Removal of Board Member

TaraB2 (Illinois)
Posts: 21

Posted:

Hello everyone. I'm new here and have a question about or HOA board member/s.

I was President of our HOA for approximately 4-5 years and I resigned back in December 2016. Our VP stepped up into the President position and the secretary stepped up into the VP position and another homeowner volunteered for the Secretary position. (All of our positions are held on a volunteer basis and none of our board members have been elected)

Our current President is basically a bully and running things her way and has the board members following her every move. She is drunk on the power and has said on numerous occasions "I am the board and I can do whatever I want to do without homeowners approval".

We are a very small association with only 34 homes on our property and we do not have a management company.

25-28 homeowners have come to me and are begging me to please get back on the board as President and kick her off.

With that being said my question is...Since she volunteered for the position and was not voted in can a petition be passed around with the signatures of the homeowners demanding her removal and replace with me as President again? Our by-laws state that the management company can remove and replace board members but since we don't have a management company we want to make sure we do this the right way.

Thank you

SheliaH (Indiana)
Posts: 6,964

Posted:

This doesn’t make sense - why would the Bylaws give the property manager the authority to name board members? The only way I can see that is if your community is still under the developer’s control. They usually write the Bylaws to favor them until the community’s turned over to the homeowners who then elect the board. Usually, the board then chooses officers from among themselves, but that’s also written in the Bylaws. If you don’t have a management company and the developer’s long gone, how did you get on the board?

If the community is supposed to be under homeowner control (you may want to reread your documents and perhaps check if any revised Bylaws were approved and recorded with the county), you and the other homeowners should be able to vote this person off the board. Your neighbors may vote you back on the board, but you’ll still need to check how officers are elected. If the community votes for that also, that’s well and good – and if the other board members are going along with the bully, they may have to be tossed off as well. Just be sure you have people ready to step up and take over if it comes to that.

Then, you may want to consider adopting a code of conduct for board members – personally I like the Community Association Institutes “Rights and Responsibilities for HOA members (homeowners) and Community Volunteers (board members and other folk). You can google it to see what it says and consider adopting all or part of it to your community.

Once you get that resolved, the board might want to charter a committee that can take a look at the Bylaws and CCRs to see if there's anything else that should be amended and how that's done (usually requires a percentage of homeowners voting yea). The HOA attorney can sit down with you on drafting changes and language so the changes will stand up in court.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

KerryL1 (California)
Posts: 14,550

Posted:

Welcome to the Forum, Tara, but with Sheila, some of your post doesn't make sense. Let's start with her question: Is your HOA still under developer control? It seems like your HOA is too old for that, but...

Can you give us the exact citation for the MC choosing directors? Like Sheila, I've never heard of anyone bout actual members of the Associaiton voting for directors and then the directors themselves electing their officers.

It's not clear to me that you see the distinction between officers & directors. Read your bylaws carefully on that topic.

What do your bylaws say about the election of directors, i.e., members of the Board of Directors? Aren't they set for, let's say every year? How many directors must there be? How are elections by Owners for directors held?

Without knowing your documents, I'd say the best thing to try might be to call for an election of directors as per your governing documents. Just off the top of my head, I'm sure others will have good ideas.

TaraB2 (Illinois)
Posts: 21

Posted:

I'm sorry that I'm making this confusing...it's really confusing to me also.

Let me start off by asking this question...
We do not have a management company
We have a volunteer board which consists of a President, Vice President, Secretary, and Treasurer

So would those 4 be our Board of Directors?

JanetB2 (Colorado)
Posts: 4,219

Posted:

Are you a voluntary HOA or a Mandatory HOA (required to pay assessments per CCR's attached to property titles)? Potentially if a sitting BOD appoints someone to fill a position until the end of the term they are an official BOD member, even if volunteered and was not elected. Do you have Annual Meetings and if so when is next meeting? Potentially this is the time to re-elect new BOD members. If the meeting was recent then the owners can potentially via calling a Special Meeting vote to replace any BOD member following your governing documents and state laws.

KerryL1 (California)
Posts: 14,550

Posted:

Don't you have bylaws, Tara? They'd would say you need a board of directors and also the board selects the officers. Officer don't always have to be directors except, often, prez .

Are you sure you're even an HOA? If you don't have bylaws, does that mean your'e not incorporated? I don't think we can offer anything if we don't know a little something about your documents..

TaraB2 (Illinois)
Posts: 21

Posted:

Hi Kelly L.
We do have by-laws that were done in 1991. I was able to talk to a real estate agent last night (friend of my parents) and they advised me to take my by-laws to a lawyer and have them looked over.
There are sections in the bylaws for BOD's and Officers. Our bylaws may need to be amended.
All I know is this woman has to go!
Thank you 😊

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Tara

Your's would be the first HOA I have ever heard of that operates via a "voluntary" BOD. Typically BOD's are elected by the homeowners. Then the elected BOD meets and elects its Officers from among themselves thus all Officers are Members of the BOD, but not all BOD Members are Officers but this will vary by BOD size.

The Bylaws should outline how a BOD election is held.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By TaraB2 on 06/16/2017 2:35 PM
I'm sorry that I'm making this confusing...it's really confusing to me also.

Let me start off by asking this question...
We do not have a management company
We have a volunteer board which consists of a President, Vice President, Secretary, and Treasurer

So would those 4 be our Board of Directors?

Probably.

Most Associations don't see the difference between Officers and Directors. This is because Officers are usually appointed by the Board from amongst themselves. In reality, the individual has two jobs. One Job as a Director (who votes on motions at Board meetings) and one as an Officer (who implements the approved motions and carries out the day to day tasks of running the Association).

TaraB2 (Illinois)
Posts: 21

Posted:

Honestly...these are the only 4 people on the Board.
So if they are BOD's they volunteered and there are no officers.
If they are Officers there are no BOD's.
Just those 4 people.
That's why this is getting confusing.

TimB4 (Tennessee)
Posts: 21,059

Posted:

It's not that confusing.

There are four people.

Those people are holding two jobs at the same company.

One job is Director
One job is Officer

TaraB2 (Illinois)
Posts: 21

Posted:

Thanks TimB4.
With that being said, since these 4 volunteered and were not "voted" in, can the homeowners put together a petition requesting the removal of the President and/or the whole board/officers and hold an election?

KerryL1 (California)
Posts: 14,550

Posted:

Yes, the owners can put a petition together. But I strongly urge you to seek an HOA attorney's advice about how that must be done per your bylaws and maybe even state laws. If a few or several of your Owners chip it's very worthwhile seeing an HOA attorney

But you should be able to read over the bylaws, and get the general idea about how many directors you must have and the titles of the officers. It also should state when elections of directors must be held--usually annually.

It doesn't matter how old your bylaws are, you must follow them unless they contradict your higher level documents like your CC&Rs or your articles of incorporation. You will NOT need to amend them before voting this person off the Board, or making sure she isn't elected at your next election.

When directors are spoken of as "volunteers," it means they work without pay (which most CC&Rs or other documents say they must); they aren't "employees." . It's also because they choose to serve. They aren't "drafted" as in the old military sense

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Tara

Better late then never. Are you under developer or homeowner control?

TaraB2 (Illinois)
Posts: 21

Posted:

We are not.

TaraB2 (Illinois)
Posts: 21

Posted:

Quote:

Posted By JohnC46 on 06/17/2017 10:23 AM
Tara

Better late then never. Are you under developer or homeowner control?

We are not under developer or homeowner control.

TaraB2 (Illinois)
Posts: 21

Posted:

JohnC46...

I'm sorry, I answered that question all wrong I think.

I think the correct answer would be homeowner control.
(The homeowners are responsible for their own HVAC, hot water heater, laundry facilities, etc)
Is that what your question meant?

TaraB2 (Illinois)
Posts: 21

Posted:

Quote:

Posted By KerryL1 on 06/17/2017 10:05 AM
Yes, the owners can put a petition together. But I strongly urge you to seek an HOA attorney's advice about how that must be done per your bylaws and maybe even state laws. If a few or several of your Owners chip it's very worthwhile seeing an HOA attorney

But you should be able to read over the bylaws, and get the general idea about how many directors you must have and the titles of the officers. It also should state when elections of directors must be held--usually annually.

It doesn't matter how old your bylaws are, you must follow them unless they contradict your higher level documents like your CC&Rs or your articles of incorporation. You will NOT need to amend them before voting this person off the Board, or making sure she isn't elected at your next election.

When directors are spoken of as "volunteers," it means they work without pay (which most CC&Rs or other documents say they must); they aren't "employees." . It's also because they choose to serve. They aren't "drafted" as in the old military sense

Thank you Kerry for your advice. If you don't mind me asking, what are CC&R's? Also, we are a non-for profit organization so we wouldn't have articles of incorporation.

KerryL1 (California)
Posts: 14,550

Posted:

CC&Rs (Covenants, Conditions and Restrictions) also are called: Covenants & Restrictions; Covenants; the Declaration. They usually talk about the powers of the Association as represented by b the Board, the powers of Homeowners; what Owners are responsible for and what the HOA is responsible, i.e, what do the HOA's landscaper do and what must Owners do.

All HOAs have CC&Rs, which you'll find recorded in your county recorders office.

Since you have bylaws, that means your HOA is a corporation, even if a non-profit one. This means you do have Articles of Incorporation.

By developer control, John meant who governs your HOA? The developer or the Homeowners? Since your Bylaws goes back to 1991, I'd assume the Owners control your HOA. (this does not mean control their individual homes.) Are your homes attached? or detached?

Anyway, I now insist even more firmly on this point: get an HOA attorney!!

TaraB2 (Illinois)
Posts: 21

Posted:

Quote:

Posted By KerryL1 on 06/17/2017 12:40 PM
CC&Rs (Covenants, Conditions and Restrictions) also are called: Covenants & Restrictions; Covenants; the Declaration. They usually talk about the powers of the Association as represented by b the Board, the powers of Homeowners; what Owners are responsible for and what the HOA is responsible, i.e, what do the HOA's landscaper do and what must Owners do.

All HOAs have CC&Rs, which you'll find recorded in your county recorders office.

Since you have bylaws, that means your HOA is a corporation, even if a non-profit one. This means you do have Articles of Incorporation.

By developer control, John meant who governs your HOA? The developer or the Homeowners? Since your Bylaws goes back to 1991, I'd assume the Owners control your HOA. (this does not mean control their individual homes.) Are your homes attached? or detached?

Anyway, I now insist even more firmly on this point: get an HOA attorney!!

We are attached homes.
Thank you again Kerry. I will start the search on Monday for an HOA attorney and find out the costs to consult with one and then talk to my fellow homeowners and see if they would be willing to chip in (I highly doubt they will say no).
I truly appreciate all your help.
Hope you have a great weekend.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By TaraB2 on 06/17/2017 8:12 AM
Thanks TimB4.
With that being said, since these 4 volunteered and were not "voted" in, can the homeowners put together a petition requesting the removal of the President and/or the whole board/officers and hold an election?

Typically, the membership may petition to hold a special meeting of the general membership for a specific purpose (removal of one or more Directors is typical).

However, notice and quorum requirements must be met.

I am very confused about the non-voting function.

Has your Association ever had an election?
If yes, when was the last one?

Does your Association have general membership meetings (also known as annual meetings)?
If yes, when was the last one?
If yes, was your quorum requirement met?
Did elections take place at your last membership meeting?
If not, why not?

How long is the term of your Directors (1 year, 2 years, staggered)?

Is your development still being developed (houses still being built and sold by a developer)?

I expect that your VP is still a VP but, per the job, assumed the duties of the President. However, it's also possible that the Board appointed this individual to the Office of President.
Officers (Pres, VP, etc.) are appointed by the Board and may only be removed by the Board.

Directors are elected by the membership and must be removed by the membership (either by recall or simply by not reelecting). Sometimes, Individuals are appointed by the Board (typically to fill vacancies). When this occurs, those individuals may also be removed by the Board.

One last question:

You said you served a few years ago on your Board.
Is everyone confused about the positions they served (are serving) in as you seem to be?

DouglasM6 (Arizona)
Posts: 724

Posted:

I'm going to play devil's advocate for a bit.

Is this bully president doing things that are hurting the association? Or is it her attitude and the things she says that are upsetting. Is the board getting things done?

I ask this because once you remove her you will need a replacement. If you don't have one in mind, that wants the position, I'd rethink this.

If she is actually making bad decisions and costing the association extra expenses, then go for it. If not, let her act as if she is the master of all things as long as she's getting it done. It's probably her personality to rub people wrong. We all have personalities.

TaraB2 (Illinois)
Posts: 21

Posted:

Quote:

Posted By DouglasM6 on 06/20/2017 12:46 PM
I'm going to play devil's advocate for a bit.

Is this bully president doing things that are hurting the association? Or is it her attitude and the things she says that are upsetting. Is the board getting things done?

I ask this because once you remove her you will need a replacement. If you don't have one in mind, that wants the position, I'd rethink this.

If she is actually making bad decisions and costing the association extra expenses, then go for it. If not, let her act as if she is the master of all things as long as she's getting it done. It's probably her personality to rub people wrong. We all have personalities.

She is handling issues unprofessionally. The homeowners voted to put speed bumps on the property because she speeds and now she drives on the sidewalks to avoid the speed bumps. She wants to special asses the homeowners $300 to repair the sidewalks and when it was brought to her attention that she needs to do a vote for a special assessment she said " No I don't! I am the BOARD and I can do whatever I want!" She has called a few homeowners names. She spent association money to seal coat our street that did not need to be seal coated. We have a retention pond that has clogged drain so when it rains the water just sits there which is now a breeding ground for mosquitos. Which that has been brought to the boards attention and we keep hearing "we will get to that when we get to it"

The replacement would actually be me, but I want to sit down with a HOA lawyer also to go over our by-laws to make sure that I fully understand them so I can relay them back to our homeowners.

TaraB2 (Illinois)
Posts: 21

Posted:

Quote:

Posted By TimB4 on 06/17/2017 1:03 PM

Posted By TaraB2 on 06/17/2017 8:12 AM
Thanks TimB4.
With that being said, since these 4 volunteered and were not "voted" in, can the homeowners put together a petition requesting the removal of the President and/or the whole board/officers and hold an election?

Typically, the membership may petition to hold a special meeting of the general membership for a specific purpose (removal of one or more Directors is typical).

However, notice and quorum requirements must be met.

I am very confused about the non-voting function.

Has your Association ever had an election?
If yes, when was the last one?

Does your Association have general membership meetings (also known as annual meetings)?
If yes, when was the last one?
If yes, was your quorum requirement met?
Did elections take place at your last membership meeting?
If not, why not?

How long is the term of your Directors (1 year, 2 years, staggered)?

Is your development still being developed (houses still being built and sold by a developer)?

I expect that your VP is still a VP but, per the job, assumed the duties of the President. However, it's also possible that the Board appointed this individual to the Office of President.
Officers (Pres, VP, etc.) are appointed by the Board and may only be removed by the Board.

Directors are elected by the membership and must be removed by the membership (either by recall or simply by not reelecting). Sometimes, Individuals are appointed by the Board (typically to fill vacancies). When this occurs, those individuals may also be removed by the Board.

One last question:

You said you served a few years ago on your Board.
Is everyone confused about the positions they served (are serving) in as you seem to be?

Hi Tim,

There has never been an election here for Board members. When a Board member moves or steps down someone always just volunteers their time.
We do have meetings...typically about 2 a year (Spring/Fall) and no elections were held. Why? I don't have an answer for that question.

The development is complete.
And to answer your last question...Yes everyone is as confused as I was. That is why I believe it is a good idea to hire a lawyer to go over our by-laws with us.
and someone also mentioned come up with a code of conduct for the board and also the homeowners!

KerryL1 (California)
Posts: 14,550

Posted:

Good to see you're moving along with meeting with an HOA attorney. Your bylaws probably have everything you need to know in them. A lot will be answers to Tim's question. And, it seems you need a professional interpretation of them. But see if you can understand part of your Bylaws on your own. the should say, for instance, how many Board meetings must be held each year. It might be four. The Bylaws also will tell you about Meetings of the Members (Owners)/ Association Meetings. The main one is the annual meeting and election.

A Code of Ethics is OK, but it seems to me you have other more pressing priorities.

But your Board can make Rules (most likely) about your common areas, say, against driving on the sidewalk with a call to hearing and fine of, say, $100.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Tara

As you dig into this and has been mentioned, A BOD can, by themselves, make Rules and Regulations but the R&R's cannot override a Covenant nor Bylaw. As an example the BOD could set pool hours via a R&R but they could not remove the pool via an R&R. Also a BOD can change prior R&R's so they are not cast in concrete.

Many BOD's have gotten in trouble by passing R&R's that conflict with Covenants and Bylaws. One area of contention is attempting to limit rentals.

TaraB2 (Illinois)
Posts: 21

Posted:

Thank you all for your help and advice.
I'm sorry for being so confused and vague at the beginning.
Now that we know how to proceed we can get on the right track and things can run smoothly here.
I'm so glad that I joined.
Thank you all again.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By TaraB2 on 06/20/2017 1:44 PM

And to answer your last question...Yes everyone is as confused as I was. That is why I believe it is a good idea to hire a lawyer to go over our by-laws with us.

Tara,

I am not an attorney.

However, if you desire, I'm willing to take a look at your Bylaws and paraphrase them for you into plain language. If I don't know, I'll tell you I don't know.

You can scan them and email (or simply provide a link to where they may be online) I can do this.

[email protected]

KerryL1 (California)
Posts: 14,550

Posted:

Take Tim up on his offer, Tara. I'm confident he can "translate" them into ordinary English. How many pages are your Bylaws, Tara?

TaraB2 (Illinois)
Posts: 21

Posted:

Quote:

Posted By TimB4 on 06/20/2017 3:57 PM

Posted By TaraB2 on 06/20/2017 1:44 PM

And to answer your last question...Yes everyone is as confused as I was. That is why I believe it is a good idea to hire a lawyer to go over our by-laws with us.

Tara,

I am not an attorney.

However, if you desire, I'm willing to take a look at your Bylaws and paraphrase them for you into plain language. If I don't know, I'll tell you I don't know.

You can scan them and email (or simply provide a link to where they may be online) I can do this.

[email protected]

Thank you so much Tim.

I can scan them and email them to you later today. I really appreciate it. There are only 44 pages.
Thank you again for your help.

TimB4 (Tennessee)
Posts: 21,059

Posted:

You're welcome.

Keep in mind, this will take a little time to do (likely a week or so).

Tim

KerryL1 (California)
Posts: 14,550

Posted:

Are you sure, Tara, that your Bylaws alone are 44 pages?? That sounds like too many for a small HOA. Do the 44 pages also contain your CC&Rs (Covenants, Restrictions, Declaration?)

TaraB2 (Illinois)
Posts: 21

Posted:

Quote:

Posted By KerryL1 on 06/21/2017 11:49 AM
Are you sure, Tara, that your Bylaws alone are 44 pages?? That sounds like too many for a small HOA. Do the 44 pages also contain your CC&Rs (Covenants, Restrictions, Declaration?)

You were correct Ken...thank you.
The By-Laws were only 10 pages and the rest were the CC&R's
Thank you

TaraB2 (Illinois)
Posts: 21

Posted:

Quote:

Posted By TimB4 on 06/21/2017 7:54 AM
You're welcome.

Keep in mind, this will take a little time to do (likely a week or so).

Tim

Tim,

Kerry asked about the by-laws and the CC&R's. Ours are all in one booklet (44 pages) would you still like to look them all over or would you just like the By-laws which are only 10 pages?

Thanks again
Tara

TaraB2 (Illinois)
Posts: 21

Posted:

Quote:

Posted By TaraB2 on 06/21/2017 1:04 PM

Posted By KerryL1 on 06/21/2017 11:49 AM
Are you sure, Tara, that your Bylaws alone are 44 pages?? That sounds like too many for a small HOA. Do the 44 pages also contain your CC&Rs (Covenants, Restrictions, Declaration?)

You were correct Ken...thank you.
The By-Laws were only 10 pages and the rest were the CC&R's
Thank you

I'm sorry...I got your name wrong Kerry

TaraB2 (Illinois)
Posts: 21

Posted:

Quote:

Posted By TaraB2 on 06/21/2017 6:32 AM

Posted By TimB4 on 06/20/2017 3:57 PM

Posted By TaraB2 on 06/20/2017 1:44 PM

And to answer your last question...Yes everyone is as confused as I was. That is why I believe it is a good idea to hire a lawyer to go over our by-laws with us.

Tara,

I am not an attorney.

However, if you desire, I'm willing to take a look at your Bylaws and paraphrase them for you into plain language. If I don't know, I'll tell you I don't know.

You can scan them and email (or simply provide a link to where they may be online) I can do this.

[email protected]

Thank you so much Tim.

I can scan them and email them to you later today. I really appreciate it. There are only 44 pages.
Thank you again for your help.

Hi Tim,
I just emailed them over to you.
My email is [email protected]
Thank you

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By KerryL1 on 06/20/2017 8:24 PM
Take Tim up on his offer, Tara. I'm confident he can "translate" them into ordinary English. How many pages are your Bylaws, Tara?

I second that ... Tim is awesome!!! While we are not attorneys the same as myself Tim researches and is familiar with other various State Statutes. We understand that what other states do can in future affect our own states and therefore our properties. Tim is one of the few I would trust in answering my questions.

Tim ... If you need help or another opinion (on any grey areas) please feel free to let me know. I will be more than happy to prove an email address.

TaraB2 (Illinois)
Posts: 21

Posted:

Quote:

Posted By JanetB2 on 06/21/2017 11:14 PM

Posted By KerryL1 on 06/20/2017 8:24 PM
Take Tim up on his offer, Tara. I'm confident he can "translate" them into ordinary English. How many pages are your Bylaws, Tara?

I second that ... Tim is awesome!!! While we are not attorneys the same as myself Tim researches and is familiar with other various State Statutes. We understand that what other states do can in future affect our own states and therefore our properties. Tim is one of the few I would trust in answering my questions.

Tim ... If you need help or another opinion (on any grey areas) please feel free to let me know. I will be more than happy to prove an email address.

Thank you Janet