Our docs conflict as to the number of BODs

Started by DanaA • 15 replies • 1268 views

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DanaA (Florida)
Posts: 117

Posted:

We for years have had 9 BODs. Our Recorded Articles of Incorporation in 1973 state we were to have 7 Board of Directors. Our Recorded 1988 Amended Bylaws refer to 9 BODs. We do not have any original recorded Bylaws prior to 1998, not a copy, nor any recording of such. Somewhere in those 15 years prior to 1988 we jumped to 9 BODs. Both above referenced docs were recorded again in 2006 when we revitalized. Now we are having upcoming elections, and this was brought up. Should we stick with 9?

RogerB (Colorado)
Posts: 5,067

Posted:

Dana, your Articles overrule the By-laws. Either have seven or amend the Articles of Incorporation.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Dana,
Your original Articles of INC. called for 7 Board members. Unless you amended that document, it is still 7 members. That is what the State of Florida thinks you are using---7. ByLaws are of a lesser presence and fall underneath the Articles. Someone didn't pay attention to the ranking of your docs.

SusanW1 (Michigan)
Posts: 5,202

Posted:

Amend your Articles to say that the number of Board members will be stated in the bylaws.

DanaA (Florida)
Posts: 117

Posted:

Our Annual Meeting, in which we elect new BODs is February 19. All members received, this week, an official mailing that states that if members wish to be a candidate to the BOD, they must submit by January 28. The letter states we have 9 BODs, and that of the 9 BODs, there are four Board vacancies this election. What do I do as to the time frame? We have 5 BODs remaining, 4 coming off the BOD, should we just elect 2 new BODs? I can't imagine with the way we run things we could amend our Articles of Inc. prior to that. We have two year terms.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Dana,
It will be your decision as to what to do. I would print out the replys on this post and point out to your entire Board, that there is a huge error in your elections past and upcoming. Is there a P.M. working for you? That would be a huge help if that person knew that you indeed are in error. Your elections can be redone as you have a month to go. To get an amendment changed prior to the meeting would be entirely too close and without proper information, it probably would not pass.

Even if it passed, the time frame is not spaced enough as you need 14 day notice for the amendment, voting time and then it has to be filed in the County and State to be valid. The election would be an easier function to handle.

Or you could ignore this and hope that someone with the ability to read your Docs, might not call your Board on the error. Sorry,----Donna

SusanW1 (Michigan)
Posts: 5,202

Posted:

Bylaws can't conflict with higher documents, so you don't have a choice.

KeithJ1 (Colorado)
Posts: 3

Posted:

Dana,
In my humble opinion, 9 BoDs is way too many. How do you ever get decisions made? I believe in a 2 tier system - a small number [3-5] of executive BoDs [who make decisions] and a possibly larger number of appointee specialist BoDs who advise. But would your Bylaws support that kind of a structure?
Keith

DanaA (Florida)
Posts: 117

Posted:

Kieth, you are absolutely right, 9 BODs is way too many. As to how do we ever get things dcne? We don't. I am on one of the most ineffective boards imaginable. We don't even get through our agenda topics at any board meeting. I have sent an email to our President and Property Manager regarding this issue and have not heard back. My President is up for re-election to this board in February, and I strongly believe he will try to ignore this issue, or push it off at least until next year's election. Better chance of his getting reelected if it stays as is.

DanaA (Florida)
Posts: 117

Posted:

Update - received reply, please issue guidance. I sent the Property Manager and our President notice of my concerns regarding this conflict and that we needed to correct the situation with this upcoming election. I never heard back from the President (he is up for reelection), but I just reeived the Property Manager's (licensed CAM) reply. Quoting exactly: "I know it says that in the statutes, but when I took over as your manager you have 9. When I take over a new association I tend not to rock the boat unless I feel the association could put themselves in a legal suit. My thought would be to get a legal opinion on this from our attorney once an attorney has been picked". Well, what do you think? Indeed, we are interviewing new attorneys,(decision could take months, years) but we presently have one we currently use. It is not like we are without legal representation. Is our licensed CAM in violation for not following the statutes once he is aware of them? Thanks!

SusanW1 (Michigan)
Posts: 5,202

Posted:

Dana - check your Annual Reports (filed with the State) or IRS Forms from previous years. All your officers are supposed to be listed. Maybe you can get a clue as to when this was changed.

This is another reason why minutes are so important, and the secretary is the guardian of the legal paperwork for the corporation. This is something that should be relatively easy to pinpoint when the change came. Instead, no one can justify the nine on the board!

DonnaS (Tennessee)
Posts: 5,671

Posted:

Hi Dana,
His reply to you was unethecal and unprofessional. But you must remember that he is not in any position to change things because he wants to. It is his job to inform the Board of the Statutes and your Articles statement of having 7 Board members. Shame on him for his "lame" statement of not wanting to rock the boat. He is not doing his job according to his license.
Someone on the Board needs to pick up the phone and talk with your attorney right away. He can tell you what to do immediately, if not within a days time. It is written very clearly in your Articles. What is his problem with not seeing that. All of us posters have given you very good advice and you already knew the answer. Push to get this resolved before your Feb. elections.

DanaA (Florida)
Posts: 117

Posted:

Yes, I knew the answer, thanks to these posts. I was amazed that our Property Manager, who is licensed in the state of Florida, blew off the idea of doing things right. I will contact our association attorney on Monday. My President just shot me an email today saying this : QUOTE: "Where exactly in the statutes does it say the superiority of the documents? Thanks, XXX".

DonnaS (Tennessee)
Posts: 5,671

Posted:

Dana,

You can print this out for him and it is verified by the huge law firm in Palm Beach County (cannot say the name)

----- Heirarchy of Association Documents-----

1) All Federal Laws--Hud, ADA, FCC, all laws
2) State Laws and Statutes 720 and 617 for HOA's
3) Individual County Laws, Ordinances and codes
4) City and Township Laws if applicable
5) Restrictions & Protective Covenants
6) Articles of Incorporation
7) Bylaws
8) Rules and regulations

This is the way that associations are required to function according to the State Not For Profit Corporation Statutes and Laws.

If you have the attorney on the phone, just ask him to verify this for your President. Again, I am dismayed at the ignorance of some association officers. I did not know this stuff in the beginning but I read---alot.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

To all,
This stands out clearly as what is going on in our associations. I'm not sure if the system will ever work or not, but right now it is what we have to work with. How can the president of a board not know about the authority of his documents. But it is common and gets worse than that. Each newbie that posts here should realize they are ahead of the game having the interest to find out. Boards have specific mandates to learn their positions, HO ALL have affirmed they will be a helpful part of the association, and stand around and watch their money and their property go down the drain.

DanaA (Florida)
Posts: 117

Posted:

Susan, took your advice, and we don't even file correctly with the state. Our Registered Agent is our Property Manager, and on record are only 6 Officer/Directors of our 9. I am not even listed! The 2007 and 2006 Annual Report, filed with the electronic signature of our President lists 6: 4 officers, and only two directors. Reviewing annual reports back 10 years, there are two years, 2001 and 2002, which list 9 Directors/Officers. The most otherwise was 7...... just thought I'd share.

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