Is the HOA attorney correct in officer/director bylaws?

I think the COA attorney is confusing this and more. I reviewed the Bylaws you posted. There is nothing particularly unique about them. Many HOAs/COAs Bylaws say the same or close to the same.

First, the seat vacated by Director Jane may be filled at any time up to the next annual election via appointment by the directors. Competent COA attorneys nationwide favor filling the seat over not filling the seat, assuming someone qualified is willing and able.

Second, the board may vote to replace Director John as President at any time it desires.

This attorney appears to be either very new to COA law; very confused; not-a-COA-attorney; or incompetent.

The attorney's statement makes perfect sense to me (no confusion of board/director positions) if the directors term is 2 years or more. In other words:

Director John was voted by the board to be President after Director Jane departed.

Director Jane's position (as a director) will be filled for the remainder of her term at the next election.

Makes sense if Director Jane is not up for election anyway at the next election.

a) First and only College of Community Association Lawyers (CCAL)

b) I didn't post before that the attorney works for one of the Board of Directors.
This has been a big concern for me. But from asking around, the consensus is that the lawyer is not in any conflict of interest until someone sues the directors. Only then he would need to recuse himself?

If the HOA Attorney is advising the Board correctly then it is fine, but if he is not, then I need direction

Jane and John were on the Board at the same time.

There were 5.
Jane resigned. Then there were 4.

Thee most important question:

Do you have a board majority that wishes to get rid of John as President?Thanks for the credential. (I asked. You told.)

To his CCAL yada bona fide: Big deal.

I am on your side here, so far.I would call the conflict of interest right now, right this second, enormous. This attorney is making a call that favors his client John but also goes directly against the Bylaws of his other client, the COA.

You could certainly politely, sweetly ask, cc'ing the rest of the board, this "attorney" whether he feels that advising the board that it may appoint a new president conflicts with his duty to advocate for his personal client, John.

You could report this attorney to the bar, assuming you want to study the rules of professional conduct and bust his a-- in a very formal way. But this requires a lot of study; the ability to write well; and more. Then there's the almost guaranteed likelihood of retaliation by the attorney and the president. Count on the latter.

This:conflicts directly with this COA attorney's position as given here:

MaxB4, I am honestly not sure if you are posting while intoxicated. I think the thread speaks for itself. I stand by my position.

I’m still not savvy on the quote feature of this forum.

MaxB4: Officers are elected annually by the directors, it also appears directors are elected annually by the members.

JanineR: Agree.
Officers are are elected annually by the directors at minimum per the bylaws.
In reality, this does not happen.

MaxB4: “Jane, as a director, is out, both as a director and officer.”

JanineR: Completely agree.
But why would a new director voted in on the annual meeting by members, only have a limited term and not the usual two years of a director?
The attorney says ” [Director Jane’s] open board position will be filled through board member elections to fill the balance of her term as specified in Section 4, Paragraph C of the bylaws.”

MaxB4: “John, who was a director while Jane was on the board, was voted in by director by the board. Officer positions are elected annually by the board, but can be changed for whatever reason during the course of the year.”
JanineR: Agree. John was already a director. When Jane left, it's okay for four directors to continue until the next annual meeting or a special meeting per our Bylaws. And it is okay for them to shuffle up officer positions. But I disagree with the attorney when he says "[John’s] election to the office of President will stay intact until the next Annual Members meeting.” and quote the section of the bylaws that relates to directors not officers.
I disagree because changing of president is not reliant on the annual members meeting.

MaxB4: It is possible that the earliest time to fill Jane's position as director was at the upcoming annual meeting, as stated in the Bylaws.
JanineR: yes, that is the earliest opportunity. There is no time for a special meeting. But I question why one of the newly voted board is only allowed to serve for the "balance" of Jane's term as president? When it seems like a reset of director's term.

You should have been the Secretary writing the minutes.

Three people volunteered last year for two openings.
That is really impressive.

The management company of 11 years called no quorum, but later it turned out that they miscalculated the quorum.

The management company (for all these years) was counting the quorum as 51% but our governing documents are 30%.

It is not uncommon to have an election for an unexpired term. We do that for Congress. It may be for the balance of one year. It keeps everything in a regular cycle. I know Boards and attorneys screw up interpretation of how elections are run.

Too many boards think they are in the same officer position for the same period as director, not so.

I am conducting an annual meeting and election in California while in Michigan tonight, 6:00 PM PST. The association is 5 short of quorum, and the presiding will make a motion to adjourn to a later date. It will get voted down and the election will be over. If the members voted to adjourn, then quorum is cut in half and they have even ballots. Unfortunately, not enough people understand the rules for adjournment. So the election will be cancelled again.

If, boards are to elect officers at every annual meeting, what was wrong with the attorney's quote?

It should be done in conjuction and same time and date as the annual meeting of members. Sometimes it is done at the next board meeting while the board ponders or campaigns for that "coveted" officer position.

I don't see any confusion. If you only read the paragraph about officers, the Board of Directors (BOD) must elect the president every year. That implies that the term ends every year. It is silent on resignations so it makes sense (and is fairly standard) that the BOD would vote in a new president to finish the current term at which time the BOD must have another vote.

Our bylaws are almost identical but we use the term appointed instead of elected. Either are accurate since the BOD has to vote to appoint an officer.

Boards can replace an officer at any time via majority vote. The attorney stated that Director John is president until the next annual election. Wrong. Director John serves at the pleasure of a board majority.

The board can fill the seat vacated by Jane at any time. The question appears to be how long the director filling this seat serves? I cannot tell.

I cannot tell what JanineR's question is at this point. Does she object to Director John being president? Does she have a board majority that would like to remove him?

Clarification is needed.

So you're an attorney?

It is grossly inaccurate and misleading for either the Minutes or a COA attorney to say, "“Based on the opinion of [HOA Attorney], [Director John’s] election to the office of President will stay intact until the next Annual Members meeting... " Bullsh-t. The President serves at the pleasure of the board and may be replaced at any time.

As for the seat vacated by Jane, I await clarification of what it is JanineR wants to know.

If you think people should not play attorney here, and since you play attorney all the time, then you should quit posting here.

This site if open to anyone civil enough to not be booted off. I have a right to my opinion.

MaxB4, you and I agree that the President and other officers may be replaced at any time through a board majority vote.

MaxB4,you're the one insisting first, that the Minutes or COA attorney got it right but at the same time, the Minutes or the COA attorney got it wrong.

To answer some questions:

I’m not concerned that Jack was voted by the Board to be president officer after Jane resigned. That seems perfectly fine.

I’m okay if he stays in the position until the next annual meeting. At which time his term as a BOD is up anyway. But staying in that position has nothing to do with the annual meeting.

I am concerned that the attorney’s quote references that he stays in that position according to the Directors section of the Bylaws, instead of the Officer section. If he stays in that officer position until the next annual meeting, that’s up to the Board, but not to do with the annual member meeting and the bylaw section that he quoted.

The reason that I am concerned is that we have had the same board for years and years, and they all stay in the same officer position.
It seems to be the consensus from the Board and the MC that once you are on the Board you stay in the same officer position for two years, then the next two years, then the next two years.
But our bylaws say that there should be a board vote at minimum of every year, and can also be voted at any board meeting in between that time. Nothing to do with annual member meetings.

We’ve had the same Treasurer for 6 years. I was hoping that the attorney was going to shed some light to the Board and the Management Company that officer positions are not necessarily a two year term, and that members do not have any vote on officer positions. So I was disappointed when I saw this statement from the attorney.

Side note: When I post a question, it is not to get confirmation that I am right, it is to hear different points of view.

Side note 2: Why we have the same board year after year is another topic. It is not related to lack of people volunteering, or lack of quorum. That's for another post.

Context is everything. JanineR is clear that the board (mistakenly) thinks that it cannot replace officers at will, and that this has been a problem. Now she has to face off against a foolish COA attorney (who also -- huh -- represents John personally?) on the point.

1. How can the board be mistaken, they have the Bylaws, and she posted one part of them.

2. How do you know that is what the attorney said, and more importantly, how do you know the Secretary wrote the minutes?

It is two years.

"(b) At the first meeting of the members of the Association following the Developer Control Period three (3) persons {later amended to 5} shall be elected to serve as the Board of Directors. The term of office of those elected shall be two (2) years. The election shall be by ballot and by a plurality of the votes cast, each member voting must cast hos or her vote(s) for as many nominees as there are vacancies to be filled, but there shall be no cumulative voting.

Can they be recalled, or resign, or worse yet, die?

I am guessing that Jane was the president and resigned as president and director mid-year. The board voted John in, for how long? Attorney says until next election. If I were asked a question how long is this term done in mid-year, my answer would be until next annual meeting. If asked, can they be replaced at anytime, my answer would be what is in your Bylaws under Officers.

This is YOUR association, not ours. Someone on your side has to be the expert. You may get some good answers here, but there is more quality information out there on the web that someone has to do the research on.

Based on what you just posted, you have MUCH bigger issue than an attorney supposedly saying John is president until the next annual meeting.

Your local CAI Chapter for Tennessee is https://www.caitenn.org/. You can get some good HOA educational material there.