Bylaws not followed at turnover meeting – need advice

Daryl,

Did you elect the two directors? If so, did they (with any add'l directors you have) agree with the PM as to who the (appointed, not elected) officers would be? Do you really need 5 officers, or is P, VP & S/T enough to handle things? Setting aside the quorum issue, if you answer Yes to my 3 Qs, I'd say there's not much to complain about, much less doing things all over again. More details, please.

Hmmm. Now I'm confused about what the numbers are referring to - directors, officers, or both? More details, please.

Thanx, Brian. I thought maybe the heat was getting to me: Currently 96F and it ain't 2pm yet. Add in our swell PA humidity and...

and yes, our bylaws are strange and are not crystal clear on numerous issues. But they are clear that we elect 2 "Directors" at the turnover meeting to 3 year terms and the "Directors" elect the 3 "Offcers" who have 1 year terms. Then all 5 or 6 (the bylaws allows us to combine sec and treas) are board members and have a vote on issues.

3 total board members existing today.

5 should exist per the current bylaws.

Okay. We're making progress. 3 out of 5 ain't bad. Our HOA ByLaws allow for 3, and we've been as small as having only 1.

So, I'll assume you need 2 Directors for decision-making purposes.

Did 2 Directors agree with the PM as to the eventual choice of Officer appointments?

If so, the cake has been baked.

And as Brian noted, input from a good PM need not be ignored.

i have to say, i have never seen an HOA with this election procedure... essentially, the voting members of the HOA, the ones who make all the decisions, aren't elected by the owners.

that seems like the start of an HOA out of control already.

Daryl,

Would it be too much trouble to ask you to post this article in your bylaws -- word for word? I think the problems everyone is having is the fact that this is so unusual we just cannot believe it. In most assn doc. the members elect all the board members (directors). The board members, in turn, elect or appoint the board members to serve in the officer positions. If there are 5 board members elected and 4 officer positions, the 5th board member is a member-at-large.

I'm thinking the reason the prop. mgr. "ran the show" is because it was the turnover meeting and there were no members already serving on the board. Either she or the developer would be the only people who could hold and run the election/meeting. Since the election was not conducted properly the board could just send an announcement to the members stating the board members elected should have been referred to as directors instead of officers. Also, only 2 should have been elected by the members. In view of the error made, the board has decided to remedy the situation as follows:
(1) The board will decide among themselves which of the 3 elected board members will serve as an officer for 1 year with the remaining 2 serving a 3-year term. (2) The board members will then appoint 2 officers who will each serve a 1-year term.

Daryl if they are on file at the county recorders office then they are public documents. Even if they aren't on file unless they have some kind of disclaimer you can post them. What I suspect is that there were three BOD members (aka directors) already serving and you were to elect two more at turnover to complete your Board. In most cases there are some provisions to stagger the positions i.e. we have a five member BOD, one year three people are up for election for a two year term - the following year two people are up. This way you always have someone familiar with the BOD procedures available to guide any "newbie's". Then the directors get together and decide what office positions they will hold on the BOD. I'll risk it and post ours here:

ARTICLE II

BOARD OF TRUSTEES

Section 2.1. Number and Qualification. The Board of Trustees shall consist of (5) persons, except as otherwise provided, all of whom must he owners and occupiers of a unit. If for five (5) years following filing the Declaration, the Declarant, its successors and assigns, shall not have conveyed seventy-five percent (75%) of the number of units which may, be erected, as stated in the Declaration, no less than three (3) members of the Board shall be designated by it who need not be owners or occupiers of a unit.

Section 2.2. Nomination of Trustees. Nomination for Election to the Board of Trustees shall be made by a Nominating Committee, except for those appointed by Declarant. Nominations may also be made from the floor at the annual meeting. The Nominating Committee shall consist of a Chairman, who need not be a member of the Association but who shall be a member of the Board of Trustees and two or more other members of said committee who shall be members of the Association. The Nominating Committee shall be appointed by the Board of Trustees 120 days prior to each annual meeting of the members, to serve until the close of the annual meeting. The Nominating Committee shall make as many nominations for election to the Board of Trustees as it shall in its discretion determine, but no less than the number of
vacancies that are members or non-members.

Section 2.3. Election of Trustees; Vacancies. The required Trustees shall be elected at each annual meeting of members of the Association. Only persons nominated as candidates shall be eligible for election as and the candidates receiving the greatest number of votes shall be elected. Each member may vote for as many candidates as there are vacancies in the Board of Trustees however caused. The remaining though less than a of the authorized number of may, by the vote of a majority of their number, fill any vacancy for the unexpired term, provided, however, that a vacancy in the position filled by designation of Declarant shall be filled by Declarant.

Section 2.4. Term of Office; Resignations. Trustees terms shall be for two (2) years. Two of the Trustees first terms shall be for only one (1) year so that the terms can be staggered. Each Trustee shall hold office until the next annual meeting of members of the Association in which his term expires or until his successor is elected or until his earlier resignation, or removal from office or death. Any Trustee may resign at any time by oral statement to that effect made at a meeting of the Board of Trustees or in writing to that effect delivered to the Secretary of the Association; such resignation shall take effect immediately or at such other time as they may
specify. Members of the Board of shall serve without compensation.

Section 2.5. Organization Meeting. Immediately after each annual meeting of members of the Association, the newly elected Board of Trustees shall hold an organization meeting for the purpose of electing officers and transacting any other business. Notice of such meeting need not be given. A meeting of the Board of Directors may be held by any method of communication, including electronic or telephonic communication, provided that each member of the Board can hear, participate, and respond to every other member of the Board.

Just to muddy the already muddy waters: Are the bylaws adopted (approved by a motion and vote) yet?

Perhaps this procedure took place because there were no bylaws adopted by the membership yet.

Daryl I've read some bad documents over the years but if your's are factually as you have posted them, then I will nominate them as the worst ever. Are you truly saying that you're only ever supposed to elect two (2) directors who will then appoint officers of the Association for ever and ever till the end of time????????? These two Directors who are to be re-elected or replaced every three years; two people to decide from on high who gets to be on the BOD and make the decisions that affect everyone who lives there! I don't think so; either you're just reading selected snippets to try and prove your point that the election was done incorrectly or the first thing the Association should do is redo your By-Laws.

What is typical is that the Declarant has the majority of the seats on the BOD to protect his interests until turnover. Then his appointee's step down and are replaced by homeowners, now the homeowners are in charge. The number of directors is almost always an odd number to prevent tie votes. The directors then choose officers from among themselves to fill the positions of President, Vice President, Secretary, and Treasurer with the remaining director(s) serving as Member at Large.

i will add where another point of confusion may be entering: Under declarant control, perhaps the rule WAS two directors (the owner and developer? President and CFO?), who did "appoint" people (probably from within the company) to be officers.

However, there is a missing section somewhere, that covers the transfer of the HOA from declarant to owners, and in that section, it describes what everyone else is saying: elect a board of directors from the membership, they meet and elect officers from their own ranks, etc..

It sure seems like this is a mish-mish of paragraphs from pre and post turnover sections or something. Or, like it has been suggested, this is one of the worst written docs i recall seeing in a while.

Daryl,

There should be an article in your bylaws which states how many directors are to serve on the board. If it states there are 5 directors, then at the first election after declarant control, 5 directors would be elected by the members. Some assn docs state the directors are to serve staggered terms and goes on to explain how this is accomplished. Other assn elect all the directors each year.

Then there should be another article in your bylaws which outlines the "powers and duties of the BOD". One of the duties is (as quoted from my bylaws): "elect and remove the officers of the assn as hereinaftrer provided and to supervise all officers, agents and employees of this assn and to see that their duties are properly performed." This is the same as you stated above!

I think the problem lies in the fact that you are lumping these articles together when you should only be looking at the article which explains the makeup of the BOD. That article in my bylaws is entitled: "Board of Directors: Selection: Term of Office".

Daryl, we all want to help you! However, you are making it difficult by not posting the exact wording in your bylaws. The only way we can determine the meaning is to read it, word for word. You've come here asking for our help and opinions; but we can't comply if you don't cooperate by giving the the required information. BTW, they ARE public documents. If I lived in your state I could go to the Co. recorder's office and get a copy of them.