discussions and decisions through email

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CfD (Virginia)
Posts: 265

Posted:

We have a constant problem with our committees and sometimes our board making big decisions through email outside of properly noticed meetings. Since I'm on a committee I generally protest when votes are cast through email where homeowners have no idea who said what, who voted for what, etc, but nothing is ever done about it. In fact, it seems like I'm deliberately ignored.

Also not uncommon for committee members to never show at advertised meetings and our committee chairperson simply shows us saying the committee voted that way or this.

Our governing documents specifically prohibit voting in writing or secretly in a meeting required to be open, and I believe state code says the same.

My question is what are my options if this continues with little regard to the rights of the homeowners to hear discussion about important decisions?

Look forward to hearing from Tim and anyone else willing to offer help.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Cf,

The decisions you refer to would be considered an action without a meeting.
Expecting your Association is incorporated, Per The Virginia Nonstock Corporation Act, specifically § 13.1-865, actions without meetings are authorized but requires written, unanimous consent.

Any action without meeting must be recorded in the minutes of the next meeting and the written consent must be an attachment to those minutes. Failure to have written consent or unanimous consent would cause the decision to be invalid if a member brought a legal challenge.

A Board that often uses actions without meetings also runs the risk of violating VA Property Owners' Association Act, specifically the § 55-510.1 which requires open meetings.

I refer you to the Fairfax County Community Association Manual, which states:

In 2000, the laws were amended to require a notice of the time, date, and place of each meeting be published where it is reasonably calculated to be seen by a majority of the members (association newsletter, bulletin board, website, or e-mail). . . . The very clear intent of these amendments is to preclude private board meetings that attempt to avoid the members, and associations should openly publish the schedule and location of all meetings, and welcome the attendance and input of all interested members.

The Board should also keep in mind that per the Virginia Administrative Code, members may make complaints about Board violating VA laws to the ffice of the Common Interest Community Ombudsman which, if they find merit, can forward the complaint to the CIC Board who may impose monetary penalties to the Association.

My suggestion: Every time an issue is brought up for an action without a meeting ask if it can wait until the next scheduled meeting. If not, why not? If it really can't wait, then insist on the e-mails being attached to the minutes of the next meeting (as they act as written consent) and the action without a meeting noted in those minutes.

Hope this helps,

Tim

MelissaP1 (Alabama)
Posts: 13,836

Posted:

This is a double edged sword. On one hand you need to discuss issues to work details out. On the other hand, having discussions not in the open at meetings looks crooked. How does one balance this?

In our HOA the reality is we have 12 meetings a year. That is once a month and 1 meeting is basically elections. We have open meetings. Procedure dictates that meeting notes taken but not approved until next meeting. If rejected, then add another month. A simple light bulb change could take up to 6 months!

So I have no issue with board members having conversations prior to meetings. I prefer it. The reality being that the board can get on the same page and have some kind cohession on issues. It looks like a total mess when you have a meeting and no one knows what the issues are till the meeting. Your still performing your opinion in front of members who expect you to know your stuff and details.

Now I am NOT saying making decisions that spends money prior to a meeting unless emergency. One can form a decision and have details so when the meeting happens a fastef official decision can be made. The final decision or explanation made at the meeting.

A good example is house painting approval. Are you going to wait months for a decision on your paint color? You have a small window when to paint. Too hot or too cold is a factor. I think one would appreciate their board getting together outside a meeting to decide on a paint color so can start painting. You present your paint selection to the board. The board or ACC can meet or email to say yeah or nay without waiting for another monthly meeting. It is NOT costing the HOA to approve house painting. So why make this a decision in a meeting but in a committee type?

I say when spending the HOA money final decisions are done at meetings. If no money spent, then in special sessions or email is fine with me. Just have it in writing and submitted to the notes or records.

Former HOA President

KerryL1 (California)
Posts: 14,550

Posted:

First, CfD, are committee meetings required to be open in VA? (They aren't in CA)

2nd, does your or other committees have decision-making authority? Or are they all advisory? Or?

If you're not on the Board, how do you become aware that the Board is making decisions behind homeowners' backs?

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Tim

The OP refers to committee meetings then says an the BOD often operates like this. If I read your post correctly it applies to BOD, not committee meetings. Am I missing something?

Thanks

GeorgeR8 (Arizona)
Posts: 182

Posted:

We pass things from one to another to another. Initial if they agree. We don't do anything all that important that way but just things that have to be done.

BobD4 (up north)
Posts: 1,002

Posted:

Live in person - or some form of "concurrent media presence" itself by-lawed - may be the only way to comply with the wording of some by-lawed meeting procedurals. If the Directors were not 'concurrent', how could a bona fide meeting have actually occurred ? Just look at some of the comments above about being cut out of the Board decision- making and unable to establish what actually occurred by live presence/ live observation.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By JohnC46 on 11/13/2014 4:50 PM
Tim

The OP refers to committee meetings then says an the BOD often operates like this. If I read your post correctly it applies to BOD, not committee meetings. Am I missing something?

Thanks

It applies to both Boards and Committees.
See § 13.1-869 of the nonstock corporation act.

CyrstalB (Maryland)
Posts: 457

Posted:

Quote:

Posted By CfD on 11/13/2014 2:00 PM
We have a constant problem with our committees and sometimes our board making big decisions through email outside of properly noticed meetings. Since I'm on a committee I generally protest when votes are cast through email where homeowners have no idea who said what, who voted for what, etc, but nothing is ever done about it. In fact, it seems like I'm deliberately ignored.

Seems to me that if you protest when they do vote, I wouldn't find it unusual at all for you to feel your being deliberately ignored. You've caused a stink without fully understanding your local and state code, causing a ruckus and for what? Because you feeling ignored? Ask yourself what you can do differently, not what they are doing wrong.

CfD (Virginia)
Posts: 265

Posted:

Crystal, what part of this statue am I failing to understand if I ask that we have our discussion and subsequent votes about important neighborhood issues in a noticed meeting where homeowners can hear the sometimes radical points of view and see the votes of the committee members?

https://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+55-510.1

CfD (Virginia)
Posts: 265

Posted:

Thanks Tim. You've essentially confirmed what I already knew, but to be honest I respect your opinion and wanted confirmation. I contacted our ombudsman early this year and described these issues and many more. Never filed an official complaint because I was told the only way to correct some of the more serious issues was through legal action. I'm trying hard to avoid that because nobody wins, but if the problem persists it will come to that.

MikeS1
Posts: 521

Posted:

Tim & CFD - I seem to recall that the law changed on this a few years ago in Virginia. We post our committee and board meeting schedule on our website calendar and newsletters. It's always that first Wed in the month for Board Meeting and Covenants meeting. Also about 5 days prior to the meeting, we send the agenda as an email blast to everyone registered on the website. The agenda and past approved minutes are always on the website for members to access.

Our counsel and PM have advised us that we can make decisions electronically as long as the decision is Unanimous. Then at the next board meeting, everything is finalized and formally ratified. This has been in place for about 3-4 years (I believe). Sometimes we might not make quorum due to illnesses or weather, so when a time sensitive decision needs to be made, it's done electronically.

I must say that since we created the website and actively started sending out enewsletter updates, Neighborhood watch updates, pool party notices, Fall Family fest notices, most everyone feels like we are doiing a good job with keeping them informed.

I did try to find the legal references on this, but could not due to time, but I feel that this is correct. Here are some other references.
"Can nonprofit boards legally vote by email? The short answer: Yes, in most U.S. states, but typically only if the vote is consistent with the requirements for unanimous written consent -- that is, when the vote is unanimous and in writing. Some states like Texas require only majority written consent.

Most states make provisions for boards to take action without meeting by written consent. Typically, this involves mailing the proposed action to each board member, and having each sign and return the written action to the board secretary. Once all the signed consents are received, the action taken is just as valid as if it had been taken at a meeting.

Many nonprofits use the rules for mail voting to guide their process of email voting. This may involve an email to each director detailing the proposed action, and an email reply from each director with his or her vote. In a "unanimous written consent" state, if all directors vote the same way, the action is taken."
http://blueavocado.org/node/458

http://www.condolawgroup.com/2010/12/08/can-your-board-vote-via-e-mail/

MikeS1
Posts: 521

Posted:

I will say that we have been advised to use this sparingly and try only use this when the issues are time sensitive. It (as you can see), otherwise creates an environment where the members do not trust the board.

CyrstalB (Maryland)
Posts: 457

Posted:

Quote:

Posted By CfD on 11/14/2014 4:50 AM
Crystal, what part of this statue am I failing to understand if I ask that we have our discussion and subsequent votes about important neighborhood issues in a noticed meeting where homeowners can hear the sometimes radical points of view and see the votes of the committee members?

https://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+55-510.1

Don't automatically assume that they do this because they don't want to hear radical points of view etc, but if you really want to help your HOA, start studying your local, state and federal codes, then apply that to your governing docs. Then you can lay out a sound and reasonable "response" to your concerns.

Ask yourself what your upset about: the process, the people, the item voted on, the outcome of the vote etc. Then you can lay out a proper way to deal with your boards actions.

CyrstalB (Maryland)
Posts: 457

Posted:

Quote:

It is not just one statute that you and BOD have to abide by. It is common for a homeowner to get all caught up in one item that answers their question of wrong doing, but the thing is, there are many more statutes as well as your own governing documents that makes up how the decision process made by a board of directors. In my former life as a Director, we had to make decisions that had to be made outside of a planned and noticed meeting.

Don't automatically assume that they do this because they don't want to hear radical points of view etc, but if you really want to help your HOA, start studying your local, state and federal codes, then apply that to your governing docs. Then you can lay out a sound and reasonable "response" to your concerns.

Ask yourself what your upset about: the process, the people, the item voted on, the outcome of the vote etc. Then you can lay out a proper way to deal with your boards actions.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By MikeS1 on 11/14/2014 5:53 AM

Our counsel and PM have advised us that we can make decisions electronically as long as the decision is Unanimous.

This would be an action without a meeting and is authorized under VA Nonstock Corporation Act cited and linked to earlier in the thread.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By CfD on 11/14/2014 4:50 AM

I ask that we have our discussion and subsequent votes about important neighborhood issues in a noticed meeting where homeowners can hear the sometimes radical points of view and see the votes of the committee members

Cf,

Do you have a lot of members that attend committee meetings?

I ask, because the only time someone shows up at a Board meeting or Committee meeting that isn't required to attend is when the member wants a specific issue to go their way. In the last 6 years, I can count on one hand how many non-board members attended meetings.

CfD (Virginia)
Posts: 265

Posted:

I understand unanimous written consent, although my understanding is it should be used very sparingly...not as a way to avoid having discussions out in the open. My issue is not with any particular decision necessarily, although there are some I disagree with. That is part of life. Don't expect everyone to agree all the time anyway. My point is if the board has the authority to fine our members for not following simple guidelines and rules, should they not be held accountable to adhere to governing documents and state law?

Why, exactly, is there a session called "executive session" where board and committee members can speak freely in private about certain specific topics, if they are allowed to email each other constantly to discuss whatever they want through email? My point is I don't believe they are granted this permission through state law. Yes there are times when discussions or action may need to be taken outside of a board meeting, but it is rare in my view, especially if your board meets every month.

Our architectural committee, for example, has never had an advertised meeting where members could attend...ever! How is that proper?

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By CfD on 11/14/2014 7:28 AM

Our architectural committee, for example, has never had an advertised meeting where members could attend...ever! How is that proper?

It's not. That was one of the first things that we were able to change. However, it required replacing the entire committee to make it happen. The group that started holding open Committee meetings stayed on for 3 years. Now it's common practice.

KellyM3 (North Carolina)
Posts: 2,239

Posted:

Quote:

Posted By CfD on 11/14/2014 7:28 AM
I understand unanimous written consent, although my understanding is it should be used very sparingly...not as a way to avoid having discussions out in the open. My issue is not with any particular decision necessarily, although there are some I disagree with. That is part of life. Don't expect everyone to agree all the time anyway. My point is if the board has the authority to fine our members for not following simple guidelines and rules, should they not be held accountable to adhere to governing documents and state law?

Why, exactly, is there a session called "executive session" where board and committee members can speak freely in private about certain specific topics, if they are allowed to email each other constantly to discuss whatever they want through email? My point is I don't believe they are granted this permission through state law. Yes there are times when discussions or action may need to be taken outside of a board meeting, but it is rare in my view, especially if your board meets every month.

Our architectural committee, for example, has never had an advertised meeting where members could attend...ever! How is that proper?

CfD,

I'll side you with on this one. Boards should be as transparent as possible on business items. That said, a board shouldn't be so hamstrung by "transparency" as to not be able to conduct routine maintenance and repairs as promptly as possible. Some boards reach that level of transparency - or distrust - depending on how you view it.

Competent, good-faith HOA boards are never secretive...and never dive into legalese to prevent dues payers from knowing what's happening. It's part of community government culture.

CyrstalB (Maryland)
Posts: 457

Posted:

Quote:

"My point is if the board has the authority to fine our members for not following simple guidelines and rules, should they not be held accountable to adhere to governing documents and state law?"

and there it is.

"Why, exactly, is there a session called "executive session" where board and committee members can speak freely in private about certain specific topics, if they are allowed to email each other constantly to discuss whatever they want through email?"

Not sure why a committee of any kind would hold an executive session, that is usually for discussions of private matters of other HOA members. Why would the ARC need to advertise a meeting? They get together to approve stuff, and so it's in everyone's interest to do so asap. Isn't it?

Here is a good example of why our BOD needed to take actions without a meeting because of information that came about quite suddenly and we had to: find a new PM, then fire existing PM, secure our bank account because he moved it on us, then move the bank account and then re-instate our charter, further new info, and find an attorney to do so and hold according to all docs a special members meeting, etc etc etc...oh yeah, and still be a part of our other jobs and home life...so we did a lot of "actions" without an actual meeting, and our HOA was better for it because if we hadn't, our schedules would have prevented our dealing with any of that ultra important crap for several more weeks.

So why would a board allegedly not follow the rules, only to force you to follow them via a fine? Because that is apples and oranges and you can't quite compare the two.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Crystal

Personally I would have considered some of your tasks would fall under Emergency Actions which might well have different rules.

CfD (Virginia)
Posts: 265

Posted:

Crystal, I'm genuinely curious. What do you mean by "and there it is"?

I'm certainly not referring to unexpected events that might require action in a timely manner by the board. I'm talking about things like debating whether to put fountains or aerators in lakes through email, making decisions about architectural guideline changes through email, making a decision on a landscaping company through email, approving all architectural applications through email, etc., all the while claiming the emails are private as long as the decisions are published somewhere.

Our board typically has most of its decision making done before board meetings occur. The president talks for 90% of the meetings while the board members typically sit with their mouth shut. Our board also makes extensive use of executive session under our current president, all times when called solely by him instead of being a board decision.

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