Appointing Board Members during Election Process

Started by EstherW • 12 replies • 3553 views

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EstherW (Pennsylvania)
Posts: 5

Posted:

I am the newest member of my HOA; one year. The president allows the PM to run the HOA. I am the only board member to object to this since it is causing our fees to increase and community to go downhill fast.

We started our election process in early March. Within a week of this process, a board member resigned. The board president decided to appoint his neighbor as a replacement for the next 2 years. This action was not listed on the agenda of the next meeting. I objected to this because I knew of at least 2 people interested in being on the board. The board president said he didn't want these people on the board and that he had a "responsibility" to appoint someone. Only his person could be appointed.

Our by-laws state that an appointment can be made by the remaining board. Because I did not agree to this appointment because we are in the process of nominations, the president and the only other board member held a motion and appointed this person. (I do not believe that this action is in accordance with the by-laws. The board president will often use a motion to get around the by-laws.)

Our election meeting is in 3 weeks. I would like to get this appointment removed from the board. I wrote a letter to the appointed person asking that he use the election process to get onto the board. He did not do so. I plan to gather signitures on a petition to remove him from the board.

My question is, what is the best way to get this appointed individual replaced with an elected individual? I am willing to go to small claims court to achieve this. Does anyone have any words of wisdom from which I could benefit?

SusanW1 (Michigan)
Posts: 5,202

Posted:

Esther - your bylaws tell you HOW everything is done. If the BOARD is to fill vacancies, then a motion is made for the appointment, and a vote is taken. However, this vacancy filling should have been announced on the agenda so board members could have been prepared.

If the PRESIDENT fills vacancies, then the board is at the mercy of his decision.

the body that appoints is the body that removes. So if the board appointed this person thru a vote, it removes with a vote. You will have to read your bylaws to find out how a board member is removed. Either way, you will have to make sure that the votes are there to get this person removed. If the president placed him in this spot, most likely he will not make any gesture to remove him.

How do the other board members feel about this appointment?

MaryA1 (Arizona)
Posts: 7,043

Posted:

Ester,

I suggest you thoroughly read your bylaws regarding appointments to fill vacancies on the board. If it says the appointment is made by the BOD, that mean ALL members of the board must vote on it. The Pres. cannot just appoint whomever he wishes. Since this vacancy occured so close to the annual meeting, IMO, the seat should have been left vacant so a new board member could be elected by the membership. The only way I can see you might be able to remove this new board member is if the bylaws state the BOD makes the appointment and the whole board did not vote on it. Of course you would have to convince all the other board members that this was not a legal action as it was not done IAW the bylaws. If your efforts fail, I think it best that you just forget about it. This issue is not important enough to have your fellow board members regard you as a PITA and be sorry you were elected to the board! You're going to have enough trouble convincing the board member that the PM is an employee and as such should not be running the assn; that is a job for the BOD!

I'm curious to know how the Pres uses a motion to get around the bylaws. Can you give us an example? Don't any of the other board members know what the bylaws and your other gov.docs say or do they just not want to say anything against the Pres?

EstherW (Pennsylvania)
Posts: 5

Posted:

The following is a quote from our by-laws: "Removal: any director may be removed from the Board with or without cause by a vote of 2/3 of the members of the association. In the event of death, resignation or removal of a director, his successor shall be selected by the remaining members of the board and shall serve for the unexpired term of his predicessor and until his successor is elected and qualified."

I take this to mean that all members of the board should have approved. The president said this by-law means that 2/3 of the board members can pass a motion to appoint.

An agenda never lists specific topics/items for a meeting but rather states "old business / new business". That is because the president and PM control everything. The other board members are all hand selected by the president. He tells them that it is a 'turn key' job. Therefore, the other board members like things the way they are. Those who did not like my point of view, that the board should be making the decisions, left the board (2 memmbers). The president and the remaining board member are doing all they can to keep control of the board; thus the appointments.

One of the appointments expires at the next meeting, so I am ignoring that one. The other appointment has 2 years left to its term.

Other violations of the by-laws: closed meetings, no meaningful agenda, board action outside a meeting without all members written approval, president taking action outside of meetings without any board review or approval; president does not follow Roberts Rule of Order and allows personal attacks during meeting, motions never stated before vote is held, debates without a motion, questioning of motivation when someone has an oppossing point of view, allowing the pm to modify the minutes, and constant excuse by the president that the PM has board member duties by virtue of the contract (not true). It should be noted that when the contract was up for renewal last year, only the president negotiated the contract.

This has been going on for several years now. Our fees are sky rocketing and the community has many serious problems that are not being addressed. Many home owners are angry, particulary about the illegaly closed meetings and increased costs with descreased service. The anger is so great that many have stopped paying fees as a form of protest and many are discussing disolving the association.

I really need to know the best way to go about removing the president and the appointed board member. We have several people running for the board, so we have willing, able people for the positions. I have filed a complaint with the PA attorney general's office. The board is in violation of the PA Uniform Planned Community Act. The attorney general's office told me that they take fiduciary duty very seriously.

Should I seek releif from willful violation of the by-laws under the PA UPCA in court?

SusanW1 (Michigan)
Posts: 5,202

Posted:

You should be directing your energies into getting a clean sweep of the board. Do the elections first, making sure that you have the votes to get some sanity people in there , and then begin the recall of others.

How is the president elected? You need a replacement at the top to change some of these things.

From the violations you hve listed, they all seem to be administrative and procedural violations. Unless you are going to prove embezzelment or fraud, I doubt if you'd get attention from any governmental agency - not in this economy.

Keep stating the FACTS and don't get personal in your campaign to replace the current board. You list is impressive, and the members deserve to see it. Be sure it is accurate and backed up with actual witnesses - and the minutes (or lack of them)

Slow and steady wins the race. Replace the dead wood and then do a real pruning.

EstherW (Pennsylvania)
Posts: 5

Posted:

Thank you for your honest and frank response.

I have some sanity people running for the board. Right now, I can only get one on the board. The president is elected each year to the office in accordance to the by-laws. I hope to influence the debate at the time of the motions.

I plan to petition to remove the president and appointed board member now while people are deciding how to vote. Remember, our community gets no communication about what is going on with the board since all meetings are closed. I started a newsletter, but the president and PM control what goes in it, so I cannot inform as much as needed. I do have documentation to back up everything I have stated.

I am going to check with a lawyer also because of the willful violations of the by-laws. I definately want the meetings to be open as required by law and I want the illegal appointment of the board member overturned.

KevinK7 (Florida)
Posts: 1,343

Posted:

Are the terms staggered? You had mentioned that one appointment ends at the next meeting and the other in 2 years, and that the President is elected every year...

EstherW (Pennsylvania)
Posts: 5

Posted:

Yes, the terms are staggered. Each election of a board member is for 3 years. Elections to office (President, Vice-President, etc) are once a year after the annual election of board members. The election of board members is by the community and the election of officers is by the board.

One board seat expires this year. 2 board seats expire next year, 2010, and 2 board seats expire in 2011 including mine.

Becoming a board member is a different process than becoming an officer on the board. There is a separate Article in the by-laws addressing "Officers and Their Duties" as oppossed to the Article for "Board of Directors: Selection: Term of Office".

MaryA1 (Arizona)
Posts: 7,043

Posted:

Ester,

You are corrent in your interpretation of the bylaws article addressing removal of a board member -- the members of the assn must vote on this. Your Pres is also correct in saying this article gives the board the authority to appoint a successor -- that is by a 2/3 vote of the vote, not just him. I would suggest you also check out the PA nonprofit corp statutes as they may be one addressing vacancies and appointments to the board. These statutes would override your bylaws. The AZ nonprofit corp statutes state that if a board member has been appointed he may be removed by the person who made the appoint; ergo a board appointment can be removed by the board. Anyone elected by the members can only be removed by the members.

The fact that 2 board member resigned after you mentioned it was their job to run the assn and not that of the PM, tells me they weren't worth their salt. Anyone who takes an elected office and only wants to sit back and relax may as well not be a board member -- they're totally useless, IMO. However, this does put you in an uncomfortable position being the minority vote. As long as it stays this way you won't get anywhere in making any appreciable changes. You're best bet is to work to get good people elected. Or you can get all your friends together and start compliing info for a recall of the Pres and the appointed member.

With regard to all the violations you list, only 2 are of merit: violation of the open meeting law and action taken w/o a meeting. The other "violations" are just administrative procedures that, unless addressed by your gov docs or state law, would not be considered legal violations. BTW, if the PA AG is like most state AG's his office will not get involved in an HOA dispute. Unless you have a state agency specifically charged with the duty of overseeing HOAs, you're on your own and on your own dime!

You made the remark: "The anger is so great that many have stopped paying fees as a form of protest", which causes me great alarm. Please inform these people to pay up immediately. The worst way of protesting is by withholding payment of assessments. The HOA can foreclose on their homes and some will do it in a heartbeat! Their anger is not worth the risk of losing their home, not to mention paying late fees, attorney's fees, collection costs, court costs, etc., etc. A better form of protest is to get behind you in a recall effort or to cast their vote for better suited board members.

JohnK3 (Pennsylvania)
Posts: 967

Posted:

Mary, Esq., Jr. writes:

>>>You are corrent in your interpretation of the bylaws article addressing removal of a board member -- the members of the assn must vote on this. Your Pres is also correct in saying this article gives the board the authority to appoint a successor -- that is by a 2/3 vote of the vote, not just him.<<<

I'll disagree. The 2/3 refers to the % of membership needed for a removal. Ester states her docs say the "remaining" Board members shall/can make a replacement. I'll guess those docs also provide for a majority of the BOD to make binding decisions. So...

Assuming a quorum is met at a BOD meeting, a majority of them could make the replacement. If there are 3, 2 needed. If 4, 3 needed. If 5, 3 needed. But certainly the Prez alone cannot accomplish the replacement.

MaryA1 (Arizona)
Posts: 7,043

Posted:

John,

As much as I hate to admit it, you are right! The 2/3 only refers to a member vote. (Guess that's why I'm only Esq, Jr.! LOL) However, the article does give the remaining board members the authority to appoint a successor. I agree, it's probably a majority vote; but definitely not a decision of the Pres. alone. If the vacancy creates a lack of quorum the board may still have the authority to appoint a successor. The AZ nonprofit corp statutes give the board this authority. Ester should check out those statutes for PA.

EstherW (Pennsylvania)
Posts: 5

Posted:

I am so thankful for all the great feedback.

I should mention that we are a small association that basically cuts the grass on the common ground and collects trash. The 148 home owners own and maintain their own property and we have no common buildings to maintain.

If a 2/3 vote gets the appointment, then it is legit on that front. As wisely stated by several people, I need to get better members on the board. That is why the prez the didn't put appointments on the agenda or consider the people who already expressed interest. Remember, we are in the process of running the election now that started in March.

One member dropped in Feb. and there was no conern at that time to find a replacement. It wasn't until the prez found out that people were interested in getting on board to change things that he decided to make appointments. This all happened after thr election process started.

I am in the process of looking into the state law and how it effects things. The question becomes, how do we get the law enforced?

JohnK3 (Pennsylvania)
Posts: 967

Posted:

Esther writes:

>>>If a 2/3 vote gets the appointment, then it is legit on that front.<<<

Again, based on what you've told us, it would require a quorum of and then (probably, see your docs) a majority of the BOD members present to make a valid appointment to fill a vacant BOD position.

If your Prez, or other BODers, don't choose to follow your docs, your best bets are either getting a majority on the BOD who will follow the docs via election, or eliminating offenders via recall.

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