action without a formal meeting

"Any action to be taken or which may be taken at a Board meeting may be taken without a meeting if all directors sign a consent in writing, setting forth the action so taken. Such consent shall have the same force and effect as a unanimous vote"

Their are several different opinions on what this means, please give yours.

thanks
Barbara

Our assn. has similar language in the docs. and executes it a couple of times a year. It is commonly used to choose a contractor after receiving 3 quotes between meetings.

Example: The BOD has decided to do XYZ, the PM gaters the quotes and emails all BOD members. The BOD motions and agrees in writing to accept quote ABC, the secretary is mailed ALL 5 BOD members' written consent, when all consents are received the emails are sent to the PM for execution.

A very useful tool.

"Unanimous consent" is allowed for some non-HOA Boards but, for states like California that have additional HOA open meeting laws like Davis-Stirling does, it seems not to be allowed for HOA Boards. Just one of those cases where HOAs have to play by somewhat different rules than non-HOAs.

Daniel,

Very true! That is why I said, in my original response, that this should only be used when an action must be taken but a quorum cannot be attained for a meeting.

Suresh,

If all meetings are to be open then it would be a violation of the law to conduct business w/o noticing a meeting, unless it was an emergency. The action w/o a meeting should only be used when a quorum of the board cannot be gathered and an issue needs to be acted upon. It should not be used to take the place of the board meeting in the open. The purpose of the OML is to give the members the right to attend all meetings of the BOD. But, of course, FL's open meeting law may be quite different than AZ's.

Suresh,

The definition of a board meeting per the AZ OML is: a meeting occurs when a quorum of the board gathers to discuss assn business, whether action or a vote is taken or not. The members don't have to be physically present to meet thus meaning "meeting" thru email communicatons also applies. The requirements for taking an action without a meeting contains some gray areas. But, I do believe any qualified HOA attorney would tell you that this method of conducting assn business is NOT designed to take the place of holding a noticed board meeting. In states that do not have an OML, it may not make a difference, but in AZ, CA, FL, etc. it certainly may. As stated earlier, regardless of how the law is written it should not be used unless an action must be taken but a quorum of the board cannot be obtained.

Suresh,

Yes, in a way. In AZ that particular statute is contained in the nonprofit corp statutes. This is not addressed in the HOA specific statutes. So, although HOAs also look to the nonprofit statutes for guidance, because of the HOA OML laws, this particular nonprofit corp statute is a bit iffy. Of course that's my opinion. I could be wrong. However, HOA BOD's should always err on the side of caution, right?

I suspect that unanimous consent is fundamentally incompatible with open meeting laws, even for emergencies.

I don't believe that a court would ever accept a Board's argument that (1) an emergency meeting, even if not properly noticed, was impossible to hold in any shape, form or fashion and (2) that unanimous consent was possible in the same situation. I just don't think that a court would ever be convinced.

Richard,

How many board members do you have that would make it possible for 2 to hold up a vote of the BOD? If there are 5 board members and 3 vote "yea" and 2 vote "no" or abstain, then the vote is not being "held up" as 3 is a majority of 5 and the "yea" votes would prevail.

From what you have written, it appears that CA law regarding an action taken w/o a meeting is the same as AZ law. And, yes, a unanimous vote of the BOD is required in order to take the action. And, just like CA where an OML also exists, this statute is NOT contained in the HOA specific statutes, i.e. the Davis-Stirling Act. Because of this, IMO, an action taken w/o a meeting could very easily be challenged as being in violation of the OML. Of course it would depend upon what the exact action taken was.

I like to think the Legislature understands that BOD's must be given a means to conduct business other than during regularly scheduled and noticed meetings when an emergency occurs; however, they must also be mindful that members' rights must always be protected. Therefore, unless emergency conditions warrant taking an action, all meetings must be properly noticed so that any member so wishing may attend and speak.

Mary,

We have a Board of 5. The action was held up between meetings because a unanimous vote was required during the Action w/o Meeting and because 2 Board members didn't get three way in a vote to spend the $14K in Executive Session. BTW, all voting in this Association is done in Executive Session and never mentioned in the General Session, nor mentioned in the minutes. When I have asked both the Board and the PM about this all that is offered is silence. Are Bylaws state that any action taken must be posted in a prominent place in the Common Area within three days and consents shall be filed with the minutes of the proceedings.

As far as Legislature having a handle on the situation, too many times their actions are political motivated. One time they will look out for this group, the next time that group, when in fact they should just be doing the right thing.

If a Board decides they can't get together to make quorum, they usually revert to an Action w/o Meeting. Because one set of meetings required a majority vote and another a unanimous vote, there may be times when nothing can be done between Board meetings. I agree that this isn't the way to run an Association. Having a place to meet once a meeting has been noticed becomes a issue at times. We hold our regular meetings at a convent (former Western home of Al Capone). There are times when this meeting hall may not be available when a meeting is necessary.

Have any other suggestions?

Mary

To say that the BOD is violating OML is, well, an understatement. I mainly blame the PM's that manage this Association, although, bottomline, its is their responsibility to know the laws or at least where to look and not rely solely on the PM for complete guidance.

As far as meeting quorum, the Board has already made quorum, many times with just three members. The problem lies and I am sure hampers other HOA.s is in between meeting, especially when those require unanimous vote. We are trying to finalize the rewriting of the Bylaws, but because of the holdup of two members approvals have to be done on a monthly basis.

A new board will meet more often, but make sure we notice the membership. Again, what we are striving for is complete transparency. We do have a new qualification requiring Board members regular attendance at Board meetings.

New to some of this stuff...

What is the definition of "action" in the action without a formal meeting? I am on the board and we are discussing, mostly in email but also in informal gatherings with the other two board members, such issues as repairing water leaks, selecting reserve study companies, brain-storming but not deciding antenna policy, etc. - in california. Is this stuff all supposed to be done in a preannounced and open meeting for all members of the association. It would seem not, but I am not clear on the definition of "action".

Tino,

Below is the language from the Corporation Code dealing with Action Without Meeting. It will typically be exact language used in your Bylaws, it is with ours.

Corporations Code §7211. Board Meetings; Notice; Quorum; Consent to Act Without Meeting.

(b) An action required or permitted to be taken by the board may be taken without a meeting, if all members of the board shall individually or collectively consent in writing to that action. The written consent or consents shall be filed with the minutes of the proceedings of the board. The action by written consent shall have the same force and effect as a unanimous vote of the directors. For purposes of this subdivision only, "all members of the board" does not include an "interested director" as defined in Section 5233, insofar as it is made applicable pursuant to Section 7238.

To vote on an issue in either Executive or General Session a majority vote of the Directors constituting a quorum is required. Our PM interprets this section of the code to mean that the vote using an Action Without Meeting must be unanimous.

I could look at this and come up with reasoning to come to the conclusion that only a majority vote is necessary. The Action Without Meeting procedure is used when Board members can't agree to meet between regular Board meeting at a noticed special meeting. So they do a Action Without Meeting. To take action (vote) must be unanimous, but the actual vote for the action to be taken is a majority vote.

If you look at it long enough, you can come to different conclusions.

I am still unclear if making a board (three members on the board - 16 units in the association) decision about making simple maintenance or repair decisions, like which leak detection company to use to search for a leak, or making a decision about which company to use to repair the leak is something that by davis-sterling requires being made at an open board meeting? By your definition that type of decision is certainly an Action. You seem to imply that it is something that we (I'm on the board) need to decide at an open board meeting. True?

If you confirm that is it something that has to be done at an open meeting I will start my rant with the next posting.

Richard,

Voting on an issue us taking an action, and if this is being done outside a regularly noticed meeting, then it would be called taking an action w/o a meeting and that requires that: "all members of the board shall individually or collectively consent in writing to that action." meaning a unanimous vote is required in order to take the action. If the "experts" at the RRO forum thought differently, then IMO they're hardly "experts". As I said, the statute is worded very clearly.

I know the action w/o a meeting is not addressed in the OML, in fact I believe it isn't in the HOA statutes at all. In AZ it's found in the nonprofit corp statutes where open meetings are not addressed at all. That's why I believe it should be used sparingly in any state that has an HOA OML.

We have a three person board in a 16 unit association. The three of us on the board are trying as best we can to take care of the place. We communicate by email or by phone. We also have a property management company that handles the dues, pays the maintenance and does the tax and other legal requirements.

We board members communicate multiple times a week to get things taken care of... I think there's been a lot of deferred maintenance that we are now starting to take care of. The idea that this is illegal and that we can only communicate during an open board meeting announced to all members weeks ahead of time is absolutely absurd and could never work. We need time to figure out what needs to be done, we need a back and forth to hone in on solutions and followup. Calling a meeting for every single Action is crazy. Just finding a date when all three of us can get together in the evening can be challenging, and frustrating when someone that says they will come calls at the last minute to say they can't. PLUS, where do we meet? with three people it's easy enough to meet in someone's home. Opening it up as a open board meeting is another story. With 16 units we don't have a common room for that.... we could meet in the pool shed - it holds 2 people if they are quite small and very thin) so that means renting a room from the public library for $100 each time.

The idea that the board can't meet or email each other to discuss the day to day management of the association is completely stupid. Another unworkable law.

I am not against open meetings of the board with as many members as we can get to attend them, and I believe we should have them on a quarterly interval and that we should use these meetings to get input from the members on issues that need to be taken care of and also for voting on issues that have a potential to change the place. But I can't see how having open meetings for each time the board discusses whether to fix a leak is in any way reasonable. This appears to be a very bad law that we will have to break. What in the heck do other associations in California do? Am I missing something?

The Action without a Meeting is for FORMAL meetings only NOT INFORMAL meetings. Understand in Roberts Rules the definition of a Meeting and an INFORMAL Meeting. Here in our state/city many HOA communities are vacation properties. Therefore, homeowners do not live onsite. We have scheduled annual and quarterly meetings open to all homeowners. However, we have INFORMAL meetings, which is when a Board is under 12 and Committee meetings fall under an INFORMAL meeting. These meeting follow all the guidelines of meeting and voting that the FORMAL meeting has but the entire Association/Homeowner members are not invited --they are not OPEN meetings.

SO Action without a Meeting does not pertain to INFORMAL Board Meetings and Committee Meetings.

Old thread, CathyC8. Original poster was in Florida and Florida law prohibits action by "written consent". My HOA used to do things that way until the board decided to follow the law. A few years late, perhaps, but they did finally stop doing it.

Bottom line: consult your own governing documents and the laws of your state.

I agree with Richard, there's no such thing as FORMAL vs. INFORMAL board meetings. Best to start a new thread.

ALL directors (not merely a quorum) must sign UNANIMOUSLY said resolution.

if a 5 member board - 5 signatures
if a 3 member board - 3 signatures
if a 7 member board - 7 signatures

Since it was a UNANIMOUS agreement an 'open meeting' would have served no purpose.
The resolution requires recording and possibly publishing anyway.

A board must have a "quorum" in order to vote on anything, and should not be misconstrued that if you don't have this quorum, then you can vote on something without a meeting. Two different animals.

Thanks Tim --Being new here please educate me. When you say reactivate a thread is that done by simply replying?
Much appreciated...Cathy