Annual meeting coming up, board is claiming only 2 of 4 seats are up for election

AdamL1 (UnitedStates)
Posts: 559

Posted:

So our CCR's say that board members shall be elected at each annual meeting or any special meeting called for that purpose. All the standard stuff.

However, our board is stating emphatically that only 2 of the 4 seats are up for re-election, in addition to refusing to hold an annual meeting for 2.5 years.

Thoughts on this? How to address?

KerryL1 (California)
Posts: 14,550

Posted:

Usually it's Bylaws that say things about annual meetings and elections--not CC&Rs.

They also say how long board members' terms are. Often it's for 2 years. What exactly do yours--probably bylaws-- say, Adam? Again, how long are Board member's elected terms in your HOA with exact citation, please.

How many directors do your Bylaws say your assn. should have?

MaxB4
Posts: 3,513

Posted:

My suggestion is find a property manager who can have access to all your documents. Every HOA that I have ever dealt with has their director and election information in their Bylaws, not their CCRs. If you get the information you're looking for, what are you going to do with it.

Here is a link to your local CAI email in Idaho, [email protected]. Apparently they are a new chapter and don't have any vendors online yet.

AdamL1 (UnitedStates)
Posts: 559

Posted:

Quote:

Posted By MaxB4 on 08/09/2021 8:20 PM
My suggestion is find a property manager who can have access to all your documents. Every HOA that I have ever dealt with has their director and election information in their Bylaws, not their CCRs. If you get the information you're looking for, what are you going to do with it.

Here is a link to your local CAI email in Idaho, [email protected]. Apparently they are a new chapter and don't have any vendors online yet.

Thank you Max. I actually have all the documents. Bylaws, CCR's, Articles, amendments, etc. I've processed then through an OCR and its now word-searchable. The docs say only 3 board members unless you amend (all the normal stuff), each to be elected to 1-year terms. There is nothing I've found that shows a change to the # of board positions.

This came up because the Annual Tax Filings show 4 board members, but our HOA has only presented itself as a 3-person board in the time I've been here. In fact, I have asked the Board Pres and the PMC directly several times what the deal is with the board positions and the only response I get is "there will be 2 positions up for election"

Interesting, another neighbor just stated that in the 2.5 years since the last annual meeting, there used to be 5 positions, 2 resigned, leaving 3 open spots, but only 2 will be elected at the next annual meeting.

All of this doesn't align with the stated HOA docs.

MaxB4
Posts: 3,513

Posted:

My suggestion, get them to someone who can get you proper guidance. While you may only have three directors, you could have more officers who aren't directors. For instance, your treasurer would be an officer, but not necessarily an director. Directors have voting power, officers don't.

The other issue is how are the Bylaws amended, is it by member vote or maybe just by the Board. If by board vote, they could be changing frequently and you might not even know it.

AdamL1 (UnitedStates)
Posts: 559

Posted:

Quote:

Posted By MaxB4 on 08/09/2021 9:18 PM
My suggestion, get them to someone who can get you proper guidance. While you may only have three directors, you could have more officers who aren't directors. For instance, your treasurer would be an officer, but not necessarily an director. Directors have voting power, officers don't.

The other issue is how are the Bylaws amended, is it by member vote or maybe just by the Board. If by board vote, they could be changing frequently and you might not even know it.

Agreed, the board has the ability to add/remove/appoint officers.
But the # of Board members "may be changed by amendment of the Bylaws" but no less than three.

So, we've got old members saying there used to be 5 board members, annual tax filings show 4 board members, and the current board is claiming there's only 3 board seats, 2 of which are up for election, despite each term being 1 year. Also, there are no records of amendments changing the board seat #'s.

I have records of several amendments, mostly to change things like fence requirements, driveways, easements, etc....but nothing about the quantity of board members.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Adam

Many Bylaws will say a BOD of 3 to 7 members with the BOD deciding how many. In our case we prefer 5 but we will run with less. We have gone as low as 3 and we are presently at 4.

AdamL1 (UnitedStates)
Posts: 559

Posted:

Quote:

Posted By JohnC46 on 08/10/2021 7:28 AM
Adam

Many Bylaws will say a BOD of 3 to 7 members with the BOD deciding how many. In our case we prefer 5 but we will run with less. We have gone as low as 3 and we are presently at 4.

agreed, but ours do not. It says minimum three and any increase/decrease must be through amendment of the bylaws.

Additionally, even if the # could change easily, they docs also state that all board positions are 1 year terms and must be elected at each annual meeting.

so, the board has failed to hold an annual meeting in 2.5 years and is telling people that only a few of the board seats are up for election.

any way you shake it, it seems rules are being broken.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By AdamL1 on 08/10/2021 7:31 AM

Posted By JohnC46 on 08/10/2021 7:28 AM
Adam

Many Bylaws will say a BOD of 3 to 7 members with the BOD deciding how many. In our case we prefer 5 but we will run with less. We have gone as low as 3 and we are presently at 4.

agreed, but ours do not. It says minimum three and any increase/decrease must be through amendment of the bylaws.

Additionally, even if the # could change easily, they docs also state that all board positions are 1 year terms and must be elected at each annual meeting.

so, the board has failed to hold an annual meeting in 2.5 years and is telling people that only a few of the board seats are up for election.

any way you shake it, it seems rules are being broken.

If you are serious about fighting these violations of the Bylaws, then the first step is to make a legal demand to the HOA to conduct an election consistent with what the Bylaws require. Do you know how to do this?

If you quote exactly (verbatim) what your Bylaws say on the subject of
-- director terms
-- number of directors
-- amending the bylaws
then I can help.

AdamL1 (UnitedStates)
Posts: 559

Posted:

-------------------------------------------------------------------------------------
Section 3.3. Annual Meetings .
The first annual meeting of the Corporation
shall be held during the month of April or May of the first calendar year following the
first sale of a Building Lot in the Property, at such time and place as specified by the
Board of Directors. Thereafter, the annual meetings of the Corporation shall be held
during the month of April or May of each year at such time and on such date as
specified by the Board of Directors . At each annual meeting there shall be elected
by ballot of the Members a Board of Directors in accordance with the requirements
of these Bylaws. At the first annual meeting, the Directors shall be elected to serve
until the second annual meeting, and at the second annual meeting, and annually
thereafter , Directors shall be elected for a term of one (1) year beginning with such
annual meeting. In the event that an annual meeting is not held, or the Directors
are not elected thereat, the Directors may be elected at any special meeting held for
that purpose. Each Director shall hold office until a successor has been elected or
until death, resignation, removal or judicial adjudication of mental incompetence.
The Members may also transact such other business of the Corporation as may
properly come before them at any such annual meeting.
-------------------------------------------------------------------------------------
Section 3.7. Order of Business.
The order of business at all meetings shall be
as follows: (a) roll call to determine the voting power represented at the meeting; (b)
proof of notice of meeting or waiver of notice; (c) reading of minutes of preceding
meeting; (d) reports of officers; (e) reports of committees; (f) election of Directors; (g)
unfinished business; and (h) new business. Meetings shall be conducted by the
officers of the Corporation in order of their priority.
-------------------------------------------------------------------------------------
Section 4.1. Number and Qualification.
The Property, business and affairs of
the Corporation shall be governed and managed by a Board of Directors composed of
at least three (3) persons, who need not be Members of the Corporation. Directors
shall not receive any salary or other compensation for their services as Directors;
provided, however, that nothing herein contained shall be construed to preclude any
Director from serving the Corporation in some other capacity and receiving
compensation therefor.
-------------------------------------------------------------------------------------
Section 4.3. Special Powers and Duties.
Without prejudice to such foregoing
general powers and duties, and such powers and duties as set forth in the Master
Declaration, the Board of Directors is vested with, and responsible for, the following
powers and duties:
(a) To select, appoint and remove all officers, agents, and employees of
the Corporation, to prescribe such powers and duties for them as may be consistent
with law, with the Articles of Incorporation, the Master Declaration, and these
Bylaws; to fix their compensation and to require from them security for faithful
service when deemed advisable by the Board of Directors.
-------------------------------------------------------------------------------------
Section 4.5. Elections and Term of Office.
At the first annual meeting of the
Corporation, and thereafter at each annual meeting of the Corporation, new Directors
shall be elected by written ballot by a Majority of Members present at such meeting
as provided in these Bylaws. The term of the Directors shall be for one (1) year. In
the event that an annual meeting is not held, or the Directors are not elected thereat,
the Directors may be elected at any special meeting held for that purpose. Each
Director shall hold office until a successor has been elected or until death,
resignation, removal or judicial adjudication of mental incompetence. Any person
serving as a Director may be re-elected, and there shall be no limitation on the
number of terms during which a Director may serve.
-------------------------------------------------------------------------------------
Section 4.7. Vacancies. Vacancies in the Board of Directors caused by any
reason other than the removal of a Director by a vote of the Members shall be filled
by vote of the majority of the remaining Directors, even though they may constitute
less than a quorum, and each person so elected shall be a Director until a successor
is elected at the next annual meeting, or at a special meeting called for that purpose.
A vacancy or vacancies shall be deemed to exist in case of death, resignation, removal
or judicial adjudication of mental incompetence of any Director, or in the case the
Members fail to elect the full number of authorized Directors at any meeting at which
such election is to take place.
-------------------------------------------------------------------------------------
ARTICLE IX BOARD OF DIRECTORS
The affairs of this Corporation shall be managed by a Board of three (3)
Directors, who need not be Members of the Association. The number of Directors
may be changed by amendment of the Bylaws' of the Corporation, but in no event
shall the number be less than three (3).
-------------------------------------------------------------------------------------
ARTICLE XIII AMENDMENTS
Amendments of the Articles [unreadable] less than three-fourths (3/4) of each class of
Members and, if required by the Master
Declaration, the consent of holders of first mortgages on Building Lot(s) who have
requested of the Corporation in writing to provide them notice of proposed action
which affects their interests. No amendment which is inconsistent with the
provisions of the Master Declaration shall: be valid.
-------------------------------------------------------------------------------------

AugustinD
Posts: 3,698

Posted:

AdamL1, thank you. But I do not think you quoted the section of the Bylaws that addresses amendments of the Bylaws. The Article XIII you quoted for amending looks like the amendment section for either the Articles of Incorporation or the CC&Rs.

Can you please check the Bylaws for an amendment section?

AdamL1 (UnitedStates)
Posts: 559

Posted:

Quote:

Posted By AugustinD on 08/10/2021 8:14 AM
AdamL1, thank you. But I do not think you quoted the section of the Bylaws that addresses amendments of the Bylaws. The Article XIII you quoted for amending looks like the amendment section for either the Articles of Incorporation or the CC&Rs.

Can you please check the Bylaws for an amendment section?

3.9 "Bylaws" shall mean the Bylaws of an Association.
--------------------------------------------------------------
ARTICLE XI BYLAWS
The Bylaws of this Corporation may be altered, amended, or new Bylaws
adopted at any regular meeting, or any special meeting of the Corporation called
for that purpose, by the affirmative votes of a majority of each class of Members.
--------------------------------------------------------------
BYLAWS OF [the HOA]
--> this goes on to state various "Articles".
Aritcle2: Voting, Quorum, Proxies
Section 2.2. Majority of Members. As used in these Bylaws, the term
"Majority of Members" shall mean those Members representing fifty-one percent
(51%) of the voting power of each class of Membership in the Corporation.
ARTICLE 3. ADMINISTRATION
place of meetings, annual meetings, special meetings, etc
ARTICLE 4. BOARD OF DIRECTORS
section 4.# listed previously.
4.1. Number of board
4.3 Special powers.
4.5 election
etc
ARTICLE 7. 'AMENDMENTS TO BYLAWS
These Bylaws may be amended by the Corporation at an annual meeting or at
a duly constituted meeting of the Corporation for such purpose as provided in the
Articles of Incorporation. No amendment to these Bylaws shall take effect unless
approved by at least a Majority of Members or such other percentage as herein
otherwise provided.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By AdamL1 on 08/09/2021 9:01 PM

This came up because the Annual Tax Filings show 4 board members, but our HOA has only presented itself as a 3-person board in the time I've been here. In fact, I have asked the Board Pres and the PMC directly several times what the deal is with the board positions and the only response I get is "there will be 2 positions up for election"

AdamL1, do the annual tax filings state officers, or directors? The difference is important. For most HOAs, the governing documents (Bylaws, CC&Rs, Rules and Regs, Articles of Incorporation) dictate that the membership elects directors. Directors in turn elect the officers.

AdamL1 (UnitedStates)
Posts: 559

Posted:

Quote:

Posted By AugustinD on 08/10/2021 8:50 AM

Posted By AdamL1 on 08/09/2021 9:01 PM

This came up because the Annual Tax Filings show 4 board members, but our HOA has only presented itself as a 3-person board in the time I've been here. In fact, I have asked the Board Pres and the PMC directly several times what the deal is with the board positions and the only response I get is "there will be 2 positions up for election"

AdamL1, do the annual tax filings state officers, or directors? The difference is important. For most HOAs, the governing documents (Bylaws, CC&Rs, Rules and Regs, Articles of Incorporation) dictate that the membership elects directors. Directors in turn elect the officers.

Good point, and agreed. Ours says the same. Members elect the director positions and then directors elect officers (Pres/VP/Secr/Treas/etc) and directors can double up as officers (which is usually the case).

I just checked again:
There's 4 names. One is "president", the other three are "directors." so this could be the case....however, the president has persistently represented herself as the President AND one of the remaining 3 directors. The Pres said one of the directors resigned. In addition, the President has stated "only 2 seats will be up for election".....and an old neighbor stated there used to be 5 directors.

its all quite opaque and neither the HOA board nor the PMC is cooperating in general info queries.

KerryL1 (California)
Posts: 14,550

Posted:

Looks like Art.IX is, indeed from the CC&Rs. If so, the HOA may only have three directors and no more. this despite the Bylaws say ring a "minimum" of 3 directors, which implies there can be more. It's probably that Bylaw that previous boards followed and so is why you see 4 director somewhere and have heard there were five.

What the board seems to doing that's wrong is staying the election will be only for 2 directors, when your Bylaws says I-year terms.

What do you think you can realistically do about this? Have owners received ballots yet and voting instructions? is this the Board that will have the annual meeting in a park & owners may attend by Zoom?

AugustinD
Posts: 3,698

Posted:

AdamL1,

I suggest you send a letter like the one below to the HOA. Send the letter certified mail, return receipt requested, to the HOA's registered agent. The Idaho Secretary of State web site, corporations section, should list the registered agent. The registered agent is usually the HOA manager.

-- Start Proposed "Demand Letter Lite" ---

Dear Board of Directors,

The Association's recent mailing to the membership asserts that only two director seats are up for election. However, per the Bylaws, there are exactly three directors on the board, and each director's term is exactly one year. At the end of this letter I cite these Bylaws.

Please prepare a new mailing, informing the membership that three directors will be elected at the upcoming meeting of the membership. If you do not intend to send this mailing to the membership, please let me know within three days of receipt of this letter, and please consider informing the HOA attorney of your intention not to comply with the Bylaws.

Thank you,

Adam L___
address
phone
email addie

Bylaws Article IV,Section 4.5. Elections and Term of Office.
"At the first annual meeting of the Corporation, and thereafter at each annual meeting of the Corporation, new Directors shall be elected by written ballot by a Majority of Members present at such meeting as provided in these Bylaws. The term of the Directors shall be for one (1) year. In
the event that an annual meeting is not held, or the Directors are not elected thereat, the Directors may be elected at any special meeting held for that purpose. Each Director shall hold office until a successor has been elected or until death, resignation, removal or judicial adjudication of mental incompetence. Any person serving as a Director may be re-elected, and there shall be no limitation on the number of terms during which a Director may serve."

Bylaws Article IX states:
"The affairs of this Corporation shall be managed by a Board of three (3) Directors, who need not be Members of the Association. The number of Directors may be changed by amendment of the Bylaws' of the Corporation, but in no event shall the number be less than three (3)."

Bylaws Article VII states:
"These Bylaws may be amended by the Corporation at an annual meeting or at a duly constituted meeting of the Corporation for such purpose as provided in the Articles of Incorporation. No amendment to these Bylaws shall take effect unless approved by at least a Majority of Members or such other percentage as herein otherwise provided."

I have found no amendments to the above Bylaw sections. Nor does the Board have the authority, on its own, to amend the Bylaws.

=== End Proposed Demand Letter Lite ===

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By KerryL1 on 08/10/2021 9:06 AM
Looks like Art.IX is, indeed from the CC&Rs. If so, the HOA may only have three directors and no more. this despite the Bylaws say ring a "minimum" of 3 directors, which implies there can be more. It's probably that Bylaw that previous boards followed and so is why you see 4 director somewhere and have heard there were five.

What the board seems to doing that's wrong is staying the election will be only for 2 directors, when your Bylaws says I-year terms.

KerryL1, thank you for reviewing all and posting your thoughts. I agree.

AdamL1, thank you for the elaboration and checking on officers vs. directors. It does sound like the board and officers are playing some games. Maybe the directors and officers do not themselves understand the difference?

I suggest the thread stay focused on the directors to be elected at the next annual meeting.

MaxB4
Posts: 3,513

Posted:

Hate to break it to you, but the referenced Article VIII and IX are from the Articles of Incorporation, not the CCRs.

AugustinD
Posts: 3,698

Posted:

Articles of Incorporation trump Bylaws.

AdamL1 (UnitedStates)
Posts: 559

Posted:

here's a summary.

Bylaw (Article 3, Section 3.3) & (Article 4, Section 4.5)
- Annual meetings required every year.
- Directors elected for 1 year term
- Elections to be held at each annual meeting or special meeting
Articles of Incorp (Article IX) & Bylaws (Article 4, section 4.1)
- there shall be minimum 3 Directors.
- # of Directors can increase/decrease by amending the Bylaws.
Bylaws (Article 7) & Articles of Incorp (Article XI & XIII)
- Bylaws may be amended at annual meeting or special meeting through majority vote

MaxB4
Posts: 3,513

Posted:

Quote:

Posted By AugustinD on 08/10/2021 10:42 AM
Articles of Incorporation trump Bylaws.

Actually, the Articles of Incorporation passed standing to the Bylaws, so the Bylaws now rules until the Articles are amended by 75% of the membership.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By MaxB4 on 08/10/2021 10:54 AM

Actually, the Articles of Incorporation passed standing to the Bylaws, so the Bylaws now rules until the Articles are amended by 75% of the membership.

Nah. This is your usual incompetent, seventh grade reading of a HOA's governing documents.

To stay on track, the goal here is for all directors seats to be up for election.

MaxB4
Posts: 3,513

Posted:

Quote:

Posted By AugustinD on 08/10/2021 11:19 AM

Posted By MaxB4 on 08/10/2021 10:54 AM

Actually, the Articles of Incorporation passed standing to the Bylaws, so the Bylaws now rules until the Articles are amended by 75% of the membership.

Nah. This is your usual incompetent, seventh grade reading of a HOA's governing documents.

To stay on track, the goal here is for all directors seats to be up for election.

So please tell Adam where you vast experience comes from. You don't sit on any boards, your haven't managed any HOA's, you're not a lawyer, you sit around all day reading case law and Googling?

AdamL1 (UnitedStates)
Posts: 559

Posted:

Quote:

Posted By MaxB4 on 08/10/2021 11:29 AM

Posted By AugustinD on 08/10/2021 11:19 AM

Posted By MaxB4 on 08/10/2021 10:54 AM

Actually, the Articles of Incorporation passed standing to the Bylaws, so the Bylaws now rules until the Articles are amended by 75% of the membership.

Nah. This is your usual incompetent, seventh grade reading of a HOA's governing documents.

To stay on track, the goal here is for all directors seats to be up for election.

So please tell Adam where you vast experience comes from. You don't sit on any boards, your haven't managed any HOA's, you're not a lawyer, you sit around all day reading case law and Googling?

Max, I'm not sure where this attack is coming from our what point you're trying to make here. This stuff isn't rocket science. Its straight forward. Why the confrontational tone here? Also, yes, I do have an interest in case law and reading and understanding. Would you prefer HOA members to sit in the corner with a dunce cap on?

the Rules say explicitly how the HOA is supposed to work.
The Board is acting in a manner that does not align with the rules.
Interested Members are trying to understand how or why this can happen, or if it really is a case of uninformed or bad board.

Again, what's your point and why the ad hominem?

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By MaxB4 on 08/10/2021 11:29 AM

So please tell Adam where you vast experience comes from. You don't sit on any boards, your haven't managed any HOA's, you're not a lawyer, you sit around all day reading case law and Googling?

Let's be real clear here: All that is needed to trump many of your arguments is graduation from a high school.

Quit hijacking threads. Help AdamL1 get this election run properly.

MaxB4
Posts: 3,513

Posted:

Quote:

Posted By AdamL1 on 08/10/2021 11:33 AM

Posted By MaxB4 on 08/10/2021 11:29 AM

Posted By AugustinD on 08/10/2021 11:19 AM

Posted By MaxB4 on 08/10/2021 10:54 AM

Actually, the Articles of Incorporation passed standing to the Bylaws, so the Bylaws now rules until the Articles are amended by 75% of the membership.

Nah. This is your usual incompetent, seventh grade reading of a HOA's governing documents.

To stay on track, the goal here is for all directors seats to be up for election.

So please tell Adam where you vast experience comes from. You don't sit on any boards, your haven't managed any HOA's, you're not a lawyer, you sit around all day reading case law and Googling?

Max, I'm not sure where this attack is coming from our what point you're trying to make here. This stuff isn't rocket science. Its straight forward. Why the confrontational tone here? Also, yes, I do have an interest in case law and reading and understanding. Would you prefer HOA members to sit in the corner with a dunce cap on?

the Rules say explicitly how the HOA is supposed to work.
The Board is acting in a manner that does not align with the rules.
Interested Members are trying to understand how or why this can happen, or if it really is a case of uninformed or bad board.

Again, what's your point and why the ad hominem?

Good luck, Augie and his sidekick Kerry will lead you down the straight and narrow.

AdamL1 (UnitedStates)
Posts: 559

Posted:

Quote:

Posted By AugustinD on 08/10/2021 11:34 AM

Posted By MaxB4 on 08/10/2021 11:29 AM

So please tell Adam where you vast experience comes from. You don't sit on any boards, your haven't managed any HOA's, you're not a lawyer, you sit around all day reading case law and Googling?

Let's be real clear here: All that is needed to trump many of your arguments is graduation from a high school.

Quit hijacking threads. Help AdamL1 get this election run properly.

FYI, one of the board members emailed me saying "There are currently three members on the Board (including me). FYI all the rules about the Board composition are set forth in the ByLaws."

hmmm....seems like a carefully chosen words.
There are currently three...
but one resigned last year, so was there 4 before or just 3 with a president separate?
did the president become a board member outside of meeting and election?
Why are tenured neighbors saying there are 5 seats and 2 resigned?
Why is any of this a conversation if the Bylaws explicitly say 3 members and there's been no amendments since?
Why are you telling me only 2 seats will be elected?
why won't you just answer the question?

Why is this so hard? Its like pulling teeth, intentionally being opaque.

Someone else wrote in another posts "HOA's should be boring," why does it seem these busybody HOA people like to cause problems?

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By AdamL1 on 08/10/2021 11:58 AM

Posted By AugustinD on 08/10/2021 11:34 AM

Posted By MaxB4 on 08/10/2021 11:29 AM

So please tell Adam where you vast experience comes from. You don't sit on any boards, your haven't managed any HOA's, you're not a lawyer, you sit around all day reading case law and Googling?

Let's be real clear here: All that is needed to trump many of your arguments is graduation from a high school.

Quit hijacking threads. Help AdamL1 get this election run properly.

FYI, one of the board members emailed me saying "There are currently three members on the Board (including me). FYI all the rules about the Board composition are set forth in the ByLaws."

hmmm....seems like a carefully chosen words.
There are currently three...
but one resigned last year, so was there 4 before or just 3 with a president separate?
did the president become a board member outside of meeting and election?
Why are tenured neighbors saying there are 5 seats and 2 resigned?
Why is any of this a conversation if the Bylaws explicitly say 3 members and there's been no amendments since?
Why are you telling me only 2 seats will be elected?
why won't you just answer the question?

Why is this so hard? Its like pulling teeth, intentionally being opaque.

Someone else wrote in another posts "HOA's should be boring," why does it seem these busybody HOA people like to cause problems?

I hear you. I find the guy's use of the word "currently" to be particularly amusing.

In my opinion the only thing on which you should focus is asking (demanding) that (1) the board consist of only three seats, consistent with the Articles of Incorporation; and (2) that an election be run this year to fill all three seats.

A little more ammo for you regarding there being exactly three seats, from the Idaho Nonprofit Corporation statute: Section 30-30-703 of the statute only permits a change to the Articles of Incorporation's stated number of directors via a vote of the owners. As interested, see https://legislature.idaho.gov/statutesrules/idstat/Title30/T30CH30/SECT30-30-703/

I think you are soaking the info from this and other threads up like a sponge. I expect you are well equipped to correct the letter I suggested above with the proper citations. Stay emotionless.

Sometimes boards respond meaningfully to letters like I propose (especially if the HOA attorney has competence). Sometimes not. I advise one step at a time.

I hope those bees are doing okay. Consider tattooing on each of them: "Approved by the City of Boise."

AdamL1 (UnitedStates)
Posts: 559

Posted:

Quote:

Posted By AugustinD on 08/10/2021 12:23 PM

Posted By AdamL1 on 08/10/2021 11:58 AM

Posted By AugustinD on 08/10/2021 11:34 AM

Posted By MaxB4 on 08/10/2021 11:29 AM

So please tell Adam where you vast experience comes from. You don't sit on any boards, your haven't managed any HOA's, you're not a lawyer, you sit around all day reading case law and Googling?

Let's be real clear here: All that is needed to trump many of your arguments is graduation from a high school.

Quit hijacking threads. Help AdamL1 get this election run properly.

FYI, one of the board members emailed me saying "There are currently three members on the Board (including me). FYI all the rules about the Board composition are set forth in the ByLaws."

hmmm....seems like a carefully chosen words.
There are currently three...
but one resigned last year, so was there 4 before or just 3 with a president separate?
did the president become a board member outside of meeting and election?
Why are tenured neighbors saying there are 5 seats and 2 resigned?
Why is any of this a conversation if the Bylaws explicitly say 3 members and there's been no amendments since?
Why are you telling me only 2 seats will be elected?
why won't you just answer the question?

Why is this so hard? Its like pulling teeth, intentionally being opaque.

Someone else wrote in another posts "HOA's should be boring," why does it seem these busybody HOA people like to cause problems?

I hear you. I find the guy's use of the word "currently" to be particularly amusing.

In my opinion the only thing on which you should focus is asking (demanding) that (1) the board consist of only three seats, consistent with the Articles of Incorporation; and (2) that an election be run this year to fill all three seats.

A little more ammo for you regarding there being exactly three seats, from the Idaho Nonprofit Corporation statute: Section 30-30-703 of the statute only permits a change to the Articles of Incorporation's stated number of directors via a vote of the owners. As interested, see https://legislature.idaho.gov/statutesrules/idstat/Title30/T30CH30/SECT30-30-703/

I think you are soaking the info from this and other threads up like a sponge. I expect you are well equipped to correct the letter I suggested above with the proper citations. Stay emotionless.

Sometimes boards respond meaningfully to letters like I propose (especially if the HOA attorney has competence). Sometimes not. I advise one step at a time.

I hope those bees are doing okay. Consider tattooing on each of them: "Approved by the City of Boise."

FYI, a picture of these deadly and vicious, marauding, nuisance bees harassing and threatening a barefoot 2 yearold.
https://imgur.com/a/4DZmbz3

KerryL1 (California)
Posts: 14,550

Posted:

Max wrote: "Actually, the Articles of Incorporation passed standing to the Bylaws..." I don't see that in Adam's citation. I'm not privy to th complete Articles in his HOA.

Adam, let GO of the # on previous Boards. It does not matter. for now, Austin's letter looks good. You want to focus on the fact that there should be 3 openings on the board for this election.

When citing your gov. docs, it's best to keep them separate and d cite them separately. It's also best to call each by their correct titles. "Rules" doesn't apply here.

WHEN is the election? Have owners received ballots?

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By AdamL1 on 08/10/2021 12:47 PM

FYI, a picture of these deadly and vicious, marauding, nuisance bees harassing and threatening a barefoot 2 yearold.
https://imgur.com/a/4DZmbz3

Hey, that's pretty amazing.

Except for what Boise ordinances say, I know nothing about beekeeping. But that looks like one serious, professionally built and maintained beekeeping system to me.

AdamL1 (UnitedStates)
Posts: 559

Posted:

The plot thickens. One of the board members seems to be responding.

Advice on responding further? It seems to me, piecing together from previous communications that they plan to only hold elections for 2 board seats, to bring the total to 5....and this person's response of "there is no misinformation, why would you say that."

-----------------------------------
Me:
"Good afternoon [hoa] board,

I have a question regarding the quantity of board positions in our HOA. From the 2020 Annual Filings, there appears to be 4 Board positions. [The PMC] previously said that [Person#4] left the board.

So to confirm, does our HOA board have 4 positions or 3 positions in total? Please let me know soon.

Sincerely,
me"
---------------------------------
Board Member:
"There are currently three members on the Board (including me). FYI all the rules about the Board composition are set forth in the ByLaws.

Regards,
Board Member"
---------------------------------
Me:
"Thank you for replying. Can you help me understand a little bit more though? There is a letter going around saying there used to be 5 board members but 2 resigned. [The PMC] said that there were 4 members but [Board#4] resigned, leaving 3.

Can you confirm how many board positions our Bylaws currently allow for? I am not asking how many active Board Members there are. I am asking how many total positions there are. I have read the Articles, Bylaws and CCR's in detail and see an allotment for 3 members unless changed through amendment, and I have not seen any amendments discussing changing the quantity of board seats. I am trying to get a correct understanding of our HOA, as there seems to be a lot of misinformation floating around.

I hope you can help me clear this up.
Sincerely,
Me

For reference in the HOA Docs:
Bylaw (Article 3, Section 3.3) & (Article 4, Section 4.5)
Annual meetings required every year.
Directors elected for 1 year term
Elections to be held at each annual meeting or special meeting
Articles of Incorp (Article IX) & Bylaws (Article 4, section 4.1)
there shall be minimum 3 Directors.
# of Directors can increase/decrease by amending the Bylaws.
Bylaws (Article 7) & Articles of Incorp (Article XI & XIII)
Bylaws may be amended at annual meeting or special meeting through majority vote"
---------------------------------
From Me, following up:
"I guess to shorten the previous email, as a new homeowner trying to understand our HOA, I'm looking for confirmation that our Board consists of exactly 3 positions and that an election to fill each and all of these three seats will occur on Aug19th, consistent with our Articles of Incorporation and Bylaws.

Can you please confirm this? I'm looking to you as our HOA board to help inform new members and remove all of this uncertainty and misinformation.

Sincerely,
Me"
---------------------------------
from Board Member:
"As I said our current Board consists of 3 directors. For your information, when I first joined this Board there were 5 directors and then there were two resignations. The ByLaws state that you must have a minimum of 3 directors. All I can do is refer you to the ByLaws regarding requirements for the number of directors. We will take nominees for the new Board and hold an election at the Annual Meeting on 8/19. We will need at least 3. The ByLaws are posted on Riverside's website. I don't think there has been uncertainty and misinformation and wonder why you would say that.

Regards,
[Board Member]"
---------------------------------

AdamL1 (UnitedStates)
Posts: 559

Posted:

this board member also emailed me directly:
--------------------------------
"It's [board member]. We've traded a few emails. I just thought I would reach out to you personally (as a neighbor and not as a Board member) as you actually live on my street! Sometimes it is better to just have a conversation because I feel things have gotten to a pretty weird place in our neighborhood and I would like to better understand where you are coming from. If you would like to talk sometime you can call me at ###-###-####.
------------------------------------

Several other neighbors have also all started asking these questions as well. I feel they are on damage control.

Advice on moving towards an in person conversation after the numerous issues we've had with this board? I would prefer to keep things in writing, but sometimes you just need to talk in person.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By AdamL1 on 08/10/2021 2:27 PM

Advice on moving towards an in person conversation after the numerous issues we've had with this board? I would prefer to keep things in writing, but sometimes you just need to talk in person.

-- Maybe you will gain an ally here.

-- Start the conversation with, "I just want to be clear about this conversation. Do correct me if I am mistaken. I know you do not -- you cannot-- speak for the board when you are having a one-on-one conversation with an owner. I realize anything you say here is only your opinion. Anything I say here is also only my opinion. I want to be a good neighbor."

-- Bring the Articles of Incorporation with you. Bring the Idaho statute section I cited above with you. Bring the Bylaws with you.

-- Ask

What is the number of directors the Bylaws authorize?

What is the number of directors the Articles of Incorporation authorize?

Are you aware that, in HOA law, there is a hierarchy of documents? In general, when there is a bona fide conflict between what Bylaws say and what the Articles of Incorporation state, the Articles of Incorporation trump the Bylaws? At least, this is my understanding.

-- Assuming this director says nothing that can logically contradict what the governing docs say, then try to plant a seed that the HOA is doing things wrong. The goal is to try to get this director talking to the other directors, hopefully seeing things as you do, or possibly agreeing that the HOA attorney needs to be consulted.

-- Ask similar questions about what the term is for a director.

AdamL1 (UnitedStates)
Posts: 559

Posted:

well, that went poorly. Nearly 60 minute phone call going round and round in circles. This BM's position can be summarized as "you new young families are stirring things up and causing problems. I'm an original owner and I'm so disappointed that you have the audacity to ask these questions. You are causing division in this neighborhood."

She basically dodged nearly all direct questions. She called these types of questions 'divisive' and in all her years, no one has ever asked for the financials. How dare I challenge and ask for them.
- why can't new members know who our Board is?
- Why can't new members see financials?
- Why can't new members read the minutes from previous meetings?
- Why can't the board just tell us how many board seats there are and how the election works?
- why aren't we scheduling a meeting in 2.5 years?
- why won't the board hold hearings and discuss alleged violations instead of sending anonymous threats?
etc.
- why can't the board just engage and converse with members when there are serious questions?

Regarding the board seat question specifically, she kept saying "what's your goal here? You just want to know how many seats there are so you can get us off the board."
-wow, ok. that's quite presumptive. I'm genuinely trying to understand how this thing works and you're stonewalling me, then calling me divisive.

This BM insisted that "there is no limit to the # of board members and nothing in the rules says it has to change. some years there's 3, some years there's 5. She then read the docs:

Articles of Incorp: Article IX:
"The number of Directors may be changed by amendment of the Bylaws' of the Corporation, but in no event
shall the number be less than three (3)."
Bylaws: Article 4:
- the board must be at least three.
- no statement about changing the quantity

She continued to insist "MAY be changed by amendment. MAY. MAY. This means that its optional to amend. It says MAY in the Articles, not the bylaws. There's no requirement to amend them. All we do is take all the nominations and they stand up and we vote them in. There's no set number, it just has to be at least 3.

--> OK, I can follow your logic, but couldn't you and the Prez just tell us that? All you keep saying is a different number and to read the Docs....and then you call us divisive when we tell you there's misinformation and confusion.

So, AugustinD. What's your take on this "MAY" clause. This Board is clinging to: We can elect any number of board seats we want, we don't need to amend anything, and we won't be tied down to a fixed # of seats.

AugustinD
Posts: 3,698

Posted:

AdamL1,

-- To me, the key phrase in the Articles (which trump the Bylaws legally) to me is "by amendment." The only way to amend the Articles, when it comes to changing the number of directors, is by a vote of the owners. The only way to amend the Bylaws is by vote of the owners.

-- More ammo from the Idaho Nonprofit Corporation Act:
"30-30-302. GENERAL POWERS. Unless its articles of incorporation provide otherwise, every corporation has perpetual duration and succession in its corporate name and has the same powers as an individual to do all things necessary or convenient to carry out its affairs including, without limitation, power:
...
(2) To make and amend bylaws not inconsistent with its articles of incorporation or with the laws of this state, for regulating and managing the affairs of the corporation;"

-- Do you feel good about drafting another letter about the number of directors and their term? Or would you like me to give you the latest version? These letters now write themselves.

-- The only value of this conversation with the BM (board member; director) is to know that she is batty and incapable of reasoning; and incapable of reading governing documents. If I had to bet, I would wager she does not know what "Articles of Incorporation" means. Her comments about your 'audacity' yada disgust me. Madam Director, either comply with the governing documents, or shut up.'

-- The courts are pretty darn consistent in ruling for members/shareholders who ask for records to which they are lawfully entitled. Denials occur only over finer points, like reviewing attorney-client privileged records (not allowed). Legislators nationwide did not write statutes on records inspections by members/shareholders just to be cute. You are a shareholder in a part of the HOA corporation. You have every legal right to see those financials allowed by statute or covenant to help monitor the proper running of the corporation. Let me know if you want to get serious about records review.

-- These battles are brutal. You have the beekeeping battle going on already. I hope you are waiting for the Board to make its next move and sleeping okay about the beekeeping for now. You can send another demand letter about the number of directors and term, and inspecting records as well if you want. If the Board refuses to cooperate, you send a second demand letter, this time threatening suit. As needed, you can proceed to court pro se, but this is a risk. Any competent attorney (and in this case, possibly incompetent HOA attorney) can tie you up with discovery and case law that may be overwhelming to a non-attorney.

-- Hiring an attorney would be best. For a few thousand dollars of back-and-forth from your attorney to the HOA attorney, you may very well get the board to comply with its governing documents regarding the one-year terms and number of directors.

AdamL1 (UnitedStates)
Posts: 559

Posted:

Quote:

Posted By AugustinD on 08/11/2021 6:57 AM
AdamL1,

-- To me, the key phrase in the Articles (which trump the Bylaws legally) to me is "by amendment." The only way to amend the Articles, when it comes to changing the number of directors, is by a vote of the owners. The only way to amend the Bylaws is by vote of the owners.

Agreed, and I think this BM agrees there too. If you want to change the bylaws, then you need a vote.

However, their position is that the act of changing the bylaws is optional. "MAY"....they are interpreting this to mean optional. If you want more board members, you can just do it, or you can amend the bylaws.....totally effed.

I'm pretty sure the proper legal interpretation is:

- changing the qty of board members is optional. We don't have to do it. not imperative.
- However, if you do want to change the qty of seats, then you must do it through amendments.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By AdamL1 on 08/11/2021 7:31 AM

However, their position is that the act of changing the bylaws is optional. "MAY"....they are interpreting this to mean optional. If you want more board members, you can just do it, or you can amend the bylaws...

Thank you for re-stating this director's (and I guess, the Board's) argument. Now I see what she is saying. But she (and the Board) are ignoring the Articles of Incorporation's statement that, "The affairs of this Corporation shall be managed by a Board of three (3) Directors, who need not be Members of the Association."

The "shall" is powerful. What the Idaho Nonprofit Corporation Act says about how the number of directors, as given in the Articles, can only be changed by a vote of the owners is powerful.

On the one hand, if you are saying that the Board now has something it can use to make life for you more difficult in, if push comes to shove, a lawsuit against the HOA, then I agree.

On the other hand, the conflict of one provision of a legal document or statute with a provision of another legal document or statute is a big subject in the law. Is there a conflict between the Articles of Incorporation and the Bylaws? Yes, I think it's clear there is a conflict. (The Board will say there is not, but when they do, they are ignoring the "shall" sentence in the Articles of Incorporation.) Nationwide the rules of construction say that the Articles of Incorporation trump the Bylaws. The Bylaws clause on the number of directors should be nullified. At least, that's how I would rule if I were the judge. But I'm not the judge. Real life says it's all a gamble, with the only guarantee is this will cost a lot of money and time to one or both sides.

I may seek some Idaho case law to help in your decision-making and my thought process.

I would continue to focus on the one-year terms. Has the board given a counter argument to your argument that all seats must be open for election each year?

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By AdamL1 on 08/11/2021 7:31 AM

I'm pretty sure the proper legal interpretation is:

- changing the qty of board members is optional. We don't have to do it. not imperative.
- However, if you do want to change the qty of seats, then you must do it through amendments.

I also agree with your reasoning above, with the added caveat that, by statute and per the Bylaws rules for amending, the amendment must be done by a vote of the owners.

AugustinD
Posts: 3,698

Posted:

AdamL1, can you check the Bylaws, CC&Rs, and Articles of Incorporation for statements about resolving conflicts between, say, Bylaws and CC&Rs; Bylaws and Articles of Incorporation; et cetera, and report back here any of these statements?

AdamL1 (UnitedStates)
Posts: 559

Posted:

Quote:

Posted By AugustinD on 08/11/2021 8:22 AM
AdamL1, can you check the Bylaws, CC&Rs, and Articles of Incorporation for statements about resolving conflicts between, say, Bylaws and CC&Rs; Bylaws and Articles of Incorporation; et cetera, and report back here any of these statements?

will look later.

FYI, here's a comment from a lawyer/judge friend of mine:

"From a very quick read, I think the number of board members is fixed at 3 unless there is an amendment (Art. 9 Articles). I'm typically with her [the BM] on the "may" v. "shall" but to read the may to allow the board to change the number of members without an amendment of the bylaws renders the language may be changed "by amendment of the Bylaws of the Corporation" meaningless. That is highly unusual in statutory or contract construction. The goal is to give clear meaning to all of the words. To the extent there is any conflict between the Article and the Bylaws the Articles control ( Art 9 Bylaws and its pretty standard to defer to the organic act of a corporation).

I think the real problem is that they conflate Board of Director members (Art 4. Bylaws) with Officers (Art. 5 Bylaws) and don't draw any distinction. The Board has the power to appoint officers but there is no provision for an owner vote regarding the officers.

Yes, the next question is can [the BM] serve as a Board Member and Officer? I don't see any explicit limitation in the articles or bylaws and it probably makes sense to have the president also be a Board member based on the wide duties granted to the Board. On balance, there is a potential conflict if the Board (non-compensated) is appointing themselves to the Officer (compensated) positions.

We need three board members. We also need a minimum of four officers (President, Vice President, Secretary, Treasurer). Multiple roles allow those officer positions to be taken by no less than three people (Vice President may also be the Treasurer).
"

AugustinD
Posts: 3,698

Posted:

I think the following sections of the Idaho Nonprofit Corporation Act are the legal argument for the Articles of Incorporation trumping the Bylaws:

"30-30-206. BYLAWS. (1) The board of directors or members of a corporation shall adopt the initial bylaws for the corporation.
(2) The bylaws may contain any provision for regulating and managing the affairs of the corporation that is not inconsistent with law or the articles of incorporation.
(3) The patrons of a cooperative corporation, by dealing with the corporation, acknowledge that the terms and provisions of the articles of incorporation and bylaws, as well as policies, rules and regulations, shall constitute and be a contract between the corporation and each patron, and both the corporation and the patrons are bound by such contract, as fully as though each patron had individually signed a separate instrument containing such terms and provisions.

30-30-302. GENERAL POWERS. Unless its articles of incorporation provide otherwise, every corporation has perpetual duration and succession in its corporate name and has the same powers as an individual to do all things necessary or convenient to carry out its affairs including, without limitation, power:
...
(3) To make and amend bylaws not inconsistent with its articles of incorporation or with the laws of this state, for regulating and managing the affairs of the corporation;"

The Bylaw on the number of directors is inconsistent with the Articles of Incorporation. Hence per the Idaho Nonprofit Corporation Statute, the Bylaw on the number of directors is invalid. (I know: The Board will continue to argue otherwise.)

Idaho's case law is minimal in general (due to a small population). The case law turns up nothing regarding a conflict between the Articles of Incorporation and Bylaws. Regardless, the statute sections above say it all, in my opinion: Articles of Incorporation trump Bylaws.