BOD & MANAGER MAKING IT UP AS THEY GO

Hi Experts! Back here sooner than I want to be. I understand that the PM and her company are attempting to be "creative" with an upcoming board appointment. As you may or may not know, I am considered an adversary by three of the four current members.....over a fiasco recently, the president resigned and I along with one to two other folks had filled out a candidates form volunteering to serve. The HOA has posted the vacancy to the portal, have sent an email last to the 60% of the owners who have email and the deadline for submission has now passed. The BOD is apparently going to discuss this in the open meeting and now the management company is suggesting they take the vote by "secret ballot" during the meeting. The PM is also stating that they are following the documents and state law by "a call to then public" whatever the hell that means. PM always misquotes doc and laws. What are your thoughts about the secret ballot process......they apparently do not want their vote to be know but this is NOT EXECUTIVE SESSION MATERIAL. I would like to advise my friend as he again has asked for my help. Our docs only say that the board "may" appoint someone. There is a half year of meetings remaining and 4 directors at this time.....not five as. This is ARIZONA

Joanne

In Florida, at least, "Directors may not vote by proxy or by secret ballot at board meetings, except that secret ballots may be used in the election of officers."

State law is probably the go-to place to find out for sure.

Kerry,Thanks..... I will look up Robert's Rules and our docs are silent.....in fact the by laws say "MAY" appoint so technically, they could skip the whole vote but they have already put it out in the public and can't back peddle. I know of no such wording in any statute that I have read.....this is a board appointment....they technically don't have to even ask for candidates. They haven't told the membership who resigned. I surmise that the only reason there is discussion to even appoint me is that they think I am going to sue them and if I was personally damaged, I would. They have been in breach and done illegal meetings so many times, but I was not put on this earth to sue my neighbors....but I would like to slap some sense into them. I am thinking this is not executive session stuff and don't like secret anything when it comes to HOA exceot for the big elections and then the folks they appoint to count the ballots always seem to mention who votes for who. I am trying to give some guidance to my only friend on the board. I suggested he ask the PM to give him the statute and wording that she refers to. Shr is never right when challenged. No one has the right to misquote the law and this woman does it all the time and I am the only one who calls her out on it because it is just plain damn wrong. Here is the exact quote from the mental midget of a PM:
"Per your documents we must allow a call to the public so there will be a space for write in candidates. When all candidates are listed, you will vote on your ‘ballot’ and the majority or unanimous vote obtaining candidate will join the board immediately following for the remainder of the meeting. This allows us to follow State Law in appointing in an open meeting and provides you the anonymity of your vote."

I think she is talking about a regular board election and doesn't even know it.

Sorry for constantly asking for help. I am about at the end of my rope and would withdraw my name but frankly....at this point, torturing them gives me so personal gratification. Can't be more honest than that.

Joanne

I agree with Larry that there isn't anything in the statutes that prevent secret votes. Of course, this means that the votes need to be done on a ballot (not spoken).

As for executives session, one could make the argument that personal issues will be discussed, hence an executive session can be utilized.

I believe the state law being referred to is ARS 33-1804, the open meeting law for HOA's. All board business must be done in an open meeting and that would include filling vacancies on a board. There is precious little law in AZ about filling vacancies so unless there is a procedure in the bylaws it is up to the board to figure out what to do. And it looks like they have a procedure ready.

Joanne,

From an outsider's perspective, it seems like your friend on the BOD shares entirely too much information with you. Does this friend not have a mind of his own? Does he need your help and advice on every matter that the BOD discusses? While you're entitled to information when appropriately requested from the Board/MC, and while the Board/MC should act transparently . . . it seems like you have ready access to more info than you should.

When I was on our HOA's BOD, we had a BOD Member like your friend. It made just about everything extremely difficult because we knew that whatever was discussed at a BOD meeting would be relayed (with this Member's spin) to people outside the BOD. It's simply not necessary or productive.

If you want to be on the BOD so badly, just keep doing what you are doing. Eventually you'll exhaust enough of the current BOD Members that additional spots will open up.

From what you explain, your BOD "may" appoint someone to fill a vacancy. Sounds like they decided that they will. And in filling that vacancy, they have decided to do it via secret ballot, which according to you is not forbidden by your HOA docs (since it's not mentioned) and according to others is not forbidden by AZ law.

Sounds like a great idea to me. All that's important is the outcome of the vote. What additional information is gained when you and others know which Board Members voted for which candidate? Without discussion, each Board Member will select their desired candidate on a ballot and toss the ballots into a hat. Someone will tally the votes and announce the winner. They could even indicate # votes per candidate if that is desired.

Maybe I'm not seeing it, but why is that not an acceptable method if it is allowable per HOA docs and AZ law?

Tim, yes the statute does not seem to be clear and this is what always seems to give two sides to an argument and keeps lawyers in business.

For as long as I have been involved in HOA (20 yrs) I do not recall a secret ballot for an appointment to the board. I have sat through annual meetings & BOD meetings under the guidance of this MC & BOD and listened in amazement to what the public will accept without question or concern. At the last annual meeting there were NO prior year's minutes and when I asked about it, the MC said the prior MC would not give them to us..What? At the same meeting, when someone asked how the board will fill a vacancy, one of the current sitting BOD says"our documents say that we will look at the voting from this election and take the next person on the ballot to fill the spot! and the PM says nothing until I am compelled to publicly say that is wrong. My "friend" on the board asks me about things when he is not comfortable about what the BOD is doing or how the PM advises the BOD. He does not have the time to do the research or contact forums such as this but he wants to do the right thing. Maybe I take this all too serious. Maybe i am too old fashion. I have great respect for the rule of law, for governing documents and the protocols necessary for fair governance. I guess in the current state of the world and our country, I am a dying breed.

Thanks EVERYONE!

Joanne

Arizona rules and California rules are the same in regards to the topics allowed in Executive Session. Personal and Personnel are not the same thing.

Personal as it refers to Civil Code would refer to disciple, member payment plans, foreclosure, fines etc.

Personnel would refer to someone employed or under contract by the association. Directors, as a general rule are elected by the members at a properly noticed OPEN meeting, Board or Annual.

I'm sure if the door is wide open, you can read many things from the inference, but I don't believe it was the intent of the legislators. In municipalities, the interview process is done at open meetings.

Do it in secret and you ask what deals were made? Not to say that a Board member could have contacted the individual secretly and done the same thing.

As a Board, you may not want that person to go off in an open meeting, so don't vote for them, it's that simple. I believe the individuals that do take the time to attend the Board meeting should be given that courtesy.

Prior to 2009 our management company, one of the largest in California, always had Board appointments and interviews in open meetings. In 2009 and until 2011, with a new management company, every appointment was done in Executive Session. Sometimes, we didn't know there even was a resignation.

Richard, Thank you for spending time on this issue I have raised. I am just at a point of total frustration with the BOD and MC and there seems to be no one other than myself who cares enough to get involved and speak up. Friends that know me have encouraged me to get on the board and try to make changes from the inside because it certainly has been impossible to make them from the outside. For me it is a half dozen of one and six of the other as far as getting on the board. I suppose if this effort fails, I could attempt another election run but think it might be easier to just move...I am really tired of the scorching summers in Scottsdale...20 yrs has been enough.
Thanks
Joanne

In my rural association, our assessments and the number of votes we may each cast are based on the number of acres we own. Our CC&Rs require that each ballot be signed by at least one of the owners. When ballots are counted we know exactly which owners voted for which candidates because we have to verify that the owner is entitled to cast that many votes. To the best of my knowledge, this has not resulted in any problems. Maybe because we are all grown-ups and not afraid of getting beat up on the playground at recess.

Nothing secret about voting in my association.

I am not sure why others find a need for secrecy. It seems to complicate matters and opens the door to stuffing the ballot box because the ballots can not be traced back to their point of origin. I would rather have an honest election than a secretive one.

I have a couple of scenarios that could play out in this appointment that is going to take place in the open meeting:

There are 4 BOD(one will be on the phone) and there are going to be either 2 or three candidates...how do I know that? Because these are new owners who I have met and who knew I was going to volunteer for the seat. One is a neighbor and for some reason, was unable to obtain the candidate form from the MC (something about them being on vacation) so I forwarded her my blank. The other gal is very nice and expressed an interest so I also gave her the blank form. There are no special "requirements" to get a form. Whoever receives the completed form can determine whether or not they are "members in good standing" and are eligible to run.

So, if there are 3 candidates(or more) and a majority of the board will select the new member, the candidate with 2 votes will be appointed?

What if there are 2 candidates and the vote is a split....2-2.......Does the BOD then have discussion and revote in the hope they have swayed someone so that the vote is 3-1?

Or could they bring up the candidate names....one by one and take the vote and see who gets the most votes that way?

I am wondering if there is going to be any kind of candidate interviewing prior to the vote? It is an appointment...NOT AN ELECTION so I would guess not.

Joanne

John, Well certainly....I am just trying to figure out how this is going to play out. When there are only 4 people voting....how do they break a deadlock and I am not assuming I would be involved in any of the deadlocks....just wondering how this will work. Do you have any idea? Does the board just try to keep convincing someone to change their vote? What is there is a stalemate?
Joanne

Joanne

The way it should work is that motions would be made and seconded. So, either no motion is made or seconded for two of the candidates and then for the one they would appoint a motion and a second and a majority vote.

I would strongly disagree that this is something that should be handled in ES. As I mentioned previously, personnel issues are for employees, vendors, contracts, how much a individual was hired at (which is confidential by the way).

If the election of directors is done as an open process, votes counted at some form of open meeting where the tabulations can be observed by an members, why then are we saying that the appointment to fill a vacancy behind closed doors is OK.

Speaking only for Arizona and California which have similar wording for actions that can be done in ES, there is absolutely NOTHING confidential in nature in the appointment of a director to fill a vacancy. Problem is with the way lawyers written legislation, doesn't say specifically you can't. Have to look at the intention and how are vacancies filled in the government sector. Really think that legislators would make everything for owners to be as transparent as possible and leave something like this to be handled in secret, don't think so. The only reasons to so would be 1) remaining directors can't make tough choices in public, 2) protecting the attorney status, 3) protecting management status. Been there, seen it.

1. As this is an "Open Meeting" state and most decisions made by an association are done by a board.
2. Majority of the board will always control the outcome, whether the decision is done in ES or Open Session.
3. As a director and a manager I have helped in the process of appointing directors. Simply process, open to everyone, have them complete a candidate information form, have the candidate give a statement to the board and community in open session, and then have the board vote, OR put on the agenda for the next meeting. Very simply.

I think we need a reality TV show........"Life in the HOA. i have friends that have threatened to write books because some of it is so crazy. There was a HOA fatal shooting in AZ several years back.......those damn guns!
Joanne

When I have been involved in these type situations we discuss it more and revote then we discuss it more and revote. We sometimes took a break (even as long ad a day or two) so BOD Members could talk privately. Usually by then someone switches their vote or votes present.

UGH...no edit

I believe you said your docs say "MAY" (as in not must) fill the vacancy. If deadlocked long enough and was argumentative enough, I would make a motion not to fill the vacancy.

In California, maybe in Arizona, if the Board chooses not to fill a vacancy, the membership can.

My CA HOA's bylaws also allow Owners to fill board vacancies if the board refuses. But, Richard, please cite your source about this being a law in CA.

Our MC has stated more than twice that "personnel" matters also can include the discipline of committee chairs or members and the discipline of directors. Our board also has frankly discussed the attributes of volunteers for vacancies in ES but have voted in the open meeting.

One year we did not fill a vacancy due to most directors' and our PM's negative experiences with the candidate. At the open mtg. the membership was told we decided not to fill it as the annual election as only 3 months away. It would not have benefitted my HOA if I'd blurted out that in reality we didn't choose the volunteer because too many disliked her.

Thanks for the code#, Richard; you are correct.

I believe there's nothing illegal about how we decided not to choose a candidate. At the open meeting, we basically took no action. That was pretty simple. We have not interviewed candidates for such vacancies in the past. But we might in the future--it all depends on the circumstances.

Good suggestion.

I suppose one could go into Executive Session and discuss the candidates. Also discuss if they are going to fill the vacancy. Vote on nothing in ES.

Come out of ES and someone makes the appropriate motion like the BOD has decided not to fill the position or a motion to hold a secret ballot to fill the vacancy from the existing candidates. No discussion. Just a vote.

It is NOT, repeat NOT, the function of the BOD to govern. (even though the COVENANT is often referred to as a 'governing document')

It is the function of the BOD to operate the corporation. Said corporation's function is the maintenance of the commonly owned property of the membership.

If one believes the one's neighbor is violating one's contract one may PERSONALLY take appropriate legal action. Or the BOD, upon verification of said contract violation, may take action (if allowed under said Covenant).

The Covenant and/or Bylaws would govern the actions of the BOD ~ the BOD does NOT govern the actions of the corporate membership, the Covenant does that task.

That is a major issue today.

"Soft Soaping" and "Political Correctness"

You hit the nail right on the head.

The BODs job is to ENFORCE a contract.

If one does not like this fact one is free to live w/o a HOA

As for : 'Failing to enforce' This would only apply if the word SHALL is used and not the word MAY

One does NOT sue a HOA for breach of fiduciary duty, one sues the BOD who OPERATE the corporation

? semantics ?

maybe, but I always thought that words have meanings and different words mean different things

ps. read 'Brave New World' ~ love is hate, war is peace, etc.