Filling Vacant Board Seats in CA

ShannonM4 (California)
Posts: 30

Posted:

My board has 2 seats open right now after the election.

When they appoint board members to fill the additional seats, are they allowed to discriminate against a person based on their own likes or dislikes of an eligible person (in god standing, etc) who says they want to be a board member?

What if they do discriminate?

TimB4 (Tennessee)
Posts: 21,059

Posted:

Just as with the membership, those who sit on the board may cast a vote for whom they like based on whatever criteria the individual considers important to them.

Board members who vote to fill vacancies, are likely torn between the need to fill the seat vs if they could work with the individual who volunteered to fill the seat.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Shannon,

You mean choosing persons A and B, instead of C, D! E, and F because the board members want A and B?

That would be choice, not discrimination, right?

MichaelS56 (Minnesota)
Posts: 858

Posted:

Board have the option to select whom ever they would like to serve out the terms of the Board vacancies, as long as the new appointees meet the requirements to be able to serve on the Board.

JohnT38 (South Carolina)
Posts: 1,631

Posted:

Quote:

Posted By ShannonM4 on 12/23/2020 1:35 AM
My board has 2 seats open right now after the election.

When they appoint board members to fill the additional seats, are they allowed to discriminate against a person based on their own likes or dislikes of an eligible person (in god standing, etc) who says they want to be a board member?

What if they do discriminate?

I would rather have an empty seat than to appoint someone who will not work well with current members or has openly advocated for changes that do not align with the governing documents. I don't consider this discrimination and I would be careful throwing this word around.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By ShannonM4 on 12/23/2020 1:35 AM
My board has 2 seats open right now after the election. When they appoint board members to fill the additional seats, are they allowed to discriminate against a person based on their own likes or dislikes of an eligible person (in god standing, etc) who says they want to be a board member? What if they do discriminate?

First, from your description, what is happening is not "discrimination" in the sense "discrimination" is meant in Fair Housing law or really, any statute where the several protected classes (e.g. race, sex, color, national origin, religion, disability, familial status) are listed. Second, a Board may appoint whomever it wants, for whatever reason it wants, or it may choose to appoint no one.

A competent HOA/condo attorney will advise filling all seats with competent directors, if at all possible, for the Board's maximum legal protection.

ShannonM4 (California)
Posts: 30

Posted:

Quote:

Posted By GeorgeS21 on 12/23/2020 5:07 AM
Shannon,

You mean choosing persons A and B, instead of C, D! E, and F because the board members want A and B?

That would be choice, not discrimination, right?

No, if there are two seats vacant for several months and an eligible person asks to be on the board.

During the election, you can get elected with one vote from a single member of the HOA, and board members can vote for themselves.

It seems the existing board members should not judge a prospective member on anything except whether or not they are eligible to be on the board, since when a person runs, they do not get to choose then either, meaning they do not get to vote on who is and is not on the ballot based on their own prejudices or opinions of individuals.

ShannonM4 (California)
Posts: 30

Posted:

Quote:

Posted By AugustinD on 12/23/2020 8:46 AM

Posted By ShannonM4 on 12/23/2020 1:35 AM
My board has 2 seats open right now after the election. When they appoint board members to fill the additional seats, are they allowed to discriminate against a person based on their own likes or dislikes of an eligible person (in god standing, etc) who says they want to be a board member? What if they do discriminate?

First, from your description, what is happening is not "discrimination" in the sense "discrimination" is meant in Fair Housing law or really, any statute where the several protected classes (e.g. race, sex, color, national origin, religion, disability, familial status) are listed. Second, a Board may appoint whomever it wants, for whatever reason it wants, or it may choose to appoint no one.

A competent HOA/condo attorney will advise filling all seats with competent directors, if at all possible, for the Board's maximum legal protection.

Well... 3 board members, including the "president" openly mocked me for having a chronic and debilitating and disabling illness that caused me to be absent from meetings in the past, as well as verbally abused and slandered me during a public meeting last year, so there's that.
Can I say discriminate now?

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By ShannonM4 on 12/23/2020 9:37 AM
Well... 3 board members, including the "president" openly mocked me for having a chronic and debilitating and disabling illness that caused me to be absent from meetings in the past,

For the archives, I am going to comment on a few things here which may or may not be relevant to the OP's concerns.

-- First, arguably the (disgusting) mocking creates a hostile environment to someone who meets the definition of being disabled under the federal Fair Housing Act. (It's not a complicated definition. Still, problems arise when applying the definition in a lawsuit and so on.) The high school graduate, but oh so specially certified, intake staff at your regional HUD office would consider whether the mocking was sufficient to deprive you of your rights under Fair Housing Law. In my opinion, HUD offices are overwhelmed and have suffered extreme budget cuts under Trump. I believe they would reject a complaint that spoke only of mocking on a few occasions. It would be better to see an attorney than to rely on HUD to lift a frickin' finger on the behalf of someone who is disabled. Even if HUD does seem supportive after its statutory 100 days yada, it will be at least six months before HUD responds with any substance in support of the complainant.

--Second, in the situation where the person is already on the Board, via say an election of the membership: Under the federal Fair Housing Act, a HOA/condo is required to provide "reasonable" accommodation to those who are disabled. I am afraid I think a disabled person's frequently not being able to attend board meetings, presents quite a challenge. Meetings have to be open to the membership. The thoughts of the absent disabled person are not available in real time. More.

-- Third, when a vacancy arises, a Board can appoint anyone it wants, who meets the requirements in the Bylaws. Proving that one was turned down on account of disability would be quite difficult. Laypeople like to say, "No, it's easy to prove they did not want me on the Board because of my disability." No IT IS NOT.

-- I do not know if you were trying to be snarky, but I hope not. People here do the best they can using the information given, until that information is amended or added to. Those who post regularly here are volunteers with valuable experience. The long-time posters in particular give a lot of free time to researching or explaining legal issues involving HOAs, saving folks a lot of money in my opinion. The information the old-timers here often spares those with questions from having to pay an (often whore-like) attorney, or at least preparing the person better for a meeting with an attorney, and so saving money. Or sometimes, taking an FHA issue to HUD that is likely to go nowhere or if it does, it's just not worth the wait.

-- I am sorry for your suffering. FWIW, I would never, ever put up with someone degrading a disabled person at any board meeting. Not just for legal reasons. But because the lives of the disabled are hard enough. (I have had the "advantage" of having a Downs Syndrome sibling. Hence maybe I get things a tiny bit better than many?)

ShannonM4 (California)
Posts: 30

Posted:

Quote:

Posted By AugustinD on 12/23/2020 9:58 AM

Posted By ShannonM4 on 12/23/2020 9:37 AM
Well... 3 board members, including the "president" openly mocked me for having a chronic and debilitating and disabling illness that caused me to be absent from meetings in the past,

For the archives, I am going to comment on a few things here which may or may not be relevant to the OP's concerns.

-- First, arguably the (disgusting) mocking creates a hostile environment to someone who meets the definition of being disabled under the federal Fair Housing Act. (It's not a complicated definition. Still, problems arise when applying the definition in a lawsuit and so on.) The high school graduate, but oh so specially certified, intake staff at your regional HUD office would consider whether the mocking was sufficient to deprive you of your rights under Fair Housing Law. In my opinion, HUD offices are overwhelmed and have suffered extreme budget cuts under Trump. I believe they would reject a complaint that spoke only of mocking on a few occasions. It would be better to see an attorney than to rely on HUD to lift a frickin' finger on the behalf of someone who is disabled. Even if HUD does seem supportive after its statutory 100 days yada, it will be at least six months before HUD responds with any substance in support of the complainant.

--Second, in the situation where the person is already on the Board, via say an election of the membership: Under the federal Fair Housing Act, a HOA/condo is required to provide "reasonable" accommodation to those who are disabled. I am afraid I think a disabled person's frequently not being able to attend board meetings, presents quite a challenge. Meetings have to be open to the membership. The thoughts of the absent disabled person are not available in real time. More.

-- I am sorry for your suffering. FWIW, I would never, ever put up with someone degrading a disabled person at any board meeting. Not just for legal reasons. But because the lives of the disabled are hard enough. (I have had the "advantage" of having a Downs Syndrome sibling. Hence maybe I get things a tiny bit better than many?)

The mocking and verbal abuse and slander took place while i was a board member.
During the annual meeting recently, I nominated myself from the floor when they were asked for nominations, and another homeowner said they would like to vote for me to be on the board. According to several parliamentarians, if there were no other nominations and there were open seats at that time, and the person being nominated was eligible to be a board member, the Chair was supposed to call for any further nominations, and if there were none, they were supposed to simply announce that the person was elected.

What happened instead was that the chair called for a vote and asked the board members if they wanted me on the board. I have been told this was highly improper and should not have happened, since the Board itself does not have the authority to decide who gets to be on the board in this way. I said a few wrods about why I wanted to be on the board and ehat I had to contribute... and the Chair/President said "Do you buy that?" to the other board members, and then said "Me either" when one shook his head presumably... I was attending by phone due to covid, which was open for both board members and the membership to do.

I will add that I was publicly admonished several times for ttending by phone even though another board member was also attending that way and did not get admonished for it.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By ShannonM4 on 12/23/2020 10:26 AM
During the annual meeting recently, I nominated myself from the floor when they were asked for nominations, and another homeowner said they would like to vote for me to be on the board. According to several parliamentarians, if there were no other nominations and there were open seats at that time, and the person being nominated was eligible to be a board member, the Chair was supposed to call for any further nominations, and if there were none, they were supposed to simply announce that the person was elected.

I agree this would be appropriate. Some here may argue a few more i's needed to be dotted and t's crossed. Either way, you were duly elected to the Board.

Quote:

Posted By ShannonM4 on 12/23/2020 10:26 AM

What happened instead was that the chair called for a vote and asked the board members if they wanted me on the board. I have been told this was highly improper and should not have happened, since the Board itself does not have the authority to decide who gets to be on the board in this way.

Correct. Take this to IDR, then as needed ADR, then as needed to Court. To start, see https://www.davis-stirling.com/HOME/Internal-Dispute-Resolution

This will be a long battle. But in my opinion, the likelihood of further corruption is high. If you have the energy, pursue remedying this, if only to help others in the future.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Shannon

If there was a BOD Election being held and nominations from the floor are allowed, two things:

1.Can one self nominate?

2. If there was an open election and less are nominated than there are open positions on the BOD, those nominated are on the BOD and there is no need for voting including the BOD. Are you sure there was an open election happening?

When a BOD Vacancy exists the BOD does vote on filling the position thus one wanting said position might not be voted in by the BOD One does not get a position on the BOD by volunteering alone. They must be voted in by the BOD

ShannonM4 (California)
Posts: 30

Posted:

Quote:

Posted By JohnC46 on 12/23/2020 1:13 PM
Shannon

If there was a BOD Election being held and nominations from the floor are allowed, two things:

1.Can one self nominate?

2. If there was an open election and less are nominated than there are open positions on the BOD, those nominated are on the BOD and there is no need for voting including the BOD. Are you sure there was an open election happening?

When a BOD Vacancy exists the BOD does vote on filling the position thus one wanting said position might not be voted in by the BOD One does not get a position on the BOD by volunteering alone. They must be voted in by the BOD

1. yes

2. What do you mean by Open Election? Ballots were sent out with 5 names to fill a 7 seat board. During the nnual meeting, they called for nominations from the floor, and I nominated myself, plus another homeowner spoke up and said they wanted me to be a Board member as well, even though that was not necessary.

What you say is true: the board votes to appoint more board members, but only after the election is held during the annual meeting.
Volunteering, and if eligible, one vote is enough to get a person elected during the election (in a situation where there are more seats available than people running for them), and I had that... but they basically told me...after telling me the way I was nominated was "legal" and that I was a board member... after a 3 hour meeting that I fully participated in, that since there was no ballot with my name on it, I must not be a board member anymore after all.

If this was a rule, they failed to communicate it, or cite where they were getting it, but they hung up on me after saying the above, and this was after being admonished by the property manager for not submitting a ballot as a write in candidate... which is a completely different way to become a board member...

This was after 5 years of service, and I could not find any rule saying a nomination from the floor also had to be accompanied by a ballot... not in the bylaws or the state laws for CA.

JohnC77 (California)
Posts: 562

Posted:

Quote:

Posted By JohnC46 on 12/23/2020 1:13 PM
Shannon

If there was a BOD Election being held and nominations from the floor are allowed, two things:

1.Can one self nominate?

2. If there was an open election and less are nominated than there are open positions on the BOD, those nominated are on the BOD and there is no need for voting including the BOD. Are you sure there was an open election happening?

When a BOD Vacancy exists the BOD does vote on filling the position thus one wanting said position might not be voted in by the BOD One does not get a position on the BOD by volunteering alone. They must be voted in by the BOD

There is no election by acclamation uless the association is 6000 or more.

JohnC77 (California)
Posts: 562

Posted:

Quote:

Posted By JohnT38 on 12/23/2020 6:40 AM

Posted By ShannonM4 on 12/23/2020 1:35 AM
My board has 2 seats open right now after the election.

When they appoint board members to fill the additional seats, are they allowed to discriminate against a person based on their own likes or dislikes of an eligible person (in god standing, etc) who says they want to be a board member?

What if they do discriminate?

I would rather have an empty seat than to appoint someone who will not work well with current members or has openly advocated for changes that do not align with the governing documents. I don't consider this discrimination and I would be careful throwing this word around.

The Board has an obligation to fill a seat. The Bylaws will state the association SHALL be run by 3 5 or whatever number of directors. It doesn't say may have.

In this case, it is discrimination.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

I dunno ... perhaps just choice?

ShannonM4 (California)
Posts: 30

Posted:

Quote:

Posted By JohnC77 on 12/23/2020 7:55 PM

Posted By JohnC46 on 12/23/2020 1:13 PM
Shannon

If there was a BOD Election being held and nominations from the floor are allowed, two things:

1.Can one self nominate?

2. If there was an open election and less are nominated than there are open positions on the BOD, those nominated are on the BOD and there is no need for voting including the BOD. Are you sure there was an open election happening?

When a BOD Vacancy exists the BOD does vote on filling the position thus one wanting said position might not be voted in by the BOD One does not get a position on the BOD by volunteering alone. They must be voted in by the BOD

There is no election by acclamation uless the association is 6000 or more.

What law are you citing?

ShannonM4 (California)
Posts: 30

Posted:

Quote:

Posted By JohnC77 on 12/23/2020 7:59 PM

Posted By JohnT38 on 12/23/2020 6:40 AM

Posted By ShannonM4 on 12/23/2020 1:35 AM
My board has 2 seats open right now after the election.

When they appoint board members to fill the additional seats, are they allowed to discriminate against a person based on their own likes or dislikes of an eligible person (in god standing, etc) who says they want to be a board member?

What if they do discriminate?

I would rather have an empty seat than to appoint someone who will not work well with current members or has openly advocated for changes that do not align with the governing documents. I don't consider this discrimination and I would be careful throwing this word around.

The Board has an obligation to fill a seat. The Bylaws will state the association SHALL be run by 3 5 or whatever number of directors. It doesn't say may have.

In this case, it is discrimination.

It is a 7 person board, and only 5 ppl were on the ballot.

JohnC77 (California)
Posts: 562

Posted:

Quote:

Posted By ShannonM4 on 12/23/2020 10:29 PM

Posted By JohnC77 on 12/23/2020 7:55 PM

Posted By JohnC46 on 12/23/2020 1:13 PM
Shannon

If there was a BOD Election being held and nominations from the floor are allowed, two things:

1.Can one self nominate?

2. If there was an open election and less are nominated than there are open positions on the BOD, those nominated are on the BOD and there is no need for voting including the BOD. Are you sure there was an open election happening?

When a BOD Vacancy exists the BOD does vote on filling the position thus one wanting said position might not be voted in by the BOD One does not get a position on the BOD by volunteering alone. They must be voted in by the BOD

There is no election by acclamation uless the association is 6000 or more.

What law are you citing?

Civil Code §5100(g)

ShannonM4 (California)
Posts: 30

Posted:

I am not sure what you are saying...

According to the election rules, one vote should have gotten me a board seat.
I got two. I don't care about people clapping, but I do care that a vote was held by the Board members at an annual meeting to ask if they wanted me to be on the Board.

They do not get this choice-to say their preferences about a candidate... especially in a public annual meeting...

It was not proper and very humiliating... so are you saying people don't have to clap enthusiastically or?

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By ShannonM4 on 12/23/2020 11:24 PM
I am not sure what you are saying...

According to the election rules, one vote should have gotten me a board seat.
I got two. I don't care about people clapping, but I do care that a vote was held by the Board members at an annual meeting to ask if they wanted me to be on the Board.

They do not get this choice-to say their preferences about a candidate... especially in a public annual meeting...

It was not proper and very humiliating... so are you saying people don't have to clap enthusiastically or?

No, that's not what "vote by acclamation" means. It just means the ballots and other procedures do not have to be followed, and you should have been on the board instantly.

See https://www.davis-stirling.com/HOME/Statutes/Civil-Code-5100

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By AugustinD on 12/24/2020 7:17 AM

Posted By ShannonM4 on 12/23/2020 11:24 PM
I am not sure what you are saying...

According to the election rules, one vote should have gotten me a board seat.
I got two. I don't care about people clapping, but I do care that a vote was held by the Board members at an annual meeting to ask if they wanted me to be on the Board.

They do not get this choice-to say their preferences about a candidate... especially in a public annual meeting...

It was not proper and very humiliating... so are you saying people don't have to clap enthusiastically or?

No, that's not what "vote by acclamation" means. It just means the ballots and other procedures do not have to be followed, and you should have been on the board instantly.

See https://www.davis-stirling.com/HOME/Statutes/Civil-Code-5100

I agree. Either the BOD did not know what they were doing or on the fly, they were trying to keep Shannon off the BOD.

ShannonM4 (California)
Posts: 30

Posted:

Quote:

Posted By JohnC46 on 12/24/2020 10:53 AM

Posted By AugustinD on 12/24/2020 7:17 AM

Posted By ShannonM4 on 12/23/2020 11:24 PM
I am not sure what you are saying...

According to the election rules, one vote should have gotten me a board seat.
I got two. I don't care about people clapping, but I do care that a vote was held by the Board members at an annual meeting to ask if they wanted me to be on the Board.

They do not get this choice-to say their preferences about a candidate... especially in a public annual meeting...

It was not proper and very humiliating... so are you saying people don't have to clap enthusiastically or?

No, that's not what "vote by acclamation" means. It just means the ballots and other procedures do not have to be followed, and you should have been on the board instantly.

See https://www.davis-stirling.com/HOME/Statutes/Civil-Code-5100

I agree. Either the BOD did not know what they were doing or on the fly, they were trying to keep Shannon off the BOD.

If they were trying to keep me off the board by doing things this way, have the broken any laws, or just ignored the official proess outlined in the bylaws?

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By ShannonM4 on 12/24/2020 3:45 PM

If they were trying to keep me off the board by doing things this way, have the broken any laws, or just ignored the official proess outlined in the bylaws?

The law (common law and likely statute) requires the Board to comply with the Bylaws. Hence the Board has both failed to comply with the Bylaws and in doing so, also broken the law.