BOD Election Issue - NEED HELP QUICK

Our Annual Meeting is in mid-May. Our 60 day notice (call for candidates for the board) included the following statements:

"If you are interested in running as a Board Candidate, please complete the enclosed Nomination Application. Keep in mind that the application you submit may be copied in its original format, without alteration, and included in the mailing of the official Notice of the Annual Members’ Meeting to the membership."

"We must receive applications no later than 2:00 p.m. on Friday, April 4, 2025. This will ensure that nominations will appear on the proxy which will accompany the formal notice."

Today April 7, three days past the deadline, a current board member whose term is expiring emailed the management company that "he will be running again for his position" and did not submit any application, late or otherwise.

Our nominating committee meets tomorrow to place all eligible candidate into nomination. This process required by our By Laws.

Is there any reason that the nominating committee should NOT declare him ineligible.

I say:

If proxies and other forms that require candidates' names have not been printed, put his name on them, note that he did not submit an application (while publishing the other candidates' applications, and let him run.

I say this because Boards should try to respect an owner's right to run for the board (within reason). This is a close call IMO. Err on the positive side.

The alternative is to tell the guy he missed the deadline, but he can be nominated from the floor. I do not support the latter, but it is an option.

Questions:

* Do your bylaws allow for nominations from the floor?

* Does the nominating committee have authority to prevent someone from running altogether - or do they simply keep the name off the printed ballot while allowing for write-ins?

If the answers to these questions are "yes", I say leave his name off and let him self-nominate at the meeting. No harm done.

If one of the answers is "no", you risk making this a bigger issue than it needs to be. Yes, maybe the guy is a self-centered jerk and you don't want him on the board anyway. But that's for the homeowners to decide, not the nominating committee.

You should be aware that some states (eg. Florida) have banned nominating committees altogether because they've acted as gate-keepers to prevent "the wrong people" from serving on the board. So tread cautiously. There can be too much drama associated with elections, and the last thing a new board needs is unnecessary conflict right off the bat. They'll have plenty to argue about going forward without this. (Ask me about board drama.)

Any candidate who followed the process has a valid objection to the board member being included on the ballot because they failed to follow the process and meet the deadline.

When our HOA did have a Nom. Committee b/c it was required by our then-Bylaws, the Board gave the Nom. Comm. its marching orders: B/c the election is on xx/xx/xxxx, the Board approved-applications must be turned in by 4/4/2025.

I'm thinking the Nom. Comm is doing its job as assigned by the Board. So, Mr. JerkFace director knew all along WHAT was due, and WHEN. The Nom. Comm. must act today and they, from what I can gather, still don't have a required application from current director Mr. JF, who apparently couldn't be "bothered."

A potential candidate who meets the substantive statutory and bylaw eligibility requirements may not lawfully be disqualified because the candidate did not submit an application that the board made up.

This is an interesting split.

We have the "rules are rules and they exist for a reason" crowd.

Then we have the "what is the effect of these rules and is that what we want" crowd.

I'm obviously in the second group, particularly if it's a board-made rule. That's why I mentioned/asked about any election requirements in state law or in the bylaws, which would be non-negotiable and the whole discussion moot.

I'm uncomfortable with any rule that makes it impossible for someone to change their mind after what may be a arbitrary deadline. I ask: is that what you want? Would you be more inclined to bend if this was a very capable board member who could be hard to replace. If the latter, then you're reacting to that particular individual rather than to the rule itself.

And in the end, I believe that rules exist to serve people and organizations, not the other way around. If you're sacrificing people or the good or an organization in order to preserve the rule, I believe that's backwards.

Bill,

The main issue is that if the election comes down to proxy ballots determining winners from losers, this incumbent director's name will not be printed on the proxy. If the board director is on good standing, let them run for office and not appear on proxies for those votes. Your text explains why April 4th is a deadline. I'm surprised your annual meeting doesn't allow for floor nominations of board members.

However, the board can certainly move on without the incumbent by policy, but I'd only push that if there were more candidates seeking office than offices to be filled.

I'll note that people can change their minds in the opposite direction as well.

Example: Mrs. Jones is listed as a candidate on the directed proxy/ballot, and a few days before the annual meeting her husband has a stroke. There is no way she'll have the time or mental bandwidth to be an effective board member. You don't want people voting for her if she won't serve. Depending on how votes are tallied, this could really throw things into disarray.

You have to be able to react to conditions at the time the election is being held, which often means write-in candidates and nominations from the floor. We've had people elected in my community as a result of some gentle arm-twisting by our attorney who was in attendance. Nobody was more surprised than the newly-elected person. :-)

Do you advise against directed proxies?

Anyone else have an opinion on the use of directed proxies?

Other than the elaboration TimB4 posts from time to time on directed and non-directed proxies, I had not thought about this until today.

A Board establishing a deadline via its Nom. Comm. to turn in a candidates statement /application is hardly an "arbitrary hoop." This date often is to comply with state law as in Calif. I'm guessing that most HOAs establish some sort of deadline. Candidates were given 60 DAYS to do this horrible task. Dr. Mr. JF "miss" this deadline b/c he somehow is NOT in good standing?

Would a new unknown owner be given the same privilege of applying late? Did MR JK turn in his app. by now???? If not, would only his name go out to owners?

Directors are supposed to lead by example., which includes complying with notice requirements and all other rules. More is expected of them than of non-directors.

in 2019, after 12 yr of Board service, I ran for the Board after a voluntary year's absence. A Candidates Statement was due by a certain date to comply with Cali's many pre-election deadlines. Our HOA Board years ago limited the Candidates Statement to 300 words, and it's stated on a form that all candidates sign saying they're members of the Association.

Two incumbents, one seeking a 3rd 2-year term, included literally pages of their statement. One, a retired Econ. prof, turned in what seemed like a CV going back to the '90s! The 2nd, an attorney, turned in something similarly long including cases he'd won in IL in the 90s! It was the Community Mgr's job to make sure the Statements followed the rules. These non-compliant Statements went to all ownrs. A new candidate and I both screamed about this to the mgr. and demanded that "something be done" to correct this blatant violation of the procedure. The President & COO of the good-sized Mgt. Comm gave us 3 other candidates 48 hours to add to our 300 words to be sent to the members. Two of us added nothing and the 3rd added a very professional page of his background that suited our HOA's needs.

After a pathetic showing at a Candidates Night, the two, plus their rubber-stamping buddy all were defeated and we three won.

Kerry,
I completely agree with your last post. I also remember when the 300-word limit was put in place in a California. I spent many hours crafting my Bios to make them fit into the guidelines. I am a rules guy and have always been that way. Anyone who does not want to follow the rules would be a big Red Flag for me. They either mean something or they don't. I think it shows that for Fiduciary Duties are up for debate. I am glad your candidates lost it probably saved your HOA some grief down the road.

I agree with your points.

I think Bill's HOA's biggest problem is the nominating committee and/or board may not understand the difference between a proxy "appointment form"*; a proxy; and an absentee ballot.

Speaking of "rules":

Do Bill's HOA's bylaws specify that an owner must use a directed proxy? Because there are certainly a lot of pitfalls to doing so, as listed neatly above.

I would like to see the "appointment form" and see if it complies with the bylaws and state law.

*"Appointment form" is the language from the SC Nonprofit Corporation Act.