RichardP13 (California)
Posts: 1,767
Posts: 1,767
Posted:
Is it proper to make a motion, second it and then carry that motion to appoint a new Board Member in Executive Session, replacing one that had resigned.
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Appointing a new Board Member during Executive Session
Started by RichardP13 • 7 replies • 2627 views
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AdamK (Arizona)
Posts: 23
Posts: 23
Posted:
probably different per association. is it proper, probably not, is it legal, possibly. In our association, the board members must be voted on by the association, however the board has the duty of appointing positions. There is a special clause for vacancies which I believe leaves it up to the board to assign someone from the association to the board, and really that happens as soon as the original person resigns. so it may be legit.
JamesG (Connecticut)
Posts: 83
Posts: 83
Posted:
Typically, the position of a resigned director can be filled by appointment by action of the remaining directors. However, any decision of this type cannot be made in executive session as the actions taken within the executive session are not recorded in the board meeting minutes and therefore are not availble to the membership.
MaryA1 (Arizona)
Posts: 7,043
Posts: 7,043
Posted:
Richard,
No it is not proper, in fact it would be in violation of D.S.1363.05 (see excerpt below).
"(b) Any member of the association may attend meetings of the board of directors of the association, except when the board adjourns to executive session to consider litigation, matters relating to the formation of contracts with third parties, member discipline, personnel matters, or to meet with a member, upon the member's request, regarding the member's payment of assessments, as specified in Section 1367 or 1367.1. The board of directors of the association shall meet in executive session, if requested by a member who may be subject to a fine, penalty, or other form of discipline, and the member shall be entitled to attend the executive session."
For Adam's info, it would also be in violation of the AZ HOA Open Meeting Law.
For James' info: it isn't allowed simply because minutes aren't taken in exec session and the members would not know about it. In fact, minutes are taken in exec session in many assn's and those minutes are privileged. It isn't allowed because it is not one of the reasons for meeting in exec session. Only confidential issues may be discussed in executive session. Many states have passed open meeting laws for the benefit of the members; so they may attend board meetings (and in AZ at least have a right to speak b/4 an issue is voted on by the BOD) and know what business is being conducted by the BOD. It's for the sake of board transparency.
No it is not proper, in fact it would be in violation of D.S.1363.05 (see excerpt below).
"(b) Any member of the association may attend meetings of the board of directors of the association, except when the board adjourns to executive session to consider litigation, matters relating to the formation of contracts with third parties, member discipline, personnel matters, or to meet with a member, upon the member's request, regarding the member's payment of assessments, as specified in Section 1367 or 1367.1. The board of directors of the association shall meet in executive session, if requested by a member who may be subject to a fine, penalty, or other form of discipline, and the member shall be entitled to attend the executive session."
For Adam's info, it would also be in violation of the AZ HOA Open Meeting Law.
For James' info: it isn't allowed simply because minutes aren't taken in exec session and the members would not know about it. In fact, minutes are taken in exec session in many assn's and those minutes are privileged. It isn't allowed because it is not one of the reasons for meeting in exec session. Only confidential issues may be discussed in executive session. Many states have passed open meeting laws for the benefit of the members; so they may attend board meetings (and in AZ at least have a right to speak b/4 an issue is voted on by the BOD) and know what business is being conducted by the BOD. It's for the sake of board transparency.
RichardP13 (California)
Posts: 1,767
Posts: 1,767
Posted:
Here is how this surfaced.
At the March BOD meeting, there was a new BOD sitting at the table, with a pre-printed name sign. They were also at the Executive Session which is held one hour prior to all Open Meetings.
During Open Session, during the reading of the Treasurer's Report, the Board President mentioned that they had a new BOD and their name was so and so. As I mentioned prior this was due to a Director resigning. There was no mention to the community and no volunteers were asked to replace the resigned Director.
Someone had put the draft minutes of the Board Meeting on the web site. The minutes, which are prepared by the PM, stated that so and so Director had resigned and that a motion, a second and a vote had taken place. After I discovered other inaccuracies, I emailed the PM for the "approved minutes". I received the "altered approved minutes" yesterday. In it, the "approved minutes" stated that the information was voted on in Executive Session.
I understand why the rules for Executive Session were put into place. They're in place to promote transparency in an organization. Unfortunately, our Management Company is giving advice and the BOD follows their lead to the letter.
As I mentioned, we have pretty much finished the revisions to our Bylaws, which will be going out to a vote of the membership in a couple of months. Quorum is now defined as members present, we have qualifications for Directors and if they are in violation there is a provision to remove, proxies and cumulative voting have been eliminated, there is clear understanding of what percentages of the membership is needed to raise assessment beyond the legal threshold, election and removal of directors and approving amendments to our governing documents. We also put into place the specific use of Robert's Rule of Order as the parliamentary procedure of choice. We also took out all references to the Declarant and Merchant Builder and any mention of two classes of voting.
At the March BOD meeting, there was a new BOD sitting at the table, with a pre-printed name sign. They were also at the Executive Session which is held one hour prior to all Open Meetings.
During Open Session, during the reading of the Treasurer's Report, the Board President mentioned that they had a new BOD and their name was so and so. As I mentioned prior this was due to a Director resigning. There was no mention to the community and no volunteers were asked to replace the resigned Director.
Someone had put the draft minutes of the Board Meeting on the web site. The minutes, which are prepared by the PM, stated that so and so Director had resigned and that a motion, a second and a vote had taken place. After I discovered other inaccuracies, I emailed the PM for the "approved minutes". I received the "altered approved minutes" yesterday. In it, the "approved minutes" stated that the information was voted on in Executive Session.
I understand why the rules for Executive Session were put into place. They're in place to promote transparency in an organization. Unfortunately, our Management Company is giving advice and the BOD follows their lead to the letter.
As I mentioned, we have pretty much finished the revisions to our Bylaws, which will be going out to a vote of the membership in a couple of months. Quorum is now defined as members present, we have qualifications for Directors and if they are in violation there is a provision to remove, proxies and cumulative voting have been eliminated, there is clear understanding of what percentages of the membership is needed to raise assessment beyond the legal threshold, election and removal of directors and approving amendments to our governing documents. We also put into place the specific use of Robert's Rule of Order as the parliamentary procedure of choice. We also took out all references to the Declarant and Merchant Builder and any mention of two classes of voting.
DanielH1 (California)
Posts: 482
Posts: 482
Posted:
It isn't proper but I'm not sure what you hope to accomplish by pointing it out.
Almost certainly, the Board will just appoint the same person during the open meeting, ignoring alternative candidates and arguments. In previous posts, you've made it clear that the Board will ignore other input.
Almost certainly, the Board will just appoint the same person during the open meeting, ignoring alternative candidates and arguments. In previous posts, you've made it clear that the Board will ignore other input.
RichardP13 (California)
Posts: 1,767
Posts: 1,767
Posted:
Davis-Stirling.com emailed me this morning and will have an opinion on this in their Sunday Newsletter. I will post their response.
RichardP13 (California)
Posts: 1,767
Posts: 1,767
Posted:
Quote:
Posted By RichardP13 on 05/05/2010 9:56 PM
Davis-Stirling.com emailed me this morning and will have an opinion on this in their Sunday Newsletter. I will post their response.
Davis-Stirling.com emailed me this morning and will have an opinion on this in their Sunday Newsletter. I will post their response.
From the Davis-Stirling.com Newsletter posted May 9, 2010
Unless your governing documents state otherwise, the board is not required to ask the membership for volunteers before appointing someone to fill a vacant seat. The appointment of a director in executive session, however, was improper. The appointment does not fall into any of the approved categories of business for executive session. The appointment should have been done in open session. The board can correct its misstep by reappointing the person in the board's next open meeting. It needs to be on the meeting's agenda.
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