Thus the question is back to what "MAY" means.

Now tele-conferencing does not change ones rights. Meaning if one cannot comment during a meeting, they still cannot comment so if on a tele-conference they can only listen.

One fraternal organization BOD I was on held 95% of all BOD Meetings via tele-conference as we BOD Members were spread all over the world. Our conference call system allowed any member to listen in. Now they were charged for this as our system allowed only so many in on a call then the rate went up so we did charge members that wished to participate. We also recorded each meeting (not Executive Sessions before some ask) and had a charge of $50.00 per meeting for an audio copy.

Remember. I am the benign neglect guy, not the freeze them out guy....LOL

Thanks for doing that search, Jeff. Yes, in CA directors may participate in a board meeting by phone so long as everyone in attendance at the meeting can hear them. CA and I think AZ and maybe other states even permit just one director to be be physically present at a Board meeting and the all the others can be present by teleconference.

Apparently I've done a terrible job trying to explain to John46 that in MI directors have the right to listen and talk by telephonic means during their board's meetings. They have the same rights that they have if physically present at that meeting.

Whether or not homeowners (who aren't directors) have that right depends on whether such a right is in the HOA's articles or bylaws.

Someone please straighten me out or straighten John46 out. The reason I hope for clarification is that so many are viewing this subject so it's attracting broad interest.

OK. Firstly, I thank everyone for their input on this subject. I especially appreciate being led to the correct statute, 450.2521, which addresses Board of Director participation via teleconference vs. member participation (450.2405). Apologies for causing the confusion.

The first question that was posed was by GlenL asking what recourse I sought. The answer is I really did not know when I posted. I just felt it was wrong and that I should not just put my tail between my legs and go away.

Then legal action through the courts was brought up. I agree with everyone that it would not be appropriate, on many levels, to bring lawyers or courts into the mix. For the record, I never considered it.

The debate then turned to the definition of the word "may" used in the statute. I chose to go with Webster's definition (fully aware that it would still be susceptible to debate), to wit: "have permission to - used nearly interchangeably with can" or "shall, must - used in law where to sense, purpose, or policy requires this interpretation". DaveD3 pointed out that the statute pertaining to Board members say they MAY participate and not that the Board itself may allow such participation.

MelissaP was suspect that something more was involved. But, not really. Other than the more often than not Hatfield/McCoy relationships that seem to be inherent in HOA's d their Boards. The request to attend telephonically was made verbally a month before the meeting, again by email when the agenda was mailed out and again by email and voice messaging on the day of the meeting. The President never responded to me, unilaterally stated at the onset of the meeting that I had requested to conference in, that we were not doing it and that I should just be there (in person). He did not call for a vote from the Board members present. One Board member objected, the other 2 (the McCoys remained silent. No one called me at any point to tell me my request had been denied. The word chaotic was used by one commentator, to say the least....

The good part was that one of the members attending the meeting put me on her speaker phone so I was able to hear what went on at the meeting. Which brings us to the next relevant discussion, which asked if there was anything voted on that my vote or input would have altered the outcome of...the answer is yes. I am Secretary/Treasurer and had 3-4 things to add to the agenda. I can add the on at the next meeting. The big debate was on whether or not to allow a co-owner to maintain a second dog when our Bylaws allow only one (a huge divider in our community and on our Board.) On that my vote would have enabled the issue to be tabled to be presented at the Annual Meeting of Co-owners in June...nothing earth-shattering.

As stated in my original post our Bylaws and State Condo Act are silent on the subject of Board members teleconferencing which make the Michigan Non-Profit Corp Act the ruling document on the matter. So, hurt feelings aside, it is my opinion that our Prez was totally out of order. He unilaterally kept a Board member from participating in a Board Meeting. He just spouted off inane reasons. He made no reference to any document that directs the Association. He knows he himself conferenced in at a previous meeting. It is my opinion he did not want me at the meeting because he knew I had differing views on several of the sensitive issues that needed to be discussed. I will take the advice of many who posted and deal with the issue at the next meeting, which I will physically be present at. CarolR11 presenting a simple outline of follow-up which I appreciate.

Again, thanks everyone for dissecting the issue.

Cindy

Simply ask that the BOD put tele-conferencing on their agenda for discussion. Be loaded with the MI Rules mentioned in this chat. Do not point fingers, but let the chips fall where they will.

More then one way to skin a cat.