improperly elected board?

Started by BeckyF • 11 replies • 1902 views

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BeckyF (Washington)
Posts: 5

Posted:

In reading our By-Laws it states we are to have 3 directors, and any amount of officers/committees as the BOD sees fit, the pres must be a director, and the secty and the pres can not be the same. Presently our HOA has more directors than 3, and no amendments have been made to the By-Laws. Each officer is considered a director.

What are the ramifications of this?

BeckyF (Washington)
Posts: 5

Posted:

And I do not believe that the required quorom by the members ever elected any of them. They were all voted on by BOD, once turned over from developer.

PaulM (Pennsylvania)
Posts: 1,347

Posted:

BeckyF: Sometimes the documents will differentiate between Directors of the Board (3 main roles: Pres.,V.P., Secy/Treas.) and Officers of the Board (other roles).

You will have to review the verbiage carefully to learn what your bylaws state is the minimum and if you can elect more Officers than 3. Further, are you still under control of the developer with a developer-controlled Board? Or, has transition from the developer taken place and you held a member election of the Exec. Board?

SusanW1 (Michigan)
Posts: 5,202

Posted:

Your bylaws should be very clear on this. It should define "Director" and "Officer" and how each is elected.

Sounds like you have officers and then directors at large, but then you state that the president must be a director, so it's not clear.

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Becky,
Generally speaking, there is a deifference between board members (directors) and officers. Board members are often elected by the Association (unit owners) at an annual meeting, whereas officers are often elected by the board members at their first (organizational) meeting after each annual election.

As explained to us by our Association attorney, at least in our case, officers who are not board members may attend noard meetings, but they cannot make motions or vote; only board members (directors) can vote.

This is also in agreement with common procedure in accepted parliamentary practice. That is, only board members (the number of whom should be specified in the bylaws) can vote. Officers cannot vote unless they are also a board member.

Put another way, officers who are also board members wear two hats. One hat as a board member and one hat as an officer. They vote as board members, not as officers.

SusanW1 (Michigan)
Posts: 5,202

Posted:

There may be some confustion about Officers of the Corporation and the Board officers and members, too.

They are not the same.

BeckyF (Washington)
Posts: 5

Posted:

We are not under development.

Sectiom 5.2 of the by-laws state:

Number and Qualification: Until the end of the Dvelopment Period, the number of directors shall be two (2). After the Development Period, the Association shall, from among its Membership, elect a Board of Directors consisting of three (3) directors, who through the Association shall manage and administer the Property in accordance with the Declaration, Articles and Bylaws. The number of diectors may be changed by amendment to these ByLaws in the manner set forth herein.

then it goes on to address nomination and election of directors one every year at the annual meeting.

then it goes on to officers:

9.1: Number. The officers of the association shall be a President, one or more VP's a secty, a treasurer, each of whom shall bne elected by the Board of Directors....

??

BeckyF (Washington)
Posts: 5

Posted:

I have gone through the minutes that have been produced and I did not see any evidence of an election by the homeowners at an annual meeting. We didn't elect any at the recent one as we have just filled the many positions and just established terms. It is a soon to be 3 year old neighnorhood that was never really run officially... and recently - 6 months ago when the acting president moved, did the VP take over and more people get involved. People are quoting out of the by laws and ccrs left and right and heck is breaking lose and I actually read the entire by-laws and ccrs and I think we have larger issues.

We have a small faction saying that the ccrs are unenforceable as they are civil, even though our by-laws state through RCW that as a corporation we are entitled to enforce our by-laws and ccrs. They have even gone on to say that we should eliminate the CCRs total;y and rely on county services since that is what we pay tax dollars for. They want live and let live and admitted they didn't even read the ccrs before moving in. We should call the county on our neighbors rather than friendly reminders from the ACC. The present board is trying to move forward to enforce CCRs. The past president who is a fringe of the faction didn't do much as far as enforcement. The faction keeps mentioning lawsuits.

So, if we have an illegitimate board... what do we do? Are any actions we take null if we have an illegitimate board? It's a real hornets nest right now with honest people who want the best for the community questioning their role on the HOA. So the faction is doing a good job causing division and making most people not want to bother - so they are winning.

BeckyF (Washington)
Posts: 5

Posted:

Bruce, I think we are on the same page. How do I get others to acknowledge this? I have no idea if any present board members were ever elected. i don't think so.

If we take it out to the community right now, there is mo way to know what will happen since we have all this turmoil. I would like to get the turmoil stlled, then proceed with what to do. The current president just made a motion to have all board, officers and committee members to sign a code of conduct. Which is great. First step.

MicheleD (Kentucky)
Posts: 4,491

Posted:

First of all, they pay taxes for any number of services, not the least of which is zoning/code enforcement, however, zoning/code enforcement does not enforce HOA CC&Rs, per se. Only those CC&Rs that coincide with local zoning/licensing etc will they enforce. The CC&Rs would generally have subdivision specific CC&Rs that local municipalities would not enforce.

"Some" wanting to do away with the CC&Rs is not good enough reason to do it.

Most having not even seen them isn't either.

It would be in your HOA's best interest to go ahead and increase (by proper motion and amendment) your board to whatever number appears to be sufficient to accomplish the mission of the board.

But whoever said that CC&Rs are not enforceable because they are "civil" is incorrect.

They are contractual. They can be legally enforced like any other contract can.

SusanW1 (Michigan)
Posts: 5,202

Posted:

Who amends your bylaws?

The say: "The number of directors may be changed by amendment to these ByLaws in the manner set forth herein."

Looks like you can have up to 7 directors, who then elect the 4 officers,(Pres, 2 VPs, Sec. and Treasurer,) with 3 at-large directors.

You need someone to look over ALL your documents.

First, get your Board up and running.

PaulM (Pennsylvania)
Posts: 1,347

Posted:

BeckyF: First, you need to confirm whether the present Board is an elected Board by the membership. You state you have 'no idea'.

Since you have been through transition from the developer, your bylaws are clear on the election of a Board of Directors (3) to manage, administer the association in accordance with the documents.

Regarding the clause, "number of directors may be changed by amendment" is addressing if the association wants more than 3 directors on the Board, then a vote of membership is necessary to amend the docs to a higher number of Director-seats to be filled.

Your docs state there shall be a Pres., VPs (one or more), Treas. 'to be elected by the Board of Directors. This is correct. The membership elects persons to 'seats' on the Board; then the elected Board members decide who is to assume what officer role.

However, I am more concerned with your other statement, "then it goes on to address nomination and election of directors one every year at the annual meeting." At the first election after transition the Bylaws may address one or two Directors serving a longer term. This is just for the first election, so that successive terms will allow for new B-members to serve with one or two 'veteran' B-members who have not yet finished their term.

It sounds a bit confusing, but it is doable. One annual election may require one seat to be filled and the following year there may be two seats to be filled, always with one/two going off and one/two not as yet to be finished their term.

You need to learn what the term of office is and specifically what the Bylaws state on this. It may be that the first election's terms were not defined, and that would start you off on the wrong foot.

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