Proper voting procedure for removing board.

Started by ShelleyD • 17 replies • 1751 views

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ShelleyD (Florida)
Posts: 42

Posted:

Can someone tell me what would be the proper way to cast our votes when voting out the board. Can we have them sign in there vote, should it be closed ballot.? Any suggestions welcome. I will assume that the people that will show up to our Meeting of the members would be people that want to vote them out. We plan to send a letter out explaining why the Meeting of the members is being called. At this time this letter for the meeting will be our second letter. Our first letter is all facts explaining what has been transpiring over the years. Our second letter the meeting for discussion and vote if we have a quorum. Just so everyone knows we just didn't pull this out of our pocket. We have been working on this for months now and have several homeowners behind us. The big question is will 102 people show up. It is worth the chance though. Our annual meeting will be the following month if all fails. Thank you.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Shelley,

Have you checked your bylaws to see if there is a procedure outlined for recalling the board? Also be sure to check state statutes. If you can't find a procedure then, IMO, the proper procedure to follow is to prepare a petition which outlines the reasons for the recall. Take this petition to all the members of the assn for their signature -- you should obtain at least a majority of the members' signatures. If you have members who do not live on site, the petition should be mailed to them asking for their signature and to return the petition by a certain date. Then present the petition(s) to the BOD and ask that a special meeting of the members be called for the purpose of voting for the recall. Have members lined up to run for the positions that will be vacated. A ballot for the recall and a ballot for the election of officers should be included with the notice of the special election. If the recall is successful then the election should take place so a board will be in place immediately after the recall.

I know some members feel they have the right to call a meeting of the members w/o the board being involved. However, doing this may be a violation of your bylaws. Check out the bylaws to find out who has the authority to call a special meeting and who has the authority to preside over a meeting of the members. If this authority is not vested in the members then holding a meeting in this manner can be contested by a court of law. Don't ever think this couldn't happen because I know it has!

ShelleyD (Florida)
Posts: 42

Posted:

Thank you for the reply Mary. In Our by-laws under Meetings of members it states. Special meetings of the members may be called by the President, the Board of Directors , or not less than one-tenth of the members having voting rights. Informal action of members: Any action required by law to be taken at a meeting of the members, or any action which may be taken at a meeting of members, may be taken without a meeting if a consent in writing, setting for the action so taken, shall be signed by all the members entitled to vote with respect to the subject matter thereof. Quorum: The members holding 51% of the votes which may be cast at any meeting shall constitute a quorum at such meeting. If a quorum is not present at any meeting of the members, a majority of the members present may adjourn the meeting from time to time without further notice. We have people that are willing to run for the board already. There is nothing in our by-laws that state anything regarding a recall. Does this mean we are now able to do a recall?

SusanW1 (Michigan)
Posts: 5,202

Posted:

Is there anything about Removal of A Board Member? (or director, or officer) There really MUST be something that covers this!

Michigan has a non profit corporation law. You can get it on-line. Any procedures that your Articles of Incorporation or bylaws don't cover, will be covered there OR, if it states in your bylaws that you follow Roberts Rules, it is covered there.

If you have over 10% of the voters, then you can call a Special Meeting. Notice of the Meeting must be mailed to all members announcing the reason for the meeting and the exact wording of the motions that you will be voting on. EACH board member should have his/her own recall motion and vote. You must find out if you can do this by mail-in ballot, too.

You will need a very strong person to lead this meeting. Someone who can keep the meeting under control and knows parlimentary procedure.

ShelleyD (Florida)
Posts: 42

Posted:

Hi Susan and thank you. Removal: Any officer elected or appointed by the Board of Directors may be removed by the Board of Directors whenever in its judgement the best interests of the corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the officers so removed.

Also, our board says they are allowed compensation, if it was never amended in the by-laws does that still count if it went to a vote and it was voted in?

Thank you again,
S

ShelleyD (Florida)
Posts: 42

Posted:

MicheleD (Kentucky)
Posts: 4,491

Posted:

Quote:

Posted By ShelleyD on 03/31/2009 5:56 PM

Also, our board says they are allowed compensation, if it was never amended in the by-laws does that still count if it went to a vote and it was voted in?

Thank you again,
S

I have no idea what this question means.

Do you mean to say the board voted themselves the "right" to be compensated, but that neither the by-laws or the CC&Rs say they can be?

If that's what you mean, then they are totally out of line!

Unless your by-laws say that only a majority of the board is required to amend the by-laws, then wow. I would be really ticked off!

ShelleyD (Florida)
Posts: 42

Posted:

Thank you for your reply Michele. Our Treasurer said back in 1983 they voted for the board to be compensated at an annual meeting and it passed. We have not seen any proof that this in deed did happen other than it was an agenda item and they showed us the letter that went out to the homeowners showing what will be on the agenda for the annual meeting. To this day our by-laws state that Directors as such shall not receive compensation for their services. If this was passed shouldn't it have been amended to be legal? Half of our community was not even built back then. I am the only director that has paid their full dues and that is because I deposited the check myself because they refused to. I was advised by my attorney to do this. Any comments are greatly appreciated. I thank everyone who responds to this site it has helped me a great deal.

ShelleyD (Florida)
Posts: 42

Posted:

Forgot to add this: Amendment to By-laws: These by-laws may be altered , amended or repealed and new by-laws may be adopted by a majority of the duly constituted members present at any annual or special meeting of the members where a quorum is present, or by a majority of the directors present at any regular meeting or at any special meeting, if at least four day's written notice is given of intention to alter, amend, or repeal or to adopt new by-laws at such meeting.

MicheleD (Kentucky)
Posts: 4,491

Posted:

I think they need to show proof of the vote.

I would want it, were I a member there.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Shelly,

I agree with Michele, proof of this action is needed and, Yes, the bylaws should have been amended accordingly. If that has not happened then compensating board members is, indeed, a violation of the gov. docs. I'm sure there is no provision in the bylaws that says the members can dispense with a bylaw provision w/o amending the bylaws. So, regardless of the fact that they "supposedly" voted for this,if the bylaws were not amended the vote is meaningless.

You quoted your bylaws article addressing removal of "officers" not directors. The officers are appointed by the board members and can be removed from their officer position by the board. However, I'm sure directors can only be removed by a vote of the membership.

GraceH (Virginia)
Posts: 224

Posted:

Can I ask wow long the board needs to keep the proof of action?

MicheleD (Kentucky)
Posts: 4,491

Posted:

Quote:

Posted By GraceH on 04/01/2009 9:15 PM
Can I ask wow long the board needs to keep the proof of action?

I would keep the record of a vote of any amendments permanently.

It's not likely that there are that many amendments in any one association that keeping the record of the vote would be burdensome.

We've had four rounds of amendments in our subdivision.

We have all the records of each vote.

But then we also have the county-clerk stamped amendments that were filed, too.

GraceH (Virginia)
Posts: 224

Posted:

Thank you again Michele.
Do you know if there is anywhere that may state how long financial documents need to be kept?

MaryA1 (Arizona)
Posts: 7,043

Posted:

Grace,

According to an article written by a prominent HOA attorney in the Phoenix area, "An assn should check with its CPA to determine how long it needs to keep its financial records to comply with IRS requirements. Furthermore, an assn must have available at its principal place of business financial statements for the past 3 years."

GraceH (Virginia)
Posts: 224

Posted:

Mary,
Thank you very much.
Our pm will not give me the name of our CPA because as she said, "You call around". We have not had an Audit since our fiscal year 02-03 even though our bylaws say annually. We were told that the association was having one done for the fiscal year ending in 08 and that it would be completed by the end of Dec. and that has still not happened. Our fiscal year ended March 31 and the bylaws state that we are entitled to receive a copy of the annual audited financial statement within ninety days after the end of each fiscal year.

GeraldT4
Posts: 1,022

Posted:

ShelleyD - After your By-laws were amended to permit compensation, that amendment probably should have been filed with your county registrar's office. In NJ filing is a must. If it wasn't then the action of compensation probably is not legal. As for compensation that is not a good thing IMHO. If compensation amendment was filed with your county registrar I would include the topic of amending it back to your original gov. docs (no compensation) in the same removal meeting. Get two birds with one stone if you know what I mean. Good luck.

Gerald

MaryA1 (Arizona)
Posts: 7,043

Posted:

Grace,

Just one more example of a PM who thinks she's in control. No PM should ever talk to a h/o that way and no BOD should put up with that type attitude in a PM.

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