President isn't following Bi-Laws

This would be incredibly hilarious if it were not so freaking outrageous!!

The "treasurer" is ALWAYS a board position and ALL board positions are "voting" positions.

Unless there is something really rank in your by-laws that negate all of that, then all of these people, including those board members who "don't want to get involved," are behaving illegally.

As to what you can do, you need to bring the by-laws to the next board meeting and let them know that any of the business they've conducted that is not in accordance with the by-laws could be voided.

Do you by-laws give any detail at all regarding what each officer position is responsible for?

If so, you need to print those out too and remind them that the by-laws are NOT simply "suggestions" or "optional guidelines."

What's even more important, our Tres. is bonded because of having
control of our funds. Our Tres. is the legal responsible party under
the law. What is your Pres. trying to hide or control?
Edie

As treasurer, you don't have to DO all things - you just need to make sure they are done, and done right.

So you are in a sort of "overseer" for anyone who manages the HOA money (you say the MC is handling funds i.e. writing checks)

You need to know exactly what is going on at all times; the MC should report to you on financial matters, and you and the MC give a monthly report to the Board.

We had another post where is was found out that late charges were being paid by the MC on all utilities. A good treasurer, with a Finance Committee, would have caught that long before.

Motion to establish a Finance Committee and learn what is going on.

Why have you been "appointed" both before and after the annual meeting?

If the position of treasurer is defined as a Board member in the bylaws, it does not matter if you were appointed or elected. You still vote. So does the secretary.

Time to educate your Board about its own bylaws.

Kimberly,

I'm still having some trouble trying to sort out what's going on here.

1. You say the homowners elect the officers. You say you were appointed by the board. Then are you saying that you were NOT elected by the homeowners? I don't quite understand what's going on here. Since you were willing to be treasurer BEFORE the annual meeting, why didn't you run for the position and be elected as treasurer by the homeowners? Why was it necessary to be appointed to the position after the annual meeting?

2. Does the board have the authority to appoint a treasurer? Do the bylaws say this?

3. How many members are on the board? What do the bylaws say?

4. Who created the position of "member-at-large"? The board? Do they have the authority to do that? If it's not in the bylaws, the board can't create such a position. It doesn't exist.

5. If your bylaws state the four officers are board members and the board has 5 members, then I guess one member by default would have to be a "member-at-large".

I'm thinking that your board doesn't understand the bylaws. Assuming that they do have the right to appoint a person as treasurer (the bylaws have to give them that right), then you are a board member and have the right to vote. However, maybe the bylaws don't give the board the right to appoint a treasurer. In that case, you are actually not the treasurer (since they can't appoint one) and therefore not a board member and cannot vote.

Since I don't have your bylaws in front of me to refer to, it's hard to figure out what's going on.

Hi Bruce,
Thank you for your help, you sound educated on this subject and I need the advice! The bi-laws read as follows:
Enumeration of officers: The officers of this Association shall be president and vice president, who shall at all times be members of the Board of Directors, a secretary and a treasurer, and such other officers as the Board may from time to time by resolution designate.
Election of Officers: The election of officers shall take place at the first meeting of the Board of directors following each annual meeting of the members.
Term of officers: The officers of this Association shall be elected annually by the Board and each shall hold officer for one year unless he shall sooner resign or shall be removed or otherwise disqualified to serve.
Multiple Offices: The offices of secretary and treasurer may be held by the same person. No person shall simultaneously hold more than one of any other offices except in the case of special offices created pursuant to term of officers of this artice.
Our President is holding the check book and paying the bills. Isn't he considered acting treasurer? Also, the Three board members were elected. After the election, same meeting, I was appointed secretary and treasurer by them. THis is some of my questions.... is this legal?

Thanks to all for the help...

Paul, our Board President has always handed over the bank accounts to the MC's...Even if she wants them to handle the check book, do I have the right as treasurer to ask for it and take over this duty?...I'm sure I would get a big fight if this ever happened. The MC even has two names on the account and the Presidents. I signed a card so I guess my name has been placed on there also but don't know for sure.

We have never had an audit of any kind which I have requested many times...even the simplest kind would have been ok since we are such a small HOA...I was told it cost to much and was never addressed.

Kimberly,

Ah. So now I think I am beginning to get the picture. First, I think your bylaws could be a little clearer. I think there is too much left to interpretation.

Let's take what you quoted and try to analyze it:

First, "Enumeration of officers: The officers of this Association shall be president and vice president, who shall at all times be members of the Board of Directors, a secretary and a treasurer, and such other officers as the Board may from time to time by resolution designate."

I interpret this to mean that the president and vice president MUST be board members. Not the other way around. I do not believe that this says that being president of vice president, or any other officer, for that matter, automatically makes that person a member of the board.

Second, "Election of Officers: The election of officers shall take place at the first meeting of the Board of directors following each annual meeting of the members."

This tells me that your board elects the officers; the homeowners do not elect the officers.

Up to now, this sounds pretty normal to me.

Now, the part I need to know is how the board members are elected. I assume this must be by the homeowners at an annual election. This is the part that you have not provided to me.

From what I see so far, your board may be correct. If you were not elected to the board by the homeowners, but were elected by the board to be the treasurer, which they can do, then you are not a board member and cannot vote, even though you are the treasurer.

However, I do not agree with your president in holding the checkbook. That is the treasurer's responsibility, whether the treasurer is a board member or not.

Check your bylaws some more. Look for paragraphs that define the responsibilities of each officer. What the bylaws say about the treasurer is what your responsibilities are.

If the president is performing some of those responsibilities, then he is in violation of the bylaws since he is performing some of the responsibilities of the treasurer and the portion of the bylaws that says, "Multiple Offices: The offices of secretary and treasurer may be held by the same person. No person shall simultaneously hold more than one of any other offices except in the case of special offices created pursuant to term of officers of this artice" forbids him from doing it. This portion says, in effect, that neither the president nor the vice president can simultaneously hold the position of either secretary or treasurer. This is also not an unsual restriction. Neither the president nor the vice president are allowed by the bylaws you quoted to perform ANY of the functions of the secretary or the treasurer.

Now, what can you do about it? It may be difficult to get your president to hand over the checkbook he he persists in mis-interpreting the bylaws. However, he is only placing himself at risk, since the bylaws were written to prevent exactly that type of abuse. If some homeowner gets nasty and decides to challenge your president in court, he may find himself in an uncomfortable position.

Kimberly,

Just to add to my previous post, taking what you have posted so far, here is what I believe the situation to be. I don't have your bylaws in front of me, so it's just a guess.

1. You have an annual meeting of the homeowners during which the homeowners elect three board members (from what you have said, I am guessing your board consists of three members).

2. Since the president and vice president MUST be board members (as I pointed out above), two of your three elected board members must hold those positions. Also, the bylaws prevent them from holding any other officer position.

3. Now, the secretary and treasurer positions MAY be held by the same person. This is stated this way in your bylaws because it would permit the third board member to hold that dual position, so it all fits.

4. Apparently, your third board member doesn't want either of these positions (not unusual, because it's work). So, he/she declines to be an officer and just simply chooses to remain a "member-at-large".

5. Now, only those three board members are entitled to vote, since your board can only have three members.

6. However, the association still needs a secretary and a treasurer. The board could elect two people (one for each position), or, since the same office can be held by one person, they can elect one person to hold both positions - YOU. However, this does NOT automatically make you a board member. You are the secretary and the treasurer of the association.

What some people get confused about is the position on the board and the position of being an officer. If a person is on the board and is also an officer, that person wears two hats - one hat as a board member and one hat as an officer. The board member votes; the officer does not. So, when your president and vice president vote at board meetings, they are voting as board members, not as officers.

I think your president is getting confused by thinking that since you are not a board member, you shouldn't be in charge of the funds. However, it is HE that shouldn't be in charge of the funds. Your bylaws, which you quoted above, forbid that. As I said previously, that's the treasurer's responsibility, whether the treasurer is a board member or not.

I still am not sure that the Board should include JUST a president and VP.

Kim - what EXACTLY does it say about the BOARD (NOT the officers)

How many Board members are there supposed to be? Surely, it can't be just 2.

On officers: She say - "Enumeration of officers: The officers of this Association shall be president and vice president, who shall at all times be members of the Board of Directors, a secretary and a treasurer, and such other officers as the Board may from time to time by resolution designate."

To me, this says that the president and VP MUST come from those on the Board. All others may or may not HAVE to sit on the Board to become an officer, but the pres and the VP MUST. In any case ALL Board members have a vote. UNLESS it says NOT in the bylaws.

I think you need a parliamentarian to look at those bylaws . . . .

Susan,

I agree with your interpretation that the president and vice president MUST be board members. I also think the board is three members (see my previous posts),

What we don't see here is the description of the board, how many members comprise the board. etc. We need to see that portion of the bylaws.

However, the board cannot add to its own membership. If the board is three members (I think that's the case here) and if they need a secretary/treasurer, they can elect someone to fill that role, but they can't add that person to the board, since they would be thereby increasing the board membership over what is permitted in the bylaws. You are familiar with RONR, that's not allowed.

Susan,

It appears in Kimberly's HOA the board is elected first and the board then elects the officers. That's similar to how we do it in our HOA. If done that way, all officers are NOT necessarily board members. The board cannot increase the size of its own membership, except by amending the bylaws.

Your HOA is different. In your case, all officers ARE board members. I have been in organizations where it works that way, too, so I am familiar with both ways of forming boards.

Mary,

I agree. I didn't want to suggest that Kimberly resign, but I was thinking it.