File Injunction Against Board of Directors

WalterM3 (Georgia)
Posts: 442

Posted:

After some turmoil our Board of Directors in 2013 passed a Motion setting the terms of all Board members to expire in a certain sequence so as to maintain continuity of knowledge and experience on the Board. By this motion one of the Board members' (call him Wilbur) term was set to expire this year.

A few months ago the president resigned. -Her- term per the motion expires next year. Wilbur took over as president and another person came onto the Board to maintain the minimum of 5 required by the Bylaws. Then I heard that Wilbur has said he is going to assume the tenure of the departed president and not either leave the Board or run for re-election this year.

Article IV, Section 4 of the HOA Bylaws is definitive:

"'vacancies...shall be filled by a vote of the majority of the remaining Directors...Each
person so selected shall serve for the remainder of the vacating Director's term."

Under the Bylaws, the new person coming on the Board takes over the departed president’s term through next year. Wilbur –must- stand for election as his term is expiring this year by a Motion of the Board – one which he himself voted for.

Wilbur has not answered my e-mails. He apparently intends to not be on the ballot for election this year in a clear violation of the Bylaws.

I plan to file an injunction.

I guess my question after a long prologue is: Do you think the Court will grant this:

“Plaintiff prays that the Court will:

1. Rule before the Annual Meeting on March 11 and force Wilbur to stand for reelection.
2. If he didn’t stand for election at the Annual meeting, terminate Wilbur's service on the Board.

I know you are not lawyers. Neither am I.

Thanks,

Walt

JohnB26 (South Carolina)
Posts: 1,001

Posted:

I plan to file an injunction

to be pedantic: you will petition the court FOR an injunction

Your bigger issue: director's terms are generally set in the by-laws

does your BOD have authority to change the by-laws (which govern THEIR actions) by a mere motion?

sorry to answer your ? with a ?, but, should the attorneys become involved there will be MAJOR expenses

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By JohnB26 on 01/14/2015 10:58 AM

I plan to file an injunction

to be pedantic: you will petition the court FOR an injunction

Your bigger issue: director's terms are generally set in the by-laws

does your BOD have authority to change the by-laws (which govern THEIR actions) by a mere motion?

sorry to answer your ? with a ?, but, should the attorneys become involved there will be MAJOR expenses

Yes, I will petition -for- an injunction. Thanks.

The Bylaws simply say that Board members serve three year terms and may not serve more than 2 consecutive terms. The Bylaws may only be changed on a 2/3 vote of the membership.

The 2013 Motion sent 3 terms to expire in 2014, two to expire in 2015 (including Wilbur's) and two to expire in 2016.

I plan to ask for the injunction pro se.

Walt

JonD1
Posts: 2,350

Posted:

So let's see then the President resigned somehow Wilbur ended up as President while the other 4 board members either agreed or did nothing.

Now you see this as a chance to bring into question the board President's actions to what end.

You fail to explain what Wilbur's performance has been as a board member. Or does that not matter.

Time to hire a lawyer file your injunction have the HOA turn it over to their lawyer, waste money and all to prove your point.

Are you on the board?

And just how does this serve the community?

Perhaps the previous opinion is correct the board alone did not have the power to alter member terms.
Best to bing this all to a head in the name of being right.

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By JonD1 on 01/14/2015 11:10 AM
So let's see then the President resigned somehow Wilbur ended up as President while the other 4 board members either agreed or did nothing.

Now you see this as a chance to bring into question the board President's actions to what end.

You fail to explain what Wilbur's performance has been as a board member. Or does that not matter.

Time to hire a lawyer file your injunction have the HOA turn it over to their lawyer, waste money and all to prove your point.

Are you on the board?

And just how does this serve the community?

Perhaps the previous opinion is correct the board alone did not have the power to alter member terms.
Best to bing this all to a head in the name of being right.

I am reluctant to allow anyone to thumb their noses at a clear provision of the Bylaws. It doesn't matter what Wilbur's performance has been.

He cannot assume the term of another Board member and avoid putting himself up for election. His term is expiring.

There have been a lot of legal fees incurred by this Board of late. Some have been questioned by the members. Setting the HOA lawyer on this question, which is so black and white, will not be welcomed.

It serves the community by serving notice on the Board that they need to follow the Bylaws. As far as I know, the other Board members are acquiescing in this action of Wilbur's. As I said before I have asked Wilbur by e-mail to confirm his intentions. He has not responded.

I am not on the Board.

Walt

NpS (Pennsylvania)
Posts: 4,216

Posted:

There appears to be some confusion about Directors and Officers. Usually, Directors are voted in. Usually, Officers are selected by the Directors among themselves.

Your reference to A4 Sec4 is not clear on whether the Director role or the Officer role is being addressed. If your docs do not specifically state that it applies to the Director role only, then there is room for a different interpretation.

I have no personal experience with this, but I doubt that a judge would grant an injunction that will force Wilbur to be listed on the ballot. And asking for termination would be premature since Wilbur is legitimately on the board today.

And by the time your request does make it through the legal system, Wilbur's "assumed" term could be up anyway.

I would favor trying to work things out with the other board members, not asking a court to step in. Probably what a judge would wind up doing anyway.

Sikubali jukumu. Read all posts at your own risk.

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By NpS on 01/14/2015 11:34 AM
There appears to be some confusion about Directors and Officers. Usually, Directors are voted in. Usually, Officers are selected by the Directors among themselves.

Your reference to A4 Sec4 is not clear on whether the Director role or the Officer role is being addressed. If your docs do not specifically state that it applies to the Director role only, then there is room for a different interpretation.

I have no personal experience with this, but I doubt that a judge would grant an injunction that will force Wilbur to be listed on the ballot. And asking for termination would be premature since Wilbur is legitimately on the board today.

And by the time your request does make it through the legal system, Wilbur's "assumed" term could be up anyway.

I would favor trying to work things out with the other board members, not asking a court to step in. Probably what a judge would wind up doing anyway.

All the members of the Board are Directors. Four of the Directors are the officers, President, Vice President, Secretary and Treasurer.

The pertinent section of the Bylaws reads:

'vacancies...shall be filled by a vote of the majority of the remaining Directors...Each
person so selected shall serve for the remainder of the vacating Director's.
term."

As I indicated the other Board members seem to be okay with this action of Wilbur's.

As for what the Court does or does not do, the intent is to not just let this pass without some resistance.

Walt

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By WalterM3 on 01/14/2015 11:56 AM
"vacancies...shall be filled by a vote of the majority of the remaining Directors...Each person so selected shall serve for the remainder of the vacating Director's term."

Please provide the entire sub-section. Thanks.

Sikubali jukumu. Read all posts at your own risk.

JohnB26 (South Carolina)
Posts: 1,001

Posted:

'vacancies...shall be filled by a vote of the majority of the remaining Directors...
Each person so selected shall serve for the remainder of the vacating Director's.
term."

IMO (may actually be worth 2 pennies):

If the person selected was OUTSIDE the board then the person would serve the replaced director's term only

however

If the person selected WAS a director then that person would serve THEIR term AND/OR the replaced director's term

Therefor: this would be at the discretion of the ELECTED directors ... if the members do not like their actions they can elect new directors

but

feel free to rack up your association's legal expenses

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By JohnB26 on 01/14/2015 12:08 PM

'vacancies...shall be filled by a vote of the majority of the remaining Directors...
Each person so selected shall serve for the remainder of the vacating Director's.
term."

IMO (may actually be worth 2 pennies):

If the person selected was OUTSIDE the board then the person would serve the replaced director's term only

however

If the person selected WAS a director then that person would serve THEIR term AND/OR the replaced director's term

Therefor: this would be at the discretion of the ELECTED directors ... if the members do not like their actions they can elect new directors

but

feel free to rack up your association's legal expenses

The complete section 4.

"Section 4. Vacancies. Vacancies in the Board of Directors caused by any reason other than the removal of a Director by vote of the Members shall be filled by a vote of the remaining Directors at any meeting of the Board of Directors. Each person so selected shall serve for the remainder of the vacating Director’s term. Vacancies in the Board of Directors caused by a removal of a Director by vote of the Members shall be filled by the Membership in accordance with Section 3 hereof.”

The “person selected” was someone who was not currently on the Board. –That- person must serve out the term of the former president. Is that not clear?

Walt

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By WalterM3 on 01/14/2015 10:42 AM
Do you think the Court will grant this:

“Plaintiff prays that the Court will:

1. Rule before the Annual Meeting on March 11 and force Wilbur to stand for reelection.
2. If he didn’t stand for election at the Annual meeting, terminate Wilbur's service on the Board.

I agree with your reading of your bylaws. But that's not the question you posed.

I see 2 big problems ahead of you:

1. Many judges rightly or wrongly look at a HOA as if it is a private municipality. A judge might be very reluctant to step in where there is a means to resolve issues internally within the HOA. And nothing you have said indicates that the HOA cannot resolve its own affairs. Put a bit differently, you have not exhausted every avenue to get things resolved within the HOA, and a judge could hold that against you.

2. There is only 1 extra year that Wilbur is tacking on. It could take that year for you to get a judge to decide anything (and most likely, to decide not to grant an injunction, especially where your complaint is about procedure and not performance).

Sikubali jukumu. Read all posts at your own risk.

KerryL1 (California)
Posts: 14,550

Posted:

I'm confused too, Walter. Your quote is: "Under the Bylaws, the new person coming on the Board takes over the departed president’s term through next year."

But the bylaws sections you cite are solely about directors, not about officers. This may be what NpS is driving at. Please cite your bylaws with reference to officers.How long do officers serve, per your bylaws

Still, it seems you are correct that Wilbur cannot assume the term of the resigned director. I have never heard of such a thing.

At her resignation, unless your bylaws say otherwise, the remaining directors vote for a new president. The new director whom they appointed does not need to be the president, indeed, that probably wouldn't make sense. So that person serves the remaining term of the director who resined, but not in her office as president.

I agree with you, Walter, that the owners must vote to change your bylaws. That is, unless your bylaws state that "staggered" terms must be maintained (as do ours).

since the '13 decision by the Board seems to be invalid, when would Wilbur's term expire if that bogus "resolution" had not passed.

I strongly believe that you need to convince others on the Board to do the right thing. I doubt you'll get anywhere seeking an injunction.

Why not rally other homeowners to demand the board proceed properly?

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By NpS on 01/14/2015 12:45 PM

Posted By WalterM3 on 01/14/2015 10:42 AM
Do you think the Court will grant this:

“Plaintiff prays that the Court will:

1. Rule before the Annual Meeting on March 11 and force Wilbur to stand for reelection.
2. If he didn’t stand for election at the Annual meeting, terminate Wilbur's service on the Board.

I agree with your reading of your bylaws. But that's not the question you posed.

I see 2 big problems ahead of you:

1. Many judges rightly or wrongly look at a HOA as if it is a private municipality. A judge might be very reluctant to step in where there is a means to resolve issues internally within the HOA. And nothing you have said indicates that the HOA cannot resolve its own affairs. Put a bit differently, you have not exhausted every avenue to get things resolved within the HOA, and a judge could hold that against you.

2. There is only 1 extra year that Wilbur is tacking on. It could take that year for you to get a judge to decide anything (and most likely, to decide not to grant an injunction, especially where your complaint is about procedure and not performance).

The question, or premise I am working with is that the Board of Directors cannot violate the clear provisions in the Bylaws, that as the officers of the corporation, they should feel bound to honor. They don’t sign an oath but they should take their responsibilities seriously.

HOA’s in Georgia are corporations subject to the ‘Georgia Property Owners Associations Act.’

I think or hope that a judge would find that compelling enough to act. My research shows that for regular petitions for injunctions, a hearing will be granted within 60 days.

The issue is not whether Wilbur is doing a good job or a bad job or if it is ‘just a year.’ He should especially as president, follow the clearly stated rules.

Walt

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By WalterM3 on 01/14/2015 1:05 PM
My research shows that for regular petitions for injunctions, a hearing will be granted within 60 days.

Will be interested in hearing what the judge has to say 60 days from now. Good luck.

Sikubali jukumu. Read all posts at your own risk.

WalterM3 (Georgia)
Posts: 442

Posted:

Left unasked so far is why is Wilbur apparently afraid to stand on his own and run for reelection at the Annual Meeting in March.

Don't ask me because I can't fathom it. He would easily be reelected. In our Bylaws, members are elected by a plurality of the votes. That is, as I read it, he can be reelected with only -1- vote if the number of people that run are equal to or less than the number of open seats (this appears likely at present). I feel certain he can get 1 vote. ;-)

Walt

NigelB (Texas)
Posts: 254

Posted:

Quote:

Posted By WalterM3 on 01/14/2015 10:42 AM
After some turmoil our Board of Directors in 2013 passed a Motion setting the terms of all Board members to expire in a certain sequence so as to maintain continuity of knowledge and experience on the Board. By this motion one of the Board members' (call him Wilbur) term was set to expire this year.

A few months ago the president resigned. -Her- term per the motion expires next year. Wilbur took over as president and another person came onto the Board to maintain the minimum of 5 required by the Bylaws. Then I heard that Wilbur has said he is going to assume the tenure of the departed president and not either leave the Board or run for re-election this year.

Article IV, Section 4 of the HOA Bylaws is definitive:

"'vacancies...shall be filled by a vote of the majority of the remaining Directors...Each
person so selected shall serve for the remainder of the vacating Director's term."

Under the Bylaws, the new person coming on the Board takes over the departed president’s term through next year. Wilbur –must- stand for election as his term is expiring this year by a Motion of the Board – one which he himself voted for.

Wilbur has not answered my e-mails. He apparently intends to not be on the ballot for election this year in a clear violation of the Bylaws.

I plan to file an injunction.

I guess my question after a long prologue is: Do you think the Court will grant this:

“Plaintiff prays that the Court will:

1. Rule before the Annual Meeting on March 11 and force Wilbur to stand for reelection.
2. If he didn’t stand for election at the Annual meeting, terminate Wilbur's service on the Board.

I know you are not lawyers. Neither am I.

Thanks,

Walt

It seems pretty clear that your governing docs set a Directors term at three years with a two term limitation.

It is also clear that the position of President is an office appointed by a majority of the Directors.

The Director in question is on the third year of his term yet has assumed the role of the vacated President whose term expires a year later.

When the board appointed "wilbur" to the position of President, they also apparently appointed someone to fill a vacant Director slot - that vacant slot is not Wilburs it is the Director slot left vacant by the resignation of the President.

I would suggest that what the board did was that while they elected Wilbur as President, they actually filled the previous President's Director position with the other individual who now occupies that position until it expires in two years. While Wilbur is now President - his term as a Director expires this year.

It seems that Wilbur and his fellow board members misunderstand the distinction between Directors who are elected by the membership and Officers who are elected by the board.

It's pretty clear to me that Wilbur filled the vacant officer position of President and that he can hold it until his Director term expires, the other individual actually is filling the remainder of the resigned President Director position.

Just point this out to Wilbur and his fellow BOD

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By NigelB on 01/14/2015 1:34 PM

Posted By WalterM3 on 01/14/2015 10:42 AM
After some turmoil our Board of Directors in 2013 passed a Motion setting the terms of all Board members to expire in a certain sequence so as to maintain continuity of knowledge and experience on the Board. By this motion one of the Board members' (call him Wilbur) term was set to expire this year.

A few months ago the president resigned. -Her- term per the motion expires next year. Wilbur took over as president and another person came onto the Board to maintain the minimum of 5 required by the Bylaws. Then I heard that Wilbur has said he is going to assume the tenure of the departed president and not either leave the Board or run for re-election this year.

Article IV, Section 4 of the HOA Bylaws is definitive:

"'vacancies...shall be filled by a vote of the majority of the remaining Directors...Each
person so selected shall serve for the remainder of the vacating Director's term."

Under the Bylaws, the new person coming on the Board takes over the departed president’s term through next year. Wilbur –must- stand for election as his term is expiring this year by a Motion of the Board – one which he himself voted for.

Wilbur has not answered my e-mails. He apparently intends to not be on the ballot for election this year in a clear violation of the Bylaws.

I plan to file an injunction.

I guess my question after a long prologue is: Do you think the Court will grant this:

“Plaintiff prays that the Court will:

1. Rule before the Annual Meeting on March 11 and force Wilbur to stand for reelection.
2. If he didn’t stand for election at the Annual meeting, terminate Wilbur's service on the Board.

I know you are not lawyers. Neither am I.

Thanks,

Walt

It seems pretty clear that your governing docs set a Directors term at three years with a two term limitation.

It is also clear that the position of President is an office appointed by a majority of the Directors.

The Director in question is on the third year of his term yet has assumed the role of the vacated President whose term expires a year later.

When the board appointed "wilbur" to the position of President, they also apparently appointed someone to fill a vacant Director slot - that vacant slot is not Wilburs it is the Director slot left vacant by the resignation of the President.

I would suggest that what the board did was that while they elected Wilbur as President, they actually filled the previous President's Director position with the other individual who now occupies that position until it expires in two years. While Wilbur is now President - his term as a Director expires this year.

It seems that Wilbur and his fellow board members misunderstand the distinction between Directors who are elected by the membership and Officers who are elected by the board.

It's pretty clear to me that Wilbur filled the vacant officer position of President and that he can hold it until his Director term expires, the other individual actually is filling the remainder of the resigned President Director position.

Just point this out to Wilbur and his fellow BOD

All good points.

The intent of the 2013 Motion was to set up an orderly rotation of people coming on and off of the Board and to set up a process to only have a certain number of people leave at any given time. If Wilbur takes over another director’s term that process is thrown out of balance. And what of the new director who took the former president’s tenure? She would have to take over Wilbur’s tenure and leave the Board only months after she joined it. It doesn’t make any sense.

That is all important but is secondary to me. President Lincoln said: “Important principles may, and must, be inflexible.”

The president of the corporation cannot be allowed to ignore the clearly written provisions of the Bylaws. That principle must be inflexible.

Walt

KerryL1 (California)
Posts: 14,550

Posted:

I wonder if my above post was neglected by you, Walter? I'll try one question again: what do your bylaws say about the appoint of officers?

JeffT2 (Iowa)
Posts: 880

Posted:

Quote:

Posted By WalterM3 on 01/14/2015 10:42 AM
After some turmoil our Board of Directors in 2013 passed a Motion setting the terms of all Board members to expire in a certain sequence so as to maintain continuity of knowledge and experience on the Board. By this motion one of the Board members' (call him Wilbur) term was set to expire this year.

So Wilbur will be in violation of the Motion. Wilbur will not be in violation of the bylaws?

TimB4 (Tennessee)
Posts: 21,062

Posted:

Let me see if I understand this correctly.

Last year, the Board (it's unclear if the Bylaws were actually changed or not) established staggered terms for Directors.

There are 5 Directors.

Director A resigned.

Director B, picked up the duties of Director A (who was the President).

An individual was also appointed to the Board.

Now, Director B, who's term was set to expire said that they would fill Director A's position. Note: The proper way to do this would be for Director B to resign and then be appointed to Director A's vacancy.

In my opinion, it will depend on what came first. Was Director B formally assigned to Director A's position prior to a new individual being appointed to the Board? If not, then the new person was appointed to Director A's term. However, if it did happen, then the new person was appointed to Director B's term.

What do the minutes show?

JohnB26 (South Carolina)
Posts: 1,001

Posted:

Quote:

Posted By NigelB on 01/14/2015 1:34 PM

Posted By WalterM3 on 01/14/2015 10:42 AM
After some turmoil our Board of Directors in 2013 passed a Motion setting the terms of all Board members to expire in a certain sequence so as to maintain continuity of knowledge and experience on the Board. By this motion one of the Board members' (call him Wilbur) term was set to expire this year.

A few months ago the president resigned. -Her- term per the motion expires next year. Wilbur took over as president and another person came onto the Board to maintain the minimum of 5 required by the Bylaws. Then I heard that Wilbur has said he is going to assume the tenure of the departed president and not either leave the Board or run for re-election this year.

Article IV, Section 4 of the HOA Bylaws is definitive:

"'vacancies...shall be filled by a vote of the majority of the remaining Directors...Each
person so selected shall serve for the remainder of the vacating Director's term."

Under the Bylaws, the new person coming on the Board takes over the departed president’s term through next year. Wilbur –must- stand for election as his term is expiring this year by a Motion of the Board – one which he himself voted for.

Wilbur has not answered my e-mails. He apparently intends to not be on the ballot for election this year in a clear violation of the Bylaws.

I plan to file an injunction.

I guess my question after a long prologue is: Do you think the Court will grant this:

“Plaintiff prays that the Court will:

1. Rule before the Annual Meeting on March 11 and force Wilbur to stand for reelection.
2. If he didn’t stand for election at the Annual meeting, terminate Wilbur's service on the Board.

I know you are not lawyers. Neither am I.

Thanks,

Walt

It seems pretty clear that your governing docs set a Directors term at three years with a two term limitation.

It is also clear that the position of President is an office appointed by a majority of the Directors.

The Director in question is on the third year of his term yet has assumed the role of the vacated President whose term expires a year later.

When the board appointed "wilbur" to the position of President, they also apparently appointed someone to fill a vacant Director slot - that vacant slot is not Wilburs it is the Director slot left vacant by the resignation of the President.

I would suggest that what the board did was that while they elected Wilbur as President, they actually filled the previous President's Director position with the other individual who now occupies that position until it expires in two years. While Wilbur is now President - his term as a Director expires this year.

It seems that Wilbur and his fellow board members misunderstand the distinction between Directors who are elected by the membership and Officers who are elected by the board.

It's pretty clear to me that Wilbur filled the vacant officer position of President and that he can hold it until his Director term expires, the other individual actually is filling the remainder of the resigned President Director position.

Just point this out to Wilbur and his fellow BOD

PERFECT EXPLANATION

now let the attorneys buy new Jaguars

or

let it go

KerryL1 (California)
Posts: 14,550

Posted:

Tim wrote: "Now, Director B, who's term was set to expire said that they would fill Director A's position. Note: The proper way to do this would be for Director B to resign and then be appointed to Director A's vacancy."

If Dir. B resigns, there are two vacancies. For the Board to vote to appt. him to Dir. A's director spot may be "proper," I'm not sure, but smells really bad to me! It would be obvious to anyone that the only reason this sham occurred would be to give Dr. B an extra year.

I don't know if the resigned president's term expires this year or not. In my state and also in our bylaws, officers serve only one year. I think that's typical, but perhaps some state's corporation code say a longer term???

I've asked Walter to tell us what his bylaws say about officers, their appointment, terms etc., and he hasn't cited them for us.

NigelB (Texas)
Posts: 254

Posted:

Quote:

Posted By TimB4 on 01/14/2015 3:10 PM
Let me see if I understand this correctly.

Last year, the Board (it's unclear if the Bylaws were actually changed or not) established staggered terms for Directors.

There are 5 Directors.

Director A resigned.

Director B, picked up the duties of Director A (who was the President).

An individual was also appointed to the Board.

Now, Director B, who's term was set to expire said that they would fill Director A's position. Note: The proper way to do this would be for Director B to resign and then be appointed to Director A's vacancy.

In my opinion, it will depend on what came first. Was Director B formally assigned to Director A's position prior to a new individual being appointed to the Board? If not, then the new person was appointed to Director A's term. However, if it did happen, then the new person was appointed to Director B's term.

What do the minutes show?

I see it differently. There only ever was one vacancy, that of the Director who resigned (Director A)

Director A's vacancy was filled by an appointment of an outside individual. That individual will serve out the remaining term of Director A. He or she is not filling Director B's slot because Director B is still in office.

The other matter is filling the Presidency which was also vacated when Director A resigned

Director B was appointed by the board to fill the office of President and can hold that office until his Director term expires - his term is not extended because he assumed the role of President.

Anyway - that's the way I see it

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By KerryL1 on 01/14/2015 2:30 PM
I wonder if my above post was neglected by you, Walter? I'll try one question again: what do your bylaws say about the appoint of officers?

Sorry, I just missed your question.

The four Officers are selected from among the five to nine Directors. The way I read it, the Officers could swap their positions every month, doing a round robin as president, VP etc. There is also a clause in the Bylaws whereby the Officers can vote an Officer completely off the Board. That is, three Officers can gang up on the fourth and force him or her off. Directors without portfolio, so to speak, may only be removed by a majority vote of the membership at the Annual meeting or at a special meeting called for that purpose. Any two Board members can force a special meeting or one may be called by 25% of the membership by petition/proxy.

Walt

WalterM3 (Georgia)
Posts: 442

Posted:

The resigned president's term expires, per the 2013 Motion passed by the Board, in 2016. That is why the current president wants to ditch his term and take hers because the Motion --that he voted for in 2013--,ends his term in a few weeks.

Again, if this is allowed to stand, one thing it does is disrupt the orderly coming and going of Board members the Motion was supposedly designed to put in place.

Walt

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By JohnB26 on 01/14/2015 3:19 PM

Posted By NigelB on 01/14/2015 1:34 PM

Posted By WalterM3 on 01/14/2015 10:42 AM

PERFECT EXPLANATION

now let the attorneys buy new Jaguars

or

let it go

I plan to do the petition myself, pro se. All I will be out financially is the filing fee. If the current Board persists in this, the residents will know that their money is being thrown away on attorney fees for the worst possible reason.

Walt

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By NigelB on 01/14/2015 4:43 PM

Posted By TimB4 on 01/14/2015 3:10 PM
Let me see if I understand this correctly.

Last year, the Board (it's unclear if the Bylaws were actually changed or not) established staggered terms for Directors.

There are 5 Directors.

Director A resigned.

Director B, picked up the duties of Director A (who was the President).

An individual was also appointed to the Board.

Now, Director B, who's term was set to expire said that they would fill Director A's position. Note: The proper way to do this would be for Director B to resign and then be appointed to Director A's vacancy.

In my opinion, it will depend on what came first. Was Director B formally assigned to Director A's position prior to a new individual being appointed to the Board? If not, then the new person was appointed to Director A's term. However, if it did happen, then the new person was appointed to Director B's term.

What do the minutes show?

I see it differently. There only ever was one vacancy, that of the Director who resigned (Director A)

Director A's vacancy was filled by an appointment of an outside individual. That individual will serve out the remaining term of Director A. He or she is not filling Director B's slot because Director B is still in office.

The other matter is filling the Presidency which was also vacated when Director A resigned

Director B was appointed by the board to fill the office of President and can hold that office until his Director term expires - his term is not extended because he assumed the role of President.

Anyway - that's the way I see it

You have a good understanding of the issue.

Director B in your scenario is 'Wilbur'.

Walt

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By JeffT2 on 01/14/2015 3:08 PM

Posted By WalterM3 on 01/14/2015 10:42 AM
After some turmoil our Board of Directors in 2013 passed a Motion setting the terms of all Board members to expire in a certain sequence so as to maintain continuity of knowledge and experience on the Board. By this motion one of the Board members' (call him Wilbur) term was set to expire this year.

So Wilbur will be in violation of the Motion. Wilbur will not be in violation of the bylaws?

Yes. If the management company mails a ballot out to the HOA members prior to the Annual meeting in six weeks and his name is not on it for reelection, then Wilbur, and/or the Board, will have violated the Bylaws; that is my reading of the situation.

I have a copy of the e-mail that put the Motion up for a vote with the then president's notes on who voted to pass it, including Wilbur.

Walt

WalterM3 (Georgia)
Posts: 442

Posted:

If Wilbur's name is not on the ballot for reelection, I can't assume that he is dropping off, I must assume that he just plans to continue as president under his scheme of assuming the old president's tenure.

E-mails I have sent to Wilbur remain unanswered. The management company rep sent me a very noncommittal response which I won't post as I don't have his leave to quote him.

There clearly is a procedure and it will be violated if Wilbur continues in the former president's term for another year.

Walt

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By WalterM3 on 01/14/2015 11:50 PM
E-mails I have sent to Wilbur remain unanswered. The management company rep sent me a very noncommittal response which I won't post as I don't have his leave to quote him.

Don't understand how describing his response and leaving us to conjecture is any better than providing his actual words.

Sikubali jukumu. Read all posts at your own risk.

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By NpS on 01/15/2015 2:42 AM

Posted By WalterM3 on 01/14/2015 11:50 PM
E-mails I have sent to Wilbur remain unanswered. The management company rep sent me a very noncommittal response which I won't post as I don't have his leave to quote him.

Don't understand how describing his response and leaving us to conjecture is any better than providing his actual words.

Obviously it's not better. But I don't have his leave to quote him.

I wrote the management company rep a note - is it true that Wilbur is not going to be on the ballot for the annual meeting?

He wrote back that the Board members were okay with the way things stood. I'd say that is noncommittal.

Walt

NpS (Pennsylvania)
Posts: 4,216

Posted:

Will your name be on the ballot?

Sikubali jukumu. Read all posts at your own risk.

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By NpS on 01/15/2015 6:27 AM
Will your name be on the ballot?

I haven't decided.

Walt

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By WalterM3 on 01/15/2015 6:53 AM

Posted By NpS on 01/15/2015 6:27 AM
Will your name be on the ballot?

I haven't decided.

Walt

I highly recommend it Walt. I guarantee that it will give you a new perspective and a new respect for what it takes to do the job well.

I am not saying that you should back off - only that you should work within the structure that exists to make the changes that you think are needed.

Sikubali jukumu. Read all posts at your own risk.

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By NpS on 01/15/2015 7:00 AM

Posted By WalterM3 on 01/15/2015 6:53 AM

Posted By NpS on 01/15/2015 6:27 AM
Will your name be on the ballot?

I haven't decided.

Walt

I highly recommend it Walt. I guarantee that it will give you a new perspective and a new respect for what it takes to do the job well.

I am not saying that you should back off - only that you should work within the structure that exists to make the changes that you think are needed.

The 'structure' I see is that the home owners are too disengaged and apathetic to pressure Wilbur into doing the right thing. They are typical HOA members. Hence a petition for an injunction.

I have been on the Board a couple of different times. I was on the Board when this Motion was passed in 2013. That is why I have a copy of the Motion that Wilbur is, near as I can tell, willing to ignore.

I think President Lincoln said it best: "Important principles may, and must, be inflexible."

The president of a corporation should not ignore the clear provisions of the corporate Bylaws. I am inflexible on that principle.

Walt

JeffT2 (Iowa)
Posts: 880

Posted:

Quote:

Posted By WalterM3 on 01/14/2015 11:41 PM

Posted By JeffT2 on 01/14/2015 3:08 PM

Posted By WalterM3 on 01/14/2015 10:42 AM
After some turmoil our Board of Directors in 2013 passed a Motion setting the terms of all Board members to expire in a certain sequence so as to maintain continuity of knowledge and experience on the Board. By this motion one of the Board members' (call him Wilbur) term was set to expire this year.

So Wilbur will be in violation of the Motion. Wilbur will not be in violation of the bylaws?

Yes. If the management company mails a ballot out to the HOA members prior to the Annual meeting in six weeks and his name is not on it for reelection, then Wilbur, and/or the Board, will have violated the Bylaws; that is my reading of the situation.

I have a copy of the e-mail that put the Motion up for a vote with the then president's notes on who voted to pass it, including Wilbur.

Walt

What was Wilbur's elected term without the motion? If the board passes a new motion that rescinds or replaces the old motion, does Wilbur's term continue after the annual meeting?

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By JeffT2 on 01/15/2015 8:24 AM

Posted By WalterM3 on 01/14/2015 11:41 PM

Posted By JeffT2 on 01/14/2015 3:08 PM

Posted By WalterM3 on 01/14/2015 10:42 AM
After some turmoil our Board of Directors in 2013 passed a Motion setting the terms of all Board members to expire in a certain sequence so as to maintain continuity of knowledge and experience on the Board. By this motion one of the Board members' (call him Wilbur) term was set to expire this year.

So Wilbur will be in violation of the Motion. Wilbur will not be in violation of the bylaws?

Yes. If the management company mails a ballot out to the HOA members prior to the Annual meeting in six weeks and his name is not on it for reelection, then Wilbur, and/or the Board, will have violated the Bylaws; that is my reading of the situation.

I have a copy of the e-mail that put the Motion up for a vote with the then president's notes on who voted to pass it, including Wilbur.

Walt

What was Wilbur's elected term without the motion? If the board passes a new motion that rescinds or replaces the old motion, does Wilbur's term continue after the annual meeting?

You are right. The Board could rescind the 2013 Motion (not that they would ever think of that). If Wilbur stays another year, he would be serving a third year as mandated in the Bylaws. Saying he took over the last year of the former president's term makes him look like a dolt, but it's not going to be worth seeking an injunction over.

Walt

JohnC46 (South Carolina)
Posts: 14,265

Posted:

I was fired from a job one time. I told my boss but I was right. He said yes you were right but the problem was you were dead right. You are still fired.

But I was right....LOL

JohnC46 (South Carolina)
Posts: 14,265

Posted:

I was fired from a job one time. I told my boss but I was right. He said yes you were right but the problem was you were dead right. You are still fired.

But I was right....LOL

JohnB26 (South Carolina)
Posts: 1,001

Posted:

file

or file not

? who, except you, gives a hoot ?

! talk to the birds !

They are wise

KerryL1 (California)
Posts: 14,550

Posted:

Sorry, Walt your summary of officers as per your bylaws makes little sense to me:

"The four Officers are selected from among the five to nine Directors. The way I read it, the Officers could swap their positions every month, doing a round robin as president, VP etc. There is also a clause in the Bylaws whereby the Officers can vote an Officer completely off the Board. That is, three Officers can gang up on the fourth and force him or her off."

Please paste that portion of your bylaws for us (well, me). We see a lot on this topic, and I've never seen bylaws whereby the Board can vote the officer OFF the Board! What I've seen over and over and what is the case in CA, is that the board can vote the Officer out of the office of, say, VP, Sec'y or whatever. But NOT off the Board (except, sometimes if the Board itself appointed the director to the Board, i.e., the director wasn't elected by the membership).

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By KerryL1 on 01/15/2015 5:43 PM
Sorry, Walt your summary of officers as per your bylaws makes little sense to me:

"The four Officers are selected from among the five to nine Directors. The way I read it, the Officers could swap their positions every month, doing a round robin as president, VP etc. There is also a clause in the Bylaws whereby the Officers can vote an Officer completely off the Board. That is, three Officers can gang up on the fourth and force him or her off."

Please paste that portion of your bylaws for us (well, me). We see a lot on this topic, and I've never seen bylaws whereby the Board can vote the officer OFF the Board! What I've seen over and over and what is the case in CA, is that the board can vote the Officer out of the office of, say, VP, Sec'y or whatever. But NOT off the Board (except, sometimes if the Board itself appointed the director to the Board, i.e., the director wasn't elected by the membership).

The complete section:

“Art. V Section 3. Removal of Officers. Upon an affirmative vote of a majority of the members of the Board of Directors, any officer may be removed, either with or without cause, and a successor may be elected. Any officer may resign at any time by giving notice to the Board, the President or the Secretary. Such resignation shall take effect on the date of receipt of such notice or at any later time specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effect.”

It doesn't say 'removed from office.' It says 'removed.'

This is definitely at variance with another Bylaws section which says:

“Art. IV Section 3. Removal of Members of the Board of Directors At any regular or special meeting of the Association duly called, any one or more of the members of the Board of Directors may be removed with or without cause by a majority of the total membership vote and a successor may then and there be elected to fill the vacancy thus created for the term so remaining.”

So what do you think it says? Seriously maybe I read it wrong.

Walt

WalterM3 (Georgia)
Posts: 442

Posted:

I left out a period that may alter the meeting.

“Art. IV Section 3. Removal of Members of the Board of Directors.

At any regular or special meeting of the Association duly called, any one or more of the members of the Board of Directors may be removed with or without cause by a majority of the total membership vote and a successor may then and there be elected to fill the vacancy thus created for the term so remaining.”

JohnB26 (South Carolina)
Posts: 1,001

Posted:

the members elect directors

the members may remove directors

the directors elect/select officers from amongst themselves

the directors may remove an officer from office but NOT from 'directorship' as the directors were elected by the membership

however

the membership may remove an officer from 'directorship'

since

all officers are directors

not all directors are officers

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By JohnB26 on 01/16/2015 6:22 AM
the members elect directors

the members may remove directors

the directors elect/select officers from amongst themselves

the directors may remove an officer from office but NOT from 'directorship' as the directors were elected by the membership

however

the membership may remove an officer from 'directorship'

since

all officers are directors

not all directors are officers

I suppose you are right. There is not much incentive to stay if the officers vote you back to being 'at large' though.

Walt

KerryL1 (California)
Posts: 14,550

Posted:

Fine summary, JohnB! So, Walter, now you can see that officers can be removed from a particular office, but stay on the Board, unless blah, blah.

I don't know what you mean about why stay on the Board if one has been remove from office. As a director, each has one vote--still can influence a great deal.
and what do you mean about officers removing officers from any particular office? The section you cites says all directors vote to remove an office form th office.

Now, Walter, pleases cite exactly the section that says officers' terms. How long?

I know it seems I'm beating this way into the ground. But, having read posts here for a few years, the most common error is posters being unable to distinguish between officers and directors (even though often the same person). And i think this is part of Walter's problem as someone suggested waaaaaay above.

CyrstalB (Maryland)
Posts: 457

Posted:

Quote:

Posted By WalterM3 on 01/14/2015 1:22 PM
Left unasked so far is why is Wilbur apparently afraid to stand on his own and run for reelection at the Annual Meeting in March.

Don't ask me because I can't fathom it. He would easily be reelected. In our Bylaws, members are elected by a plurality of the votes. That is, as I read it, he can be reelected with only -1- vote if the number of people that run are equal to or less than the number of open seats (this appears likely at present). I feel certain he can get 1 vote. ;-)

Walt

I would hazard a guess that he is done with being accused of wrongdoing way more than being praised for right doing. That's what took me and many others down, enough is enough.

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By CyrstalB on 01/19/2015 4:00 AM

Posted By WalterM3 on 01/14/2015 1:22 PM
Left unasked so far is why is Wilbur apparently afraid to stand on his own and run for reelection at the Annual Meeting in March.

Don't ask me because I can't fathom it. He would easily be reelected. In our Bylaws, members are elected by a plurality of the votes. That is, as I read it, he can be reelected with only -1- vote if the number of people that run are equal to or less than the number of open seats (this appears likely at present). I feel certain he can get 1 vote. ;-)

Walt

I would hazard a guess that he is done with being accused of wrongdoing way more than being praised for right doing. That's what took me and many others down, enough is enough.

What has he done right?

Walt

CyrstalB (Maryland)
Posts: 457

Posted:

Quote:

Posted By WalterM3 on 01/19/2015 4:44 AM

Posted By CyrstalB on 01/19/2015 4:00 AM

Posted By WalterM3 on 01/14/2015 1:22 PM
Left unasked so far is why is Wilbur apparently afraid to stand on his own and run for reelection at the Annual Meeting in March.

Don't ask me because I can't fathom it. He would easily be reelected. In our Bylaws, members are elected by a plurality of the votes. That is, as I read it, he can be reelected with only -1- vote if the number of people that run are equal to or less than the number of open seats (this appears likely at present). I feel certain he can get 1 vote. ;-)

Walt

I would hazard a guess that he is done with being accused of wrongdoing way more than being praised for right doing. That's what took me and many others down, enough is enough.

What has he done right?

Walt

your reply is exactly why he is not interested. Thank you for proving my point.

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By CyrstalB on 01/19/2015 6:19 AM

Posted By WalterM3 on 01/19/2015 4:44 AM

Posted By CyrstalB on 01/19/2015 4:00 AM

Posted By WalterM3 on 01/14/2015 1:22 PM
Left unasked so far is why is Wilbur apparently afraid to stand on his own and run for reelection at the Annual Meeting in March.

Don't ask me because I can't fathom it. He would easily be reelected. In our Bylaws, members are elected by a plurality of the votes. That is, as I read it, he can be reelected with only -1- vote if the number of people that run are equal to or less than the number of open seats (this appears likely at present). I feel certain he can get 1 vote. ;-)

Walt

I would hazard a guess that he is done with being accused of wrongdoing way more than being praised for right doing. That's what took me and many others down, enough is enough.

What has he done right?

Walt

your reply is exactly why he is not interested. Thank you for proving my point.

My point is that you don't know what you are talking about.

Walt