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ElizabethB1
(Arkansas)

Posts:43

07/25/2008 4:52 AM
While re-reading minutes from our association's last annual meeting, I'm reminded the board has changed the election process for directors. I've check and re-checked our ccr's and bylaws. No where that I can find does it state the actually procedure. Our poa has suffered the typical apathy in past i.e. number of candidates running = number of vacancies on the board. In recent years, new more participatory neighbors have moved in. The next election we'll surely have more candidates than vacancies. Sometime before the members' annual meeting the board voted to change the election process. Prior to the annual meeting the board will mail a description/term of the position needing to be filled. If someone wishes to volunteer to run for the board he/she may submit his/her name and info. Our association manager will then include all this in the meeting notice packet. It goes on that members can select the candidate of their choice or assign their vote to a designated proxy. This 'new" procedure seems like something that should be an amendment to our bylaws. Anyone care to comment? Additional information I found this morning while reading SC Nonprofit corp. act was this little nugget: SECTION 33-31-1003. Amendment of articles by directors and members. (a) If the corporation has members entitled to vote on the amendment, unless this chapter, the articles, or bylaws require a greater vote or voting by class, an amendment to a corporation's articles to be adopted must be approved: (1) by the board if the corporation is a public benefit or religious corporation and the amendment does not relate to the number of directors, the composition of the board, the term of office of directors, or the method or way in which directors are elected or selected; Doesn't that last sentence prove this procedure should have been voted on by the members and bylaws amended???

SusanW1
(Michigan)

Posts:2184

07/25/2008 5:05 AM
Unless your bylaws give the Board the power to run and/or change the elections process, ALL these "new" election procedures are null and void. The Board cannot change or alter the nomination or election process. The bylaws must be followed, unless amended by a vote of the Membership. Attend the next meeting and call a Point of Order.

MaryA1
(Arizona)

Posts:2259

07/25/2008 5:52 AM
Posted By ElizabethB1 on 07/25/2008 4:52 AM While re-reading minutes from our association's last annual meeting, I'm reminded the board has changed the election process for directors. I've check and re-checked our ccr's and bylaws. No where that I can find does it state the actually procedure. Our poa has suffered the typical apathy in past i.e. number of candidates running = number of vacancies on the board. In recent years, new more participatory neighbors have moved in. The next election we'll surely have more candidates than vacancies. Sometime before the members' annual meeting the board voted to change the election process. Prior to the annual meeting the board will mail a description/term of the position needing to be filled. If someone wishes to volunteer to run for the board he/she may submit his/her name and info. Our association manager will then include all this in the meeting notice packet. It goes on that members can select the candidate of their choice or assign their vote to a designated proxy. This 'new" procedure seems like something that should be an amendment to our bylaws. Anyone care to comment? Additional information I found this morning while reading SC Nonprofit corp. act was this little nugget: SECTION 33-31-1003. Amendment of articles by directors and members. (a) If the corporation has members entitled to vote on the amendment, unless this chapter, the articles, or bylaws require a greater vote or voting by class, an amendment to a corporation's articles to be adopted must be approved: (1) by the board if the corporation is a public benefit or religious corporation and the amendment does not relate to the number of directors, the composition of the board, the term of office of directors, or the method or way in which directors are elected or selected; Doesn't that last sentence prove this procedure should have been voted on by the members and bylaws amended??? Elizabeth, Not living in SC, I naturally am not familiar with the state laws. However, after reading several sections in the nonprofit corp act it doesn't appear that HOAs apply to the act even if they are nonprofit corps. Either there are other statutes which apply specifically to HOAs or, perhaps the state has no HOA statutes. These are some of the points I found which lead me to believe HOAs do not apply: 1) the corp must be for public benefit -- HOA's are not public corps; they are private. 2) no member can be admitted w/o the member's consent -- HOA members do not consent to membership, it is mandatory that they be members 3) the nonprofit corp is not required to have members -- all HOAs have members 4) a member can resign at any time -- members CANNOT resign from an HOA nonprofit corp You have posted a section from the nonprofit corp act which pertains to amending the articles of inc, yet you are writing about an amendment to the bylaws. If the election process is really in your articles of inc (although I really do doubt it), the portion you neglected to post says they are amemded by 2/3 of the votes cast or a majority of the members of the assn, whichever is less. However, if the election process is contained in the bylaws, then that is the doc. which must be amended. Your bylaws should state the process for amending. Many assn bylaws give that authority to the board, but some do require a vote of the members. You talk about a "new procedure" but you haven't stated what the old procedure was. What, exactly, was changed by the board? It would be helpful if you would post the existing bylaw provision and the new procedure.

ElizabethB1
(Arkansas)

Posts:43

07/25/2008 6:17 AM
Mary, I stand corrected. I do see the "articles". To my knowledge, SC HOA's are governed by the nonprofit act except in the case of the horizontal regime act, which are association is not covered under. We are stand alone units. In past elections, it has been like pulling teeth to get someone to step forward. Usually the position up for election is filled by the person whose term is up. My hunch is in the past (I'm too new of a member--the current board has been on for 10+ years; I've only been a member for 5), if someone wanted to be on the board, he/she would let one of the current BOD and/or manager know. At meeting time, his/her name was read and then the floor was open for nominations. Hope that helps. There is no mention in any of our legal docs of the election procedure. The board has now approved a procedure (45 days prior to the annual meeting requests will go out for "volunteers"). My concern is this procedure should have been voted on by the members and added as an amendment to our bylaws. When in fact, the board just told us how it would work from now on (the pres and v.p. are both up for re-election).

SusanW1
(Michigan)

Posts:2184

07/25/2008 6:26 AM
Elizabeth - it looks like the NOMINATION procedure has been played with by the Board. They have NO right to screen or even run the election, since it is under the power of the Members to elect the board. Insist that a Nomination Committee of several residents and one board member (NOT the president) be established and get your ballot names in a more open way. The Board should stay away from all election procedures.

DwightT
(Idaho)

Posts:460

07/25/2008 6:35 AM
I'm not sure I really see the problem here. It sounds like in the past there was no real effort to get people to run for a position, while the new procedure at least announces the open position and gives your homeowners a little more opportunity to consider running. Plus now the procedure is actually documented instead of just winging it. Overall sounds like a positive move forward to me. Regardless, if your current CC&Rs and Bylaws don't say anything about the election process, they probably do say something about the Board having the ability to adopt rules and policies. Establishing a procedure for the elections could fall under that.

DwightT
(Idaho)

Posts:460

07/25/2008 6:39 AM
Posted By SusanW1 on 07/25/2008 6:26 AM Elizabeth - it looks like the NOMINATION procedure has been played with by the Board. They have NO right to screen or even run the election, since it is under the power of the Members to elect the board. Insist that a Nomination Committee of several residents and one board member (NOT the president) be established and get your ballot names in a more open way. The Board should stay away from all election procedures. Susan - sounds good in theory, but Elizabeth already stated that it's like pulling teeth to get someone to step forward. With apathy ruling the day in many associations, insisting that a Nomination Committee be established just isn't going to go anywhere.

MicheleD
(Kentucky)

Posts:1722

07/25/2008 7:02 AM
Our documents allow for the following procedure: The BOARD is to send out a Call for Nominations on XX date. usually first week of January The nominations are then reviewed as to eligibility (member in good standing) by the BOARD, and a ballot is compiled -- by the BOARD. (We usually have our secretary do it; a specific board member is not mandated.) The ballot is then mailed by xx date usually the first week of Feb with instructions to cast votes for up to 9 people and SIGN and DATE the ballot, include the LOT ADDRESS, and return in the enclosed ELECTION envelope BY MAIL, postmarked no later than xxx date usually by the Friday before the annual election, always the first Monday in March The mailed ballots are then opened at the annual meeting, by the secretary of the BOARD, and the secretary and vice president verify status of voter (member in good standing) against a master list and count the votes. The new board is announced at the end of the meeting. That's all listed in our by-laws. NO nominating committee required. NO floor nominations the night of the annual meeting. NO in-person voting. NO ballots can be accepted the night of the meeting. If the ballot wasn't received and postmarked by XX date, it is an invalid ballot.

ElizabethB1
(Arkansas)

Posts:43

07/25/2008 7:05 AM
Posted By DwightT on 07/25/2008 6:35 AM I'm not sure I really see the problem here. It sounds like in the past there was no real effort to get people to run for a position, while the new procedure at least announces the open position and gives your homeowners a little more opportunity to consider running. Plus now the procedure is actually documented instead of just winging it. Overall sounds like a positive move forward to me. Regardless, if your current CC&Rs and Bylaws don't say anything about the election process, they probably do say something about the Board having the ability to adopt rules and policies. Establishing a procedure for the elections could fall under that. DwightT-you've hit upon my "hot button". While our covenants and bylaws make no reference to the election process, they DO make reference to "rules and regulations" in at least five places. AT the last annual meeting, I asked for a copy of the rules and regs and if they existed. Guess what, they don't exist. GRrrr. This is what we're up against. In theory, I agree, members should know who is running for the board. We'll have at least four if not five folks running next year. It just seemed like this "new" process timing is a little fishy considering both pres and vp are up for re-election. Call me cynical

GeraldT4

Posts:932

07/25/2008 7:17 AM
ElizabethB1 - You wrote, "I've check and re-checked our ccr's and bylaws. No where that I can find does it state the actually procedure.". Therefore, what is there to amend? Nothing.

DwightT
(Idaho)

Posts:460

07/25/2008 8:24 AM
Posted By ElizabethB1 on 07/25/2008 7:05 AM In theory, I agree, members should know who is running for the board. We'll have at least four if not five folks running next year. It just seemed like this "new" process timing is a little fishy considering both pres and vp are up for re-election. Call me cynical Ok, You're cynical . So am I most of the time, but it still seems like the new process is more open than the prior non-process.

SusanW1
(Michigan)

Posts:2184

07/25/2008 2:48 PM
Dwight - actually the Nominating Comittee is supposed to find people to run. If they do a good job, there is always a full slate of people ready and willing to take on the responsibility of being a Board member. They operate thoughout the year. They gleen talent from committees or even from social groups, where they can see who are the best and brightest in the community. They can even conduct a survey to find out the "talents" of residents. After having a Nomination Committee established over 5 years ago, we never have those "gaps" in filling the Board and/or officerships come election time. It is so important, that it is a Standing Committee.

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