CA: Can HOA Pay for Professional Secretarial Services to Take Minutes

Mari,

As a general rule the board can hire whomever it wishes to perform its work. The only issue that could arise is referring to the minutes-taker as the Secretary. This person is acting as a scribe and not as the corporate Secretary. Your board has my admiration for getting around the problem of taking minutes.

Unless the attorney board member can provide some authority (statute or case law) to back up his claim it would be entirely proper to tell him to sit down and shut up.

Glen and Larry- Thank you.

I don't know if CA law is different but this guy (who could be a huge asset) has turned into a bully.

First, Here's HOW a CALIFORNIA BASED Website defines the HOA SEC'Y POSITION:

SECRETARY

The secretary of the association is responsible for keeping and maintaining a record of all meetings of the board and the membership and is the custodian for most of the official records of the association. The position of secretary is not simply a clerical position. In many cases, the secretary will not actually keep the minutes of the meetings, but will be responsible for obtaining someone who will do so as a recorder or assistant secretary. As the custodian for the minutes and other official records of the association, the secretary is responsible for insuring access to those records by the members of the association and their authorized representatives.

NOW -- This is what he wrote (names have been changed to protect the innocent :-) )

The Association unfortunately cannot continue to pay Jane to take the minutes of either board or members’ meetings absent an approving vote of the homeowners. MapleTree’s Bylaws specify that the taking of the minutes of meetings of the board and the homeowners is among the duties of the Association’s secretary:
“9.8.3 Secretary. The secretary shall record the votes and keep the minutes of all meetings and proceedings of the board and of the members, shall serve notices of meetings of the board and of the members, shall keep appropriate current records showing the members of the Association and their addresses, and shall perform such other duties as required by the board. (Italicization added.)
There is nothing that would preclude the board from electing Jane to be the Association’s secretary if she were to agree to it (the secretary does not have to be a member of the board, nor does the secretary even have to be a MapleTree homeowner or resident), but she still could not receive compensation for taking the minutes without the homeowners’ approval. MapleTree’s CC&Rs provide in pertinent part as follows:
“4.3.3 Limitations on Authority of Board. Unless approved by the vote or written assent of a majority of the voting power of the Association . . ., the board shall not take any of the following actions:
. . . . 4.3.3.3 Pay compensation to members of the board or to officers of the Association for services performed in the conduct of the Association's business; provided, however, that the board may cause a member of the board or an officer to be reimbursed for expenses incurred in carrying on the business of the Association.” (Italicization added.)
I cannot conceive of an argument that would even begin to support that there is a legitimate distinction between on the one hand paying compensation to the secretary of the Association to perform a service that is required of that office under the governing documents to be done without compensation unless approved by the homeowners, and on the other hand paying compensation to an outside person to perform that service, i.e. to act as de facto secretary, without the homeowners’ prior approval.

It should also be noted that even if the board otherwise had the plenary authority to approve paying somebody to take the minutes of meetings (which it does not), it was never legally approved in the first place. Jane first began taking minutes for compensation in May of 2011, and there is no record of any board action ever taken with respect to that (in fact, there are no minutes for board meetings held in February 2011, March 2011 or April 2011). And with respect to the purported board action regarding an increase in her compensation that occurred in May 2013, no such item was listed in the agenda that was contained in the notice of that meeting, and therefore any such board action, even if it were not otherwise prohibited under the CC&Rs, constituted a violation of the Davis-Stirling Common Interest Development Act, which provides that with certain limited exceptions a board may not discuss or take action on any item at a nonemergency meeting unless the item was placed on the agenda that was included in the notice of the meeting. (Civil Code section 1365.05(i)(1).)

Unless Jane has already received payment for the board meetings of 9/23/13, she should be notified about this before coming to the upcoming meetings.

Yes, a person can be compensated for taking minutes at an HOA Board meeting. This is typically done at larger associations and the person is typically called a "recording secretary".

To the attorney, I would suggest, "put up, or shut up".

Thanks everyone for you comments. I so appreciate your feedback and input on this one.

Tim, the Bylaws state that an office cannot be paid and no officers are compensated.

Richard, I think he's misinterpreting the law and I can find no precedence for his claim. At issue is that somehow it wasn't recorded initially in the minutes two years ago and was improperly introduced. All that needs to be done is put it as an agenda item that is properly posted and the the board can vote on it formally so that all is rectified regarding record keeping since I can find NOTHING that says we're violating Davis Stirling for compensating a third party "Recording Secretary."

Richard, thanks so much for this link. I had read this. I understand that we can "authorize" third parties to take the minutes, but does that "imply" that we can "compensate" them? THANKS AGAIN!

Mari,

I think the sticking point with your attorney board member is the bylaw about the Secretary and his responsibility for the minutes. He is interpreting this very literally to mean that the corporate secretary (and no one else) must physically record the minutes.

The attorney is dead wrong about who must take the minutes. Your bylaws state that the Secretary shall "KEEP the minutes." There is nothing in the quoted passage that addresses who may take the notes or type the minutes. The Secretary is the custodian of the minutes, not a court reporter.

Since your bylaws do not dictate the means by which the minutes must be recorded, I see little practical difference between "Jane" taking notes and the Secretary writing on paper with a pencil. Regardless of how the minutes are prepared, the Secretary is responsible for submitting them for approval.

The minutes commemorate what transpired at the meeting and are subject to approval by the full board. If all members agree that the minutes are an accurate record of the meeting then it does not really matter who took the notes or who typed the document.

Jane is a vendor and not an officer of the corporation. She is entitled to be paid for her work just like any other vendor.

PS. If you need to hire someone to take minutes, you're doing it all wrong. Your minutes need to be short. One sentence can sum up what was decided on or question to bring up at the next meeting. The minutes should be 1 page maximum.

Maybe this board member should volunteer to be secretary and take the minutes, thus ensuring they're complete and accurate. The thought of more work other than just showing up should keep him quiet!

Minutes should not be a journal. They are just minutes. Keep audio recordings if you like, but keep the minutes super simple.

Richard - Care to share, or the link to your minutes posting? I searched, but cant find it.

Steve, not trying to be coy on the number. It's $150 per meeting. We have a large HOA and, as Carol said, one page would never be significant due to the ongoing business of many maintenance items alone.

Richard, you are THEEEE best. Thanks so much for posting those two documents. This will be very helpful!

Thanks to everyone here for your comments. I've been feeling very bullied by this guy and can't figure out "his agenda." I'm focused on ways to aave money, make responsible financial decisions, protect the reserves, and make sure the pool and grounds are well maintained. He's focused on unimportant matters. If you go to this link, http://www.davis-stirling.com/tabid/2452/Default.aspx#axzz2fmaiJuBw guess which one he is? I'm hoping I can "turn him" into being more of the first one listed.

The attorney/board member seems to be fixated on technicalities. Here's one for him: Those notes about what happened are not minutes until the board approves them. It is the board's approval and not the secretary's scribbles that turns them into minutes.