Power of President

Started by KP3 • 13 replies • 1171 views

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KP3 (Texas)
Posts: 124

Posted:

Can the president make a code of ethics and enforce it with the present board and any board members in the future? The CCRS state the the board may promulgate rules and regulations for access to and use of Common Areas and governance of the Association. That article goes on after that but is irrelevant. The board can make an amendment if you will to the bylaws under this article correct?

KerryL1 (California)
Posts: 14,550

Posted:

So far as I know, the board may vote to accept and abide by a Code of Ethics. It need not be a part of the CC&Rs or the Bylaws. Just a Board policy that directors agree to obey. We directors actually each sign the Code of Ethics every year after the election.

But the president has no such authority (unless the Board has voted that the president DOES have such powers). The president certainly can submit such a Code for the Board's consideration & vote. As with most board decisions, new boards can place the matter on the agenda, and vote to dump it.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By KP3 on 04/10/2017 4:04 PM
Can the president make a code of ethics and enforce it with the present board and any board members in the future?

KP3, it depends. For example, if the Code of Ethics provides for ways to remove a director from office that is not already in the Declaration, Bylaws or state law, then the Code of Ethics is unenforceable in this regard. If the Code of Ethics dictates punishment of a director such that her or his powers (per the Declaration, Bylaws and state law) are limited, then this too translates to the Code being unenforceable. Furthermore, in general, with any charges of wrongdoing at the HOA level where the stakes are high, the courts want to see the HOA attempt due process. This means a write-up of the charges, allowing the accused to respond, and a hearing.

AugustinD
Posts: 5,144

Posted:

Also, a HOA President cannot act alone on such a Code. He or she must have the board vote its approval on any policy, Code, Rule, etc.

RichardP13 (California)
Posts: 3,868

Posted:

I am helping one of my friends in my former HOA with a situation similar to yours. Two Board who make up a Executive Committee voted to amend the Bylaws to include a amendment saying if a Board member doesn't sign a bogus Code of Ethics then they WILL be remove from office.

In a another post, I had asked what people thought of the interpretation of a majority of 1/3 meant to them. I have the opinion from the law firm that drafted the Bylaws saying them have to have 106 votes first before ballots can be opened. Last September for the Annual Election, 17 ballots were returned out of 317 homes. They would never get 106 votes.

I happen to be against signing a Code of Ethics because of my experience on how some have been drafted. If there is a problem, I could get them voted off during the next election.

RichardP13 (California)
Posts: 3,868

Posted:

Let me add on additional note. I created Election Rules a couple of years ago. Most attorneys will a 3 or 4 page documents, while I created a 25 page document outlining the election procedures from start to finish. One of the documents included is a Candidate Pledge which must be returned allow with their nomination form. It does not disqualify a candidate from running, but members who vote will see who signed and who didn't.

KP3 (Texas)
Posts: 124

Posted:

Quote:

Posted By AugustinD on 04/10/2017 6:31 PM
Also, a HOA President cannot act alone on such a Code. He or she must have the board vote its approval on any policy, Code, Rule, etc.

This I understand and totally not my point. There are board members that are on board with this. Just not the two acting unethical

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By RichardP13 on 04/10/2017 7:38 PM
I am helping one of my friends in my former HOA with a situation similar to yours. Two Board who make up a Executive Committee voted to amend the Bylaws to include a amendment saying if a Board member doesn't sign a bogus Code of Ethics then they WILL be remove from office.

OK now this is really getting into Twilight Zone territory. Last summer we elected a new president after the previous one sold his home and moved. She unilaterally proposed a bogus Code of Ethics, one she came up with on her own with no input from anybody else, and told the other directors that if they did not sign it then they would be kicked off the board. She didn't even propose changing the Bylaws to do this. She felt it was her right as "chariman of the board" to insist that people sign it or suffer the consequences as she deemed them to be. She's not the president anymore. This is too weird. Are there a lot of association presidents who think they can get away with this stuff?

TimB4 (Tennessee)
Posts: 21,059

Posted:

KP,

The President may not adopt any resolution on their own.

The President, just as any other Board member, may propose a resolution but the Board votes to adopt it or not.

As others have said, a resolution may not conflict with any other governing document or applicable statute. Since resolutions have the lowest precedent, any conflict means that the higher document must be the one complied with.

The President only has the authority (regardless of title) that Statutes, Governing documents or the Board gives the office.

In my Association this is very limited:
Preside over all meetings of the Association
Sign all legal documents for the Association
Potential cosigner of checks
Makes the agenda (but others may add to it).

That's it. I believe that this limited authority is typical for many Associations.

KP3 (Texas)
Posts: 124

Posted:

Quote:

Posted By TimB4 on 04/11/2017 6:04 AM
KP,

The President may not adopt any resolution on their own.

The President, just as any other Board member, may propose a resolution but the Board votes to adopt it or not.

As others have said, a resolution may not conflict with any other governing document or applicable statute. Since resolutions have the lowest precedent, any conflict means that the higher document must be the one complied with.

The President only has the authority (regardless of title) that Statutes, Governing documents or the Board gives the office.

In my Association this is very limited:
Preside over all meetings of the Association
Sign all legal documents for the Association
Potential cosigner of checks
Makes the agenda (but others may add to it).

That's it. I believe that this limited authority is typical for many Associations.

I didn't mean it to read that way. Of course the board majority would with approve or not approve..

KerryL1 (California)
Posts: 14,550

Posted:

If there are 5 on your Board, then the 2 rogues will be outvoted. But get a good Code of Ethics. I think the CAI has one. Or there are other sources. Ask your HOA attorney.

Again, KP, did you write this "Code" yourself? I do believe there could be something in it about "censuring" rogue directors.

KP3 (Texas)
Posts: 124

Posted:

Quote:

Posted By KerryL1 on 04/11/2017 8:46 AM
If there are 5 on your Board, then the 2 rogues will be outvoted. But get a good Code of Ethics. I think the CAI has one. Or there are other sources. Ask your HOA attorney.

Again, KP, did you write this "Code" yourself? I do believe there could be something in it about "censuring" rogue directors.

No I don't don't write it. I found this - https://www.davis-stirling.com/Main-Index/Ethics-Policy. And thought it was a good one. And just recently found this one: http://www.hoa-attorneys.com/item_list.asp?subcat=46&subtitle=Board+Code+Of+Conduct. The first one I sent to the management company back in December. Still nothing from them... Suggestions??

NigelB (Texas)
Posts: 254

Posted:

Quote:

Posted By KP3 on 04/10/2017 4:04 PM
Can the president make a code of ethics and enforce it with the present board and any board members in the future? The CCRS state the the board may promulgate rules and regulations for access to and use of Common Areas and governance of the Association. That article goes on after that but is irrelevant. The board can make an amendment if you will to the bylaws under this article correct?

The board can certainly adopt a code of ethics, but the President alone cannot enact such a code unless the governing documents of the association provide that authority.

Generally speaking, the ByLaws of the association may be amended at anytime during developer control without the approval of the membership, but usually those ByLaws provide that once control of the association passes to the membership there is a requirement that a percentage of the membership agree to the amendment. That would also be contained in the ByLaws.

KerryL1 (California)
Posts: 14,550

Posted:

Why, KP, do you want feedback from your MC? I think you're on the board and perhaps are president. Just put the Code of Ethics on the agenda for an open meeting of the board. Discuss it publicly and then the Board votes.

I'm not sure what you're driving at. I've seen the on(s) at davis-stirling.com but not lately. They should be fine if tweaked a bit for your situation (since they're a CA law firm). I don't have time to look at them now, sorry...

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