Board member ethical dilemma

I am a member and I have a board two friends who are board members. This sounds so ironic and stupid but we need your advice.
For a long time, practically everything the board talks about in exec session sooner or later makes its way around the neighborhood.

Well, now we have a situation where some members of the board and the HOA retained Attorney and the property management company have conspired to commit a crime.

What crime you ask? Here's the deal. We had a lawsuit last year over election fraud. Turns out that the Sr. Inspector of Elections admitted in the lawsuit deposition that no election has been done legally or fairly except two out of the last 14 years worth of board elections. Now we have a member who was a candidate for the last election and has made written request to inspect the ballots as stated in the Davis-Stirling Act.

There had been e-mail discussion among the board members and a few of those board members decided that they were going to trump up some outrageous financial expenses to pass on to the member in order to inspect the ballots. E-mail went back and forth between some board members, the lawyer and they decided to direct the PM to generate a letter telling the member that they could come and inspect the ballots (it is not an official recount, though the inspectors of elections will be there...?) and it would cost the member $95 per hour to have the PM present as an observer?

The Davis-Stirling Act says nothing about any costs being associated with inspecting ballot. Matter of fact D-S states nothing about passing costs onto the meber for any of the documents the law says members are allowed to see (Budgets, finances, contracts ballots etc). The only thing outlined in the D-S Act that passes costs to a member is for a member to pay for the actual cost to make a copy of the Membership list of the HOA (really a moot point since this really pertained to paper copies and in this day an age this is usually done electronically which has not cost associated).

The various people involved have committed "conspiracy to commit fraud" by making it prohibitively costly to inspect the ballots. This subverts the intent of having any sort of transparency in the election process. They talked about this in their e-mails and said by charging this fee and passing on to the member it will make the member back off and decide not to inspect the ballots.

The question is: What is the obligation of the board member who got all the e-mails but refused to acknowledge or participate in the e-mail discussion?

I have said that I think the Board member has a moral and ethical obligation to either report this crime to the police or at the very least to give copies of evidence (the e-mails proving the conspiracy to the member.

The board member says if he/she gives the e-mails then they fear they have breached the Board confidentiality of the e-mails.

What do you folks think should be done?

I further state that as far as I know, the board member has a fiduciary duty to the HOA and not the board. If the board is committing crimes that could result in the HOA getting sued and ultimately having a huge payout, then the board member should provide the evidence and/or report to the police.

I didn't want to point out that not doing this (possibly) makes the board member with this knowledge of the crime an accessory and that by doing nothing - they are putting the HOA in a liability position.

before anyone states that the member already breached confidentiality by telling me this I want you to know that I have not seen any evidence so it is hearsay to me and I am a trusted confidant of the board member.

thx

The Board member has no dilemma revealing these emails since directors in CA may not discuss HOA business--even exec. session business- outside of meetings (except in emergencies). The emails already made confidentiality moot.

(I'm not in the legal professions)

How many are on the board? How do you know the HOA attorney is involved in this problem? How do you know the PM is involved??

I agree $95 to count the ballots probably is illegal, but why not have a few folks chip in and pay, and all of those who paid can be present when the ballots are counted?? This is, after all, what you want, right??? You/the candidate also wants to inspect the ballot check list to see who turned in the secret ballots. Do note that ballots only need to be kept for one year.

How many votes are there?? Why didn't you, the defeated candidate, & others watch the ballots being counted as provided by D-S?

Though perhaps "illegal," I don't think anyone would want to pursue a civil case against the Board or call the cops. IMO, you're using the language of a "crime" too broadly.

Instead, maybe your friend can tell the other directors that s/he will send all of the emails to the ex-candidate unless the PM complies with the ballots request within the next xx (whatever D-S requires) days. Your friend should say to them by email that they all might get in trouble if they blatantly disregard state law. Perhaps your fiend would like to add that directors & officers (D&O) insurance will not protect them!! By dong os your friend might avoid trouble later as s/he's on record telling the rest of the Board to do the right thing.

I'm a little skeptical, Fred, about some of your details since many HOA election CA statutes didn't go into effect until '06. How in the world is it that the same "snior" inspector of elections has done this work all of those years. i don't think an inspector was required till '06, but I may be wrong on that date.

KerryL1,

The senior inspector has been the paid on-site maintenance man since 1996 and have always been involved in counting votes since his start as an employee. When the law changed and then called this role an inspector of election, he just morphed into that new title.

Now as far as ballot counting procedures, there are none. Our governing documents (mainly by-laws) indicate that this is a procedure but it does not exist.
What they have done is they follow the basic tenant of D-S by having 1 or 3 inspectors. We use 3. The other two get appointed and different people have been appointed over the years. This Sr inspector has been constant and provides what ad-hoc verbal procedure there is. And while we also have a person who is appointed by the board tobe an official witness.

The counting process is: The 3 inspectors split the pile of ballots (prior to the vote counting, the PM is supposed verify owners and make sure the ballots rec'd are from members in good standing (who are allowed to vote). This check step does not happen. All ballots are mailed in and the few that are walk ins are just added to the pile.

Anyway, they split the pile into three piles (one for inspector). They each count and tally their pile (one time) then push all the ballots back into the box or envelop and give their one time count to the sr inspector who has admitted to changing numbers over the years. There is no second count, no check and balances.

The board has been asked a number of times over the years to give the procedure over for examination and they have deferred each time stating that they are not empowered to create or write this procedure. They point members to the D-S act and state that there is no provision for a procedure in the act.

The sr inspector then announces the results.

our board is comprised of 7 members and there has always been a group of four (usually rotating back and forth from a group of 6 people who always hold the majority of the board. So, to make it look fair, the other three Board slots are usually people who are honest of under the impression they will make positive change or impact during their term of office. It is usually within 4 or 5 months that they realize the only decisions are the ones that the ruling people have decided on. Yeah, sounds fair but the whole situation has morphed into the group of 4 (6) just being neighborhood bullies who exact retribution on anyone who speaks up and mentions that things are not what they seem. This group of board members meet out side of Board meeting all the time (violation of the open meeting act...)

This voting and ballot counting issue came to a head in the June 2013 board election when the Sr inspector arrived at the general meeting where/when the ballots are counted. He announced to a few people that he had a feeling he would need the tie breaker items (a blind draw between the tied candidates). A number of people thought this odd because there had never been a tie breaker in the past, so how'd he know there would be one that night?? (data point to be saved for later...)

The votes were counted and a tie between a person who always runs (with no expectation of being elected) and another neighbor who had previously questioned some of the questionable things the board has done (now marked as a rable-rouser). next thing you know the guy this wins. Fast forward a few months and a board member gets an anonymous letter stating that the election was rigged. This was one of the new board members but in the minority. He collects the other two fair minded board members and takes the letter to the HOA retained attorney who tells them that under the law, board members can view any document at anytime and these ballots could be looked at by them. They conduct a re-count and the losing candidate (who lost the tie breaker) actually won the election with more votes that the other two lowest vote getters (candidates). So we have a rigged election.

Long story short - there was a lawsuit. The deposition of the Sr inspector showed that only two elections from 2001 to 2014 were done even remotely fairly. This lawsuit happened during the 2014 election period and there were 30 witnesses to watch the counting. Yet, it was counted the same way with no double checks. Again there was room for mischief.

One of the candidates from this election has made a request to inspect the 2014 ballots and this is where this dilemma I mentioned in the OP comes from.

As for a recall election: well the longtime residents refuse to sign the recall petition (even to get the 5% needed to force the recall) because they state that then the four (bully)o members will take out retribution on them... So, between the silent majority of apathetic members and the ones too scared to stand up, the few remaining people are stuck and of course there is bullying going on.

Now, no where in our documents, by-laws or even the contract with the PM is there any provision for costs to be charged for inspecting ballots. The lawsuit last year the candidate who was cheated out of their seat - did do an inspection of the 2013 ballots. There was no charge for this. This current request, is met with a letter stating that the PM will be present as an observer for a cost of $95/hour and an estimate of 3 or more hours to conduct the inspection. They are already having the three inspectors present to verify their signatures on the seal of the storage container and to do the counting.

Now this is where the charge comes in. The fee of $95 did not exist last year and the e-mail traffic between board members and the HOA lawyer indicate that this fee was made up just to stick it to the member seeking to do the inspection as a way to get that member to back off and drop the issue....

That is where, why and how this is a criminal act. This is being done with Malicious intent. There is no language in either the D-S Act or our governing documents for a fee to be charged for the inspection (of any document type that D-S state the members have a legal right to inspect). As far as the PM company goes, they were directed to do this by the Board (smart on the boards part to hang the PM company out to dry... plausible deniability on the surface - except for these e-mails)

Also, there has been no mention of a fee schedule for inspecting documents in any of the monthly newsletters or any other correspondence from the Board or the PM company to state that this is the new process. One would think that this is part of the normal course of business for a PM company. It comes with the job and should already be factored into the monthly cost structure. This is not cafeteria type contract for piece work.

The interesting turn of events is that within two days of the ex-candidate/member raising the issue that this is a crime, the PM company backed down (and of course, there was more e-mail traffic between the board members on what to do next. The general meeting that took place this week showed the ruling group of Board members (who were behind instructing the PM to write and deliver the letter) well this group was unusually quiet and subdued at the board meeting. (this coincided with the member writing a strongly worded letter to the PM company that this was a crime both civil and criminal (fraud for civil and criminal for conspiracy to commit fraud). Two of the three decent board members are trying to determine if they should hand over copies to the ex-candidate. hence this post- Their concern is are they liable in any criminal or civil way for breaching the Board confidentiality.

I had already told the ex-candidate what I know without naming how I came to know the details of the e-mail exchanges. The ex-candidate did the push back just on the fee and determined that the act was illegal. My info was post the ex-candidates response to the PM company regarding the fee.

On a second note: the board members who did this (fee creation) also did this on another matter in 2012 (3 of the current group of 4 were on the board in 2012) when another member wanted to view some un-official survey that was taken that changed (de-facto) enforcement of one of our CC&R's. That was a whole different story of how they circumvented and subverted the process for enforcing common area CC&R item. They had a different PM company that quit over that issue.

Sorry for the length - but I see a common trend that many respondents to posts always want full details so you folks can offer the best, sound advice.

One more thing - I have opted since my first post to swear out an affidavit so the ex-candidate can have a lawyer subpoena the e-mails from the two board members. This will hopefully relieve them of any consequences for a breach of Board confidentiality.

I am in the group of folks trying to get a recall done. I have been the target of retribution a few times - mostly completely fabricated non-compliance letters - which I always challenge. The last time with the first and only notice of the fabricated non-compliance - they also sent me a letter indicating they were going to take a lien on me and attempt to foreclose if I didn't pay...

And that should be the rally cry for the recall.

Of course, a recall will only work if there are others willing to step up and serve in the place of those who are being recalled. Additionally, volunteers will continually be needed to step up and keep serving to keep those same individuals from getting back on the board.

If you don't have the volunteers or you don't expect to continue to have volunteers, you may simply want to consider moving, as it would likely be less stressful then trying to keep things running properly by yourself.

Yet you did, in fact, reply.

Apologies on the novella aspect - been dealing with this cr@p for many years.

Regards election rules - just where are those to be found in the HOA. I have looked at every document I was given at time of purchase and when refreshed. I have the Declaration, the CC&R's and the by-laws and the policies & rules for the common area features. This is prepared in a binder and given to all owners.

Our re-stated by-laws of 2008 indicate there are procedures for lots of things but the board refuses to give those out. The board over the years says that what is in the binder is all they're legally obligated to give to members or let members view. D-S states we can view contracts, financials and ballots. Nothing in there about internal procedures - and there's the rub.

This group of majority members always cycling on the board are using D-S when it suits them and not following around the edges on things that are not specifically spelled out as something they should be doing.

And we have tried for the recall but the group of bullies has made it clear that if you sign your name on the recall petition you will face they retribution. It has become a sort of forced apathy as the silent majority just ducks their heads and don't want to have anything to do with anything concerning the board. They just pay their monthly dues and hope they are not singled out for a non-compliance.

Matter of fact, the only people who get non-compliances are either brand new owners in the community or the group of people who are trying to stand up and do what is right,

We do have people who will stand in and run. And have been running through the years - but when the election and ballot counting is rigged, it is or I should say has been impossible to unseat the bully members.

What that does is the good people who do run and occasionally get elected are out number by the evil on the board and they get worn down and stressed out from trying to fight and up hill battle.

Your other suggestion of simply moving - yeah right, seriously.... who's going to give us the money to cover all the expense of moving, selling and buying a house?
I have a better idea in that I am considering.

So, I see that this thread is starting to drift off the main topic of how to handle the dilemma face by the board members? Please answer me with what you would do Tim??

Thanks

Fred

Only speaking for California.

I can tell you for fact that elections in HOA's are not done according to rules. First off, according to Civil Code, ALL HOA's must have Election Rules. I am guessing only 5% actually do.

Unfortunately, opinions between lawyers differ, even within the same law firm about election rules.

First of all, IF there are no election rules, the PM CAN HAVE NO PART OF THE ELECTION. The have to sit back like all the others. Have you always achieved quorum according to your Bylaws? If not, did they adjourn to a new meeting with lower quorum requirements?

Unfortunately, I have first hand knowledge of how the game is played. There is one solution and one solution only. You have to recall the entire Board, which I think is required of your Bylaws if they haven't been updated. You can get support, BUT you have to be on the winning side. You cannot go at this with minimum effort.

If you can get that part done, next step is clean house, BUT you must have people smart enough and willing enough to right the ship in the beginning. Set up procedures for others to follow.

The deck will always be stacked against you. They will use your money to fight you.

The $95.00 charge could be considered reasonable under California Election Law, persons challenging election results will bear the cost.

Kerry

Election Rules would not be incorporated into the Bylaws even if restated in 2008, the main reason being, it is easier to update Election Rules than Bylaws. There is really only one thing different from Civil Code and Election Rules and that is the ability of a third party to act as the Inspector of Elections and holder of the ballots. If you have no rules, the PM CANNOT be an inspector and if you have rules, they MAY, if the association so chooses. I see this violated all the time.

A previous management company I was involved with had 56 properties, which only 8 had election rules specifically for them. The other didn't want to pay to have their own. There is no problem with that as long as anyone under contract isn't an inspector, such as a PM, attorney and maybe in Fred's case, the maintenance employee.

Kerry,

yes the by-laws were re-stated in 2008 and voted on by the H/O's. The HOA Attorney is the same one that has been with us since I bought my property in 2001.
He is very un-ethical (a lot on that but not for this forum).

As I stated to Richard - I have read our by laws and it indicates there is an election procedure but then the by-laws just really re-state the D-S act on elections by stating there will be 1 or 3 electors and it will be by double envelopes as you state in your response.

However, this is where they differ. No one person ever counts all the votes. Common sense dictates that double counts should be done or some sort of check and balance be incorporated in the system to assure fairness. Instead they open the outer envelop off site (PM's office) then bring the inner envelop which are then opened and all the ballots are placed in the pile in the center of the table. Each inspector takes a part of the pile and counts and tallies their smaller pile. Then all ballots are pushed back into the center of the table to be mixed to be placed in the storage container and sealed with each Inspectors signature.

To the uninformed - this all appears to be fair yet this is how they have managed to rig elections by altering the individual tallies. The Observers just see the three inspectors making their tallies without being able to correlate to names on the tally sheet or the ballot...

As the challenge to the 2013 election showed, the process we use is ripe for corruption and election fraud.

Yes, our paid maintenance man is the Sr inspector for every election since 2006 and was always involved in counting votes before the law was changed.
Looking at D-S is states that inspectors should not be paid agents of the HOA unless, the board approves it. Which in our case they have.

We have a guy who is a retired Corp CFO and he brings this fact up every year that the paid maint guy should not be involved in ballot counting. He has been hit with non-compliance after non-compliance and now we are at a point where he can demonstrate the correlation between his statements at election time and the non-compliances he is hit with (most of them are fabricated and as such cannot be found anywhere in our documents. Pure harassment and retribution for speaking up.

Yes, I agree rules can be changed, but are rules open to everyone to read and inspect or copy?
Not in my HOA. As I stated, they have never been shared or even made known. The few people who have read all of our governing documents see that the restated by-laws indicate that procedures exist but they are not directly referenced by title or document number and the by-laws state just what you would find in the D-S act for elections. It is like they just cut & pasted from D-S into the by-laws (it is word for word...)

The two friendly (to the cause) Directors (who are the ones I started this thread about) have requested, as directors, to see the election procedures and a few others like the reserve study procedure or a procedure on how to create the annual budget. None of these exist because the group of four have stated that they have been doing these things for so many years now, they know what to do. Hence no procedure is required...... yes, that is the response....!!!

I know that across the world of HOA's you folks on this forum (and I was a board member at a previous HOA I lived in), we're all unpaid volunteers with differing backgrounds and work experience. We are all moral and ethical people of integrity just trying to do the right thing and what is best for our HOA communities. We live here after all.

So, I have asked my board, if we have un-paid volunteers and we supposedly want to have more people involved in our community then shouldn't there be procedures so we can assure that there is continuity if how we do things as the faces change and new volunteers come in???

Instead they keep appointing the same re-treads to all the committees. Funny how as the group cycles people on and off the board, those not on the board are appointed to the committees thus keeping their strangle hold on the community.

Election rules would be contained within your Bylaws, perhaps a policy resolution for clarification, and applicable HOA and Corporate statutes. Typically the Corporate Statutes address election procedures.

Take a look at davis-stirling's election page

Fred (& Tim), as pointed out above, election rules have only been required since 2006. So, Fred, they would not be among your closing papers of 14 years ago. Richard says they should be separate from the bylaws because election Rules can be changed more easily. Our are separate, I should add.

Rules and Regs in CA require a one-month comment period from owners, NOT bylaws. NO board decision needs to be made to count the ballots from 2014!

I asked when you next election is, not board meeting. Your only hope is to rally support for other candidates who'll follow the law and get the bums voted off. If any of you "rebels" get ridiculous violations notices, have all the rest of you take pictures or confirm or disconfirm the so-called violations. In other words, cover each other's backs.

Ferreting out everything you've written, Fred, here's my advice. Please reply to each as I've mentioned some previously that you've ignored.

1. Pay the $95 & request your recount of the ballots (you have plenty of time before June).

2. Send a certified letter return receipt requested to your PM & MC asking for a
A. A copy of your Election Rules
B. A copy of your HOA contract with your MC
C. A copy of your HOA contract with your HOA general counsel.
a. Ask the attorney if the "bylaws" dated xx, 2008 are valid.
In both, see if either require them to abide by your governing docs and CA state laws.

3. Please give me the exact wording of what % quorum is to vote for directors. I still don't think you know what that word means. Where is that % located?

4. The % to have a meeting to recall is 5% no matter how many households there are. Read davis.stirling.com, Recall, again.

But, finally, your best bet is, again to get others to vote in a better board. June is closer than you think! You can talk about your board behaving illegally, but it's you homeowners who need to uphold the laws.

Richard - Thank you so much for all this info. Definitely opens my eyes and surely proves there is Election fraud going on.
On your first point, our by-laws do not allow for a third person as inspector of elections. It simply states we will have 1 or 3 inspectors drawn from the H/O's.
Didn't see this in D-S prior to the big re-write they recently did at the state level.

Regarding your procedure items 1-8:
1. Ballots are mailed out on May 1st and are due back June 1st. Election night (counting of Ballots happens at the open Board meeting with is also the Annual meeting and at this time, they usually send out all the required annual items and budget & financial report of the past year.

2. Well, we had this on-site maint man (he is also a H/O) who is the sr inspector. They announce the other two the night of ballot counting... All ballots are sent to the PM's office

3. we do the secret ballot steps here with the signed outer envelop.

4. I cannot confirm if this step is done. PM says they do it.

5. This step is not done since they have stated in the by-laws that the quorum is whatever number of ballots are there prior to closing the polls.

6. This is actually done - removing out envelops and separating from inner envelops. The stack of empty signed envelops is not always removed from the table as the counting starts.

7. Actual ballots are removed from inner envelops and stacked. inner envelops are then discarded.

8. This is not done per your procedure - this is where it gets hazy.... the three inspectors split the deck into thirds. They each count and tally their 1/3 pile. They then mingle all the ballots back into the center pile and give their tally sheets to the Sr Inspector who adds up the three tallies and announces results.

There is no re-counts or cross checks. I have pointed out they each need to count all ballots by keeping the 1/3 piles intact and moving one seat over until each inspector has counted and tallied the 3 separate piles. Then they should each total their three tallies and compare results. If anyone is off then a recount of that pile can be done by each inspector again.

I have asked for election procedures/rules as have other members and the two friendly directors. All the responses from the board (and the Attorney) are that the procedures are there in the by-laws....

Thanks for all the help and advice!!!

Kerry, here's your answers...
1. The $95 per hour fee has been removed based on the letter objecting to it that the ex-candidate wrote to the PM/MC. (Kinda shows that it wasn't legal to begin with...)
2. These have so far been done via e-mail. Good suggestion to formalize though.
A. Election rules as a stand alone document do not exist. The pat answer is that the election rules/procedures are in the re-stated by-laws.
B. MC is providing that and will be delivered Monday 3-16-15 when the Ballot inspection takes place in the MC offices. This has been agreed to.
C. Atty refuses to provide this, states atty-client privilege not for general members to view, even though it is a contract and D-S says members can view contracts....
a. This has been asked of the atty a few times in the past by me before this current issue arose. He states they are valid - I have always had my doubts but with recent changes to D-S the 2008 by-laws need to be re-stated again...

3. I have answered this repeatedly, don't know if you can comprehend the answer you seem to be wrapped around the axle on needing a % of owners for a quorum. I take offense at your remark. Here is the exact wording on quorum requirements for Board Elections from our by-laws:

For purposes of election of Directors, a quorum equals the number of ballots received.

++++++++++++++++++++
Here just pulled this off of D-S website:
A quorum shall be required only if so stated in the governing documents of the association or other provisions of law. (Civ. Code 5115(b).)

By eliminating quorum requirements for the election of directors, board elections become like all other elections at the municipal, state and federal levels. In other words, elections are determined by those who are interested enough to vote. This eliminates wasted time and money holding multiple meetings trying to achieve quorum.
+++++++++++++++++++

4. I know the 5% rule

So the issue is that for electing directors the quorum is the number of ballots received with highest count wins. For removing a Director through special recall meeting - that vote requires 66% for a quorum with a majority to prevail. Kind of built in protection to keep from being voted off because with the apathetic nature and fear of retribution/retaliation it is doubtful to achieve the required members for the quorum or the majority of that number to prevail

Thanks for explaining your "quorum" of homeowners, Fred. I have indeed seen that D-M citation. I think I'd have understood better if you'd said no quorum is required, which is factual assuming your restated bylaws are valid.

(For elections of directors our quorum requirement only is 25%, which we always make)

Your general HOA counsel must provide a copy of the contract to you. Find the exact wording in the D-M legislation and quote it in your registered letter to your HOA's attorney. Only specific contracts that may involved attorney-client provide can be withheld from you. Perhaps the attorney you're referring to is NOT general counsel to your HOA??

There have not been a lot of changes at all to the D-S legislation since '08. As you know, Fred, the numbering has been changed. In any case the CA D-S laws prevail over your bylaws (unless stated in the D-S). You should not go to the expense to change them for that reason. But there still is the issue of whether your so-called restated bylaws are valid if they were NOT approved via H/O vote and only by board vote. You need an attorney's written opinion of that crooked-sounding event.

About the two honest directors, Fred, you wrote: "However, in their reading of the D-S it states that board e-mails are not documents subject to general member viewing, therefore they are concerned that divulging them would put them at risk or legal consequence for giving the e-mails to the ex-candidate."

Again, I'm no attorney, but I think they're misinterpreting D-S. IMO, it means that directors do not HAVE to share emails among them with members (H/Os). There's no law that I'm aware of that says they are forbidden from sharing these. Remember that the emails themselves were illegal! HOA Business cannot be transacted online in CA among a quorum of directors! (Except in an emergency) So your two friends should certainly feel free to divulge them. this might, in fact, protect them by showing they disapproved of the illegal plan and of the illegal series of email!!

I can get your the exact civil code # if needed, Fred.

And, all H/O's who might be subject to harassment form your board should band together and over ech other's back when they get notices of alleged violation. Takes pics, have witness disconfirm the "violation" or whatever it takes.

You have an election in June--start rallying the troops now, Fred!

Given your strong background, Richard, what is your opinion re: Fred's original questions about which he later wrote re: the two honest directors:
"However, in their reading of the D-S it states that board e-mails are not documents subject to general member viewing, therefore they are concerned that divulging them would put them at risk or legal consequence for giving the e-mails to the ex-candidate."

I replied: "Again, I'm no attorney, but I think they're misinterpreting D-S. IMO, it means that directors do not HAVE to share emails among them with members (H/Os). ... Remember that the emails themselves were illegal! HOA Business cannot be transacted online in CA among a quorum of directors! (Except in an emergency) So your two friends should certainly feel free to divulge them. this might, in fact, protect them by showing they disapproved of the illegal plan and of the illegal series of email!!

I'm now thinking that these two perhaps with Fred chipping in should buy an hour's worth of time from an HOA attorney and get an opinion about their fear of divulging the emails.

Here's another of Fred's quotes: "Our re-stated by-laws were proposed by the board and supposedly reviewed by the retained attorney. They were then sent to all H/O's and we had a one month comment period. The board then voted and passed the by-laws by stating that this was their power to do this and that the H/O's had commented. Not legal at all but that's what happened."

As we know, Richard, that's not how bylaws typically are revised (unless the older ones said so). Generally, they state that bylaws can only be revised/restated by a vote of H/Os using our secret ballot method in CA. So they are not, it would seem, revised legally.

Richard, I disagree with your interpretation and so does our HOA's general counsel. Below is what the D-S site says and it is an accurate summary of the actual civil codes. The directors in Fred's HOA clearly broke the law because they made a decision via email (vs at a meeting) to charge the defeated candidate $95 to inspect the '14 ballots. (Whether or not this is a "good" law is NOT the topic.)

"Email Meetings Disallowed. Starting January 1, 2012, boards of directors "shall not conduct a meeting via a series of electronic transmissions, including, but not limited to, electronic mail" except for emergencies. (Civ. Code §4910(b).) Except for emergencies, a majority of directors may not use email to discuss, deliberate and make decisions on HOA business items."

Read the entire newly revised discussion: Email Meetings http://www.davis-stirling.com/tabid/480/Default.aspx#ixzz3UVFcTWrM
from Davis-Stirling.com by Adams Kessler PLC.

I also disagree that the two honest directors may NOT share these illegal emails. IMO, they can do whatever they want with these. I do not see restrictions anywhere in civil code against directors sharing emails with non-directors UNLESS attorney-client privilege is involved. But I sure may have missed it. I also think they can summarize the content of these emails to others.

I think we might say that these 2 directors would be acting illegally if they coverup the illegal acts of the other directors!

(Yes, i did read th D-M News today about th fact that emails are discoverable. But Fred is isn't talking about that topic at all.)

Richard, you're right, the lawyer, at least according to Fred who does NOT have `1st hand knowledge: "E-mail went back and forth between some board members, the lawyer and they decided to direct the PM to generate a letter telling the member that they could come and inspect the ballots ... and it would cost the member $95 per hour ..." (

But if I are Fred and/or the 2 honest directors, I'd divulge it anyway because a quorum of the Board made a DECISION outside of a meeting. They broke the law. Why would the 2 directors or Fred have to keep this a secret??? the also apparently broke the law because of the content of their decision!

Go back to Larry's original answer--I think that's the best statement about this issue. Everybody should reveal!

I still disagree that a quorum of directors may discuss & deliberate outside of duly noticed meetings. A major point of the Open Meeting Act is so that H/Os may see AND hear the deliberative process.... tHOW was this decision reached??? Otherwise, Boards merely become decisions announcers--after all the discussion & deliberation (debate) already is over.

Meantime, does Fred hav any other excuses, I mean reasons, to not act to change his HOA????

So Mark

Where in the link you posted does it say that?

Any member of the association may attend meetings of the board of directors of the association, except when the board adjourns to, or meets solely in, executive session..................

So how can a member attend the meeting if it is done thru e-mails?

personal attacks poison the well.

Thank you Bob, that was special

JohnC, ONE FL poster claimed YEARS ago that a quorum of directors were yakking together at the pool and were breaking the open meeting act in her state. She was the ONLY person who ever said that constituted a "meeting" in her state. But she was wrong, so I think it's better not to keep bringing it up.

It ONLY would have been a "meeting" if that quorum/majority of director had been discussing HOA business.

I agree with Mark.

Mark

FYI, the law is the Davis-Stirling Act. Larry Stirling is a co-author of the legislation, not Donald Sterling, formally of the LA Clippers.

What is a Board meeting? It is where action is taken. Not once have I said, break the law and take action without a meeting. I don't consider conversing via emails, a meeting.

I'll give you an example.

Our Board packet may be up to 200 pages on a monthly basis. This will cover executive agenda, executive minutes, contracts, legal correspondences, violation letters, pre-liens, liens, proposals, new projects. open meeting agenda, open meeting minutes, financials (75 pages). That is a short list of items.

Executive Session starts at 6:30 PM and Open Session at 7:30 PM. Violation hearings can take an hour, and that is for those who show. Have to start Open Session on time, so hold off on balance until maybe afterwards. Remember we have to sign about 40 vendor checks and oops, have to review the corresponding invoices.

Open meeting starts and the first 15 minutes goes to the landscaper and his monthly report. Then approving minutes, financials, oops, none of the Board understands association finances so, oh well, lets approve, what the PM sound good. Then we do Open Forum. 20 minutes for owner to vent, some inconsiderate owner parked in front of someone's house. Dog pee'd on lawn. Meters being too late at night. No parking available on my street.

Oh, by the way, only two Board members actually opened their Board packets prior to the meeting.

One size does not fit all and everyone thinks all HOA's are alike, they are not.

I and others don't believe that the intent of the legislators was to handcuff HOA's, especially ones that were being transparent in the beginning.