Appointing a new Board Member without a vote

At last night's board meeting, the board announced they had a appointed a new board member to replace a board that maybe resigned.

My question, isn't there some procedure they need to follow, like make a motion and vote or something? Since September 2009, there has been no vote at a Open Board Meeting, all the voting appears to be done in Executive Session. My understand is that you discuss in Executive Session and vote in Open Session, unless it is of disciplinary action.

I pulled the below from davis-stirling.com. It appears that they really don't have to conduct board meetings if they don't want to or do things. It appears this is what they have been doing since last September, but the problem is that the required document is not filed with the minutes or any mention of the action. Should I just ask to inspect all the minutes and action without meetings from September?

Board Action Without a Meeting
Unanimous Written Consent. As provided for in Corp. Code §7211(b), any action required or permitted to be taken by the board may be taken without a meeting, if all members of the board individually or collectively consent in writing to that action. The written consent must be filed with the board's minutes.

A unanimous written consent does not violate the Open Meeting Act since the action does not qualify as a "meeting" as defined by the Act, i.e., any congregation of a majority of the members of the board at the same time and place to hear, discuss, or deliberate upon any item of business scheduled to be heard by the board.

There was a reference about 10 minutes into last night meeting "oh by the way, so and so is now a new board member", but nothing was mentioned as to how the process came about. I have an interest because I ran for the board last November when an attorney abruptly canceled the meeting and election. I am waiting to speak to the Board Member who resigned. The person they appointed will have to run for election in two months according to our Bylaws, they are appointed until the next annual or special meeting, which we will have in June/July to pass new Bylaws.

The management company has the Bylaws vote all wrong as they stated at last night's meeting to pass the new, restated bylaws requires only a 51% quorum. I hope you can now see our frustration with the board and PM. Their motto is to either bend, skirt or break the law.

So as I see it then, if you have a high quorum requirement to get elected, the board or management company in power can pretty much keep their non- friends off.

Mary

Right now if one of their friends wants on the board, or they want to keep someone else off, or simply control the board, it take but a total of 3 votes (theirs)to accomplish that. If on the other hand, someone wanted to get elected to the board according to the governing docs, first would require a quorum of 159 homeowners, then a majority of the persons casting secret ballots. We have not made quorum in over 6 years and all the ballots that have been cast over that period of time have remained unopened. Last November, we received 39 ballots, or so they say. That was the highest in 6 years.

Now the community is in the process of updating our Bylaws. The Board's goal, as they stated numerous times to the community was to realistically meet quorum requirements. I got a first draft back from the attorney that the board made their recommendations to and they reduced the percentage for quorum to 1/3 or 106.

The committee in charge of amending the Bylaws will make the recommendation to eliminate quorum altogether for any meeting of the members. To elect directors would require the majority of the secret ballot cast. Proxies and cumulative will also be eliminated. We will also hold town hall meeting to explain the reasoning behind the changes. Eliminating quorum by no means eliminates the 51% and 67% vote approval to change the Bylaws and CCR's, it only guaranteers that votes cast will be opened and counted from now on. It also takes certain interpretation out of the mix.

By making these changes and following election code based on the Davis-Stirling Act the people that want to be involved will have their voices heard. Changing law still should be of a higher threshold.

I think that cumulative voting is an "inalienable right" in California. I don't think that it can be eliminated. You should check that out.

From Civil Code 1363.03....An association shall allow for cumulative voting using the secret ballot procedures provided in this section, if cumulative voting is provided for in the governing documents.

Cumulative voting was put into place to insure that the developer/declarant always remained in power while they were in control of the development. Do the math, it always works to the benefit of the developer and keep them in control of the majority of the board. The developer always gets three vote per unit to the homeowners one.

Richard,

Note that Civil Code only provides for cumulative voting if so provided for in the gov docs.

If the developer gets 3 votes for each unsold lot he doesn't need cumulative voting to ensure that his people get on the board. When his 3 votes no longer ensure that he has a majority vote it will be time for transition, after which he won't care who is on the board as he will no longer be in control.

As I understood it, cumulative voting was a way for a minority to have a better chance of getting a Board Member elected to represent them, even though they are a minority.

For example, with 3 open Board positions and 6 candidates, an owner could use cumulative voting to cast 3 votes for 1 candidate, rather than having to cast 1 vote per open position.

Cumulative voting seems to punish the developer rather than favor him. There's less chance of a clean sweep and more chance of the rest of the HOA getting one Board Member. Multiple votes per lot seems like an entirely different issue than cumulative voting.

But perhaps I'm not seeing something.

Richard given the apathy your HOA has shown in past elections do you think that they can come up with the 159 for quorum to hold the special meeting and the 159 yes votes required to change the By-Laws?

Also while it does state in section 6.4.1 of your By-Laws:
Vacancies on the Board of Directors, except for a vacancy created by the removal of a director, may be filled by a majority vote of the remaining directors, though less than a quorum, or by a sole remaining director, and each director so elected shall hold office until his successor is elected at an annual or a special meeting of the Members. A vacancy on the Board of Directors created by the removal of a director by the Members may only be filled after obtaining the vote of a majority of the Members, excluding the vote of the Declarant.

I would interpret this as a special meeting specifically called for this purpose not a special meeting called for another purpose such as amending the By-Laws. As I interpret D-S the meeting can be used for no other purpose that for the reason it was called and noticed for so if you want to vote on this issue also then it needs to be in the notice and agenda.

Glen

WE have a plan to get the 159 quorum and 162 yes votes if the management company gives us the proxies. If not...well we might be in court fighting this.

Glen,

That is what I got from it also. The language in the amended Bylaws states "Each director elected or appointed to fill a vacancy shall hold office for the remainder of the unexpired term of such director's predecessor.

Our problem is we have had no director elected in over 6 years and there is no provision in the Bylaws for election by acclamation.

If you remember we had a special meeting in January that no one showed up for. Just found out that the meeting date should not have been set for a legal holiday, as no meeting date, board, special or annual can be scheduled on a legal holiday. I know it's water under the bridge.

As far as getting the quorum for the special meeting, if it happens, we have organized block captains responsible for going door to door to get the vote out. I have also recruited bilingual homeowners to cover our diverse community. We'll be successful if the management company doesn't put a road block in front of us.