Former Board Member Taken off the Board for not doing his assigned job

Started by JoanC1 • 6 replies • 1532 views

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JoanC1 (New York)
Posts: 2

Posted:

I am the President of an HOA in NY State and have the following circumstance that has arisen. Three years ago, one of our directors (we have directors who are in charge of beaches, roads/snow, social/entertainment, sanitation, landscaping) and his former position, which has been eliminated after his stint on the board, which was research director.

Every time he was asked to research something, he did not do it, got on his soapbox about how everything else should be run, and watched everyone else with the tasks above work at them without even lending a hand. I had a near riot on my hands back then because we are a working board who gets their hands "dirty". We do not employ a management firm, we hire contractors for some of the heavier work indicated above. The rest of the board felt he came to the table, offered opinions, didn't listen to what our standards were for making sure work got done, and he even tried to "boss" the people who were doing those "hands on" jobs for years. Those board members were ready to walk out if he stayed on the board.

Therefore, we voted to remove him, sent him a letter indicating why he was removed, and three years later, he wants "back on the board" as President now. Our bylaws state that you have to be on the board at least one year as a director before you can run for one of the officer's jobs. The bylaws don't state explicitly that he has to have been on the board at least one year RIGHT BEFORE he decides to run for an officer's job. However, it also doesn't say that if he has been on the board in the past, he can jump right in again and expect to run for the top job, in light of the fact that he was removed before for not doing his assigned job.

As our officers' jobs are elected by the homeowners and our directors are appointed by the board, he now says that since he was on the board three years ago for one year, that he should be able to run for President. In light of the fact that the board voted him off for nonperformance as a director, I would like your opinions on what to do.

He is now threatening civil suit if we don't allow him to run for President because his rights are being "taken away".

Our bylaws state that reasons for removal from board are: 1) Missing two or more board meetings unexcused 2) Conduct unbecoming of a board member.

I welcome your comments.

MicheleD (Kentucky)
Posts: 4,491

Posted:

Joan, with all due respect, I've never seen a situation where the BOARD appoints DIRECTORS and the MEMBERSHIP appoints the OFFICERS.

It's usually the other way around. That's basically because another name for "board member" is "director." It's called the board of directors. Officers are directors (almost always board members) who hold a specific office on the board of directors.

Could you please share with us that portion of your by-laws that specifies how the board members (directors) are elected and how officers (comprised of board directors) are elected?

I'd be interested in seeing that wording.

By the way, based on your own by-laws' reasons for removal, I don't see that you had sufficient reason to remove him.

I'd also like to know how and when your by-laws were originally drafted and how amendments are changes are made to them.

JoanC1 (New York)
Posts: 2

Posted:

You are right, Michele. It should be the other way around. Our Assn. was formed with its bylaws in 1921! In a court argument in Supreme Court in NY State by nonpaying, dissident homeowners about 15 years ago, the judge came up with this compromise so that the people would back off in court as to their argument that they should have a say on who the officers are. I'm not saying she was right or wrong; I also need some legal interpretation on someone being on a board, holding a specified job as a director, and not doing the job at all, except for complaining or disagreeing about everything being done by other board members.

That section you're asking to read says:
"The normal term of office for officers shall be three years. Directors are appointed by the board by the officers on a yearly basis. Any homeowner in good standing can request to become a director. Officers are elected by the homeowners in good standing. Directors can run for an officer's position after serving at least one year on the Board."

There is no provision for nonperformance in the bylaws, but our attorney has said that if someone is not performing their function, the board can remove him for that reason.

MicheleD (Kentucky)
Posts: 4,491

Posted:

Well, your attorney could be wrong.

Your documents are screwed. No offense to you, but 'directors' don't have 'positions,' officers do.

I hope he wins.

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Bleh, just tell him he cant run. He was let go for just cause. Let him threaten to sue, he is bluffing.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Joan,

As Michele says, it's very unusual for the directors to be appointed by the officers and the officers to be elected by the members. It's usually the other way around. HOAs (which are Corporations) are run by a board of directors and in the majority of cases, those directors are elected by the membership. The officers (who are elected directors)are mostly appointed or elected by the directors although some assn do require the members to also vote for the officers.

How many directors and officers are on your board? And, are the appointed directors voting members of the BOD?

I'm curious to know if your bylaws state who makes up the board. In the majority of assns, all the members of the board are directors and some are also officers, but all have been elected by the membership. If there would be any appointed members of the board they would be non-voting board members.

IMO, it may be a good idea to consider amending your bylaws. If you assn was formed in 1921 I would say your gov. docs are grossly outdated! The BOD should consider meeting with an HOA attorney and have him take a look at them. One amendment that you may want to consider is to require the directors to be elected by the members and they, in turn would appoint or elect the officers.

With regard to the person who was removed as a director and now wants to run for Pres., in view of the bylaws section you posted, I would say he is qualified to hold an officer position because he did serve as a director for 1 year. It does not say that the director and officer positions must run consecutively.

SusanW1 (Michigan)
Posts: 5,202

Posted:

He still must get the required votes for the position.

The idea is to not let that happen.

Get another candidate and work to get him/her elected. Campaign harder than that person.

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