Election Issue - What to do?

Hi all,

Our HOA bylaws limit the terms of BoD members to 3 years. Our board had three available seats, but due to limited interest only two members were serving on the HOA board.

The two board members did not attempt to hold elections or solicit nominations for the board for at least the past five years. This year, some homeowners were unhappy with the board and called for an election, so one was held at the annual meeting.

The incumbent board members asserted that elections had been held at a prior annual meeting and that their terms extended for 1 and 2 more years respectively, so their board seats were not considered vacant as part of the election. At the annual meeting, the board was expanded from three seats to five and the three vacant board seats were filled with candidates who were present at the meeting.

Several issues with the election process surfaced after the annual meeting:

1. After reviewing the minutes for prior annual meetings and discussing with people who had attend the meetings, it came to light that no elections had been held at the prior five annual meetings, so there was no basis for asserting that the terms of the incumbent board members continued for 1 or 2 more years.

2. The election for the newly created board seats at this year's annual meeting was by show of hands, whereas the bylaws require that the election be by secret written ballot.

3. Quite a few homeowners had submitted nomination forms to be considered candidates for the board, but only those who were present at the annual meeting were included in the voting. Those who were not present had their forms discarded and their candidacy was never announced or voted upon.

The issues with the election process have led to considerable strife within the community. The incumbent board members claim that they are still on the board and hold the majority, while the new board members claim that the terms of the incumbent board members have expired and the new board members hold the majority.

Given the circumstances, how would you sort things out and fix this situation?

Jon,

Before doing anything else I would recommend revising your entire process for nominations and voting.

Call for a special meeting to do this before holding another election for the board. You should have a standing election committee to monitor the whole process. The committee should ask for nominations from those who wish to serve several weeks before the election. Members should have the option of voting in person or by mail. Mailed ballots should count toward the quorum. Members should also be permitted to cast ballots at the annual meeting if they did not do so by mail. Nominations from the floor should be treated as write-ins as those who mailed their ballots in will not have the opportunity to vote for them. Voice votes and showing of hands should be disallowed completely because they cannot be verified or recounted if there is a dispute.

Whether to use secret ballots is always debatable. Due to the nature of our properties my association does not use secret ballots because the election committee is required to validate the number of votes each member may cast. I have seen no problems arising from the lack of secrecy. When someone advocates for secret ballots I often wish to remind them that they are no longer in the third grade and no one is going to beat them up at recess for voting for someone else.

A lot of issues at play. Not sure about Virginia law, so take what I say with a grain of salt. In Florida no election is necessary unless there are more candidates than vacant seats to be filled. Leaving aside the most recent meeting where nominations were discarded, consider the "past annual meeting" at which the 2 pre-sitting board members say they were "elected". If there were no other candidates then, at least in Florida, there would not have to be an election and the 2 could be re-seated and start "new terms". There would be nothing wrong with that. Maybe that happened more than once and that's why they say their remaining terms are 1 and 2 years respectively.

At these annual meetings, going back years, was there a quorum established at each? If there's no quorum, directors are free to fill the empty board seats any way they see fit.

Not sure what to say about the most recent nomination irregularities. Are people fired up in your association about this? The members should be able to call a special members meeting and, with enough votes, recall one or more directors and select their replacements at the same time.

JON

Typically Bylaws say that someone appointed fills out the term until the next election. Rarely do they say one fills out the balance of the term as in longer than until the next election. I think the "old timers" are saying they fill out the balance of the term. Read your Bylaws closer.

As NPS asked, if 3 new were elected to the BOD and 2 old are on a BOD of 5, then the majority vote is 3 to 2 or 4 to 1 or 5 to 0. A minimum quorum is 3 of the 5 and in that case, 2 to 1 is the majority. Be sure the two old timers do not connive calling a BOD Meeting where they are 2 of the 3.

Hi all,

Thanks for the great input so far.

To answer your questions:

1. The HOA bylaws state that the board shall contain a minimum of 3 and a maximum of 5 directors.

2. The initial board of directors had staggered terms (one 3 year term, one 2 year term, and the remaining directors 1 year terms), which should have resulted in at least one board position being up for election each year. The bylaws specify that at each annual meeting after the initial one, the members shall elect a Director to each vacancy for a term of three years.

3. The agendas and annual meeting minutes for the past five annual meetings show that there was no notice provided that an election would be held, no call for candidates, and no election results.

4. As far as I can tell, the bylaws and state laws don't seem to contain any provisions regarding what should be done if no elections are held for a period of years. The key issue here is whether the existing directors continue to act in their current capacity until the next election or a new 3 year term starts automatically by virtue of no election having been held.

5. The incumbent directors nominated a friend from the floor during the election process at this year's annual meeting and that person was elected to the board by show of hands, so they hold a 3-2 majority assuming the election results are valid.

6. The HOA has 26 homes, so it is fairly small.

7. To make matters more confusing, one of the new directors who was elected at this year's annual meeting submitted their resignation via e-mail because they were frustrated with the issues with the election process. The board is holding a board meeting tomorrow, where I assume they intend to fill the vacancy by board appointment (which is allowed under the bylaws).

Full disclosure, I am not one of the incumbent or new directors. I'm just an HOA member trying to help the neighborhood get this situation sorted out and do what is legal / fair going forward without causing too much additional strife.

" 3. Quite a few homeowners had submitted nomination forms to be considered candidates for the board, but only those who were present at the annual meeting were included in the voting. Those who were not present had their forms discarded and their candidacy was never announced or voted upon."

The abridgement of owners choice is a serious issue, maybe the most serious.

Tempting it is to to sort out that the over-holding pair failed to stand for election nor were be elected, are no longer Directors, that the 3 new 'electeds' validly became the new full Board even if now reduced by one. Surely 3 Directors is enough.

But maybe better to send a message : hire a lawyer to Chair, convene proper owners meeting to have transparent fair election before the next serious disagreement ( about something else throws) the whole mess into the fan. Will owners may watch more closely next time around ?

The bylaws state that "any Director may be removed from the Board, with or without cause, by a majority vote of the Members of the Association."

I assume that means a majority vote of all members, rather than a majority of the members in attendance at a particular member meeting?

We also have to verify the percentage assigned to each unit when votes are cast. However we do have secret ballots. The name of the owner, the number of the unit and the percentage assigned to the unit are at the top of the ballot. At the bottom of the ballot we just list the percentage assigned to the unit. Then as the ballots are passed out, the top of the ballot is cut of. Of course this is not entirely 100% secret as the a person who wanted to bad enough could determine who or want the owner with the largest unit voted for. So far Board members have had better things to do with their time that to try to determine who voted for what.