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Subject: Is Assistant Secretary an officer
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BobB31
(Florida)

Posts:94


03/28/2019 7:20 AM  
We are a small self-managed HOA, 48 single-family townhouse units in 4 buildings. The Developer turned over the corporation 20 years ago.

Last year the Board approved an Enforcement Procedure and Compliance Procedure Policy designed to bring us into compliance with 720.305 (http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0720/Sections/0720.305.html). At the annual member meeting a new board was elected and volunteers were requested to serve on the Compliance Committee. I and two others, call them V1 and V2, volunteered.

At the special Organizational meeting a couple weeks later, the Board decided it needed an Assistant Secretary and assigned V1 to perform that function. At the time I still hadn't got up to speed with the Compliance Procedure and bylaws. Last month I volunteered to be the Chairman of the committee and started researching what would be required of us. The first thing that caught my eye was:

"The members of the Committee may not be officers, directors or employees of the Association."

This made me wonder whether Assistant Secretary fell into one of these categories, and I started studying the Articles of Incorporation and Bylaws to attempt to answer this, and found, in the Articles:

"The BOD shall elect a President, Vice President, Secretary-Treasurer, and as many Assistant Secretaries as the BOD shall determine. The President shall be elected from the membership of the Board, but no other officer need be a Director."

Hmmm, Assistant Secretary sounds like an officer to me, but to be sure, I went to the bylaws and found:

"Officers
The executive officers of the Association shall be a President, Vice President and Secretary-Treasurer, all of whom will be elected annually by the BOD. Any Director of the Association may also be an officer of the Association. The BOD may also appoint one or more Assistant Secretaries to act in the absence of the Secretary."

Since this paragraph seems to define the officers, I concluded that Assistant Secretary was indeed an officer and brought this up in the last open Board Meeting. None of the board members agreed that Assistant Secretary was an officer ("He's not a member of the Board and cannot vote, therefore not an officer"). I pointed out that the only officer required to have a vote on the Board was the President. They were still not convinced but they asked V1 if he would be willing to step down from the Committee and he agreed. A new committee member was appointed.

So the problem was dodged, but the doubt still remains: have I correctly interpreted the Articles and Bylaws?
AugustinD


Posts:1627


03/28/2019 7:54 AM  
I think the controlling section is the Bylaws section on officers. The first sentence of this section is not ambiguous: The only officers are the President, VP and Secretary-Treasurer. I'd also argue that the only time the Assistant Secretary is an officer is when the Secretary is absent. The Florida HOA and Condominium statutes seem to indicate similar: When there is an emergency and the Secretary is unavailable, the assistant secretary may become the Secretary and so becomes an officer. For your HOA/Condo and when there is such an emergency, this means the Secretary (formerly assistant secretary) can no longer serve on the Compliance Committee. But when an emergency arises, I think compliance may be well down the list of the Board's concerns.

I am also operating from past experience with bylaws, where the Bylaws authorized the Board to appoint an assistant secretary or assistant treasurer as needed. These positions were never considered officer positions except when the Secretary or Treasurer was absent.

Given the dearth of volunteers in general nationwide for HOA positions, I would not argue about a person serving as both the assistant secretary and on the comppliance committee.

Florida Condo Act and Florida HOA Act:

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0718/0718.html

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0720/0720.html
BobB31
(Florida)

Posts:94


03/28/2019 8:03 AM  
Thanks Augustin, that seems clear. But the waters have been muddied.
The Director who was elected to be Secretary-Treasurer has refused to act as Secretary, citing the lack of time due to her being employed. This means that the Acting Secretary has been sending out meeting notices, taking minutes at meetings, and sending out minutes for the past two months.

It seems to me that the elected Secretary is now considered "absent" and the Assistant Secretary has assumed her duties, making him an officer. Would this be correct?
ND
(PA)

Posts:299


03/28/2019 8:05 AM  
Where did the phase, "The members of the Committee may not be officers, directors or employees of the Association." come from? Is that a Committee Charter or bylaws or somewhere else? Trying to get a feel for where it is to determine whether that phrasing can easily be changed if needed/desired.

Seems like you understand the difference between Board Members and Officers but your Board may not. To sum up the differences and the particulars of your docs, you have a Board of Directors that is elected my HOA Membership. Then you have Officers (President, Vice President, Secretary-Treasurer, and any # Assistant Secretaries), elected by the Board, of which only the President must also be a Board Member. In theory, your Board can be made up of whatever number of people are necessary per your documents, and your Officers can be an entirely different group of people (except for the President who must also be a Board Member). Most times, Board Members are also the Officers (but as you can see it isn't required, except for the President).

So in my interpretation of things, your Assistant Secretary is an Officer and IAW wherever that excerpt above comes from, may not be a member of the Committee. Depending on the desired result for this individual, there are several different ways to change things.

All that said . . . being a self-managed, 48 single-family townhouse HOA, with only a small pool of people already to select from for Board, Officer, Committee membership, it seems like the "rules" that exist or that have been created may necessitate a fairly decent quantity of different people to be involved. If you have a good group of owners who are involved and engaged, this may not be an issue. However, if apathy begins to take over, your pool of candidates will shrink and you'll have a hard time finding people to fill the positions unless those Board, Officer, and Committee positions can be performed by the same individuals. Need to think about absolute strict adherence to rules -vs.- what you all want your HOA to be or become -vs.- working to change rules that get in the way of where you want to be.
BobB31
(Florida)

Posts:94


03/28/2019 8:18 AM  
Posted By ND on 03/28/2019 8:05 AM
Where did the phase, "The members of the Committee may not be officers, directors or employees of the Association." come from? Is that a Committee Charter or bylaws or somewhere else? Trying to get a feel for where it is to determine whether that phrasing can easily be changed if needed/desired.




That sentence came from the Compliance Procedure Policy document, but it also appears in the Florida Statute 720.305 (2)(b):
" ... committee of at least three members appointed by the board who are not officers, directors, or employees of the association, or the spouse, parent, child, brother, or sister of an officer, director, or employee."

So I've now received two contradictory answers, which tells me that the bylaws are indeed ambiguous.
AugustinD


Posts:1627


03/28/2019 8:30 AM  
Posted By BobB31 on 03/28/2019 8:03 AM
Thanks Augustin, that seems clear. But the waters have been muddied.
The Director who was elected to be Secretary-Treasurer has refused to act as Secretary, citing the lack of time due to her being employed. This means that the Acting Secretary has been sending out meeting notices, taking minutes at meetings, and sending out minutes for the past two months.

It seems to me that the elected Secretary is now considered "absent" and the Assistant Secretary has assumed her duties, making him an officer. Would this be correct?


Under these circumstances, I agree with you the only reasonable interpretation is that the Assistant Secretary is the full-time Acting Secretary, making him or her an acting (or actual) officer. Per your governing documents, the Acting Secretary may not serve on the Compliance Committee.

For what it's worth, I think having one person undertake both the Secretary's and Treasurer's duties is super dumb, especially for a townhouse community with massive infrastructure responsibilities. I do not blame the person who agreed to serve as Treasurer but not as Secretary. I grant I have seen the title Treasurer-Secretary in the past. Maybe it was mostly with HOAs with small budgets and minimal notice requirements.

On the other hand, what I said about not having enough volunteers to fill all the required roles does argue for some laxness. I believe the courts will look dimly on any bozo who objects to the Acting Secretary also serving on the Compliance Committee, especially if said bozo has not him- or herself volunteered for one of these required positions. It's pretty expensive to file suit. Florida has a government agency to address certain flavors of governing document violations, but I think this Florida government agency, under statute, mostly deals with director election problems.
ND
(PA)

Posts:299


03/28/2019 8:38 AM  
Didn't realize you were in Florida until after I posted. I will defer to other Florida folks who are most certainly more knowledgeable than I am on the intricacies of the unnecessarily convoluted Florida HOA laws.
BobB31
(Florida)

Posts:94


03/28/2019 8:48 AM  
Posted By AugustinD on 03/28/2019 8:30 AM

On the other hand, what I said about not having enough volunteers to fill all the required roles does argue for some laxness. I believe the courts will look dimly on any bozo who objects to the Acting Secretary also serving on the Compliance Committee, especially if said bozo has not him- or herself volunteered for one of these required positions. It's pretty expensive to file suit. Florida has a government agency to address certain flavors of governing document violations, but I think this Florida government agency, under statute, mostly deals with director election problems.


Excellent point. I think we can close this discussion.
BobB31
(Florida)

Posts:94


03/28/2019 11:08 AM  
Posted By ND on 03/28/2019 8:38 AM
Didn't realize you were in Florida until after I posted. I will defer to other Florida folks who are most certainly more knowledgeable than I am on the intricacies of the unnecessarily convoluted Florida HOA laws.



Don't do that, I was hoping you would reply based on your responses in other threads I read while lurking.
ND
(PA)

Posts:299


03/28/2019 11:14 AM  
This just got weird . . .
BobB31
(Florida)

Posts:94


03/28/2019 11:26 AM  
Posted By ND on 03/28/2019 11:14 AM
This just got weird . . .



OK, let me rephrase that:
I was hoping for a lot of replies regardless of source to allow me to make a better decision. How's that
JohnC46
(South Carolina)

Posts:8334


03/28/2019 12:09 PM  
I say Officers are elected by the BOD from among its Directors. Typically they are Pres., VP, Trea., Sec. I believe one can hold more than one position but if I recall, the Pres., and Sec. cannot be the same person. Ours are Pres., VP and Trea. (same person, me), Sec. Three Officers for a BOD of 5.

I say if not elected to one of the above positions, one is not a Officer no matter how they try and make themself one.
KerryL1
(California)

Posts:6350


03/28/2019 1:21 PM  
Many bylaws permit board to appoint officers who aren't directors, often with the exception of the president. Our bylaws also permit us to create any "officers that we deem necessary" say, parlimentarian. But the officers who aren't directors may not vote.

It seems to me that this type of officer can serve both on the board and compliance committee if no one cares. After all, as a non-director officer, the person cannot vote. With ague, let's see if anyone takes them to court.
KerryL1
(California)

Posts:6350


03/28/2019 1:22 PM  
Many bylaws permit board to appoint officers who aren't directors, often with the exception of the president. Our bylaws also permit us to create any "officers that we deem necessary" say, parlimentarian. But the officers who aren't directors may not vote.

It seems to me that this type of officer can serve both on the board and compliance committee if no one cares. After all, as a non-director officer, the person cannot vote. With ague, let's see if anyone takes them to court.
GeorgeS21
(Florida)

Posts:1227


03/28/2019 6:41 PM  
Based on this wording, “The only officers are the President, VP and Secretary-Treasurer,” it seems to me that the hyphen indicates a dual hatted Secretary-Treasurer, right? Three, not four officers?
BobB31
(Florida)

Posts:94


03/28/2019 6:55 PM  
Posted By GeorgeS21 on 03/28/2019 6:41 PM
Based on this wording, “The only officers are the President, VP and Secretary-Treasurer,” it seems to me that the hyphen indicates a dual hatted Secretary-Treasurer, right? Three, not four officers?



Your quote should not contain the word "only". But yes, it's the hated Secretary-Treasurer.
TimB4
(Virginia)

Posts:16355


03/28/2019 8:03 PM  
Posted By BobB31 on 03/28/2019 7:20 AM

None of the board members agreed that Assistant Secretary was an officer ("He's not a member of the Board and cannot vote, therefore not an officer").




Officers DO NOT vote at board meetings.
Officers simply make reports to the Board (provide information).
Officers also implement the decisions of the board.
Officers are responsible to have the day to day tasks of running the Association performed (either by doing those tasks themselves or over seeing contractors or employees who are delegated to perform those tasks).

Only Directors Vote


When Directors also serve as Officers, they are performing two jobs in the company. Each job has it's own responsibilities and tasks that must be performed. Unfortunately, it it common for many to not see that the positions are two separate and simply relate that the two positions, performed by the same individual, are the same.


Posted By BobB31 on 03/28/2019 7:20 AM

They were still not convinced but they asked V1 if he would be willing to step down from the Committee and he agreed. A new committee member was appointed.




Good.


Posted By BobB31 on 03/28/2019 7:20 AM

So the problem was dodged, but the doubt still remains: have I correctly interpreted the Articles and Bylaws?




In my opinion, based on what you provided, you did interpret your Bylaws correctly.
GenoS
(Florida)

Posts:2959


03/29/2019 10:19 AM  
My HOA's bylaws do not call for "Assistant Vice President", "Assistant Secretary", or anything else specifically outside of the Executive Officers which are enumerated (P, VP, T, S). However there is a clause in the bylaws that says the board may appoint as many "Subordinate Officers" as it sees fit, none of whom have to be Directors. We have one now who was given the "Assistant Secretary" moniker. She's clearly an "officer" according to our Bylaws, and your bylaws are obviously different. Just an observation. Sounds like you "get" the difference between Directors and Officers. Good for you because that probably puts you in the top ten percentile of homeowners why try to understand how their HOA should be governed.
GeorgeS21
(Florida)

Posts:1227


03/29/2019 2:26 PM  
Sorry - Bob - you are correct - don't know where the ONLY came from ...

I would, then think you have ONLY three OFFICERS - a Pres, Vice Pres, and a dual-hatted Sec-Treasurer. Adding assistants does no make them Officers.
JohnC46
(South Carolina)

Posts:8334


03/29/2019 5:06 PM  
Good point by Tim that only directors, not Officers vote. Remember this no matter what one is called.
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