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Homeowners want elections for BOD

Started by ElizabethG1 • 31 replies • 1977 views

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ElizabethG1 (Florida)
Posts: 26
Posted:
The community transitioned over from developer to homeowners in February 2015.
Homeowners were told they would be voting for an interim BOD. The annual owners meetings take place in November. The By-Laws read in part: Notwithstanding the foregoing, each Director elected at the turnover meeting to serve a one (1) year term shall serve until the first annual meeting following the turnover meeting; provided however that if such period shall be less than six (6) months, such directors shall serve until the second annual meeting following the turnover meeting. Thereafter, all Directors to be elected by the Class A Members shall be elected for a three (3) year term, it being the intent that the terms of the Directors should be staggered.

The newly elected interim BOD immediately changed terms so they could have staggered terms of 3 yrs (Pres & Sec.), 2 years (VP & Treas ), and 1 year (Member at Large ). The homeowners were not advised of this change.

The homeowners are not satisfied with the current BOD and want election to be held in November.
The Board is refusing. What remedy do the homeowners have.

DouglasK1 (Florida)
Posts: 2,046
Posted:
Typically your docs will have provisions for homeowners calling a special meeting to recall directors, does yours say anything about that?
Escaped former treasurer and director of a self managed association.
GenoS (Florida)
Posts: 4,276
Posted:
Elizabeth, what are the provisions in the bylaws for amendments? Who got to cast votes in the election at the turnover meeting? If the bylaws gave the board the power to amend the bylaws without a vote of the homeowners then the new bylaws, as amended, would be valid and the staggered terms set up by the interim board would also be perfectly legitimate.

As Douglas said, your best course of action is to do whatever is spelled out in your governing documents to call for and hold a special members meeting. You say "the homeowners are not satisfied", and the question then is whether enough of them are not satisfied and willing to do something about it.
RichardP13 (California)
Posts: 3,868
Posted:
Quote:
Posted By ElizabethG1 on 08/28/2015 10:23 AM
The community transitioned over from developer to homeowners in February 2015.
Homeowners were told they would be voting for an interim BOD. The annual owners meetings take place in November. The By-Laws read in part: Notwithstanding the foregoing, each Director elected at the turnover meeting to serve a one (1) year term shall serve until the first annual meeting following the turnover meeting; provided however that if such period shall be less than six (6) months, such directors shall serve until the second annual meeting following the turnover meeting. Thereafter, all Directors to be elected by the Class A Members shall be elected for a three (3) year term, it being the intent that the terms of the Directors should be staggered.

The newly elected interim BOD immediately changed terms so they could have staggered terms of 3 yrs (Pres & Sec.), 2 years (VP & Treas ), and 1 year (Member at Large ). The homeowners were not advised of this change.

The homeowners are not satisfied with the current BOD and want election to be held in November.
The Board is refusing. What remedy do the homeowners have.


Were interim members elected in February. If so, then November is more than 6 months and an election should take place, specifically as outlined in your Bylaws.
GenoS (Florida)
Posts: 4,276
Posted:
In Florida a members meeting is not required to recall directors. As per F.S. 720.303(10)(a)1, "Regardless of any provision to the contrary contained in the governing documents, subject to the provisions of s. 720.307 regarding transition of association control, any member of the board of directors may be recalled and removed from office with or without cause by a majority of the total voting interests."

F.S. 720.303(10)(b)1 states, "Board directors may be recalled by an agreement in writing or by written ballot without a membership meeting."

Paragraph (b)5 says the ballot or written agreement must list the names of members willing to serve in place of the directors to be recalled.

The question remains, are a majority of total voting interests, i.e. owners, not satisfied? If so then it should be a fairly simple process. If you've got enough signatures you can do just about anything.
ElizabethG1 (Florida)
Posts: 26
Posted:
The meeting in February was solely for transition from developer to homeowners and election of a interim Board. My understanding of the By-Laws are the same as yours.

Thank you for the input.
RichardP13 (California)
Posts: 3,868
Posted:
Quote:
Posted By ElizabethG1 on 08/28/2015 12:04 PM
The meeting in February was solely for transition from developer to homeowners and election of a interim Board. My understanding of the By-Laws are the same as yours.

Thank you for the input.

So, if I read correctly, an election in November is to take place.
ElizabethG1 (Florida)
Posts: 26
Posted:
No, the Board is fighting this. Following is a chronological order to emails starting from request by homeowner to CMA and Board President.

Email to CMA from Homeowner 8/27/15 :
Please place the time line for the new elections on the agenda for the next Board meeting.

Email to CMA from Board President 8/28/15:
Have you all been able to speak with Dan about the Election and terms of BOD.

CMA to Assoc. Attorney ( NOT A HOA EXPERT) 8/28/15:
Thank you for taking the time to speak to me today about this. Can we please get something in writing from you about the annual meeting election for 2015.

My understanding from our conversation is as follows:

1. We had the turnover meeting, and immediately following the turnover meeting we had the annual meeting, allowing for the board to choose staggered terms at the organization meeting immediately following the annual meeting.

2. The 2015 annual meeting election should only be for one seat – Secretary – 1 year term expiring.

3. The other staggered terms should not be up for election since their terms are do not expire this year.

From Assoc. Attorney to CMA 8/28/15:
Your statements below are accurate and I would further point out that nowhere do the governing documents provide for 1 year terms (or any other terms) for all members of the initial board of directors. In fact, the language of the governing documents which states “Notwithstanding the foregoing, each Director elected at the turnover meeting to serve a one (1) year term shall serve until…” clearly reflects the intention that the initial Board have staggered terms because in this sentence it is qualifying a sub-class of the Board as those individuals who were elected to a only a one (1) year term which means, in turn, that other Board members had to have been elected to terms other than one year. Otherwise, the sentence would just have read “Notwithstanding the foregoing, each Director elected at the turnover meeting to serve a one (1) year term shall serve until…”

Based upon your statements below and the above, the Board should follow the staggered terms and have only one seat open for election.

From CMA to BOD 8/28/15:
After speaking with ( name omitted) he stated the board should follow the staggered election terms originally set up. This would leave only one seat open for election this year (Secretary)) and not put all seats up for re-elections.

The February 4, 2015 meeting WAS NOT an annual membership meeting as stated by the CMA. Rather it was a Transitional Meeting.

Following the Transitional Meeting and Election, the meeting was adjourned at 7:25 pm. The BOD Annual Organizational Meeting was called to order at 7:29 pm. This meeting was NOT open to the homeowners and can not be considered a annual membership meeting. This organizational meeting was adjourned at 7:56 pm.

KerryL1 (California)
Posts: 14,550
Posted:
There seems to b some confusion about the necessary distinction between officers and directors.

In addition, aren't organizational meetings in FL supposed to be open to Owners?? And isn't their sole purpose for the board to (s)elect officers?

Organizational meetings an annual meetings are two different things, right?

RichardP13 (California)
Posts: 3,868
Posted:
I don't understand why a attorneys have to write crap language like this and then come up with an interpretation as they did.

Hopefully, your Bylaws state a specific date or month for the Annual Meeting to be held every year. Is that stated in your Bylaws as November?

If so, and the February meeting was the turnover meeting and NOT the Annual Meeting, then the Annual Meeting should be held in November starting the "official" election of directors.

There should be a method of how the initial staggered terms should start out. If 5 members, then the top three vote getters receive a two year term and the bottom two receive one year term. If ties, draw strings.

There are rules in publishing Annual Meeting notices. The Board doesn't set the terms, the Bylaws do.

We need to free all the drug dealers in U.S. jails and replace them with all the attorneys. JMO
BillH10 (Texas)
Posts: 1,217
Posted:
Richard, I understand your frustration, we experience it as well. We have found that a significant percentage of the language in the Bylaws and CC&Rs is boilerplate, dating back who knows how many years. The attorneys who develop documents for new developments are pulling language from existing documents and making changes to fit the circumstances.

One of our associations recently revised the Bylaws and CC&Rs, in the original Word docs, we found language dating to the early 80s, other portions were converted from Word Perfect (when did you last see that commonly used except by the legal profession), even a chunk of PDF which was cut and pasted in.
RichardP13 (California)
Posts: 3,868
Posted:
Quote:
Posted By BillH10 on 08/28/2015 3:22 PM
Richard, I understand your frustration, we experience it as well. We have found that a significant percentage of the language in the Bylaws and CC&Rs is boilerplate, dating back who knows how many years. The attorneys who develop documents for new developments are pulling language from existing documents and making changes to fit the circumstances.

One of our associations recently revised the Bylaws and CC&Rs, in the original Word docs, we found language dating to the early 80s, other portions were converted from Word Perfect (when did you last see that commonly used except by the legal profession), even a chunk of PDF which was cut and pasted in.

I used to work for an HOA attorney that did restates of governing docs and he would give assignments to his attorney who didn't know the first thing about HOA's. We had managers and HOA Boards trying to educate these guys.
BillH10 (Texas)
Posts: 1,217
Posted:
Elizabeth

I'm not reading your posts closely so I cannot comment about your issue. However, I believe you should not use the initials "CMA" in your posts as, at least here in Texas, CMA is an acronym for a management company and, I believe, the posting guidelines are we are not to use names.

You may wish to use the initials MC (management company).
ElizabethG1 (Florida)
Posts: 26
Posted:
Point taken. Will follow your advice. Thank you.
GenoS (Florida)
Posts: 4,276
Posted:
All board meetings in Florida are open meetings. Directors may vote by secret ballot to elect officers, but in all other respects the meeting must be open to the members. 26 minutes to select officers? Sounds to me like there was more being discussed than just electing the officers.

This is where the FL HOA law falls short. There are no Florida State HOA Police to enforce FS 720. Sounds like a great place, though, violating the law at the very first board meeting ever.
RichardP13 (California)
Posts: 3,868
Posted:
Quote:
Posted By GenoS on 08/28/2015 9:49 PM
All board meetings in Florida are open meetings. Directors may vote by secret ballot to elect officers, but in all other respects the meeting must be open to the members. 26 minutes to select officers? Sounds to me like there was more being discussed than just electing the officers.

This is where the FL HOA law falls short. There are no Florida State HOA Police to enforce FS 720. Sounds like a great place, though, violating the law at the very first board meeting ever.

Nothing in California either, but then again, I don't think there is any kind of enforcement mechanism in the country.

Think it's time for a reality series.
ElizabethG1 (Florida)
Posts: 26
Posted:
On the evening of transition, there were two(2) meetings. The first meeting, The Transition Meeting had two items on the agenda. First, transition of development over to the homeowners and the second item was the election for BOD. This meeting commences at 6:10 pm and adjourned at 7:25 pm.

Immediately after, there was a second meeting, BOD Annual Organizational Meeting. This meeting was closed to the homeowners. At this meeting the officers ( Pres, VP, Treas, Sec.
and Member at Large) were voted for. It was at this meeting that the BOD changed the terms of office for the interim BOD.

This second meeting commenced at 7:29 pm and adjourned at 7:56 pm.
ElizabethG1 (Florida)
Posts: 26
Posted:
You are correct. Organizational Meeting and Annual Meeting are two different types of meetings. To be clear, there is first a Transition Meeting for developer to turnover development to homeowners, which is followed by the BOD Organizational Meeting. This meeting is solely for the election of officers ( Pres,VP, SEC, Treas and Member at Large).
The Organizational Meeting is closed to the Association members (homeowners).
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Elisabeth

What exactly is your problem?

What I see is you do not like who is on the BOD and you are looking to have them all come up for election in Nov. As I read it, the attorney's opinion was the way they handled the BOD staggering terms (which is a good idea) was correct, yet you do not accept it. If this is the case, then be prepared for a long and expensive legal issue with the BOD maybe being able to spend the association's money defending themselves.

Them having a closed BOD Officer Election Meeting is proper so forget that angle.

Not that I agree nor disagree with the attorney's decision, but I think your dislike of who is on the BOD is clouding your judgment.
RichardP13 (California)
Posts: 3,868
Posted:
Quote:
Posted By JohnC46 on 08/29/2015 1:51 PM
Elisabeth

What exactly is your problem?

What I see is you do not like who is on the BOD and you are looking to have them all come up for election in Nov. As I read it, the attorney's opinion was the way they handled the BOD staggering terms (which is a good idea) was correct, yet you do not accept it. If this is the case, then be prepared for a long and expensive legal issue with the BOD maybe being able to spend the association's money defending themselves.

Them having a closed BOD Officer Election Meeting is proper so forget that angle.

Not that I agree nor disagree with the attorney's decision, but I think your dislike of who is on the BOD is clouding your judgment.

John

From the dates that were provided, the attorney is wrong. The staggered terms were handled wrong. The organizational meeting was handled wrong.

The attorney provided an opinion based on what the Board WANTED to hear.
ElizabethG1 (Florida)
Posts: 26
Posted:
Sorry RichardP13, but you are wrong. I AM ON THE BOD. As a member of the Board I believe it is my duty and responsibility to work on behalf of and in the best interest of the community. I do have a problem when things are done in a manner that deprives the homeowners of their rights. I do have a problem when the Board acts in a matter that is clearly contrary to what the homeowners want, as expressed at meetings. I have a problem when a Board member tells the homeowners attending a Board meeting that it's the "Boards' Meeting". The Board is not doing the homeowners any favor by letting them attend said meetings. As it stand, most homeowners will not even take the time to come to any meeting. Those that do participate deserve to be heard and respected. Board meeting as well as committee meeting are open meetings.

It was not I calling for new election. Rather homeowners in attendance and well as the wishes expressed by many homeowners in the community.
ElizabethG1 (Florida)
Posts: 26
Posted:
Perhaps a precise reading from the By-Laws will assist in understanding my position in the matter. I choose not to interpret them in the manner that I want, rather I rely on what is clearly stated.

ARTICLE III - MEETING OF MEMBERS
Section 1. Annual Meetings. The regular meetings of the Members shall be held on a designated day of November of each year hereafter,

ARTICLE IV - BOARD OF DIRECTORS

At the first annual meeting after Turnover, the Class A Members shall elect one third (1/3) of the Directors to be elected by the Class A Members for a term of one (1) year, one third (1/3) of the Directors to be elected by the Class A Members for a term of two (2) years and one third (1/3) of the Directors to be elected by the Class A Members for a term of three (3) years

Notwithstanding the foregoing, each Director elected at the turnover meeting to serve a one (1) year term shall serve until the first annual meeting following the turnover meeting; provided however that if such period shall be less than six (6) months, such directors shall serve until the second annual meeting following the turnover meeting.

Section 4. Removal.
Any Director elected by the Class A Members may be removed from the Board of Directors, with or without cause, by a majority vote of the Members of the Association voting at a duly noticed meeting at which a quorum is present, in person or by proxy.
ElizabethG1 (Florida)
Posts: 26
Posted:
My mistake - this response should have been addressed to JohnC46.
RichardP13 (California)
Posts: 3,868
Posted:
Quote:
Posted By ElizabethG1 on 08/29/2015 3:32 PM
Sorry RichardP13, but you are wrong. I AM ON THE BOD. As a member of the Board I believe it is my duty and responsibility to work on behalf of and in the best interest of the community. I do have a problem when things are done in a manner that deprives the homeowners of their rights. I do have a problem when the Board acts in a matter that is clearly contrary to what the homeowners want, as expressed at meetings. I have a problem when a Board member tells the homeowners attending a Board meeting that it's the "Boards' Meeting". The Board is not doing the homeowners any favor by letting them attend said meetings. As it stand, most homeowners will not even take the time to come to any meeting. Those that do participate deserve to be heard and respected. Board meeting as well as committee meeting are open meetings.

It was not I calling for new election. Rather homeowners in attendance and well as the wishes expressed by many homeowners in the community.

Elizabeth,

Please point out where I am wrong. I took the dates you provided and now with the language of the Bylaws you just posted only confirms that.

If the BOD, the MC and the attorney decide to ignore the Bylaws, I can't speak to that.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Richard and Elizabeth

Not every one on a BOD will agree with (or even understand) a lawyer's or a MC's opinion. I also know what "shop" for the answers one wants to hear means.

Elizabeth says few attend their meetings so I can assume they are at best, a vocal minority (maybe including Elizabeth) calling for elections of all. You cannot not please all of the people all of the time. This was a mistake I made when I was first in a BOD type position (not in a HOA). I tried to please all.

Some are unable to accept a BOD decision (some BOD Members included) when a decision does not go their way. I have seen several BOD Members resign over such.

My present BOD is scared to make decisions. Short term this is OK as things presently run smooth. Contracts in place, a good MC, etc. Come next year when decisions have to made (dues increases, contracts, etc.) I am afraid they will collapse. The present BOD President always looks to the Covenants/Bylaws for black and white answers when many areas are gray and "decisions" must be made.

Understand that I dislike lawyers but sometimes you must to listen to them as it can get expensive not to, even when you believe you are right. That came with experience...and some of it not pleasant.....LOL

ElizabethG1 (Florida)
Posts: 26
Posted:
The fact that both the MC and the attorney erred in their advise does not make it right.
The By-Laws are specific, after turnover, there are to be new elections in November where the interim Board has served more than 6 months. Board was elected in February 2015, consequently more than 6 months.

We can agree to disagree. I still respect your opinion and believe it to be helpful.
ElizabethG1 (Florida)
Posts: 26
Posted:
First let me say, while I do not agree with the Board on everything, I DO agree on the majority of opinions and decisions. With respect to the MC and attorney, they have a tendency to provide whatever answer the Board wants. I have over 25 years of legal experience and I am confident that I can understand what is written in black and white. I've had to interpret more legal documents than I care to think about.

Yes, a vocal minority attend meeting and I am grateful for their attendance. I want to hear their complaints, understand their issues. Their concerns are more often than not concerns expressed by other members of the community, that do not attend meetings.That is the best way to determine how best to serve my community. We all have an investment here and want to protect same.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Elizabeth

Two of the worst BOD Members I ever had to deal with was an attorney and the other was a law school graduate that did or could not pass the bar exam. They were scared to make decisions. All we ever heard was "we need a legal opinion". Talk about stagnation.

The difference between a scumbag attorney and my scumbag attorney, is one of the scumbags is mine.

Billable hours darling.

ElizabethG1 (Florida)
Posts: 26
Posted:
I probably could not agree with you more. I am neither an attorney or a law school graduate. However, I had to deal with both in my 25+ years working in the Courts.

Absolute right - billable hours.
PitA
Posts: 1,416
Posted:
.... provided however that if such period shall be less than six (6) months, such directors shall serve until the second annual meeting following the turnover meeting.....


DONE

as you stated, plain simple english
KerryL1 (California)
Posts: 14,550
Posted:

Elizabeth, don't your docs, probably your bylaws say how long officers serve? Generally it's for one year, but yours may be different.

Similarly, governing docs, usually bylaws will specify staggered terms for directors, not for officers. When we've needed to adhere to the staggered terms requirement for directors on our bylaws, we've typed on the ballot that the top 2 vote getters will serve AS DIRECTORS (say) three years, the next, two years and the lowest among the four top vote getters, one year.
KerryL1 (California)
Posts: 14,550
Posted:
Your governing documents do not give your board the authority to stagger the terms of officers, only directors. Generally, officers serve for just one year. Are your bylaws silent on that matter, Elizabeth? What about your state's corporations codes?

Typically an per our bylaws, which w have typed on the ballot when we need to comply with the staggered terms requirement is: The top two vote getters will serve for (say) three years, the next for two, and the final top vote getter will serve as a director for one year.

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