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Started by JimH29 • 16 replies • 582 views

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JimH29 (Florida)
Posts: 63

Posted:

New 5 member board* was put in place at annual meeting in January. At their first meeting the secretary and others had a disagreement on how to report the minutes and last board secretary choose not to remain as secretary. One board member said that they had to since no one else wanted the job and that they could bring in an assistant secretary to record the minutes of the meeting.

Our covenants, bylaws allow such an action. But in so doing, the BOD violates the covenants, bylaws as well, since the addition of the 6th member violates the covenants which state that the board has to be an odd number of officials, not less than three, not more than 7. This assistant secretary, although a member of the board, is not allowed to vote on official business of the HOA in the opinion of the current BOD.

Our covenants, bylaws are very specific and state, that the assistant secretary or treasurer can be appointed in the event of death, resignation, etc. It does not say that they can be appointed because a member or members of the board do not want to do their duties called out in their list of duties as detailed in our covenants, bylaws. The covenant/bylaws do not say that appointed assistants do not have voting rights, but the BOD has instituted this as a requirement of the assistant secretary.

I have mentioned this to one board member but have not gotten a response. I will be bringing this up at the next regularly scheduled meeting but it is like talking to a brick wall.

What can I do to get the HOA to follow our covenants and bylaws?

Jim H

*HOA BOD, single family homes (56 in number) in Florida

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Summary:
- Board of five elected by membership (good)
- Board meets and elects officers? (Was this done?)
- new Secretary doesn’t want to take notes? (Huh?)
- Board appoints another Member? (based on what you’ve shared, this is illegal)(did you vote for this?) (was there a vote?)
- Board COULD just assign such duties to a member, or even hire someone (this is done quite a lot with large HOAs)

What to do?

I would write a formal letter to the Board, noting their non-compliance with the Bylaws and ask they cure their actions. Be VERY specific, quoting applicable sections of your Bylaws.

See what happens.

CathyA3 (Ohio)
Posts: 6,299

Posted:

I agree with George. It's usually acceptable to appoint someone who is not a director to perform certain functions. The only area where I see a potential problem is in executive sessions, since they should not be open to members. I assume this is why the Board tried to create a non-voting board position - however, they can't create a new board position without amending the community's bylaws.

I'd say that one of those board members needs to take minutes at the executive session. Fer Pete's sake, we board members often have to do things that are outside of our comfort zones, and this is one of the easier ones. Write the letter as George said, and tell them to do their jobs.

ND (PA)
Posts: 792

Posted:

I believe you may be confusing Board Members with Officers.

Frequently Board Members also serve as Officers (President, Vice President, Treasurer, Secretary, etc.); however, that isn't always the case and may not need to be the case. The Board likely cannot appoint someone as a Board Member if the Board is already filled to max capacity; however, the Board may very well be within it's right to appoint a non-Board Member Officer (Assistant Secretary). This individual would fulfill whatever duties define the Assistant Secretary Officer position, and since they are not Board Members, they would not have voting rights or other Board Member-specific capabilities.

Look within your documents for reference to Board Members and Officers to better understand what is possible and what may be occurring.

AugustinD
Posts: 5,144

Posted:

JimH29, do you understand that the law distinguishes between officers and directors of a corporation, including a HOA? Bylaws often do not require that officers also be directors. Also as Cathy sort of said, per many HOAs' bylaws, assistant secretaries and assistant treasurers typically need not be directors. If you can quote back the pertinent sections of your Bylaws, this would be helpful. Right now, I doubt there is any violation of your HOA's CC&Rs.

KerryL1 (California)
Posts: 14,550

Posted:

I'd say that Augustine and ND are correct. We, per our Bylaws, have appointed a non-director as treasurer as no director would step up. She had no voting rights and could not attend ex. session. meeting.

JimH29 (Florida)
Posts: 63

Posted:

In discussion with one board secretary, he sees the error of the boards way and has suggested that he will address this issue at the Feb 4 meeting next week. He will resign as secretary and then the board can appoint the assistant secretary to take over the duties of the secretary, which is what our by-laws state.

In conversation, I suggested that they compromise on the note taking style to avoid his resigning since he was duly elected (his term ends January 2020). In essence I suggested he suck it up and do the minutes the way the board has agreed to have them done for this, his last year.

I also suggested that if the board is willing to designate duties to "assistants to" the secretary or treasurer then they should change the bylaws to indicate that it is their wish to do so.

BTW, a letter is written and awaiting the outcome of Mondays meeting.

Thanks for your advice and questions.

JimH29 (Florida)
Posts: 63

Posted:

Our bylaws state the the board can appoint an assistant secretary or assistant treasurer to the board. This would allow a voting interest and put the current board with an even number of directors. The bylaws state that there has to be an odd number of directors. They are in violation of the bylaws.

All because of an issue about how the minutes of the meetings are documented.....

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Jim

We had a Secretary resign from the position and the BOD as several of us criticized his minutes as being his personal wish list and/or his own editorial comments/narrative versus actual business.

Curious what your issues were.

JimH29 (Florida)
Posts: 63

Posted:

Our bylaws are as follows:

Article II Directors

Section 1 Number and Term:
"The number of Directors, which shall constitute the whole Board, shall be an odd number not be less than three nor more than seven. All Directors shall be members of the Association. Within the limits above specified, the number of Directors shall be determined by the Members at the annual meeting of the membership. At each annual meeting the members shall elect from among the membership Directors for a terem of three years each or until their successor shall be elected and shall qualify. The officers: President, Vice President, Secretary abnd Treasurer shall be elected by the Board of Directors after each annual meeting. The election process shall be by secret ballot. The Assistant Secretary and Assistant Treasurer shall be elected or appointed as needed by the Board of Directors".

Section 2 Vacancy and Replacement

Section 3 Removal

Section 4 Powers

Section 5 President and Vice President

Section 6 Secretary/Assistant Secretary:
"The Secretary and/or Assistant Secretary shall attend all sessions of the Board and all meetings of the Members and record all votes and the minutes of the proceedings in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give or cause to be given, notice of all meetings of the Members and special meetings of the Board of Directors and shall perform such other duties as may be prescribed by the Board of Directors or the President. He shall keep the seal of the Association and when authorized by the Board, affix the same to any instrument requiring it, and when so affixed, it shall be attested by his signature or the signature of the Assistant Secretary. The Assistant Secretary shall, in the absence of the Secretary, perform such other duties as the Board of Directors shall prescribe."

Section 7 Treasurer/Assistant Treasurer

Section 8 Indemnification of Corporate Officers

Section 9 Resignations

JimH29 (Florida)
Posts: 63

Posted:

Is that provision in your bylaws?

JimH29 (Florida)
Posts: 63

Posted:

our bylaws state: "Assistant Secretary and Assistant Treasurer shall be elected or appointed as needed by the Board of Directors".

My point is that the current secretary put his hand up and said I will be secretary but will not do the minutes of the meetings. He was elected to the Board and was elected by the Board to be secretary. He shouldnt be able to pick and choose what responsibilities he will do as secretary.

The bylaws do not state that the assistant secretary does or does not have voting rights. Sicne the board can consist of up to seven members, when the board appoints another member of the association, they are appointing them to the board with voting rights. I dont see it any other way. If they want to eliminate voting rights of apointed members, they should work to amend the bylaws and let the community decide by majority vote. Just saying....

See other post on more detailed verbage on Directors....

JimH29 (Florida)
Posts: 63

Posted:

JimH29 (Florida)
Posts: 63

Posted:

There is one board member who wants a who, what, when, where, how and why description of every item on the agenda. The man that is the secretary only wants to identify actions taken by the BOD to include motions, who spoke the motion, who seconded the motion and votes.

KerryL1 (California)
Posts: 14,550

Posted:

The man who is secretary is correct. I don't blame him for not wanting to take minutes. Minutes should only state what is done, not what is said. Have Mr. Blow-by-Blow show the board sample minutes written the way that he wants from a reliable source. Though a CA website check davis-stirling.com's Main Index about Minutes. I'm pretty sure they have a very nice sample

the thing is, as pointed out by other, you CAN get someone to be the OFFICER called assist. sec'y and they do NOT have to be a director. You still your numbers of directors at an odd number.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By JimH29 on 01/31/2019 3:03 PM
The bylaws do not state that the assistant secretary does or does not have voting rights. Sicne the board can consist of up to seven members, when the board appoints another member of the association, they are appointing them to the board with voting rights.

-- Your Bylaws say that the HOA members determine who is a director.

-- Your Bylaws also do not state that a HOA member who is neither an officer nor a director does or does not have Board voting rights. Does that mean that every single HOA member has voting rights at Board meetings? No.

-- The Board is not appointing another director. It is appointing an assistant secretary.

-- Kerry is right about the way Minutes are supposed to be done. Robert's Rules says similar. Putting every word spoken into the Minutes inhibits directors speaking freely. On important topics, this is a bad thing.

GenoS (Florida)
Posts: 4,276

Posted:

Jim's OP contains at least one significant error and/or misunderstanding in each of the first 3 paragraphs. Just sayin'.

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