Ineligible Board Member

We have what is perceived to be an ineligible Board member, based on the following Bylaw Amendment.

"Each Director, including a Director appointed to fill a vacancy by the Board of Directors, or a Director elected to fill a vacancy at a special meeting of the Members shall serve no more than two (2) consecutive terms."

This person was appointed in July 2013 to serve the remaining time of term expiring in July 2014. He ran for election again at that time and his term in now expired.

He was recently allowed to be put back on ballot and was voted in.

Attorney's "interpretation" is that the Amendment is vague and ambiguous. Therefore, there is no eligibility issue. Homeowners questioned this vigorously last night, with no change in Attorney's stance.

Question is, who makes a ruling on this? Is it a Board vote?

Owners are willing to go to Small Claims or Civil to resolve.

Thomas

There is no eligibility issue. The two consecutive terms would be elected terms. They have only been elected for one term. No different than a political office.

In no particular order:

1.
The Board cannot legally vote to remove a properly elected director. Could the Board disregard the advice of the HOA attorney; say this person was not 'properly elected'; and prohibit his being a director? Sure. But then if this person's supporters went to court, I think a judge would say that the Board failed. to resolve this before this person was put on the ballot; this shows bad faith and furthermore may have corrupted other parts of the election as a result, doing a grave disservice to members; and so this person must remain as a properly elected director.

2.
I also think the covenant's (bylaw's) wording is ambiguous. When a covenant is ambiguous, case law says to err on the side of liberties. In this case, to me this means err on the side of his rights and the side of those who voted him in.

3.
In my opinion, a problem arises when a HOA attorney addresses the members in a meeting, and some members are clearly opposed to his position. The principles and attorneys' Rules of Professional Conduct from http://www.michbar.org/opinions/ethics/numbered_opinions/CI-1175 would seem to apply in any state. Per the attorneys' Rules of Professional Conduct (having the force of law), I believe this attorney is wrong to attend HOA meetings for the purpose of arguing with unrepresented third parties with interests "adverse" to his client's.

4.
The attorney is obliged to advocate for his client, the HOA corporation. I think this often means advocating for the board. Legally the board's members are the agents for the corporation. After the board has made a poor decision (like arguably letting this person be on the ballot), the attorney is stuck defending them (granted without breaking what he perceives as the law here). Things get even messier if the HOA attorney thinks his job is on the line in the event certain directors are not re-elected. With the HOA being the attorney's client, the attorney legally is required not to share facts that may be to his client's disadvantage. (This also points out the importance of attorneys not addressing members at a HOA meeting.) So who knows what part of what the attorney told the members opposing his position what the truth is?

I too, think the time period in your Bylaws called a "term," lets say two years, is what is meant. So someone could serve a partial term by board appointment and still serve two complete terms as elected by Owners.

The Owners did elect him so those who want to go to court sound kinda like sore losers. Sounds like still a lot of drama at your HOA, Thomas. Remind us: are you now on the Board? Or did you seek election to the board in this recent election?

Btw, is this amendment new? The wording could be tweaked though.

Thomas

As Tim said:

An attorney advises.
A Board decides.
A court makes a ruling.

It appears that your Board has chosen to follow the Attorney's opinion.

Thus the question is how far (time and money) are those disagreeing willing to go?

we have cumulative voting so he must have convinced enough people to give him 3 votes. The homeowners who don't want him on the Board were out supporting a slate of 7 other candidates, which diluted the votes for each person.

On 9/1, we have a small claims case challenging a recall we had 2 months ago. Looks like we will wait for that and live with the results. Could get 3 new members on.

We have spent enough of our own money fighting Cell Tower, Bylaw Amendments, not much left.

not you again, go away.

for the record I do not use a cell phone.