JohnK40 (West Virginia)
Posts: 59
Posts: 59
Posted:
When there is a conflict between By-Laws and State Code ... what takes precedence?
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By-Laws and State Code
Started by JohnK40 • 16 replies • 636 views
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PestY
Posts: 128
Posts: 128
Posted:
Unless State Code defers to Bylaws the actual Code, ie. LAW, takes precedence.
RichardP13 (California)
Posts: 3,868
Posts: 3,868
Posted:
If there were another way to removal a director other than what the State Corporation code states, than it would state "unless" there is a higher or lower standard. I would be curious if this were one of the section that was amended in 2018. It appears the new "dictators" are trying to circumvent the rules to their benefit.
JohnK40 (West Virginia)
Posts: 59
Posts: 59
Posted:
Note By-Law reads ... 4.13 Any Director can removed with or without cause. .... bla bla bla ... c) During the corporation off-season (time of closure of and opening of Park) the Board Of Directors may remove a Director for cause only. For By-Laws cut and paste this link in your browser.
Note WV Code reads ...
West Virginia Code §31E-8-809. Removal of directors by members or directors.
(b) If a director is elected by a class of members only the members of that class may participate in the vote to remove him or her.
§31E-8-843. Resignation and removal of officers.
(b) A board of directors may remove any officer at any time with or without cause.
NOTE Articles of Incorporation. I read them as WV Code takes precedence. Looking for ANY opinion.
Hope this helps get an answer. What takes precedence?
Complete Articles, cut and paste this link in your browser
https://www.riverbendrvpark.org/editor_upload/File/Governing/Articles%20of%20Incorporation.pdf
Note WV Code reads ...
West Virginia Code §31E-8-809. Removal of directors by members or directors.
(b) If a director is elected by a class of members only the members of that class may participate in the vote to remove him or her.
§31E-8-843. Resignation and removal of officers.
(b) A board of directors may remove any officer at any time with or without cause.
NOTE Articles of Incorporation. I read them as WV Code takes precedence. Looking for ANY opinion.
Hope this helps get an answer. What takes precedence?
Complete Articles, cut and paste this link in your browser
https://www.riverbendrvpark.org/editor_upload/File/Governing/Articles%20of%20Incorporation.pdf
TimB4 (Tennessee)
Posts: 21,059
Posts: 21,059
Posted:
Typical order of precedence:
Federal Law
Federal Regulations
State Law
State Regulations
County Codes
City Ordinances
Deed Restrictions (aka the Covenants)
Articles of Incorporation (if your Association is incorporated)
Bylaws
Resolutions (formal decisions made by the board, typical examples: architectural guidelines, common area rules, etc.)
If a lower document conflicts with a higher document, the higher document controls (is the one that must be followed).
Note: Often, higher documents will defer control to a lower document.
Some Examples:
Unless as otherwise provided in [document name] . . .
Unless the [document name] provide otherwise, . . .
Federal Law
Federal Regulations
State Law
State Regulations
County Codes
City Ordinances
Deed Restrictions (aka the Covenants)
Articles of Incorporation (if your Association is incorporated)
Bylaws
Resolutions (formal decisions made by the board, typical examples: architectural guidelines, common area rules, etc.)
If a lower document conflicts with a higher document, the higher document controls (is the one that must be followed).
Note: Often, higher documents will defer control to a lower document.
Some Examples:
Unless as otherwise provided in [document name] . . .
Unless the [document name] provide otherwise, . . .
TimB4 (Tennessee)
Posts: 21,059
Posts: 21,059
Posted:
John,
Knowing this is related to your other posting, regardless of what document controls, if the board thinks it can remove a director, they will and that action will stick unless challenged in a court of law.
How much is this worth to you?
A letter from an attorney might have the board look into the matter (i.e. get their own legal opinion) which may or may not change their mind. This will likely cost you $300 to $600.
A full blown court case can be thousands.
Again, how much is this issue worth to you?
Knowing this is related to your other posting, regardless of what document controls, if the board thinks it can remove a director, they will and that action will stick unless challenged in a court of law.
How much is this worth to you?
A letter from an attorney might have the board look into the matter (i.e. get their own legal opinion) which may or may not change their mind. This will likely cost you $300 to $600.
A full blown court case can be thousands.
Again, how much is this issue worth to you?
KerryL1 (California)
Posts: 14,550
Posts: 14,550
Posted:
JohnK wrote: "Note WV Code reads ...
West Virginia Code §31E-8-809. Removal of DIRECTORS by members or directors.
(b) If a DIRECTOR is elected by a class of members only the members of that class may participate in the vote to remove him or her.
§31E-8-843. Resignation and removal of OFFICERS
(b) A board of directors may remove any OFFICERS at any time with or without cause. [CAPS are KL's]
This seems very clear, but I wonder if there's some confusion between directors & officers, I.e. it appears the board has the authority to remove Marty from the OFFICE of secretary. The board does not have the authority to remove Marty as a DIRECTOR member of the board UNLESS the board appointed her as a director in the first place.
But "off season" vote by owners to remove her as a director?
I'm gonna have to go back to JohnK's OP.
West Virginia Code §31E-8-809. Removal of DIRECTORS by members or directors.
(b) If a DIRECTOR is elected by a class of members only the members of that class may participate in the vote to remove him or her.
§31E-8-843. Resignation and removal of OFFICERS
(b) A board of directors may remove any OFFICERS at any time with or without cause. [CAPS are KL's]
This seems very clear, but I wonder if there's some confusion between directors & officers, I.e. it appears the board has the authority to remove Marty from the OFFICE of secretary. The board does not have the authority to remove Marty as a DIRECTOR member of the board UNLESS the board appointed her as a director in the first place.
But "off season" vote by owners to remove her as a director?
I'm gonna have to go back to JohnK's OP.
JohnK40 (West Virginia)
Posts: 59
Posts: 59
Posted:
That is what I read ... the board has the authority to remove Marty from the OFFICE of secretary. The board does not have the authority to remove Marty as a DIRECTOR member of the board UNLESS the board appointed her as a director in the first place. Only the members of that class may participate in the vote to elect Marty can vote to her.
JohnK40 (West Virginia)
Posts: 59
Posts: 59
Posted:
It is not me. However I am will to take it forward ... don't know where to start. My inclination is take it as far as possible without ANY expenditure of $$$. OK, call it a bluff to hopefully get their association lawyer to take a look. I do have the means (Social Media and Web-page) to let the members know the removal was in error.
RichardP13 (California)
Posts: 3,868
Posts: 3,868
Posted:
Per the "published" board minutes
February 2018
Special Meeting for removal Buddy R and Marty R from Board
There is no misunderstanding. They may have illegally amended the Bylaws.
February 2018
Special Meeting for removal Buddy R and Marty R from Board
There is no misunderstanding. They may have illegally amended the Bylaws.
JohnK40 (West Virginia)
Posts: 59
Posts: 59
Posted:
Maybe so, however still do not understand why the WV Code does not trump the By-Laws. Maybe you can briefly explain. The Articles of Corporation point toward WV Code. WV Code makes a clear distinction between Directors and Officers. Marty could be removed as an Officer by the Board but it would take the voting class (that elected her as a Director) to remove her as a Director. Am I reading more into the WV Code than is really there?
JohnK40 (West Virginia)
Posts: 59
Posts: 59
Posted:
Note WV Code reads ...
West Virginia Code §31E-8-809. Removal of directors by members or directors.
(b) If a director is elected by a class of members only the members of that class may participate in the vote to remove him or her.
§31E-8-843. Resignation and removal of officers.
(b) A board of directors may remove any officer at any time with or without cause.
NOTE Articles of Incorporation. I read them as WV Code takes precedence. Looking for ANY opinion.
Hope this helps get an answer. What takes precedence?
Complete Articles, cut and paste this link in your browser
https://www.riverbendrvpark.org/editor_upload/File/Governing/Articles%20of%20Incorporation.pdf
West Virginia Code §31E-8-809. Removal of directors by members or directors.
(b) If a director is elected by a class of members only the members of that class may participate in the vote to remove him or her.
§31E-8-843. Resignation and removal of officers.
(b) A board of directors may remove any officer at any time with or without cause.
NOTE Articles of Incorporation. I read them as WV Code takes precedence. Looking for ANY opinion.
Hope this helps get an answer. What takes precedence?
Complete Articles, cut and paste this link in your browser
https://www.riverbendrvpark.org/editor_upload/File/Governing/Articles%20of%20Incorporation.pdf
KerryL1 (California)
Posts: 14,550
Posts: 14,550
Posted:
I think what Richard meat is that the board had no authority to remove Marty from the board. What they did is illegal. Do get an opinion from the HOA attorney in wiring.
SueW6 (Michigan)
Posts: 814
Posts: 814
Posted:
Bylaws can be more restrictive than local or state in voting thresholds.
For example non profit corporation law may call for a majority vote but your bylaws may demand a super majority 2/3 to pass something.
For example non profit corporation law may call for a majority vote but your bylaws may demand a super majority 2/3 to pass something.
RichardP13 (California)
Posts: 3,868
Posts: 3,868
Posted:
Per the Corporation Code, she could not be removed by the Directors. Who wrote the "off season" provision and who approved it? Where is the attorney in all of this?
A Board, anywhere, can do whatever they choose to do, UNTIL someone calls them on it or challenges them.
A Board, anywhere, can do whatever they choose to do, UNTIL someone calls them on it or challenges them.
RichardP13 (California)
Posts: 3,868
Posts: 3,868
Posted:
Quote:
Posted By RichardP13 on 08/17/2019 11:27 AM
Per the "published" board minutes
February 2018
Special Meeting for removal Buddy R and Marty R from Board
There is no misunderstanding. They may have illegally amended the Bylaws.
Per the "published" board minutes
February 2018
Special Meeting for removal Buddy R and Marty R from Board
There is no misunderstanding. They may have illegally amended the Bylaws.
I quoted from the smores.com site. They wrote a provision into the Bylaws and it appears the members approved, whether they knew what they were actually voting. It also might be that the members assumed it was on the up and up.
JohnC46 (South Carolina)
Posts: 14,265
Posts: 14,265
Posted:
As I understand it:
1. Officers of the BOD are elected solely by Members of the BOD.
2. Members of the BOD can call for a new election of Officers whenever they want to.
2a. BOD Officers not re-elected by the BOD are still BOD Members.
3. Some bylaws allow the BOD to remove someone from an Officer's position but the vote must be a majority of the BOD voting to do so. That person removed from an Officer's position is still a Member of the BOD.
4. Who appointed/elected a BOD Member can remove them.
4a. If a BOD Member was appointed to the BOD by the BOD, the BOD can remove him from the BOD.
4b. If a BOD Member was elected by the owners, only the owners can remove him from the BOD. The BOD cannot.
1. Officers of the BOD are elected solely by Members of the BOD.
2. Members of the BOD can call for a new election of Officers whenever they want to.
2a. BOD Officers not re-elected by the BOD are still BOD Members.
3. Some bylaws allow the BOD to remove someone from an Officer's position but the vote must be a majority of the BOD voting to do so. That person removed from an Officer's position is still a Member of the BOD.
4. Who appointed/elected a BOD Member can remove them.
4a. If a BOD Member was appointed to the BOD by the BOD, the BOD can remove him from the BOD.
4b. If a BOD Member was elected by the owners, only the owners can remove him from the BOD. The BOD cannot.
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