Not allowed to run for the board due to an ACC violation?

Board elections are coming up in a couple of weeks. Last night my board voted on and approved a motion that says a homeowner in violation of the CC&Rs (ACC violations) can not run for a board position.

Our CC&Rs say nothing about this. The closest thing is that people that are negligent on their dues are not eligible to vote. They contain nothing about eligibility to run or hold office.

Is the board overstepping their bounds here?

Note: I understand in most cases you probably don’t want to have someone that is in violation, in office. But shouldn’t that be for the voters to decide? Furthermore, our board has chosen to enforce some judgment calls (fence color violations when the CC&Rs are very vague) so people with arguable cases that may want to run to change things are now not even eligible to run. I asked about appeals and the board said even if you are in the appeal process you can not run.

CC&R's state that you have to be a member in good standing to vote. It does not say anything about being on the board, but I suppose you could say how can you be on the board if you can't vote... The CC&Rs state that a member not in good standing is basically someone that owes the HOA money (dues or fines).

The board has said that anyone that got a violation notice can not run for the board, but they can still vote? So the board is not defining someone that received a violation notice as not in good standing. They are adding a new requirement that states you can not have any open violations if you want to run for a board position.

My $.02, if the community wants to vote for someone in violation, why stop them? If that's what they want, it's their community.

I double checked the CC&Rs. They state the board has the right to suspend voting rights and use of the common areas for any period which any assessment goes unpaid, or they can suspend voting rights for up to 60 days for any infraction of “published rules and regulations.”

I’m guessing ACC requirements fall under rules and regulations so the board could take away voting rights for a violation, but I’m also guessing they would have to let the homeowner know before doing so?

Also, our board did not taking away anyone's voting rights. They took away their right to run for office.

Well, we are back to the definition of "member in good standing.'

Many governing documents say that a board member must be a member in good standing.

Depending on the definition of that term in your governing documents, that would determine who can throw their hat into the ring.

Are qualifications of the board listed in your docments?

If your documents are silent, then anyone can be a board member nominee.

I sorta, kinda disagree with you in one are, Daryl.

If someone is in violation of (what you deem) arbitrary "color" determination, and they want to run for the board to change things, as long as the ARC has the power to determine them in violation (regardless of the ambiguity), then the wise thing to do would be to first come into compliance, and THEN run for the board and "change" it. (Whatever "it" is. . . )

I say that because it's very likely that your CC&Rs also give the board (and the ARC probably through some extension) final say on interpretation.

Which means that regardless of the disagreement between homeowner and ARC (if backed by the board), the ARC will win the "interpretation" argument.

But overall, I also think it's unwise to have members in violation running for office. If residents want to change certain things, they must do so through the documents. Part of that implies abiding by the restrictions therein.

Just sayin' . .

Daryl,

You posted a part of your bylaws which says the board cannot "determine the qualifications. . . .of members of the board. The fact that is this stated in your bylaws, makes me wonder if the bylaws also state what the qualifications to be a board member are. Usually the only qualification is the the person be a member of the association. Most assn docs state that a member cannot vote if he is delinquent or in violation of the gov. docs, which means CCRs violations. Also if your bylaws state a member may not vote if he is not in good standing, it seems "good standing" should be defined. Is there a definitions section in any of your gov. docs? If the term is used, but not defined, then, IMO, the board would have the authority to define it.

The timing reeks here. Making a rule about disqualification two weeks before the election just reeks. It is past time.

As for your further posts, it would seem that your bylaws may be inconsistent. To be honest, my gut feeling is that when you run for office you give up some privacy. And that would include disclosure of unresolved violations.

There is a very real possibility that a violation be used to keep particular people from serving. There have certainly been many an allegation. And yet, I do think that the issue could be relevant. And in my neighborhood I would not vote for a person with a long standing violation.

I would probably make a motion to amend the bylaws to bring about disclosure of violations of all people running.

You could take the fight to them and start a petition for recall.

How long has these other colored fences been in violation of the covenants? Did they just paint their fences purple and orange, or have they been purple and orange for years?

Did the homeowners submit a request to paint their fences and was it denied, approved, or ignored?

Have these members been very vocal about the operations and covenants of the neighborhood?

Are the board member's homes in compliance?

I think that it does not sound right for the Board to allow a owner to vote but not run for the Board...

I'm not to familiar with Washington State laws, but I was reading and there was one particular section I thought may be relevant (I shortened it to only include the relevant section):

RCW 64.38.035

the board of directors may convene in closed executive session to consider... possible violations of the governing documents of the association, and matters involving the possible liability of an owner to the association...
No motion, or other action adopted, passed, or agreed to in closed session may become effective unless the board of directors, following the closed session, reconvenes in open meeting and votes in the open meeting on such motion, or other action which is reasonably identified.

If I read this right, does that mean any determination in regards to the violation of governing documents must come to a vote in an open meeting?

The requirements for Board of Directors for nonprofits state:

The affairs of a corporation shall be managed by a board of directors. Directors need not be residents of this state or members of the corporation unless the articles of incorporation or the bylaws so require. The articles of incorporation or the bylaws may prescribe other qualifications for directors.

So I would think that unless they hold a vote and your bylaws or articles of incorporation do not state any other vote restriction, the homeowners who may have a violation can still run for office.