Number of Directors

TimB4 (Tennessee)
Posts: 21,061

Posted:

From a different thread:

Quote:

Posted By DouglasM6 on 01/26/2017 1:57 PM
T

We currently have 4 board positions:

President
Vice President
Treasurer
Secretary

I had a brief meeting with an attorney and he suggested having 5. What would be a good fifth position to add? I was thinking "sergeant of arms". LOL. Just kidding of course.

I'm going to have many more questions as everyone on this board is new at this.

Thanks again!

TimB4 (Tennessee)
Posts: 21,061

Posted:

Doug,

I want to expand on some of the advice you already received about this topic on your other thread.

As was pointed out by others, Directors are elected by the membership and make up the Board of Directors.

The Directors, by majority vote, make the decisions for the Association.

The Directors appoint Officers, typically from among themselves, to handle the day to day tasks of running the Association. Officers do not have to be Directors unless the governing documents, typically the Bylaws, specify that they must also be directors.

Officers and, perhaps, committee chairs attend meetings of the Board to provide reports and input so the Directors can make informed decisions.

The number of Directors are normally identified within the Articles of Incorporation and/or the Bylaws.
Some governing documents will specify a fixed number and some will specify a range (3 to 5). When a range is specified, you must always have the minimum number but may have less then the maximum.

If the documents have a fixed number and want to change that number, you must first amend the documents that specify the number. If the number is in two documents, then you must change both documents as the governing documents can not conflict with each other.

Clear as mud?

Tim

DouglasM6 (Arizona)
Posts: 724

Posted:

Quote:

Posted By TimB4 on 01/26/2017 6:16 PM
Doug,

I want to expand on some of the advice you already received about this topic on your other thread.

As was pointed out by others, Directors are elected by the membership and make up the Board of Directors.

The Directors, by majority vote, make the decisions for the Association.

The Directors appoint Officers, typically from among themselves, to handle the day to day tasks of running the Association. Officers do not have to be Directors unless the governing documents, typically the Bylaws, specify that they must also be directors.

Officers and, perhaps, committee chairs attend meetings of the Board to provide reports and input so the Directors can make informed decisions.

The number of Directors are normally identified within the Articles of Incorporation and/or the Bylaws.
Some governing documents will specify a fixed number and some will specify a range (3 to 5). When a range is specified, you must always have the minimum number but may have less then the maximum.

If the documents have a fixed number and want to change that number, you must first amend the documents that specify the number. If the number is in two documents, then you must change both documents as the governing documents can not conflict with each other.

Clear as mud?

Tim

Thank you. It's getting clearer the more I read. I'm going to spend a few hours this weekend reading the CC&R's and bylaws. I think I found the Articles of incorporation last night. I'll read that too.

GeorgeR11 (New Jersey)
Posts: 9

Posted:

Our fifth Board position is simply titled "Director" =P

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Our Bylaws call for a BOD of 3 to 7 members (113 owners) and the BOD can decide how many. We had 5 up until and for the first year after the transition. Two resigned/moved and we were down to 3. As we pretty well let our MC run the show, we feel 3 are sufficient and at the latest Annual Meeting 3 is all we could get to run. Our officers are President, VP/Treasurer, Secretary.

We are a simple operation. 40 side by side duplexes, 33 standalone patio homes. No amenities. Public roads (though a dead end neighborhood) and public sewage. $68K budget. Our largest expenditure (about $30K) is landscaping as we do all landscaping including each home's yard. We set back about $12K to Reserves.

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By TimB4 on 01/26/2017 6:04 PM
From a different thread:

Posted By DouglasM6 on 01/26/2017 1:57 PM
T

We currently have 4 board positions:

President
Vice President
Treasurer
Secretary

I had a brief meeting with an attorney and he suggested having 5. What would be a good fifth position to add? I was thinking "sergeant of arms". LOL. Just kidding of course.

I'm going to have many more questions as everyone on this board is new at this.

Thanks again!

Ours is simply called the "member at large."

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By DouglasM6 on 01/27/2017 12:42 PM

Posted By TimB4 on 01/26/2017 6:16 PM
Doug,

Officers and, perhaps, committee chairs attend meetings of the Board to provide reports and input so the Directors can make informed decisions.

The number of Directors are normally identified within the Articles of Incorporation and/or the Bylaws.
Some governing documents will specify a fixed number and some will specify a range (3 to 5). When a range is specified, you must always have the minimum number but may have less then the maximum.

If the documents have a fixed number and want to change that number, you must first amend the documents that specify the number. If the number is in two documents, then you must change both documents as the governing documents can not conflict with each other.

Clear as mud?

Tim

Thank you. It's getting clearer the more I read. I'm going to spend a few hours this weekend reading the CC&R's and bylaws. I think I found the Articles of incorporation last night. I'll read that too.

Our board on two different occasions fell to 4 members when the Bylaws require a minimum of 5. My reading is that a 4 person board can take no action at all.

2010 Georgia Code
TITLE 14 - CORPORATIONS, PARTNERSHIPS, AND ASSOCIATIONS
CHAPTER 3 - NONPROFIT CORPORATIONS
ARTICLE 8 - DIRECTORS AND OFFICERS
PART 1 - BOARD OF DIRECTORS
§ 14-3-803 - Number of directors

O.C.G.A. 14-3-803 (2010)
14-3-803. Number of directors

(a) A board of directors must consist of one or more natural persons, with the number specified in or fixed in accordance with the articles or bylaws."

Our Bylaws:

ARTICLE IV
Board of Directors

A. Composition and Selection.

Section I. Composition. The affairs of the Association shall be governed by a Board of Directors consist of not Less than five (5) and no more than nine (9) members."

I can't even find an example where a Board fell below the statutory limit. I think it puts the Association into a legal limbo.

Anyone have any thoughts?

KerryL1 (California)
Posts: 14,550

Posted:

Not an attorney, but our Bylaws require 7. Over the 10 years I've served, we've had probably 6 resignations and the spots have been vacant for anywhere from 1-2 months while we scare up a 7th person. We certainly did conduct business during those periods.

Just two weeks ago, a director resigned the day after our monthly meeting. When we meet again at the end of February, I hope we will have a suitable candidate or two. We did place a call in our monthly newsletter and will follow up with an email blast. The director will be appointed towards the end of that open meeting during New Business. We will vote during the meeting on agenda items that precede selecting the director.

Meantime, if we need any emergency (no notice required in CA) or special meetings (requires 4-days public notice in CA), we will meet & vote. We do have a board of 7 with one vacancy. We still have a quorum of the Board, which is all we need to meet & make decisions. If we fell below quorum, say, only had three directors serving, I do believe we'd be in not only legal but all kinds of other trouble.

Btw, to show one difference between GA & CA, in CA, we may have NO unanimous consent meetings online except in emergencies. And even then all directors must participate. Statutes do vary from state to state although many might be similar. So only a state's statues should be consulted with no assumptions that one state will be the same as another.

SueW6 (Michigan)
Posts: 814

Posted:

I wonder if the OP got confused between officers and members of the Board.

Usually the officers are elected by the odd-numbered board, after the board is elected by the membership at the annual meeting.

But it's not always that way: our HOA did have officers elected by the HOA members first, then 5 more board members-at-large were elected, making for a 9 member board.

The glitch? One year, no one offered to run for Secretary. Finally someone did fill the post, but there is the danger that an officer position might not get a candidate.

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By SueW6 on 02/12/2017 10:15 AM
But it's not always that way: our HOA did have officers elected by the HOA members first, then 5 more board members-at-large were elected, making for a 9 member board.

The glitch? One year, no one offered to run for Secretary. Finally someone did fill the post, but there is the danger that an officer position might not get a candidate.

One of our directors wants to use that system whereby director/officers are directly elected by the membership. I'm against it because most corporations don't work that way and I think this is one area where following the crowd is a good thing. How would the election ballots be drawn up? I would not be the Secretary of any association that did things that way.

KerryL1 (California)
Posts: 14,550

Posted:

RE: Sue & Geno. I 'd stick with whatever your governing documents say. Ours, for instance, state that an Organization Meeting is held ASAP after the Annual Mtg. & Election. the new board at this organization mtg. elect officers.

CA civil code says the same thing and I believe CA corporations code do too, but I'm not going to check.

JanetB2 (Colorado)
Posts: 4,219

Posted:

I'm with Kerry ... If your governing documents allow members to elect the Directors and then they themselves can determine which office potentially works best ... seems to be the best option in the various HOA's I have dealt with. The individual who tends to have the most extra time is who usually agrees to be President and the others between themselves appoint the other officers. We are talking about volunteers here in HOA's and it works better when those who have a favorite area or area of expertise can choose among themselves the shoe to wear.

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By KerryL1 on 02/11/2017 3:55 PM
Not an attorney, but our Bylaws require 7. Over the 10 years I've served, we've had probably 6 resignations and the spots have been vacant for anywhere from 1-2 months while we scare up a 7th person. We certainly did conduct business during those periods.

Just two weeks ago, a director resigned the day after our monthly meeting. When we meet again at the end of February, I hope we will have a suitable candidate or two. We did place a call in our monthly newsletter and will follow up with an email blast. The director will be appointed towards the end of that open meeting during New Business. We will vote during the meeting on agenda items that precede selecting the director.

Meantime, if we need any emergency (no notice required in CA) or special meetings (requires 4-days public notice in CA), we will meet & vote. We do have a board of 7 with one vacancy. We still have a quorum of the Board, which is all we need to meet & make decisions. If we fell below quorum, say, only had three directors serving, I do believe we'd be in not only legal but all kinds of other trouble.

Btw, to show one difference between GA & CA, in CA, we may have NO unanimous consent meetings online except in emergencies. And even then all directors must participate. Statutes do vary from state to state although many might be similar. So only a state's statues should be consulted with no assumptions that one state will be the same as another.

Thanks for your note. Yes, Boards can run along and conduct business with fewer than the statutory number of members. The problem would be if something went to court. If a board took action against a homeowner while having too few members/officers, that homeowner, it seems to me, could say it was not a valid action under law and seek dismissal on that basis.

And. From our Bylaws:

"A decision of the Board of Directors shall be by a majority of those Directors present at a duly called meeting and every act or decision done or made by a majority of the Directors present at a duly held meeting at which a quorum is present shall be regarded as the act of the Board."

Our Board requires 5-9 members. My reading tells me that a 4 person board cannot "duly" call a meeting at all. Although a quorum would be 3/5 with a five person board, 3 DO NOT make a quorum on a 4 person Board. No quorum is possible on a 4 person Board. This is the question I haven't been able to get any free advice on.

Our [4 person] board select find a 5th member sometime after the death of the one member. I don't think that would stand up in court.

WalterM3 (Georgia)
Posts: 442

Posted:

"Our Β person] board select find a 5th member sometime after the death of the one member. I don't think that would stand up in court."

I need to proof better.

Our (4 person) board did select a 5th member sometime after the death of the one member. I don't think that would stand up in court.

WalterM3 (Georgia)
Posts: 442

Posted:

"Our Β person] board select find a 5th member sometime after the death of the one member. I don't think that would stand up in court."

I need to proof better.

Our (4 person) board did select a 5th member sometime after the death of the one member. I don't think that would stand up in court.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By WalterM3 on 02/13/2017 4:49 AM
"Our Β person] board select find a 5th member sometime after the death of the one member. I don't think that would stand up in court."

I need to proof better.

Our (4 person) board did select a 5th member sometime after the death of the one member. I don't think that would stand up in court.

In many states the current BOD is who will appoint the needed new BOD member who will fill in UNTIL the next annual election. At that time the Members will elect new BOD members, for their next terms. Even though I am not an attorney ... I would be willing to bet a lot that it would stand up in court.

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By JanetB2 on 02/13/2017 9:49 AM

Posted By WalterM3 on 02/13/2017 4:49 AM
"Our Β person] board select find a 5th member sometime after the death of the one member. I don't think that would stand up in court."

I need to proof better.

Our (4 person) board did select a 5th member sometime after the death of the one member. I don't think that would stand up in court.

In many states the current BOD is who will appoint the needed new BOD member who will fill in UNTIL the next annual election. At that time the Members will elect new BOD members, for their next terms. Even though I am not an attorney ... I would be willing to bet a lot that it would stand up in court.

Thanks for your note.

That is not what it says. The law requires 5 members to operate, not 4. What should have happened was:

1. Don't have the minimum number of Board members in the first place.

2. The Board member who died had cancer. It wasn't that sudden that he died. He was on some sort of experimental treatment. But he didn't die suddenly as in a car wreck or something. While he was still a Board member, the Board should have convened a special meeting and had the Association members select new Board members. In Georgia, the Board can act to fill vacancies, but only the members at large can elect new Board members.

"Special meetings of the Members for any purpose may be called at any time by the President, the Secretary, or Treasurer, and shall be called by request of any two or more members of the Board of Directors, or upon written request of at least twenty-five percent (25%) of the Owners."

"Nomination and Election of Directors. Election to the Board of Directors shall be by secret written ballot cast at the annual meeting, unless dispensed with by unanimous consent of those present at such meeting. "

Vacancies. A vacancy of any office because of death, resignation, removal or disqualification, or otherwise may be filled in the manner prescribed for regular election. The officer elected to such vacancy shall serve for the remainder of the term of the office he replaces."

Well you think, "Alrighty. That is how you handle it right there." But in our case, the Board didn't do anything. They put in the next newsletter that James had passed away. But it didn't occur to them that they needed to act.

It also seems that with a 5 person board, if one resigns leaving 4, then you again fall into the trap of not having enough directors to call a quorum. It should have easily been foreseen.

Walt

RichardP13 (California)
Posts: 3,868

Posted:

Walter,

Where in the law does it say that there must be five Board members. You cited Georgia law that says at least one, or what is specified in the Articles or Bylaws? I guarantee you that I can find an association in GA with just 3.

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By RichardP13 on 02/13/2017 11:28 AM
Walter,

Where in the law does it say that there must be five Board members. You cited Georgia law that says at least one, or what is specified in the Articles or Bylaws? I guarantee you that I can find an association in GA with just 3.

The state law says the number will be specified in the Bylaws. Our Bylaws say 5-9. So I wouldn't be surprised if you find a 3 person board if that is what is on file with the county.

Our Bylaws have legal force because they were passed by 2/3 vote in 2000 and were filed with Gwinnett County at that time.

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By WalterM3 on 02/13/2017 11:38 AM

Posted By RichardP13 on 02/13/2017 11:28 AM
Walter,

Where in the law does it say that there must be five Board members. You cited Georgia law that says at least one, or what is specified in the Articles or Bylaws? I guarantee you that I can find an association in GA with just 3.

The state law says the number will be specified in the Bylaws. Our Bylaws say 5-9. So I wouldn't be surprised if you find a 3 person board if that is what is on file with the county.

Our Bylaws have legal force because they were passed by 2/3 vote in 2000 and were filed with Gwinnett County at that time.

Are you saying that the Bylaws are required to be recorded with the county?

DouglasM6 (Arizona)
Posts: 724

Posted:

Quote:

Posted By SueW6 on 02/12/2017 10:15 AM
I wonder if the OP got confused between officers and members of the Board.

Usually the officers are elected by the odd-numbered board, after the board is elected by the membership at the annual meeting.

But it's not always that way: our HOA did have officers elected by the HOA members first, then 5 more board members-at-large were elected, making for a 9 member board.

The glitch? One year, no one offered to run for Secretary. Finally someone did fill the post, but there is the danger that an officer position might not get a candidate.

Yes, that is exactly what I was doing. I did not know the difference between the two terms; Board of Directos- Officers.

But I'm learning!

From our bylaws-

Quorum- A majority of the total number for for the time being of the Board of Directors, but in no case less than two shall constitute a quorum for the transaction of business, but a lessor number may adjourn the meeting sine die or to a stated time and place, and a majority of the members present at any meetings at which a quorum is present shall decide any question brought before such meeting except as otherwise may be provided by law. .....

That makes it possible for the 4 person board to operate the association.

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By RichardP13 on 02/13/2017 12:11 PM

Posted By WalterM3 on 02/13/2017 11:38 AM

Posted By RichardP13 on 02/13/2017 11:28 AM
Walter,

Where in the law does it say that there must be five Board members. You cited Georgia law that says at least one, or what is specified in the Articles or Bylaws? I guarantee you that I can find an association in GA with just 3.

The state law says the number will be specified in the Bylaws. Our Bylaws say 5-9. So I wouldn't be surprised if you find a 3 person board if that is what is on file with the county.

Our Bylaws have legal force because they were passed by 2/3 vote in 2000 and were filed with Gwinnett County at that time.

Are you saying that the Bylaws are required to be recorded with the county?

Yes. In Georgia they are. Sure;y they have to be on file somewhere.

KerryL1 (California)
Posts: 14,550

Posted:

Walter, you DO have a Board of 5. You have one vacancy on it. All that your Board needs to act (vote; make decisions) is a quorum of 3. You are mistaken, the board is not in jeopardy of losing a legal action. That simply is not True.

If your interpretation were correct it'd mean that every time a director is absent from your board of 5, no decisions can be made??

You seem to find some hidden meaning in the word, "duly," why do you emphasize it??

.

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By KerryL1 on 02/13/2017 12:50 PM
Walter, you DO have a Board of 5. You have one vacancy on it. All that your Board needs to act (vote; make decisions) is a quorum of 3. You are mistaken, the board is not in jeopardy of losing a legal action. That simply is not True.

If your interpretation were correct it'd mean that every time a director is absent from your board of 5, no decisions can be made??

You seem to find some hidden meaning in the word, "duly," why do you emphasize it??

.

Sure. Three Board members can meet and act if two other board members are absent. That is because there are 5 board members as required by law. If you only have 4 seated members you can't take any action within the law.

du·ly
ˈd(y)o͞olē/Submit
adverb
in accordance with what is required or appropriate; following proper procedure or arrangement."

The Bylaws speak to a 'duly called' meeting. A board constituted under the laws of GA where the Bylaws state 5-9 members may serve, cannot "duly" call a meeting if it has 4 or fewer members because it is not following the proper procedure or arrangement.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Walter:

Let me take it outside HOA so maybe you will understand where most of us are coming from because it is similar for most government councils such as your local City Council:

If my City Council had a member pass away, move away, resign, etc. then other Citizens would apply for the position and the current City Council would vote among themselves who to put into the empty council position for the remainder of the term. They WOULD NOT hold a special election for the entire town. I live in a small rural town with around 12,000+ population and a special election would cost the tax payers around $13,000. It would not be cost effective to pursue that avenue when it may only be another six months until the next official City Election.

Now if many City Governments do what we have described as what most HOA Boards do in this situation, are you trying to state that all those Cities across the country who have engaged in this activity would not hold up in a Court of Law? A judge would probably state that you are not using COMMON SENSE.

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By JanetB2 on 02/13/2017 1:46 PM
Walter:

Let me take it outside HOA so maybe you will understand where most of us are coming from because it is similar for most government councils such as your local City Council:

If my City Council had a member pass away, move away, resign, etc. then other Citizens would apply for the position and the current City Council would vote among themselves who to put into the empty council position for the remainder of the term. They WOULD NOT hold a special election for the entire town. I live in a small rural town with around 12,000+ population and a special election would cost the tax payers around $13,000. It would not be cost effective to pursue that avenue when it may only be another six months until the next official City Election.

Now if many City Governments do what we have described as what most HOA Boards do in this situation, are you trying to state that all those Cities across the country who have engaged in this activity would not hold up in a Court of Law? A judge would probably state that you are not using COMMON SENSE.

What is the procedure the law lays out in that circumstance?

Because the law in Georgia states clearly what the corporation has to do: Keep the number of Board members required by the Bylaws.

Which our Board negligently failed to do.

RichardP13 (California)
Posts: 3,868

Posted:

Walter

Why didn't you try and keep James alive, for the sake of keeping 5 "living" members?

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By WalterM3 on 02/13/2017 1:53 PM

What is the procedure the law lays out in that circumstance?

Because the law in Georgia states clearly what the corporation has to do: Keep the number of Board members required by the Bylaws.

Which our Board negligently failed to do.

Are you suggesting the Board could look into a crystal ball and determine whether the sick board member would live or die? They absolutely DID NOT and they COULD NOT replace him until after the fact, unless he had voluntarily resigned his position. The Board could not relieve him of a position that was given to him by the membership. They can only now replace him when the position became open and available. By now doing that they are then keeping the number of Board members required by the bylaws.

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By RichardP13 on 02/13/2017 2:06 PM
Walter

Why didn't you try and keep James alive, for the sake of keeping 5 "living" members?

I guess you are being facetious. I didn't even know James was ill until he had passed. He had a multi-year battle with cancer. I did see him and speak to him; he didn't have any hair but I made no connection to any illness. I didn't know he was sick, he looked okay except for having no hair.

The first I knew about it was with the publishing of the quarterly newsletter where his death was announced. This Board had made a big deal about having -only- 5 members so they could control affairs better.

I immediately knew the HOA had fallen out of compliance with state law. Further, his seat was empty for many weeks. The four living Board members took no notice of their responsibilities to know the Bylaws and the laws of the state. It was both comical and pathetic.

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By JanetB2 on 02/13/2017 2:15 PM

Posted By WalterM3 on 02/13/2017 1:53 PM

What is the procedure the law lays out in that circumstance?

Because the law in Georgia states clearly what the corporation has to do: Keep the number of Board members required by the Bylaws.

Which our Board negligently failed to do.

Are you suggesting the Board could look into a crystal ball and determine whether the sick board member would live or die? They absolutely DID NOT and they COULD NOT replace him until after the fact, unless he had voluntarily resigned his position. The Board could not relieve him of a position that was given to him by the membership. They can only now replace him when the position became open and available. By now doing that they are then keeping the number of Board members required by the bylaws.

James had terminal cancer. It was incumbent on the Board members to remain within the law. They could have called a special meeting and added one or more Board members - elected by the home owners - up to NINE. James had lost all his hair months before his death. Did the Board members know he was terminal with cancer. I don't know. I just know they needed to obey the laws.

Instead they were oblivious of their responsibility to comply with the law and didn't even attempt to find a 5th member for a number of weeks after James' death.

I would -guess- that they thought they had four members and could call a quorum with any three.

But the -law- requires FIVE members at a minimum. A four person Board cannot call ANY meeting and so cannot establish a quorum. They can never establish legitimacy again. Since they cannot establish a quorum, they can't fill the 5th seat. Ever, the way I read it.

It was negligent, yeah. They should have asked me.

RichardP13 (California)
Posts: 3,868

Posted:

Walter

Are you an attorney? If not, you might might to seek the advice of one.

KerryL1 (California)
Posts: 14,550

Posted:

Yes, Walter, please get professional advice; you're over your head.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By WalterM3 on 02/13/2017 2:27 PM

Posted By JanetB2 on 02/13/2017 2:15 PM

Posted By WalterM3 on 02/13/2017 1:53 PM

What is the procedure the law lays out in that circumstance?

Because the law in Georgia states clearly what the corporation has to do: Keep the number of Board members required by the Bylaws.

Which our Board negligently failed to do.

Are you suggesting the Board could look into a crystal ball and determine whether the sick board member would live or die? They absolutely DID NOT and they COULD NOT replace him until after the fact, unless he had voluntarily resigned his position. The Board could not relieve him of a position that was given to him by the membership. They can only now replace him when the position became open and available. By now doing that they are then keeping the number of Board members required by the bylaws.

James had terminal cancer. It was incumbent on the Board members to remain within the law. They could have called a special meeting and added one or more Board members - elected by the home owners - up to NINE. James had lost all his hair months before his death. Did the Board members know he was terminal with cancer. I don't know. I just know they needed to obey the laws. My grandfather had Oat Cell Lung Cancer (one of fastest spreading and most deadly) but he went into remission amazing the doctors. And as you stated the other Board members may not have known. Therefore, at that time they had NO obligation to do anything. You currently had the five directors that the HOA membership elected and he had not resigned, so they could not replace even if they knew.

Instead they were oblivious of their responsibility to comply with the law and didn't even attempt to find a 5th member for a number of weeks after James' death. Are you trying to suggest that they should have tried to find a 5th member the very next day after his death? Most HOA Boards would fill the position at their next scheduled Board meeting which could be either weeks or months down the road.

I would -guess- that they thought they had four members and could call a quorum with any three. They can call a quorum with only three, but they could not conduct business UNTIL they appointed a 5th member. That would be the ONLY initial business they could conduct at that time. After appointing someone to fill James' position it then would be in future business as usual.

But the -law- requires FIVE members at a minimum. A four person Board cannot call ANY meeting and so cannot establish a quorum. They can never establish legitimacy again. Since they cannot establish a quorum, they can't fill the 5th seat. Ever, the way I read it. Do you seriously believe a Judge would determine that an HOA as a Non--Profit Corporation should not be able to conduct business until the next annual Membership Meeting which might be months down the road before a director was replaced? As I stated when describing replacing a City Council member ... it is common sense.

It was negligent, yeah. They should have asked me. Why would they ask you? Are you the HOA Attorney? With some statements you have made I am doubtful

The Board at the next meeting with 4 would have a quorum and immediately appoint a 5th member to become in compliance with the governing documents. At that time they then are a Board of 5 to conduct any HOA business.

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By JanetB2 on 02/13/2017 7:19 PM

Posted By WalterM3 on 02/13/2017 2:27 PM

Posted By JanetB2 on 02/13/2017 2:15 PM

Posted By WalterM3 on 02/13/2017 1:53 PM

What is the procedure the law lays out in that circumstance?

Because the law in Georgia states clearly what the corporation has to do: Keep the number of Board members required by the Bylaws.

Which our Board negligently failed to do.

Are you suggesting the Board could look into a crystal ball and determine whether the sick board member would live or die? They absolutely DID NOT and they COULD NOT replace him until after the fact, unless he had voluntarily resigned his position. The Board could not relieve him of a position that was given to him by the membership. They can only now replace him when the position became open and available. By now doing that they are then keeping the number of Board members required by the bylaws.

James had terminal cancer. It was incumbent on the Board members to remain within the law. They could have called a special meeting and added one or more Board members - elected by the home owners - up to NINE. James had lost all his hair months before his death. Did the Board members know he was terminal with cancer. I don't know. I just know they needed to obey the laws. My grandfather had Oat Cell Lung Cancer (one of fastest spreading and most deadly) but he went into remission amazing the doctors. And as you stated the other Board members may not have known. Therefore, at that time they had NO obligation to do anything. You currently had the five directors that the HOA membership elected and he had not resigned, so they could not replace even if they knew.

The Board at the next meeting with 4 would have a quorum and immediately appoint a 5th member to become in compliance with the governing documents. At that time they then are a Board of 5 to conduct any HOA business.

Nope. A Board has to have -five- members to conduct business. A four person Board can't call a quorum.

Like I said, our Board did that. But I don't think it would stand up to a legal challenge. To let a Board get away with that a court would have to ignore a pretty plain provision in the law.

One thing I have learned from this discussion by exception -- no one here has even heard of a Board that was so inept it fell out of compliance with statute.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By RichardP13 on 02/13/2017 2:30 PM
Walter

Are you an attorney? If not, you might might to seek the advice of one.

I believe Walter has done this before.

EllieD (Vermont)
Posts: 446

Posted:

WalterM, You wrote “It was incumbent on the Board members to remain within the law. They could have called a special meeting and added one or more Board members - elected by the home owners - up to NINE.” – and - “Instead they were oblivious of their responsibility to comply with the law and didn't even attempt to find a 5th member for a number of weeks after James' death.”
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I may have missed it, but did you post what your Association Bylaws state, about filling “vacancies” on the Board?
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Having a Director resign midterm does happen. State Statutes vary from state to state, but typically have requirements for filling “vacancies” on the Board - that are to be specified in the Association Bylaws.

From a typical State Statute: The bylaws of the association must:
(1) provide the number of members of the executive board and the titles of the officers of the association;
(2) provide for election by the executive board by the Owners . . . .
(3) specify the qualifications, powers and duties, terms of office, and manner of electing and removing executive board members and offices officers and filling vacancies;
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So in order to comply with the State Statute, Association Bylaws that I am familiar with, typically state, very simply, and note the use of the word “may”:
(c) Vacancies on the Board of Directors may be filled by the remaining Directors.

Or using a lot more words, typical Association Bylaws might read, and note the use of the words “may be filled”:

Vacancies on the Executive Board
(a) A vacancy or vacancies shall be deemed to exist in case of the death, resignation or removal of any Director.
(b) A vacancy on the Executive Board caused by any reason other than the removal of such Director by a vote of the Owner/Members, may be filled by the Executive Board at a meeting held for that purpose, at any time after the occurrence of the vacancy (even if the Directors present at that meeting may constitute less than a quorum) by a majority of the remaining Directors constituting the Executive Board.

Each Director so appointed shall hold office until his/her successor is elected at an annual meeting of Owners/Members or at a special Owners/Members meeting duly called for that purpose.
(d) If the Executive Board accepts the resignation of a Director tendered to take effect at a future time, the Executive Board shall have the power to elect a successor to take office when the resignation shall become effective.
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I do not recall ever reading that “a vacancy on the Board caused by resignation, or by death”, needs to be filled by a vote of the Owners/Members, either at a Regular Meeting, or at a Special Meeting of the Owners/Members, or as you wrote “elected by the home owners”

Would you be willing to post that requirement for filling Board “vacancies” from your Association Documents, or the requirements from whatever Document you are referring to?

Thank you.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Walter ... when you answer can you please start your own thread. This will help keep items pertaining to your issue in one place so everyone can better follow. If you give us the exact verbiage from both your Articles of Incorporation and Bylaw (noting which document) regarding vacancies it also would be helpful in answering your questions.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Walter started a thread with his question and can be found here:

http://www.hoatalk.com/Forum/tabid/55/forumid/1/postid/223937/view/topic/Default.aspx

GenoS (Florida)
Posts: 4,276

Posted:

I think Walter had another thread a while back that was somewhat infamous around here. It went on and on and didn't lead anywhere productive if I recall correctly.

KerryL1 (California)
Posts: 14,550

Posted:

Know what, Geno? John of SC mentioned that somewhere recently re: Walter, and now it comes back to me. He's always right and his board is always doing evil. Feel like I've been scammed!

TimB4 (Tennessee)
Posts: 21,061

Posted:

Walter has been having issues with his Board of Directors since 2014 (see: Subject: Board of Directors Violation of Bylaws) I'm not saying that Walters concerns are not valid. I'm simply pointing out an observation.

Walter,

The options you received in 2014 would be the same for 2016:

1) Gather support and votes the bums out at the next election or, if you have enough support, recall them.
2) Speak to an attorney and seek a legal injunction through the courts.

Have you tried either of those options?

If you care to share, what were the results of the options you tried?

Tim

JanetB2 (Colorado)
Posts: 4,219

Posted:

Walter is good ... once the info was on one thread vs many various threads so it made more sense, he obtained the information he wanted.

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By TimB4 on 02/14/2017 7:31 PM
Walter has been having issues with his Board of Directors since 2014 (see: Subject: Board of Directors Violation of Bylaws) I'm not saying that Walters concerns are not valid. I'm simply pointing out an observation.

Walter,

The options you received in 2014 would be the same for 2016:

1) Gather support and votes the bums out at the next election or, if you have enough support, recall them.
2) Speak to an attorney and seek a legal injunction through the courts.

Have you tried either of those options?

If you care to share, what were the results of the options you tried?

Tim

None of the four Board members that I took to court for malfeasance in 2015 stood for reelection in 2016. One has since moved away. The case was dismissed without prejudice.

They did make sure to cut down about a dozen mature trees about 36 hours after they promised not to. I was at that meeting and they said they would hold off. The Landscaping chairperson was cited by the city for not obtaining the proper permits. That is a $1,000 fine per tree. Later I found out that the fines were waived.

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By WalterM3 on 02/15/2017 4:45 AM

Posted By TimB4 on 02/14/2017 7:31 PM
Walter has been having issues with his Board of Directors since 2014 (see: Subject: Board of Directors Violation of Bylaws) I'm not saying that Walters concerns are not valid. I'm simply pointing out an observation.

Walter,

The options you received in 2014 would be the same for 2016:

1) Gather support and votes the bums out at the next election or, if you have enough support, recall them.
2) Speak to an attorney and seek a legal injunction through the courts.

Have you tried either of those options?

If you care to share, what were the results of the options you tried?

Tim

None of the four Board members that I took to court for malfeasance in 2015 stood for reelection in 2016. One has since moved away. The case was dismissed without prejudice.

They did make sure to cut down about a dozen mature trees about 36 hours after they promised not to. I was at that meeting and they said they would hold off. The Landscaping chairperson was cited by the city for not obtaining the proper permits. That is a $1,000 fine per tree. Later I found out that the fines were waived.

I was also able to get the new Board to honor this part of the Georgia Code.

This is from the law on non-profit corporations:

(b) The articles or bylaws may authorize the members of the board of directors to fix or change the number of directors or may establish a variable range for the size of the board of directors by fixing a minimum and maximum number of directors.

Our Bylaws contain no such provision. Under our Bylaws and the laws of the state, the Board CANNOT set a limit below nine. That is how I read it. The current Board has no issue with expanding from 5 members. -And- the new president read that into the record at the January meeting; those are taped and become a record of the corporation.

The annual meeting is March 13 and I expect to be back on the Board. We will probably have 6 or 7 Board members.

One of the issues underlying the corrupt administration of our HOA was the Board limiting by its own motion the number of members to 5 since 2014. They had policemen at the annual meeting to suppress dissent.

So that is all done and those cretins have hopefully withdrawn for good.

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By JanetB2 on 02/14/2017 7:57 PM
Walter is good ... once the info was on one thread vs many various threads so it made more sense, he obtained the information he wanted.

Yes, and thanks again.

KerryL1 (California)
Posts: 14,550

Posted:

There are 435 members of the US House of Representatives. That number is set by laws. Among those, I'm guessing that there almost always is at least ONE vacancy. Yet, the House continues to do lawful business. Why? Because to conduct business only a quorum--however defined--is needed.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Walter ... Per your statement:

"The annual meeting is March 13 and I expect to be back on the Board. We will probably have 6 or 7 Board members. "

You will want to keep the Board at an odd number such as 5 or 7. This way you avoid having vote tie issues between your Directors.

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By JanetB2 on 02/15/2017 9:27 AM
Walter ... Per your statement:

"The annual meeting is March 13 and I expect to be back on the Board. We will probably have 6 or 7 Board members. "

You will want to keep the Board at an odd number such as 5 or 7. This way you avoid having vote tie issues between your Directors.

Our Bylaws have a provision where the president can vote twice in case of a tie.

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By WalterM3 on 02/15/2017 10:09 AM

Posted By JanetB2 on 02/15/2017 9:27 AM
Walter ... Per your statement:

"The annual meeting is March 13 and I expect to be back on the Board. We will probably have 6 or 7 Board members. "

You will want to keep the Board at an odd number such as 5 or 7. This way you avoid having vote tie issues between your Directors.

Our Bylaws have a provision where the president can vote twice in case of a tie.

I would like to see that in writing.

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By RichardP13 on 02/15/2017 10:34 AM

Posted By WalterM3 on 02/15/2017 10:09 AM

Posted By JanetB2 on 02/15/2017 9:27 AM
Walter ... Per your statement:

"The annual meeting is March 13 and I expect to be back on the Board. We will probably have 6 or 7 Board members. "

You will want to keep the Board at an odd number such as 5 or 7. This way you avoid having vote tie issues between your Directors.

Our Bylaws have a provision where the president can vote twice in case of a tie.

I would like to see that in writing.

Whatever.

"Section 8. Voting, Tie Votes . At all meetings of the Board of Directors, each Director, including the President, shall be entitled to cast one (1) vote. In the event of a tie vote by the Board of Directors, the President may, in addition to his or her vote as a Board Member, exercise a supplemental vote to break the tie vote."