Board Arbitrarily Move Annual Meeting?

Started by MargoT • 14 replies • 1559 views

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MargoT (Georgia)
Posts: 80

Posted:

Since October 4, 2012, the members elected the initial Directors in the process for the Declarant to turn over the Association to the members. Three Directors were elected and later the Board appointed a Chairperson non-voting to serve on the Board. We have a very small HOA.

The Bylaws state the Annual Meeting shall be held in October of each year with the date, hour, and place to be set by the Board of Directors by written notice to the membership thirty (30) days prior to the date of the Annual Meeting.

On August 15, 2013, the President and VP emailed the membership they resigned.
On August 17, they emailed the membership again to advise they will resign at the Annual Meeting in October because most all work on the Special Assessment will be completed and new Directors they appoint will start around October 13.

On September 14, 2013, the Board emailed the membership to advise they are Not resigning.
They want to serve out their time until 2015 and 2014 to get Bids for a new Landscaping Contract for 2014 and are moving the Annual Meeting until November 17th in order for everything to be done.

Question 1:
Can the Board arbitrarily move the Annual Meeting to November? IF the work is not completed, will they move the Annual Meeting to December? They are not resigning and all the work may not be completed due to the rainfall and some work on the Special Assessment which is understood based on the inclement weather with the rainfall but we have the rest of Sept. thru the end of November.

Question 2:
Directors are elected at the Annual Meeting. Bylaws for Election of Directors state the election is by secret written ballot and elected at the Annual Meeting by the members entitled to cast their vote in person or by proxy. The persons receiving the plurality of votes shall be elected. Cumulative voting is not permitted.

When your Boards elect Special Appointments, are they Committee Chairs whether voting or non-voting? I ask because our Bylaws stated (which sounds wrong):

x.x Special Appointments. The Board may elect such other Officers as the affairs of the Association may require, each of whom shall hold office for such a period, have such authority, and perform such duties as the Board may, from time to time, determine.

Is Officer the correct term?

We want our Annual Meeting in October and the status of the work being completed is no reason to keep postponing the Annual Meeting since the progress and budgets will be provided by the Treasurer and all pending work should be disclosed at the meeting.

No, the Bylaws haven't been amended to change the Annual Meeting to November.

Your feedback will be greatly appreciated.

CarolR11 (Colorado)
Posts: 2,563

Posted:

I agree with you that the Board should not arbitrarily change the dates. But what can you do about it? You say you have a very small HOA. Can you get enough other homeowners to make a fuss about this via letters to the board? Or protests at a board meeting?

It's common for Boards to appoint officers. Some bylaws and some states in their corporations codes require certain officers, e.g. a president and a treasurer. Your bylaws appear to state that the officers do not have to be directors. If your HOA is incorporated, chek your state's corp. codes to see if particular officers are required.

Boards also generally appoint committee chairs and committee members. Sometimes, one or more of these may be directors, but the Board as a whole still must appoint them.

Generally the Board president chairs (presides at) the board meetings. Why does your HOA have a non-voting chair?? Is the prez unable to chair meetings?? Is such a position mentioned in your bylaws?

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Margo

If as you say your Bylaws say the annual meeting will be in October then unless the same Bylaws allow the BOD to change the time, they cannot. A BOD cannot just change a Bylaw to suit themselves.

Hope this helps.

RayC4 (Virginia)
Posts: 173

Posted:

Quote:

Posted By JohnC46 on 09/15/2013 3:17 AM
Margo

If as you say your Bylaws say the annual meeting will be in October then unless the same Bylaws allow the BOD to change the time, they cannot. A BOD cannot just change a Bylaw to suit themselves.

John, I agree in theory. But if the BOD sends notice of the date change, what can the homeowner do? File litigation over a date change? Convene their own meeting without the BOD? There would seem to be no practical remedy here (other than voicing loud protests before and/or during the meeting).

DaveD3 (Michigan)
Posts: 796

Posted:

Let's go back to the first step. Once a board member announces that they resigned, can they really UN-resign?

As for the meeting date, the board is clearly in violation of the bylaws.

The general membership can and should demand a meeting per the bylaws (in October) and if the board refuses, they should call one without the board's consent. Language for doing so should be in the HOA's documents.

MargoT (Georgia)
Posts: 80

Posted:

JohnC46,

After some discussions today, the only recourse we have is to speak up at the Annual Meeting.

However, if no Member Forum is added to the Agenda, the members that have questions will be ruled out of order when we speak up.

RayC4 is correct.

MargoT (Georgia)
Posts: 80

Posted:

DaveD3:

They UN-Resigned.

I agree they are in violation of the Bylaws. They are making up the rules as they go to suit their political whims.

They already amended the Bylaws once, then deleted that amendment before they posted the Bylaws on the website with no
Resolution written to identify the two amendments. The only reference for the first amendment is documented in the Executive Board Minutes.

Some of us members are waiting to see their amendments.
Then,work to amend their Bylaws for the members to approve any amendment to the Bylaws by the majority vote.

DaveD3 (Michigan)
Posts: 796

Posted:

What do your documents say about amendments? It would truly be an exceptionally rare case if the board had the power to amend anything without a majority (probably 2/3 or 3/4) vote of the membership in support. Rules are another matter entirely, as most all HOA boards can establish rules consistent with the bylaws. i.e. if the bylaws say yards must be kept neat, the board can establish a rule stating grass should be no more than 5" tall. But the board can't declare neat yards are a requirement if it's not already in the bylaws.

As for the UN-resigning, I understand that they SAID they were un-resigning, but my question is whether they have the authority to do so. If they formally resigned, and that resignation was accepted by the board, they're out as far as I'm concerned. Think of it like quitting your job. You write a letter of resignation to your boss, he says "ok, sorry to see you go", but then a couple days later you show up for work and tell him you changed your mind. Ummm... sorry. You're gone.

CarolR11 (Colorado)
Posts: 2,563

Posted:

Did these directors resign in writing, Margo? o your bylaws or state corporations code require the Board to "accept" the resignation?

With Dave, I've never heard of a board having the authority to amend the bylaws without member approval.

And, again, I asked "Generally the Board president chairs (presides at) the board meetings. Why does your HOA have a non-voting chair?? Is the prez unable to chair meetings?? Is such a position mentioned in your bylaws?" Are you able to answer this question?

MargoT (Georgia)
Posts: 80

Posted:

You are correct, they kept sending notice to change the dates, the only thing we can do is speak up at the annual meeting.

The Bylaws state the members elect the Directors by written secret ballot whether in person or proxy or in combination thereof at the Annual Meeting.

Your statement about the Board as a whole must appoint committee chairs and members made me re-examine our Bylaws because they appear inconsistent. I included a snippet of one of the President’s duties: “and to appoint committees from among the members as he may in his discretion decide is appropriate to assist in the conduct of the affairs of the Association.

The President presides at all board meetings.

Additionally:
Under the Article for Committees:
There shall be such committees as the Board shall determine with the powers and duties that the Board shall authorize. Unless otherwise provided in the resolution creating the committee, the chairperson of each committee shall be a member of the Board.

Under the section for Service on Committees:
Unless otherwise provided in these Bylaws or in the resolution authorizing a particular committee, the members of any committee shall be appointed by the President and shall serve at the pleasure of the Board of Directors. Any committee member may be removed at any time with or without a successor being named.

To answer your last question, the President wasn’t interested to have a fourth voting member which would result in a tie and made the Committee Chair non-voting. I am aware other small HOAs have four Directors and the President, by virtue of his office, can vote to break the tie or choose not to vote and the motion is not carried.

Thanks for your input.

MargoT (Georgia)
Posts: 80

Posted:

CarolR11,
The membership voted to use email in order to save money.

They voted against me 2-1 to amend the Bylaws. Since they un-resigned, we will have to get on the Agenda to make a motion that the members approve the Bylaws.

MargoT (Georgia)
Posts: 80

Posted:

DaveD3:

The members must plan to get on the Agenda and make a motion that the members amend the Bylaws which state except as otherwise specifically provided in the Declaration, all decisions shall be by majority vote.

We looked at the Articles, which contained just enough to be legal; The Declaration didn't contain any language about voting.

There was only one Board member left to accept their resignation and I suspect he wanted them to stay because it was so close to the Annual Meeting and he only started mid June.

MargoT (Georgia)
Posts: 80

Posted:

DaveD3 (Michigan)
Posts: 796

Posted:

Quote:

Posted By MargoT on 09/18/2013 6:53 PM
DaveD3:

The members must plan to get on the Agenda and make a motion that the members amend the Bylaws which state except as otherwise specifically provided in the Declaration, all decisions shall be by majority vote.

We looked at the Articles, which contained just enough to be legal; The Declaration didn't contain any language about voting.

There was only one Board member left to accept their resignation and I suspect he wanted them to stay because it was so close to the Annual Meeting and he only started mid June.

What exactly do your documents state about amending the bylaws? Chapter & Verse.
From what you said above, they're amended by a majority vote of the MEMBERS, which is far different than BOARD members.

I'm still stuck on the un-resigning. If you resign, you resign. Who exactly was the recipient of the first resignation? Was it the general membership, or other board members only? If they announced to the world that they resigned, they're gone.

Moreover, there's no "accepting" of a resignation in order to make it official. That suggests that one can be prevented from resigning if their resignation is NOT accepted. The board can formally accept the resignation, which would end up as a note in the minutes "The board accepted the resignation of John Doe, effective September 15th" or they can do nothing since John Doe resigned. Either way, John resigned and he's done. ESPECIALLY if he announced to the world that he's gone. Buh bye John!

JH3 (Maryland)
Posts: 67

Posted:

The official resignation does not take place until the next open meeting.

So if no meetings were held in the time between the first and last letter, it could be argued that the resignation did not take place since an open meeting had not been held. Decisions can only be made at an open meeting.

A typical resignation in this fashion would be recorded in the minutes as "Dave Jones resigned from the board EFFECTIVE August 15, 2013." But if he changes his mind prior to that entry in the minutes, I can see the argument being made it was not an official resignation.

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