Non-Director President

Welcome to HOATalk, Steve.

Whether the prez can remain in the office if no longer a director normally would be in your bylaws. (Our bylaws state that only the president must be a director.) But if nowhere in your governing docs, take a close look at the AZ state laws that apply to your type of HOA, if you're incorporated, and most HOAs are.

Next, look again at your docs: If no longer a director, can this president vote on anything at Board meetings? In other words, what authority do directors have that non-director officers do not have??

I'm wondering about the director who stayed because of a tie vote. How are tie votes for directors or ballot measures treated in your HOA? In AZ? It's possible there'd need to be another ballot on that director. It's not the same thing as, say, a Board vote on a meeting agenda item.

It might be worth it for a few of you owners to pool together $300 or so and get the advice of a corporations attorney (I think in your case & if you're incorporated).

What size if your HOA?

Meantime, there are a couple of very knowledgeable AZ posters on this site. Hope you hear from them!

Our Bylaws say (paraphrasing)

Affairs of the association shall be governed by a BOD.

Each Director shall be member.

Officers shall be elected from among the members of the BOD.

The BOD can remove an Officer from an Officer's position but they remain on the BOD. If we recall a Director (be they an Officer or not), they are off the BOD thus they cannot be an Officer as they are no longer a member of the BOD. Look for such wording in your Bylaws.

Some association Bylaws say an Officer does not have to be a member and/or a Director.

Translation: Nobody wants to do the job.


Well, the President believes this because the rest of the Board allows her to act this way.


Mind you, the President isn't refusing to step aside. It's the Board who isn't firing her from the position after hearing from the membership.

Sounds like it's time for another recall election.

If you are serving on the Board, perhaps the rest of the Board is looking for a leader to follow. Bring the motion to the table and volunteer to do the job yourself.

In Arizona, at Board meetings, who votes, the Board or the officers. If this were in California, this President would not be able to vote on anything, although in theory, they are the CEO of the association. Most Bylaws will state that the Officers must be Directors, but not always. I have managed a property where the president was a renter in the complex next door. Their Bylaws did not require that the Director be a member/owner and the Board, not the membership, had the authority to remove a director for any reason.

I reviewed the Bylaws of two HOAs in Arizona. One, Pebblecreek Golf Resort HOA, did not require the Board to be owners nor the officers to be Directors . The second, Gilbert Ranch HOA, required the Directors to be owners and the Officer to be owners, but not Directors.

IMHO, the only officer position I would ever consider being held by a non Director is Treasurer. I believe that being one of the most important positions and should be held by someone who knows what they are doing, for the sake of the community.

Carol,

You need to recall that the positions of Officer and Director are 2 different positions. Only Directors are allowed to cast a vote at Board meetings.

Since this thread concerns an individual who is serving as President and is not also serving as Director, I believe that Richard was referring, correctly, that the Offices do not vote.

I know it can be confusing when both the Officer and Director positions are filled by the same individual. The thing to remember is that each position (Director and Officer) has specific rights, responsibility and authority.

Here is the info as posted on the Davis Stirling site [emphasis added]:

A lot of people are confused by the difference between officers and directors. Directors are elected by and represent the membership, while officers are chosen by the board to keep minutes, oversee financials, etc. Merely being an officer does not give one the power to vote. In many sets of bylaws, officers need not be directors. When directors cast votes, they may incidentally be officers but when they vote, they vote as directors, not officers. The president, vice president, secretary and treasurer are allowed to vote if they are directors--but they are doing so as directors, not officers.

Carol

My understanding of the Rules of Order are that the Board Members in their capacity as directors, not officers, are the ones voting on association business. In the OP situation, the individual serving as President, essentially has no power to do anything.

That's why, Richard, I asked the OP in my post above to clarify this. CA is not required to follow Robert's Rules of Order (as some states are, e.g., CT). I don't know about AZ.

I totally agree with you, Richard, re: CA. Directors vote, not officers. This means that the president who was recalled by HOA members as a director still might be able to serve as president and, in fact, a majority of the Board wants her to do so.

In my first reply, I was trying to suggest that as a non-director, this prez has very little authority because she (probably) cannot vote at meeting--only directors vote at board meetings-- in CA. So, she's not part of of the Board's policy- & decision-making processes (except via her influence on "real" directors.) We had a treasurer for a while who wasn't a director and all she did was make recommendations to the Board for investments and for approval of our monthly financials.

I even wonder is this prez as a non-director can remain in the meeting during confidential discussions/deliberations.

But state laws trump RONR and I don't know what those in AZ say. But Larry reports there are no restrictions on offices being directors in AZ state code. That's what I was trying to learn.

I also pointed out that in my HOA, the presidents (and, actually the VP) must be directors per our bylaws. But what do the bylaws say in the the OP's HOA?

This is from my go-to site and I know yours, too, Richard:

DIRECTOR-OFFICER DIFFERENCES

Directors

1. Elected by the membership.
2. Serve terms described in bylaws.
3. Qualifications described in bylaws.
4. Can be removed by the membership.
5. Have voting rights.

Officers

1. Appointed by the board.
2. Serve one-year terms.
3. Qualifications described in bylaws.
4. Can be removed by the board.
5. No voting rights.

Read more: Director/Officer Differences http://www.davis-stirling.com/tabid/2752/Default.aspx#ixzz2lgVxV8Qp
from Davis-Stirling.com by Adams Kessler PLC.

Yes, Larry, you've mentioned this previously. But this president's attendance could be only by board invitation in AZ. If the board voted that the prez could stay in that office, I guess a majority would permit her to attend ES violation hearings, etc.