How do BOD members bring visibility to issues?

DeeR2, your frustration is understandable. Nationwide it is common for an individual board member to feel powerless and redundant. The reality is that if you have politely asked for xyz to be put on the agenda and been refused, and you cannot get a board majority to feel as you do, then your best approach is to seek the election of others who feel as you do until you get a like-minded majority on the board.

Regarding contacting the HOA attorney: If a Board majority will either not approve your speaking to the HOA attorney by yourself, or forwarding your questions to the HOA attorney, they you are out of luck. Never contact the HOA attorney without a board majority's approval.

You cna stick out this first year and regard it as a year of learning. And also as a year of finding other to run at the next annual election who share your views.

Encourage your neighbors to attend board meetings and listen to what's happening. They need to hear the conversations about the association's finances and what may be heading their way. Hopefully some will pay attention and start asking questions.

You can continue to express your concerns during the meeting - that's what responsible board members are supposed to do, but it's up to the homeowners to take action, either by voting out this rouge board member (and his/her enablers, if necessary) or do a recall and toss them out. It's unfortunate one person has intimidated so many people, but the main reason this happens is because homeowners forget they have more power than they realize. THEY elect abd reelect you and your colleagues, and if no one's doing their job or gets blackout drunk on power, this is what you get. Otherwise, how can person frighten so many people - is this a vampire? Even they can be destroyed - eventually.

As Cathy noted, there may not be a lot you can do since you're only one vote on the board, but that shouldn't stop you from speaking up. But to head this off, you'll need witnesses and then they can decide what to do. It won't happen overnight and you'll make an enemy of this board member, so buckle up and brace yourself for some drama. Thats the only way things change and while you can't control what everyone else says and does, you can only do you. Good luck!

So if the board is doing something so stupid the HOA is going to get involved in a legal matter the HOA would be unlikely to prevail in court, your advice is to not call the attorney?

DeanJ (and only DeanJ), first answer this for me:

Who is the HOA attorney's client?

Dee,
It is very common for the new board member to be in the minority. It also takes a while for you to get your board legs under you. It won't happen overnight and as your time goes by you may see things a little clearer. If this person is still wrong and has majority support, you will have a hard time changing this quickly. I have had a very similar situation many years ago when I first joined my Ca. board. It took me a while until had all my facts and also got a lot of ideas from this website and many of the same contributors here today.

Once you are ready it is your job to study the issue and know every possible retort that could come up and by doing this, they will know that you are serious and will not let this person bowl you over. This will also show the other board members that you can make good points, and it won't take long for them to be convinced you are right if you are effective. It also will show the owners in attendance that the HOA may have a problem. I always like to great owners and make sure they know that I am approachable. Many times, they may want more information and as long as you do not disclose Executive session topics you should be safe giving your opinions on matters. I always like to remind people that I am only 20% of the voting pool on topics.

Many times, it is worth the fight, and it may take a fight for the right to win the day.

The attorney's client is "The Association" and the client's agent is "The Board". The attorney can't lawfully take instruction from a single board member. And typically the board will designate a single point of contact, although this can vary depending on the contract.

The attorney's only interest in the board is as the agent for the real client. He doesn't do what the board tells him to do because he's buddy-buddy with them. He takes instruction because the board is the only entity that's legally allowed to give him instructions, and he must follow their wishes unless the board is telling him to do something illegal or unethical. A conscientious lawyer will tell the board if he thinks that they're making an unwise decision and what the potential consequences may be. ** But the attorney may not substitute his own judgement for the wishes of the client, stupid as they may be. **

If a single board member - and a newbie no less - would go to the association attorney and tell him that the board is making a mistake, he would tell the new board member that he can't discuss this with them. Something of this nature is strictly an issue within the HOA and it must be resolved there.

The solution for incompetent board members is putting better ones in their place - and that's not something the attorney can do or force the membership to do.

Dee,
When you were elected to the board you did not lose your rights as a owner in your community. I am not familiar with Va. law but IMO you have every right to send the note as an owner.

Hi ElleN.

Yes, I believe that is the issue - the confusion between director and officer and that they are not interchangeable. That is something that some current board members, the previous board members, and our management company appear to not understand. I 100% have to say that I also was confused by this for a while and that is why it took me this long after being elected to the board to put it all together and realize there is a serious problem with this.

With the previous board and even when I first came onto the current board, there were breached of the VA POAA and our CC&Rs where board votes were not being conducted in open HOA meetings in front of the membership. Because of that, it wasn't apparent to the membership who was actually participating in board votes.

Now my challenge is how to provide that information and who to provide it to so that this situation is stop immediately before more damage is done - and without being roadblocked by some current board members and some officers that think they are board members (and won't want the current situation to change).

We do have annual elections, and the elections are for board of director positions by the owners/association members. The ballot does not say "officers" or describe any officer position(s) and the annual election notice also specifies the purpose as election of board of directors. I was elected at an annual meeting by the association members for a board position.

Sorry - I meant bylaws. The bylaws do say that directors are elected by the owners and that officers are elected/appointed by board members annually. The bylaws do also discuss the duties of the different officers and the duties/powers of board members. Our bylaws also call out that we will have 3 board of directors' members. Our association normally also has 5 officer positions total. The president has to also be a director as per our bylaws, but the other officers do not have to be directors - in our case, 3 of the officer positions have been being filled by directors.

What appears to have happened is that somewhere in the past, officers and directors were confused and all 5 officer positions somehow started voting and acting as directors - even though our bylaws clearly state that there are only supposed to be 3 directors and they must each be elected by the owners/association members (and not appointed/elected by the directors).

So - what is the most effective way for me to provide clarity to other board members, our officers, our management company, etc. regarding this situation and the concerns of having non-board members performing board members duties/powers ... especially when several people will want to keep it the way it is to benefit themselves.

Not sure others handle this, but in my last association one director was appointed as contact person for the attorney, and the attorney was directed to only respond to that director, not to other directors or members. It never happened, but the attorney was to forward any other communications they received to the contact directory.

Thank you for this and I would like to take you up on your offer of a potential draft/example of a letter or email for this.

I scrubbed the VA non-stock corporation act/laws and did not see anything specific in there that says that officers cannot vote on association business: https://law.lis.virginia.gov/vacode/title13.1/chapter10/. Although I have found numerous other sources that say, just like you did, that it is not lawful for officers to vote on association business. Our bylaws state different roles/powers/duties between directors and officers but do not specifically call out that officers cannot vote on association business. Is this going to be a problem?

I appreciate this. Currently the person that is not a legitimate board member is holding the office of President and our bylaws state that the prerequisite for holding the office of President is that the person must be a board member. There is a board vote that may take place at the next open meeting this month. For that reason, I am concerned about waiting till the next open meeting.

Also, I scrubbed the VA non-stock corporation act/laws and did not see anything specific in there that says that officers cannot vote on association business: https://law.lis.virginia.gov/vacode/title13.1/chapter10/. Although I have found numerous other sources that say that it is not lawful for officers to vote on association business. Our bylaws state different roles/powers/duties between directors and officers but do not specifically call out that officers cannot vote on association business. Is this going to be a problem?

DeeR2,

After more study, at this point I agree with you that the two statutes' definitions give a lot of wiggle room for who is the "Board of Directors."

The one thing the statutes seem clear about is that the Bylaws and Articles of Incorporation are going to control on the point.

I emailed you.

Virginia Code sec 13.1-852. Voting for directors; cumulative voting.
A. Unless otherwise provided in the articles of incorporation, directors are elected by a plurality of the votes cast by the members entitled to vote in the election at a meeting at which a quorum is present.

Proposed letter or email to the (actual) Board of Directors:

Dear Board of Directors,

It appears that in the past, many votes by the "Board of Directors" have included votes by officers who are not also directors. This appears to me to violate the Bylaws. By my reading, only directors have the right to vote on issues involving management of the association. Here is what the Bylaws say that seems particularly relevant:

-- Bylaw 4.1 states in part: "The affairs of the Association shall be managed by a Board of Directors (hereinafter referred to as Board)... "

-- Bylaw 4.3 dictates that directors shall be elected at the HOA's annual member meeting.

-- Bylaw 4.11 states in part: "The powers and duties of the Association may, subject to the limitations set forth herein and in the Property Owners Association Act, be exercised by the Board, in the Board's sole discretion."

-- By contrast, Bylaw 5.1 states in part: "The officers of the Association shall be a President, one or more Vice Presidents, a Treasurer, a Secretary, and, if desired, one or more Assistant Secretaries, all of whom shall be elected annually by the Board and who may be peremptorily removed by a majority vote of the directors at any meeting."

Clearly "directors" and "officers" are not interchangeable.

The Virginia Nonstock Corporation Act and Virginia Property Owners Association Act appear to me to reinforce the fact that only directors elected pursuant to the bylaws may lawfully vote on association affairs.

I understand that Officers may certainly have input prior to Board votes, but the officers themselves must not vote, unless per chance an officer is simultaneously a duly elected director.

Would you please comply with the Bylaws and and permit only directors to vote on association affairs? As needed, would you also please (1) ask the HOA attorney his [her] opinion and (2) put this topic on the agenda of the next Executive Session Board Meeting?

If you do not intend to comply with the bylaws requirement that only duly-elected directors vote on association affairs, would you please let me know by January 15?

Thank you for your attention to this,

name
Director, such-and-such HOA
address
phone
email addie

Do not include the officers in this mailing/emailing. They are not directors. They have no say in this. If the actual directors insist the officers be brought in to discuss this, let the actual directors make this mistake.

I advise against simply bringing this up orally at a board meeting (assuming you could even get this on the agenda for the meeting). The language of bylaws is difficult for many laypeople. You want to lay this out in black-and-white.

You should also write up a request to start complying with the bylaws requirement for open meetings (some subjects excepted). Do this in a separate letter.

I am advising that this discussion take place in executive session, because doing otherwise invites litigation. On the one hand, Directors are not supposed to be secretive. On the other hand, when a board errs, as it has here, the board should seek the advice of counsel and anticipate litigation, meaning discussion of this goes in executive session per the Va HOA statute and the bylaws (in this case). If the HOA attorney says to go ahead and discuss this in open session, then fine.

From the Virginia Nonstock Corporation Act:

"Board of directors" means the group of persons vested with the management of the business of the corporation irrespective of the name by which such group is designated, and "director" means a member of the board of directors. (underlined emphasis added by ElleN)

This definition from the Nonstock Corporation Act is why I feel the Act does not resolve this situation very well.

I think the Bylaws (to which the Act frequently defers) are much more clear.

Regardless I think what is needed is some education of the Board by a competent HOA attorney. That's the goal IMO.

I don't think this definition is ambiguous because it is the Directors not the Officers who are "vested with the management of the business of the corporation." No?

ElleN, my 2 hands are applauding you. It's not wonder it's like skinning a cat to get volunteers to run for the Board.

I'm unsure I qualify for any superstar credit...but I do credit my Nursing career for patience, determination ...and "rally the troops!" Being on the Board (President) reminds me of raising teenagers (5). Some days are great; some days all hell breaks loose. The 2 requirements (my opinion) for leadership success are having a like-minded board (honest transparency) and understand your documents (CCRs, Bylaws, Rules, etc.) Don't count on your PMC to be the authority. Unlike obtaining a driver's license (testing), a Director must learn this legal stuff on their own. Volunteering to mentor members helps...but in my 140 SFH there wasn't/isn't any interest. Also our portal documents are the Original ('86-87) which are useless for potential Board members and/or membership. Fortunately we(CA) have Davis-Stirling... but that's another set of details to absorb...and an additional roadblock for newbies. BTW, my winning running mate has been overwhelmed with the screaming, agressive member behavior at our last 2 meetings. I had to threaten a 911 call and close the meeting in my home. This chaos was instigated by the "other" Director (sec/treasurer). My VP isn't running for 2025 (May). I am!

I agree with Terri. Directors might vote to delegate certain responsibilities to any officers or directors. Directors might even delegate a budget to certain officers or directors or committees. Note: VA Nonstock § 13.1-868. "Quorum and voting by directors.
A. Unless the articles of incorporation or bylaws require a greater or lesser number for the transaction of all business or any particular business..."

In my reading the word "transaction" is unambiguous. It mean voting, approving or not via Board action on an item of business." It does not mean the a activity that follows the directors' vote,, which may be carried out by any variety of persons

There are "typical" duties for officers that are listed in bylaws. But many bylaws may say that some may be delegated to management. Ours do. No director would agree to be secretary if they had to write meeting minutes due to our complexity. Our contract with our MC shows they are obligated to do that and several other "duties" that are listed as officers' duties. And community managers may not vote at BOARD of Directors' meetings. Even if they Carr out all listed as "Officers" roles.

We've seen on this forum a few times that managers conduct Board meetings even though typical bylaws say that presidents do. Bylaws say that VPs conduct meetings in the absence of the president, but at least a dozen VPs we've had would be completely unable to conduct a proper Board meeting. Don't know if typical, but in the many years I served on this Board, We've usually assigned VP to the weakest board member.

I think to discuss further, I request the list of officer duties in the OP's bylaws so that all on this forum can review it.