Help - BOD situation and advice needed

Started by ShawnaF • 42 replies • 2435 views

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ShawnaF (Colorado)
Posts: 84

Posted:

Wow - you folks are incredible and I just found you (thank you!)

Here's the situation - our ByLaws for the HOA state a minimum of 3 Board Members but no maximum (though the Board has had 5 for the past 1 1/2 years and fewer before that time.) Disagreement between me and President due to improper conduct of President - to me, no big deal should have chatted it out and resolved but to her it's turned to vindictive behavior.

President recruited more than the "required 3 candidates" for our election at Annual Meeting to make our Board of "5" in order to keep me from being re-elected and had proxy form designed to name President as proxy holder.

Once I found the documents stated minimum of 3 but no maximum, I informed President of this issue and suggested we resolve it by voting with the current Board (which was prior to the election and meeting.) President refused to discuss and said "5 is our number but Board may change that later." Because there is no maximum stated in our docs and I lost election due ONLY to proxy votes - is this a legal election? Can I pursue this? Unfortunately the drama is continuing within other committees I'm serving on and I'll ask for advice on that separately. Thank you so much for any ideas!

TomS11 (Florida)
Posts: 29

Posted:

traditionaly its the sec. who holds the proxies.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Shawn,
Unless you documents specify I would be of the opinion your board cannot change # of Board members. Check you state statute and also corporation state law. They both should be on file in your office.

The line of legality gets blurred when you have a President that acts unilaterally. But that is really not your problem, your propblem is with your Board. The president serves the Board, not the Membership, since she/he is elected by the Board. I sure would get this straight with your board. The managemeent firm serve the Board also, the hired them, the President don't have this authority.

I would imagine Roger will pick up on this since you are from Colorado, and he knows more about Colorado than Ben Gump.

Incidently your President is not acting uniquely as lot of Presidents think they are omnipotent, they are not, the members have the vote.

GeraldT4
Posts: 1,022

Posted:

RobertR1 - Seems to me the Board didn't change the # of BOD's, the community did by granting the President the right to be proxy holder and vote for candidates to increase the # of BOD's. Correct?

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Gerald,
First, you got me all rived up and I'm thinking of going down there and seeking in a vote to get rid of the two other board members. I do like to see community action, in fact I much prefer that that over Presidential action or "Now here is what you all are going to do."

As far as your last post, I am not sure what I do and what I don't know about this, and just about every other post we get. I must have missed the proxies were sent out to vote on the number of Board positions. Since it appears to me this would require an actual ammendum, then a formal change would have to be made to the documents. I also don't know what their understanding of proxy votes are either. In fact it don't matter if the developer is still in control.

But I think I can say if the developer is still in control, then this whole mess is up to him and not anyone appointed by him to serve on the Board because they have not been voted in by membership. That is what makes this site so much fun. We can always just wing it and if there is a question, then we can say, "I didn't know that." (tongue in cheek).

I agree with what you are trying to get at and probably we will both end up at the same place. Just another example of having to guess what is really going on. I sometimes think the posters could present their concerns more clearly, then I think how woeful my description of what goes on in my place would be, if I had to explain it.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Second, I think this above post was put in the wrong place. Will correct, if I can find out how.

CharlesW1 (Georgia)
Posts: 826

Posted:

ShawnaF,

As previously posted, I too am certain Roger (from Colorado) will be able to clarify, this particular situation for you.

I’m confused as too other posts pertaining to your original thread. The advice thus far has me a bit concerned it’s as though you are questioning not one but two possible illegal actions performed by your BOD, is that the case?!

If proxies can be used, (as they were) then the president or who ever is appointed can VOTE (if eligible) for whom ever they wish to vote for (Speaking on behalf of our Articles of Inc. and my experience with proxy voting).

As far as changing the number of board members from 3 to 5 (five) at the BOD discursion, I wouldn’t think so! I wouldn’t think they(BOD)couldn't just change that (because NO maximum number was stated) that’s unethical, not to mention illegal use of BOD power. IMO!

On the other hand “IF” the proxies were collected to amend the governing documents (proper procedure was followed) from 3 to 5 then she didn’t do anything illegal.

I’m sure someone with far more experience will correct me if need be.
Best of luck and keep us posted

Chuck W.

Charles E. Wafer Jr.

ShawnaF (Colorado)
Posts: 84

Posted:

Again - wow, thanks! Sorry for not providing more clear info for you, I'll try to do that now and greatly appreciate all your help and ideas. To be clear, I love my HOA and think it's a great thing, so most important to me is that the neighbors are all protected and not hurt by what's going on. I don't want to run things, just to improve and help.

I was the BOD Secretary for 7 months (took over after another resigned mid-year last year) and was on the Board up until the Annual Meeting held just last week. After having spoken up about some inappropriate conduct (which I kept private) by our President, I became aware that she would try to keep me off the Board and realized after the fact that she had designed the Proxy form sent to residents naming President or they had to write someone in - so most chose the easy way and just marked President. Certainly not illegal but I'll be care to take notice of those things better in the future to ensure things happen for the community. With the residents who were present, I did get nearly 100% of the votes but with proxy President votes, I lost. Certainly no problem there.

I was informed (by the President alone) 2 days prior to the actual meeting that it was perhaps a good idea for me to resign my volunteer jobs and rescind my application to be a candidate because the President had recruited "more candidates than we need for the Board." So, I looked at the docs to be clear as to what would happen and what I needed to do. Upon reviewing, I found that we have a minimum of 3 required and all Board members serve 3 year terms. However, no maximum was ever stated anywhere within the docs. I can't find anything anywhere that would tell us we had to stay with 5 candidates and even historical evidence of the Board has differing numbers. Trying to put it in a positive light, I informed the President that this was good news and that no volunteers would need to be turned away because the docs didn't specify a maximum number, plus would eleviate situations with the resignations that have been a problem in the past year. I was informed that there would be a total of 5 Board members period. I suggested that perhaps the Board in place should chat about this and agree to an amendment of maximum 5 prior to the election taking place at the Annual Meeting and said I was concerned about the legalities of stating only 5 Board members when that wasn't the situation with the documents. I do believe that the maximum number would also have required a Resolution to our docs of 2/3 vote to change. No response and President chose to ignore.

So, I attended the Annual Meeting and I did not address the situation at the meeting so as not to be inappropriate to the community present. This activity is really about one individual behaving inappropriately so my goal is to correct this and hope that perhaps I can help the inappropriate conduct stop so we don't continue losing volunteers - I'm not in this to force myself on the community and believe that the other 4 BOD just don't know the full story and have good intentions.

Hope this might be more clear and answer all your questions about the situation. I'll certainly read on and answer any more that might arise. Thanks!

JeanneK3 (Maryland)
Posts: 562

Posted:

A homeowner can designate anyone he/she wishes to have his/her proxy simply by crossing out the name on the proxy and putting another name there. Next time get out a notice to your community as to what you stand for and ask them to write in your name as the proxy holder.

CharlesW1 (Georgia)
Posts: 826

Posted:

Quote:

Posted By JeanneK3 on 01/30/2008 1:37 PM
A homeowner can designate anyone he/she wishes to have his/her proxy simply by crossing out the name on the proxy and putting another name there. Next time get out a notice to your community as to what you stand for and ask them to write in your name as the proxy holder.

JeanneK3,

Would you accept a proxy that was submitted with a name crossed out or at least question it’s validity? I can’t image anyone would.

I do agree that by just soliciting for additional proxies would assure a better chance of being "elected"

Chuck W.

Charles E. Wafer Jr.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Shawna,

Clearly you seem to have a healthy attitude about your association.Maybe the problem is personalities with the President, I don't know.

But I have said it time and again, the President answers to the Board. You got a problem, go to the Board and ask that they mediate your concerns. Ask for a hearing before the Board. Clear the air and get everyone"s position is writing. Disagree with the board if you must, but offer alternatives, not to the President, to the Board.

I can't say the President is acting unfairly, I don't know. But I do know that you are vested in your association and have a voice and a vote and you can politic to change your officials.

But, much better to bury the hatchet and work it out in house. If this president happens to be the type that controls the Board and everything else, recall one or all of them. You will need strong justification to get this done and you will need the votes. I would not be surprized to find this is all communication problems and they can be serious and worthy of action but see what comes out of a hearing before the Board and let us know what happens. You sound like you would be a good board member and you may suggest the the Board appoint you an ex-officio to the board with specific tasks to perform and report to the Board.

Remember this all is a process and it can be long, hard, and drawn out........but worth the battle.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

For what it's worth I believe we have had this Proxy discussion before.
If I recall right you can even make up your own Proxy to assign whoever you want to have your vote. I think you have to certify that it is your signature.
I woul imagine some places have a special required form but if no requirements are listed in the doocuments, I don't see any reason you couldn't do it. And certainly if the proxy designates who your proxy should go to and allows them to vote for you who ever they want is suspect to begin with.
A Pox on Boards sending out proxys unless they do not list on the proxy any names. You can include the slate of candidates on a separate sheet and note write in's can be voted by proxy. It is a terrible practice to allow and promote unfairness in an election. And asking for members to assign their vote to anyone is unfair, especially an official.

I know it is done all the time by tons of associations, I just don't think it is fair. If owners don't even care enough to know the slate, their vote should not count. If you do not vote in a general election, you can vote absentee, but you don't assign your selection over to anyone to vote it for you. Proxys should be used to establish Quorums, because then your proxy serves to promote the Boards business. Also the proxy should be separate from the slate.

ShawnaF (Colorado)
Posts: 84

Posted:

Actually you really are 100% correct, it's pure communication issues. Granted we don't always hear want we want or like what we hear, but listening and trying to find a middle ground is what I really need. I think it's just a "title" issue that went to the head and caused issues and being as direct and straightforward as I am, I said something hoping to regain what the Board used to have.

I really didn't want to take this to the rest of the Board and in particular because so many of them are new, they don't need the added stress and pressure of these silly issues but risking not involving them when I'm dealing with the brick wall problem is making it necessary.

ShawnaF (Colorado)
Posts: 84

Posted:

One more thing Robert - thank you. Actually stepping aside and giving this up sounds more and more appealing and certainly easier. I hope it will benefit the community in the end, that's my only desire. I do very much appreciate your statement that it's worth it and hope that little bit of inspiration will help me remember to do the right thing.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Shawna,
You are very welcome. It is hard to get our eye on the prize when we so much want to be right. "Right" becomes too important as we know from living as husband and wife. Nor doubt you will help the community as the years pass. If we can make each other realize, "It's not your money and the importance of the Real Property is our goal." Everything else pales in comparison. Hope you stick around and keep us informed.

ShawnaF (Colorado)
Posts: 84

Posted:

Thanks - I absolutely will be sticking around and will let you know the results. If nothing else there is a wealth of information here to education myself on.

TracyT (Maryland)
Posts: 228

Posted:

Not to beat a dead horse but . . . Shawna said: “but with proxy President votes, I lost. Certainly no problem there.” I disagree with “Certainly no problem there”. IMHO (though it may seem like the easy way to get things done) what the President did swayed the election and that is at best, unethical.

Shawna also said “and all Board members serve 3 year terms”. I’m curious what your docs. say about appointed member terms. For example, mine says that the BOD can appoint a vacant position (as in your situation) but the appointed position serves the remainder of the original term.

Thanks,
Tracy

ShawnaF (Colorado)
Posts: 84

Posted:

Hi Tracy - as far as that being unethical, yeah, I personally agree with you. Not great and not for the best interests of the community (in particular because it was about a disagreement and not about anything real with regard to the HOA), but on the other hand I certainly COULD have gone to neighbors who hadn't sent in proxies and gotten them myself for additional votes - just not something I wanted to do to my neighbors. It stinks but the community who is actively involved and shows up knows what happened all on their own and helps show them (and others) what happens when people assign proxies and don't get involved. If nothing else I'm hoping it will be good education for all of us.

It just wasn't illegal conduct, so I'm trying to not focus on that and rather have my actions prove who I am and what I represent to serve them for the future and in my current capacities. Not quite sure how I will handle next year but I will ensure that the President isn't the automatically appearing name for write-in since her term expires and she would be in position to re-elect herself even without community support.

Our docs have all members serving 3 year terms. When someone resigns and the Board appoints a new person, that person just serves the remainder of the term of the original elected position. We currently have our positions staggered so not all positions are available at each election.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Shawana,
At any regular Board meeting or annual meeting, before any business is conducted, anyone can stand up and call for a point of order. You can make a motion that the action of the President concerning Proxy votes was biased. Make this as a motion, get a second and then it has to be opened for discusion. If you have your troops there and they vocally support some action to eliminate this kind of thing, you can force the Board to adopt the motiom. Get your support together and stop this from ever happening again. If you are not allowed to make a Point of order demand that it be noted in the record. Then the action to not allow a point of order, a second and discussion is an illegal action by the Board. Get an Election Committee named and get a couple friends on there to insure all is right.

ShawnaF (Colorado)
Posts: 84

Posted:

Great ideas and advice, thanks! I'll see if I can find my voice/courage there and get myself in order to do that.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Shawana,
If you feel uncomfortable, ask another owner to do it. May be better that way. It's not like you and your supporters are trying to tear down anything, you have a right and an obligation(all of you) to do this kind of stuff for each other.

ShawnaF (Colorado)
Posts: 84

Posted:

Yes, that's probably good and likely a better idea than me since I was the last one to speak up and communication is pretty much shut off between the President and me so I'm really hoping someone else will step forward and help me out now rather than waiting for more to quit and everything to fall apart. Our President is a good lady and I believe ultimately has really good intentions, but I think the title issue has temporarily blocked the thought patterns and communication.

Right now, I'm not doing anything, really just trying to gather full information and make sure I know all my facts and have everything together and in accordance with our docs (as well as gathering ideas from all of you.) I'm hoping we can get back the volunteers we've lost in the community that were caused by the issues - many of whom are long term residents/volunteers and the community atmosphere was fantastic and very trusting.

It really doesn't matter to me whether I serve on the Board or not. I'll certainly volunteer and help out but my time is very limited as I have a 3 year old to care for along with the various toddler classes. If I'm needed I'll step forward, but if not, I'm very much happy serving in the background. I am loving sleeping at night and not being up doing work for the HOA!

Volunteers are amazing and wonderful! Serving the Board and community is a tough job.

RogerB (Colorado)
Posts: 5,067

Posted:

ShawnaF, the number of Board members is limited to 3 members of the Association. Your Articles of incorporation state there shall be 3 Board members and the Articles overrule the By-laws.

To change from 3 requires amending the Articles. Obviously your By-laws also need to be amended to clarify items such as this. Incidently, neither the President nor the Board can change the By-laws nor the Articles. This requires a vote by the members. Your President may have meant well by capping at 5 (what if there were 12 candidates?) but had no authority to act unilaterally. Your managing agent should have known and advised the Board on the proper number of Board members and proper conduct of the Board.

ShawnaF (Colorado)
Posts: 84

Posted:

Roger - awesome info, thank you very much!

ShawnaF (Colorado)
Posts: 84

Posted:

Ah - one quick question Roger - just looking at our Resolution 10011 dated Mar. 24, 2006 where it addresses the By-Laws and Articles changes and implements an "AT LEAST three members." Did you see that one? Now, can't confirm that membership voted on this since I wasn't here but will ask that question of the folks serving at the time.

And yes - what if there were 20 people as candidates? lol...now that would be interesting.

RogerB (Colorado)
Posts: 5,067

Posted:

Shawna, a Resolution is made by the Board and can not amend anything except an existing Resolution. I just checked and your original Articles have never been amended and they apply when different than By-laws, Rules, and Resolutions.

ShawnaF (Colorado)
Posts: 84

Posted:

Roger - you're truly amazing, thank you so much!!

TracyT (Maryland)
Posts: 228

Posted:

Guys,

Shawna’s AoI, Article VIII; Board, says:

“Not later than the termination of any Period of Declarant Control, the Unit Owners shall elect a Board of at lest five (5) members, at least a majority of whom must be Unit Owners other than the Declarant. The Board shall elect the officers. The Board members and officers shall take office upon termination of the Period of Declarant Control.” It’s at the bottom of pg 4.

The number Board members is 5. The reference to a 3 person Board (top of pg 4) was to the Declarant.

The AoI goes on to state that 'it' can be amended with a majority of a quorom as stated in the by-law . . .

I’m just curious Shawna, if the by-law amendments did go to the membership for vote and whether the 3 year term that you participated in had expired.

T

RogerB (Colorado)
Posts: 5,067

Posted:

Thanks Tracy, I stand corrected. These Articles are really badly written. First it states there SHALL be 3, then at least 5, and the number can be changed by changing the By-laws. Talk about double (triple) talk.

No wonder Shawna wonders what number of Directors are allowed. It appears there could be from 3 (based on the word SHALL) to 89 in her association

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Tracy,
How's it feel to pin our illustrious leader down? I have been trying for some time but no luck so far. I suggest HoaTalk add a Battle Star next to your name. I'm waiting Roger, I'll get you yet. I am also on the look out for a few others, like Gloria and that dratted Donna on something Florida.

AndrewF (Virginia)
Posts: 25

Posted:

ShawnF,
Good luck with the board stuff. If you go to every meeting its almost like your on the board anyway. Your opinions will get heard and next year you can solicit the proxies from your neighbors and get votes you need.

TracyT (Maryland)
Posts: 228

Posted:

Um :-o! Robert you crack me up! LOL Gee, after all this time I finally got one right?!

Anyway, Roger was right about the doc. being poorly written and the double, triple talk - don't get me starting on their voting requirements!

DonnaS (Tennessee)
Posts: 5,671

Posted:

Robert,
Been kinda busy down here with a rebel Sub association President who doesn't like or want anything that the Master Board votes on. So I'm off of HOATALK for a few days. Don't lose my place. Donna

ShawnaF (Colorado)
Posts: 84

Posted:

Lol...love this conversation - thanks for making me smile despite the circumstances! Yes, these are very interestingly worded docs. Smaller community and smaller developers - they actually sold off the majority of the lots and SEVERAL builders owned & built lots here. I think the main developer only did 3 of the homes and still owns the 3 undeveloped lots. So actually, it appears that we could have from 5 to 91 Board Members - would make for very interesting Board Meetings!

To answer your question Tracy - I am NOT finding that the By-Law amendments went to the membership for votes, anywhere - so perhaps the Resolutions are invalid...who knows, I'll still check into it more. And as far as my position, according to the wonderful man who I took over for when he resigned (due to health reasons), that was the end of the 3-year term for MY position. Although this sure gets difficult with not knowing who was elected and when upon coming into the community and no records available for us on that.

Great job to everyone and so many thanks! Please, any other ideas, shoot them my way. I believe I have an obligation to at least say something to the entire Board about these several items but not sure how far I will bother following it. I can serve the community in so many other ways and there is so much to learn, I'd prefer that to playing games and allowing the intention of one individual to try to beat me down. It's really a wonderful community and I really love it here but I'm not too sure that I would join another HOA after this. Flip a coin maybe?

ShawnaF (Colorado)
Posts: 84

Posted:

And thanks to you too Andrew! I SHOULD go to the BOD meetings to represent the ACC and I likely will do so, but am wondering whether I should really bother. At BOD meetings, we aren't allowed to say anything unless we are able to get things on the agenda in advance - which have to be approved by the person putting the agenda and board packets together. lol...same person I'm actually having the problems with.

If it's NOT on the agenda, you get "shushed" - lol, yes, I'm serious (remember way back to 1st grade?), which led to the resignations of a few other Board members who didn't want to bother. My problem is that I didn't shush, I spoke up. Although I did it behind the scenes to keep that individual from being publicly embarrassed.

Oh well, life's short, enjoy the rest right?

TracyT (Maryland)
Posts: 228

Posted:

Shawna,

Thanks for the follow-up. You truly have the right (and a positive) attitude.

IMHO it is a very fair question to ask of the BoD (whether at a meeting or in writing) for a copy of the meeting notice/proxy for the by-law amendments and the voting results (since they took place before you moved in AND you'd like your records to be complete).

Good luck.

Tracy

ShawnaF (Colorado)
Posts: 84

Posted:

Thanks Tracy - I appreciate the good wishes and kind words! I try to be positive, but I'm on the assertive and direct side even when it steps on toes and is something I feel is my obligation. So, there are good and bad things to that when dealing with different types of personalities - hence my situation. I'm able to separate business from leisure pretty easily and I know that not everyone does that. No worries though, everything happens for a reason. If nothing else, I have learned a lot!

DonnaS (Tennessee)
Posts: 5,671

Posted:

Hey Shawna,
Sorry that I took so long to respond.

I was thinking, that in order to get any item on an agenda, a written request needs to be sent to this agenda writer person. Get other signatures and by all rights, that item has to be addressed by the Board. We can petition our Board by presenting a letter signed by 10% of the membership and the Board must address it. And don't ever, ever let your voice be shushed as long as you are following meeting decorum. You have a right to be heard.

But as Roger has said, your association needs to amend the Articles and ByLaws on the number of Directors to be seated. I HATE the way they write-
"Direstors shall be X number to X number" Make it definite!

As for the Proxy votes, all documents will appoint a Board member as the holder of the proxies, either the President or Secretary so that should be worded into the amendments to clear up that mess. Someone just appointed himself it sounds like.

And the elections sounded rather odd as the President cut off the number of candidates when it reached the number three? How then does the Presidential election have 10 candidates for a 1 man job? Put that into the amendment also, that any number of members in good standing may be candidates.

Basically what your association needs is a rewrite of your documents in the Board member and election sections of the Articles and ByLaws.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Donna, Isn't it true that anyone can assign their proxy to any other member elgible to vote. Did I make that up? Might have, but don't think so. All proxys have to be delivered to the secretary prior to the meeting and a panel is appointed to open the envelopes and record the vote along with all proxys.

If you are going to us a proxy to count quorum that is no problem as the the sealed envelope can be counted for qourum.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Robert,
I would like to say "That You Made That Up" but I can't. You are correct that a Proxy ---should---have a line for the assignee to assign their vote to another member or person carrying the vote. I think that what was insinuated OR I presumed (not me?) was that if the proxy was not assigned, it then has wording that the President or Secretary automatically gets the proxy assigned to them. (Did you get me yet?)

RobertR1 (South Carolina)
Posts: 5,164

Posted:

DonnaS,

I get you now and that makes you correct. I am so "Biased" about these things.

Now don't you get all wild and necessitate me coming down there to straighten Florida out also. Is it still illegal to transport firearms of howitzer size over state line?

DonnaS (Tennessee)
Posts: 5,671

Posted:

Robert,
We have enough guns down here, thanks for the offer but No Thanks!

ShawnaF (Colorado)
Posts: 84

Posted:

Robert, I'm inviting you as my guest to the next meeting - with your equipment there, that will help my backbone! Just kidding!

Yup - our HOA allows us to write in anyone as a proxy voter for us - now the question is....do I care enough....should I or shouldn't I walk around the neighborhood and get those 50 other proxies that didn't come in!!!! Hmmmm.....guess we'll see how the next form looks and if the Pres is the auto-matic person listed.

Isn't this really all so silly in retrospect? Why can't people just be nice for the sake of being a good neighbor? Follow the darn docs, respect thy neighbor, and we'll all get along easily! I just don't get it - even with angry folks dealing with me on the ACC (due to past issues), there's not yet one person I haven't been able to talk down from anger and get them to think clearly and communicate to resolve things easily and fairly. Ugh...

I'm going to go watch Thelma and Louise again and take notes this time.

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