Help Interpreting Articles Officers and Duties

Hello, FL HOA.

My TX HOA documents read similar to yours (except about the re-affirming), and they are probably derived from a commonly used template.

A Director is a member of the Board of Directors. In this context, an officer refers to a specific Office (such as Pres, VP, Sec, Treas). Sometimes "officer" can be used more generally to mean any position (such as Director), but it is often used by people to mean "Director", who just haven't read their governing documents or don't understand the BoD structure.

According to your governing documents (and mine), the BoD can choose (by resolution and vote) who will be the Officers, and the BoD can change that at any time. The BoD is required to choose Officers annually at a particular BoD meeting, and it can change who these Officers are at any other time. Do your documents call for Directors to be elected annually at the end or beginning of the Fiscal Year -- just before the BoD meeting where the (new?) Directors select the Officers? Do your documents also have a provision (perhaps under Removal or Vacancy of Officers) to the effect that any office vacated by removal, resignation, or death (or failure to elect) will be filled by the resolution and vote of the BoD?

The Membership chooses who these Directors are (by voting in election), and they can also remove Directors. Obviously, it's fairly easy for the Board to meet and vote (and remove and select Officers), but much more difficult to get the Membership to vote in sufficient numbers to do anything, especially outside of the Annual Meeting/Election and without initiative of the BoD.

(I prefer to use the term "Member" to mean a Member of the Association and "Director" instead of "member of the Board" to avoid confusion over which kind of member of what. I prefer to say the BoD "selects" or "chooses" Officers, reserving the term "election" for the Membership electing Directors, also to avoid confusion of terms.)

Some HOA's (perhaps not very many) have the Members elect Officers directly -- I think they may vote for individuals to fill specific Offices or to serve as Directors-at-Large if they have a BoD with more Director seats than Offices. My HOA (and perhaps most) elect Directors without any direct say about who will be the Officers, leaving that entirely to the BoD (what you cited for your former HOA). If you don't mind, could you tell us in which city in TX your former HOA is located, please?

The last statement that you quote from your documents is not clear to me. (Anyone else seen something phrased like this?) "The BoD shall re-affirm the election of Officers as directed by the Members' election of Directors" suggests that the Members have some direct say in who the Officers are. This is consistent with suggesting Offices on the ballot and asking Members to vote on that, also. I think a reasonable interpretation is that the Members will elect Directors and indicate Officers, and the elected Board of Directors will then select Officers based on this indication by the Members, but the BoD may also remove and select Officers at any time.

This would have the effect of making the Members' vote on Officers a non-binding petition. I think both the governing docs (probably your Bylaws) and the ballot are phrased in a vague and confusing manner, and I also think it's a foolish and dysfunctional hybrid. This may have resulted from someone taking a template for HOA Bylaws and then trying to give the Membership slightly more say in the governing structure.

I think it would make more sense to amend this to say that the BoD alone determines who the Officers are or the Membership elects the Officers directly. I think the former makes more sense; but that would be up to your HOA, and should probably depend on its size. (Posts here about Associations that elect Officers directly in elections suggest that these tend to be pretty small HOA's.) How big is your current HOA, please, and how big was your former HOA?

I agree that the procedure on your ballots may create two classes of candidates -- those recommended for specific Office or for none, and those for which the voting Member is also asked to decide on an office. It almost screams to vote for the recommended slate, because it is easier. It would be fairer to make no recommendations about office (and to otherwise not distinguish between nominees on the ballot). This could still provide for the Members to indicate Officers on the ballot.

According to your quotes, a Secretary is required, but the Secretary need not be a Director. I would wonder how potential conflicts of interest are handled, with respect to decisions about the Office Manager's compensation.

Others who are familiar with Florida HOA statutes and/or have more governance experience will probably offer good, relevant suggestions for your situation.

Directors can be removed by the Membership. Any director-officer would be removed at that time, too. The BOD can remove an officer, but that officer might retain director status.

The BOD selects the officers from the directors.

The sentence: "Election of Officers. The election of officers shall take place at the first meeting of the BOD prior to the beginning of the fiscal year. The BOD shall re-affirm the election of officers as directed by Members election of Directors." simply means that the BOD must elect its officers from the duly elected directors and announce it to the Membership. IMHO.

Glad this turned out so well for your HOA. It was a wise thing to do.

However, since this "officer" was not elected, rather appointed, I would have encouraged the name "Agent" instead of officer. There would be no confusion when signing contracts or speaking for the HOA.

Unfortunately we didn't have a choice, our bylaws were very specific on who could sign documents on behalf of the association. I forget how it was worded but it was something to the effect of "no person, including any Director, officer, partner, unit owner, (etc, etc) excepting the duly elected President or Vice President in the absence of the President may execute any legal document, excepting checks signed by the Treasurer, on behalf of the Association, provided that the Board may, by majority vote, authorize other Directors or appointed Officers to execute such documents for good cause." Then there was an exception that said the previous provision did not apply to the registered agent of the corporation for the purposes of maintaining incorporation with the Secretary of State.

One of our stipulations was that he had to sign all documents as "His Name, Esquire - Officer, HOA name" It made it clear he wasn't signing in a personal capacity. Which, by the way, is always a good idea no matter what role you have. I always signed documents as "Dennis T, President, HOA Name" and the treasurer always put the word Treasurer after her signature on checks.

MicheleD,

The docs provide that the Board of Directors shall be written by secret ballot by the Members. We Members have received our ballots in the mail, but I've talked to a few neighbors that were just as confused as I about writing in an Officer position next to the candidate.

Thanks for the info!

Michele, I may just do that, but I feel certain that the confusing reference of "The BOD shall re-affirm the election of officers as directed by Members election of Directors" will be cited (twisted?) as justifying the ballot as distributed.

I've lived here for a year and last year did not receive a ballot (nor did my neighbor) and there is no indication of an annual meeting (I didn't notice this having lived here only 2 months in at that time) or publically counted ballots. We only received a newsletter in March citing who the BOD was with brief bios. So for a year either the Members [we] didn't notice or were just apathetic. A few of us are slowly getting smarter, and I emailed a recommended election process to the BOD president, but received no response. Perhaps I should present this at the annual meeting to be addressed by the new BOD to ensure we have a less confusing election for 2011.

Do you see any indications of problems about the way the HOA is run, apart from electoral procedures and confusing documents?

I think this might also cast suspicion on the independence and reliability of her husband, who I think you said is also a current Director and a candidate for 2010. It's certainly not definitive, although its an indication for concern and illustrates a potential problem with husband/wife (or people with other close relationships) serving together in the governing structure.
I think you are on the right track to mitigate and correct the problem with communication and cooperation. Please continue to try to reach him. Knock on his door one evening after supper, if necessary. How much time do you have before the deadline for returning ballots? BTW, did you say if the Board meetings are monthly? Announced and open for Members to attend?
This sounds more fair -- there is much less manipulation of the vote on the ballot. Homeowners have to read the biographies to even identify who was recommended by the Nominating Committee. It also shows that there are differing opinions on the Board and Directors who speak up for fairness are heeded.
The signature suggests she sent it as a homeowner, rather than as an official. Did she use the management facilities to send it? Did she do so on the HOA's tab? Perhaps she tried to get the Board or other Officers to back her and they refused. (That's a reasonable speculation, but it could also be wrong). You could also send such a letter, or you could take the position that such attacks and responses are inappropriate and divisive. Since she's acting on her own, then that's probably the best thing. There are obviously some (at least one) candidate who see things just like this Director, who were not attacked.

This sounds like a potentially divisive and damaging situation, but one that could be resolved amicably if good-willed and like-minded homeowners take an interest and make the effort to resolve the situation.

Others will probably post useful and specific suggestions about potential actions, relevant statutes, ways to improve the situation, and pitfalls to avoid.

KM:

If it looks like a duck, walks like a duck, well, you know the drill.

Some of those things, by themselves, may not indicate anything other than just sloppiness.

But taken together, and you communicated them all quite simply and with no perceived bias or "trigger" words, there appears to be something fishy going on.

It appears, however, that you will need more than 2 other members to bring enough sunlight to this dark corner.

The Annual Meeting is not the place to bring up all these concerns. There are too many issues. Motion to establish a committee to report back to the members about all these issues.

Focus on the main task to be done: the election.

Work behind the scenes to get those people elected that you think will do a good job.

If people are returned to the BOD that you and your fellow HO's don't like, you have recall recourse.

Thanks Susan, we are trying. Five people self nominated during a BOD meeting, although bylaws say this is to happen at the annual meeting. Had the "independent" BOD member not clued us in on a potentially suspect election process, we would not have self nominated. Then --surprise-- a mailed ballot with a due date prior to the annual meeting and no proxies to allow us to effectively or fairly try to run in the election. We're hoping for the best! Thanks!

Apologize, the FL Statutes offer lengthy process to Recall:

(10) RECALL OF DIRECTORS.--
(a)1. Regardless of any provision to the contrary contained in the governing documents, subject to the provisions of s. 720.307 regarding transition of association control, any member of the board of directors may be recalled and removed from office with or without cause by a majority of the total voting interests.
2. When the governing documents, including the declaration, articles of incorporation, or bylaws, provide that only a specific class of members is entitled to elect a board director or directors, only that class of members may vote to recall those board directors so elected.
(b)1. Board directors may be recalled by an agreement in writing or by written ballot without a membership meeting. The agreement in writing or the written ballots, or a copy thereof, shall be served on the association by certified mail or by personal service in the manner authorized by chapter 48 and the Florida Rules of Civil Procedure.
2. The board shall duly notice and hold a meeting of the board within 5 full business days after receipt of the agreement in writing or written ballots. At the meeting, the board shall either certify the written ballots or written agreement to recall a director or directors of the board, in which case such director or directors shall be recalled effective immediately and shall turn over to the board within 5 full business days any and all records and property of the association in their possession, or proceed as described in paragraph (d).

...and so forth....

I'm going to add a bit to Michele's comments. She stated that the association sends out the status of each lot. This is exactly how it needs to be done. It is critical that any statement concerning the financial status of a given unit/lot concern only the unit itself and not any purported owner. Consider this scenario: Darcy Smith lives in unit 12. Her unit is three months behind in paying its monthly assessment. Darcy is an older woman who is concerned about estate planning and she deeded her unit to the Darcy Smith Trust with herself and her son serving as joint trustees.

The association puts out a notice that says "Darcy Smith of Unit 12 is a deadbeat. She is three months behind." Darcy now has a cause of action against the association for libel. The delinquent owner is the trust, not Darcy herself.

Although we considered the account status of units to be "public record" within the association we were always very careful to state that the [unnamed] owner of unit X owes the association as opposed to saying that a particular person [owner] owed money. Without doing a full title search on each parcel prior to publishing notice you run the risk that a person has sold or otherwise transferred title to their unit and a named accusation could be factually incorrect. That's a wholly unnecessary accusation to have to defend against. Everybody knows that Darcy lives in unit 12 so let them make the connection. It's when the association makes an on-the-record accusation naming a specific individual that things get sticky.