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AdamL1 (UnitedStates)
Posts: 559
Posted:

Looking for advise here. Currently, we are planning to hold a "Special Meeting" to vote to amend our bylaws directly before our annual meeting. Assuming the bylaws passes, how would one go into the annual meeting and motion to change the quantity of directors?

Also, I see that those first two sentences conflict with each other....where it says that the Board or the Members may change the qty but then the next sentence says only the Members may change....Thoughts?

Section 2.1 Number and Qualification. The affairs of the Association are managed and controlled by the Board. The authorized number of Board members may range from the current minimum of three (3) to a maximum of five (5) and may be fixed or changed from time to time, within the minimum and maximum, by the Members or the Board. Only the Members may change the range for the size of the Board or change from a variable-range size Board to a fixed size Board; provided, however, at no time may the minimum of the range or minimum number of fixed Board members be less than three (3). Further, no decrease in the number of Board members shall shorten the term of any incumbent Board member. Each Board member must be an Owner, or be an individual having an interest in an Owner, to the extent an Owner is a corporation, partnership, trust, limited liability company, or other legal form of entity. Should there be fewer than three (3) Board members, the remaining Board member or members may conduct such business as deemed necessary for the protection of the Association, which business shall include appointing as many Board members as are required to reach a minimum of three (3) Board members.
AugustinD
Posts: 3,698
Posted:
To review the Bylaw:
The authorized number of Board members may range from the current minimum of three (3) to a maximum of five (5) and may be fixed or changed from time to time, within the minimum and maximum, by the Members or the Board. Only the Members may change the range for the size of the Board or change from a variable-range size Board to a fixed size Board;

-- Interestingly at least two state statute sections (in Virginia and Tennessee) use the phrase:

within the minimum and maximum, by the Members or the Board.

and have similar, but more exacting IMO, verbiage like that in the OP's bylaw. Tennessee's is for LLCs. Virginia's is for nonstock corporations, meaning nonprofit corporations.

-- I am not sure I see a conflict. But I have spent enough time pondering this (with a darn good mathematical mind) that I loathe the wording here. This bylaw is easy to misinterpret. For one thing, I think it means that at each election; assuming no one has monkeyed with the range; and subject to (god help us) any staggered terms; five seats must be open. That the board may currently have only three directors is irrelevant when it comes to the annual election. (The average mortal person would never agree that this is a correct reading. But I think it is.)

-- The articles of incorporation trump the Byaws. What do the Articles of Incorporatin say? (Did you go over this once in the past? I cannot remember.)

-- AFAIC, the correct way to place a motion before the owners for the annual meeting is to ask the board to place this on the agenda and to send the agenda out pursuant to the notice requirements for the annual meeting. As I think you know, one cannot just show up at the annual meeting and make the motion and then expect the vote to be lawful.
AugustinD
Posts: 3,698
Posted:
Correction: Ask the President (not the Board) to place a vote on the proposed motion on the agenda. The Board has no power to determine the agenda of any owners' meeting, except when directors are wearing their owners' caps and ask, as owners, to have something placed on the agenda.
SheliaH (Indiana)
Posts: 6,964
Posted:
When I see proposed rule changes in government administrative codes, they usually ask for comments before the rule is revised. Sometimes changes are made, and if not, the agency will say something like "some people asked about X and here's why we are or aren't addressing that. It would be nice if your community can send out the final draft for review and people can ask about this in advance. Perhaps someone missed something and it can be fixed easily before the meeting (people have to vote on it anyway).

If that hasn't happened, do you know if there will be a Q & A portion where people can ask questions before the vote, or be able to submit questions in advance and everything be addressed during the meeting? It would be a great way to combine similar questions and address them at once before a vote is taken.

If you haven't asked the board about any of this, why not send them a letter or email (or ask the property manager to forward it to them)? You can also include a question asking if homeowners will be allowed to make motions during the meeting, and if so, how that should be done. If your question doesn't get addressed or answered before the vote and you can make a motion, do it at that time and see what happens.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
CathyA3 (Ohio)
Posts: 6,299
Posted:
I second the idea of having a comment period before voting.

Adam noted in a different thread that the proposed changes to the bylaws are extensive. This caught my eye. In some cases it's needed, such as in the case of an older community and state laws that have changed significantly. Or the current bylaws aren't working, for reasons X, Y, and Z.

But I'd be concerned about change for the sake of change in the absence of reasons X, Y, and Z.

For instance, we've seen questions from posters who are having problems dealing with a variable number of directors, particularly when the terms are staggered and may be of differing lengths. My sense is that this can cause more problems than it solves (and I don't remember ever hearing a reason in favor of the variable number, other than the ability to drop it down when there aren't enough candidates).

Condo communities in particular often have trouble filling all of their board seats, even for 3-person boards. For us, raising the number of director positions to 5, or just making the number variable, would serve no purpose other than creating more hoops to jump through.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Our Bylaws say a BOD of 3 to 7 Members but does not say how to decide how many. When we owners originally took over some 6 years ago, we agreed 5 was sufficient. We have operated as low as 3 and it worked fine for us. When we appoint someone to the BOD to fill a vacancy, our Bylaws do say the person appointed will fill out the term of who they are replacing. Yes, the term which could be for 2 years.
AdamL1 (UnitedStates)
Posts: 559
Posted:
I just want to clarify. This topic and post is not about the Special Meeting and comment period for the proposed amendment. We are scheduled to do the "Special Meeting for purpose of voting on the bylaws" directly before the annual meeting.

This post is assuming the bylaws amendment passes, then we roll into the annual meeting, how to get on to the agenda the motion/vote to set the qty of directors (currently at 3, pre-amendment.)
SheliaH (Indiana)
Posts: 6,964
Posted:
Why not wait until the vote - there's no guarantee it'll pass. Has it not occurred to you that all this could crash and burn because others may have concerns about voting for something this huge and are concerned people haven't had time to digest what the implications are?

I don't know how much apathy about HOA matters infests your community, but if you've read your documents, you probably know a certain percentage of homeowners are required to approve the changes. You could get lucky and not enough people show up to even vote.

At this point, I think I'd spend more time walking around the community, expressing concern about the speed in which all this is happening and encouraging my neighbors to show up and vote against the amendments. surely you can do that in 13 days, especially if you get likeminded people to help you.

Then you can push for a rescheduling of the vote. May has just started so there should be enough time for more review. You v Nineveh have to vote A-Rod n everything - start with the most important issues. in this case, the number of board members probably should be addressed sooner rather than later, and then make oh can make your case.


If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
AdamL1 (UnitedStates)
Posts: 559
Posted:
Quote:
Posted By SheliaH on 05/04/2022 2:28 PM
Why not wait until the vote - there's no guarantee it'll pass. Has it not occurred to you that all this could crash and burn because others may have concerns about voting for something this huge and are concerned people haven't had time to digest what the implications are?

I don't know how much apathy about HOA matters infests your community, but if you've read your documents, you probably know a certain percentage of homeowners are required to approve the changes. You could get lucky and not enough people show up to even vote.

At this point, I think I'd spend more time walking around the community, expressing concern about the speed in which all this is happening and encouraging my neighbors to show up and vote against the amendments. surely you can do that in 13 days, especially if you get likeminded people to help you.

Then you can push for a rescheduling of the vote. May has just started so there should be enough time for more review. You v Nineveh have to vote A-Rod n everything - start with the most important issues. in this case, the number of board members probably should be addressed sooner rather than later, and then make oh can make your case.


sorry, but I think you're missing the point of the post. Assuming this new bylaws passes, suddenly (?) we are can have more board members, if set by the members, but how to motion for this if its not on the agenda?
SheliaH (Indiana)
Posts: 6,964
Posted:
Ok, raise your hand and make the motion, then see if someone seconds it. Although I don't understand why you wouldn't first make the point that the areas in the proposed amendments seem to contradict each other - most people would start with getting THAT clarified and then everyone can haggle over the number of board members to be added. But do you - and consider bringing a sleeping bag and some snacks, because this may take awhile....

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
SheliaH (Indiana)
Posts: 6,964
Posted:
Oh, and read this - maybe the answer to your question is in there. https://diphi.web.unc.edu/wp-content/uploads/sites/2645/2012/02/MSG-ROBERTS_RULES_CHEAT_SHEET.pdf

By the way, did you know there are online classes on Robert's Rules of Order? Google it and consider taking a few. You've already had disagreements with the board over the way they run the meeting, so getting a more detailed education on how the Rules work would be a great first step. "Knowing your enemy" seems to work in The Art of War....

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Why a "fixed" number? Having experience this first hand, HOA's work in "waves" of participation. There are years you may barely get 3 people who want on the board. The next year you may get 10. It's never a "set" number of people whom want to serve or be on the board.

Matter of fact we had to change our by-laws to LOWER the number. There was no way nor need to have the original 7 board members. We barely had 7 people attend a meeting. Never the less be on the board. So we lowered it down to 5 maximum. It worked better.

Former HOA President
KerryL1 (California)
Posts: 14,550
Posted:
Think I asked earlier, Adam: Are there "notice" requirements in ID for HOAs or nonprofits?

There are in CA and other states where he agenda item to expand the board MUST be on a postedagend xx days ahead of the meeting.

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