Can the manager be the Secretary?

Started by JanineR • 11 replies • 261 views

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JanineR (Tennessee)
Posts: 259

Posted:

Our Bylaws provide that the Treasurer and Secretary need not be directors.

We voted for a member, non-director, to be the Secretary.

It doesn't seem to be working out and we need to go to plan c.

Now... we are a fully managed condo complex.
Part of the management contract is for the PM to take minutes, and to provide approved minutes to owners.
Let's say the PM's name is 'John'

Can we vote for John to be the Secretary? or does it have to be an owner?

Tennessee, condos

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ByLaws Below
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a) The executive officers of the Association shall be a President, who shall be a Director, a Vice President, who shall be a Director, a Treasurer, and a Secretary, all of whom shall be elected annually by the Board of Directors and who may be removed by vote of the Directors at any meeting. Any person may hold two (2) or more offices except that the President shall not also be the Secretary. The Board of Directors may from time to time elect other officers to exercise such powers and duties as the Board shall find to be required to manage the affairs of the Association. Compensation, if any, of officers shall be fixed by the Board of Directors.

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d) The Secretary shall keep the minutes of all proceedings of the Directors and the members. He or she shall attend to the giving and serving of all notices to the members and Directors and other notices required by law. He or she shall keep the records of the Association, except those of the Treasurer, and shall perform all other duties incident to the office of secretary of an association and as may be required by the Directors or the President.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Are they an owner and member of the HOA?

Former HOA President

JanineR (Tennessee)
Posts: 259

Posted:

The management company, and manager are not an owner or member of the association.

ND (PA)
Posts: 792

Posted:

Search in your docs where it speaks to whether BOD Members and/or Officers need to (or do not need to) be members of the HOA (maybe in paragraphs you didn't copy/paste). That is the answer to the question being asked. If Secretary need not be a member of the HOA, then you could make John the Secretary. But if Secretary needs to be a member of the HOA, then a member of your HOA needs to have title of Secretary.

All that said, IMO, while writing minutes is usually Secretary responsibility, if someone else (e.g., John) wrote the minutes for the Secretary and the Secretary is the one submitting and retaining them, then that would be allowable also.

JanineR (Tennessee)
Posts: 259

Posted:

Quote:

The bylaws say that a director must be a unit owner, but is silent on officers, with the exception that the President and Vice President must be a director (therefor must be an owner).

Quote:

Posted By ND on 02/15/2023 6:56 AM
All that said, IMO, while writing minutes is usually Secretary responsibility, if someone else (e.g., John) wrote the minutes for the Secretary and the Secretary is the one submitting and retaining them, then that would be allowable also.

I don't see any issue with that either. That was our plan b which we currently have.
However, it is not working out for us. Our member=nondirector Secretary, lets call him 'Tate' now has access to the list of owners that are behind on their assessments.
Which makes owners uncomfortable since he was not voted in by them, yet this info is being shared. Tate is also actively seeking to buy more units at a discounted rate and has exposure to this info.

Plan a is the easiest. Just have one of the directors be the Secretary and sign off the PM minutes after they are approved by the board. Unfortunately, easy does not work for our board. I can describe why, but I don't want to get off topic if a non-owner 'John' can be Secretary, particularly since our bylaws allow compensation.

I can't see anything in the bylaws or state statutes that say the Secretary must be a member. But I could be missing it.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By JanineR on 02/15/2023 7:20 AM

The bylaws say that a director must be a unit owner, but is silent on officers, with the exception that the President and Vice President must be a director (therefor must be an owner).
[snip
I can't see anything in the bylaws or state statutes that say the Secretary must be a member. But I could be missing it.

I checked Tennessee's condo and non profit corp statutes. Unsurprisingly, they say nothing about the Secretary having to be a member or director.

From my reading what is important here is that, in the bylaws section addressing directors and officers, the bylaws expressly say the Pres and VP must be directors. The legal phrase "inclusio unius est exclusio alterius" kicks in. This is a "latin legal maxim that makes the point that where a statute, contract or other legal document includes a list of items falling into a category, the inclusion of certain items on that list should be presumed to mean that any //excluded items// are intentionally outside the category." The bylaws say the Pres and VP fall into the category of officers that require one to simultaneously serve as a director. Per "inclusio unius est exclusio alterius," this means the secretary and treasurer are //not// in the category of officers that require one to simultaneously serve as a director.

The same rule goes for the section of the bylaws that say a director must be a unit owner.

Or just tell the owners that the bylaws have no requirement for the Secretary or Treasurer to be owners.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

You have what I call a pickle... My opinion is that if you ran for a board position you had to be a member. The officer positions are voted on by the elected board amongst themselves.

However, someone wrote the MC contract so they pretty much act as the Secretary. Which blurs the line IMO between board and MC. The President in our HOA is not allowed to act as Secretary as is...

Now we had a similar situation where we had a Treasure position but had an accounting firm doing the work. They happened to be an owner of the accounting firm as well. That is why they always got votes as Treasurer.

That did not mean if we changed accounting firms we lost Treasure position. Their duties may be to work with accounting to get reports for the board. More of a figurehead position.

Former HOA President

KerryL1 (California)
Posts: 14,550

Posted:

Say, Janine, It's very, very common that the PM write the meeting minutes. The board usually appoints a director to the office of secretary. In my HOA, the secretary reviews the PM's draft minutes to correct typos, etc. before they go into board packets for the Board to approve. The secretary usually signs the approved minutes too.

A big problem with appointing a non-director as secretary is the access that person has, just as you show us, to executive session matters!

MaxB4
Posts: 3,513

Posted:

As long as the Bylaws allow an Officer to be a non-director, I see no issue. As far as Secretary isn't what a Secretary is supposed to do, exactly what the manager does. The same could go for a Treasurer.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By ND on 02/15/2023 6:56 AM
Search in your docs where it speaks to whether BOD Members and/or Officers need to (or do not need to) be members of the HOA (maybe in paragraphs you didn't copy/paste). That is the answer to the question being asked. If Secretary need not be a member of the HOA, then you could make John the Secretary. But if Secretary needs to be a member of the HOA, then a member of your HOA needs to have title of Secretary.

All that said, IMO, while writing minutes is usually Secretary responsibility, if someone else (e.g., John) wrote the minutes for the Secretary and the Secretary is the one submitting and retaining them, then that would be allowable also.

Well said.

SheliaH (Indiana)
Posts: 6,964

Posted:

Don't you have other homeowners you could ask to serve as secretary? I'd try that first before going to the property manager (he has enough on his plate without adding something I believe is primarily the board's responsibility). Yes, I know your contract allows it, but I would think you'd want to reserve that for emergencies. If you have other board members, what's wrong with the rest of you taking the position or at least rotating it every month?

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

MarshallT (New York)
Posts: 414

Posted:

This is probably not an ideal situation, but in theory, the manager could serve as secretary. It would try other avenues though and see if you can find another member to fill the role.

If you do elect "John," make sure there is no secrecy about it.

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