BOD is not really a BOD

Hello,

Our BOD recently sent us a notice of meeting (US Mail) for a special assessment for painting the buildings. Not all of the homeowners received this notice and it wasn't displayed in a prominent location 48 hours in advance (I know, broken rule). During this meeting I asked specific questions regarding the financials and the reserves and was told I would need to make a formal request for these documents (I have). And so I began, what I will call a very lengthy and interesting journey into what an HOA board of Directors can and cannot do and what they should do and shouldn't do. What I have discovered is unnerving. Apparently we have only three individuals on the board. One is a Director and was elected by the Members to be the President. One is a Member and was elected to the board by the Director/President to serve the board with no title and one I think is just a Member with the title of Secretary/Treasurer. I am still waiting on proof that she is a Director. Here is the thing. Our Bylaws require a minimum of three (3), but no more than five (5) Directors to be elected by the Members. And the Directors govern the Association and may elect other Members to be officers or serve the board. If only one of them is a valid, elected Director and the other two were elected by the Director (not the Members) that means that those two cannot vote on BOD business, right? And that would also mean that they do not have a quorum at any of these meetings they have been having, correct? The President insists that they all have a vote and they only need the two people (regardless of status) to have a quorum. She stated that she does not use the term "Director". This is not in line with everything I have read. Can anyone help me with clarification on this?

Nationwide, HOA Bylaws usually state that the Board, and not the membership, elects the President from among the directors. Please check your Bylaws and report back what they say on this point.

Is this a condo or non-condo?

Do you know whether your HOA/condo is subject to Florida Statute 718 or 720?

Is the developer still in control?

Are annual elections occurring?

When was the last annual election?

Usually what happens if not all board positions are filled, the existing board members appoint others to fill the open positions. These appointed board members are as valid as ones elected by the membership, and they may vote on all business that comes before the board.

Officer positions are different. Usually officers are board members and they vote as board members, but occasionally boards may appoint other homeowners to fill officer positions (these officers-but-not-board-members do not vote).

So... Homeowners elect board members. Board members may appoint others to fill open board positions if necessary. Board members decide who will fill the officer positions - the officer positions may or may not have to be board members depending on your bylaws. Only board members vote on board business, regardless of whether they hold officer positions or not.

Of course if your bylaws say something different and do not contract Florida law, then nevermind...

I think my confusion is in the difference between Directors and board members/officers.

The main differences between Directors and Officers are outlined below:

Directors (also known as Board Members)

Usually 3 or 5.
Elected by the homeowners.
Allowed to vote on Board issues.
Authority to appoint Officers.
Can usually be removed by homeowner approval.

Officers

Typically include four positions: President, Vice President, Secretary, and Treasurer.
Elected by the Board.
Required to have a President and Treasurer.
Unable to vote on Board issues unless also a Director.
Usually removed by a vote of the Board of Directors.

What am I missing?

I guess I am missing the part where the Bylaws or FL Statues say that the Directors can elect other Directors without a Membership vote.

If an elected Director can just "elect" other Directors, what is the point of an annual election meeting? (scratching head)

Our Bylaws state:

Section 4. Directors
4.1 Membership: The affairs of the Association shall be managed and governed by a Board of Directors (“the Board”) of not less than three (3) and in no event more than five (5) “Directors”, the exact number initially to be as set forth in the Articles, and thereafter, except as provided herein, to be determined from time to time upon majority vote of the membership.

4.2 Election of Directors: The election of Directors shall be conducted in the following manner:

Election of Directors shall be held at the annual Members’ meeting, except a provided herein to the contrary.

Nominations for Directors and additional directorships created at the meeting shall be made from the floor.

The election shall be by written ballot (unless dispensed with by majority consent of the Lots represented at the meeting) and decided by a plurality of the votes cast for each candidate. Each lot entitled to vote shall have a number of votes equal to the number of vacancies to be filled. No Lot may cast more than one vote for one candidate. There shall be no cumulative voting.

All Members of the Association shall be eligible to serve on the Board of Directors, and a Member may nominate himself as a candidate for the Board at a meeting where the elections is to be held.

720 does not reference the difference between Directors of the Board and Officers other than to govern certification of the Association's Declarations, Bylaws, Article of Incorporation and rules. And of course fidelity bonds, conflict of interest and felony theft or embezzlement.

-- In my opinion, you should ask the Board to call for nominations and run an election, and do it by mail if the board worries about an in-person meeting. If it refuses, you can request mandatory binding arbitration per 720.306 (9) (c). “Division” means the Division of Florida Condominiums, Timeshares, and Mobile Homes in the Department of Business and Professional Regulation. If you google some, I think you will turn up a web site with a form you can download to request arbitration.

The "Board" will probably resist. Also DBPR may not be too helpful during this pandemic.

-- FS 720 makes some distinction between officers and directors. For example:
720.3033 Officers and directors.—
(1)(a) Within 90 days after being elected or appointed to the board, each director shall certify in writing to the secretary of the association that he or she has read the association’s declaration of covenants, articles of incorporation, bylaws, and current written rules and policies; that he or she will work to uphold such documents and policies to the best of his or her ability; and that he or she will faithfully discharge his or her fiduciary responsibility to the association’s members. Within 90 days after being elected or appointed to the board, in lieu of such written certification, the newly elected or appointed director may submit a certificate of having satisfactorily completed the educational curriculum administered by a division-approved education provider within 1 year before or 90 days after the date of election or appointment.

-- Nationwide, sometimes Bylaws do allow a Board to select officers who are not members of the HOA. Such Bylaws just beg for amendment, in my opinion.

-- From experience with many here, you would likely benefit greatly from hiring an attorney to navigate the law on this and make your case.

Thank you. That does make sense. I will push for the election. I have already provided them with solutions to the COVID in-person situation. I am working with many of the homeowners on this and really needed the clarification.