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DanaA
(Florida)

Posts:116

01/21/2008 7:03 PM
Help! I am operating on the guidance of this site, because my President runs in a world of his own, and not by the book. I am a year old board member who is trying to run things legally. I have not been well received by my goodo ld board. One of my recent posts was that our Articles of Incorporation states 7 BOD, and we have had 9 for many years. I brought this fact to this post, and then to my President and Property Manager that we needed to address this, as we have an upcoming election next month. Backfired bigtime, and illegally I think. The solution by my President is retroactive, instead of electing 4 to complete 9, we should elect 2 new bod members. My President used this instead as a reason tonight to rid himself (he thinks) of me and another board member who question him. Here is what happened. He had the audacity to recognize my challenge that we need to be in compliance, and then stated that he had spoken with our association attorneey who adviced Pres to get rid of the two board members from last election Feb. 2007, who received the least votes, and then still have the election as stated. Well, that was me and the only other board member who challenges this place. Tonight the BOD in our BOD meeting voted to remove XXX and myself from the board. I do not think that this is legal and am furious that my President did not address this as a FUTURE problem with the next month election, which he should have said that we would select only 2 new board members. He is up for reelection. Our Presient motioned that the BOD remove us two, and go forward with the election as is, selecting 4. I am steaming upset. I will assist you with any questions. When can something be handled retroactively? As for President's proof of how we should handle this, I did not see an attorney opinion, and the board relied on the President's statement that this is how we handle it. Why wouldn't we take 2006 election at play if we take 2007? Who goes retroactively? What do I do? Or what CAN I do? The board voted to remove the two of us from the board and I don't think the board has the power to do so. I am so very upset, I have only tried to do what is right. Please, please help me. We have so many illegal things going on. I do not know what to do. Thank you. Dana

TomS11
(Florida)

Posts:29

01/22/2008 4:18 AM
as far as i know the bod can not fire another board member, only vote to change thier posittion on the board.your docs probebly address how many bod there can be and that can be alterd. the way that they did it was pretty creative. this sounds like one for donna.

AnnaD2
(Florida)

Posts:335

01/22/2008 4:47 AM
Hang in there Dana!!! Only the members can vote to remove a director. I'm sure Donna is getting her wisdom together as we type to help you out here!

GeraldT4

Posts:932

01/22/2008 6:23 AM
DanaA - No good deed goes unpunished, as they say. I'm not a Florida resident, not as versed as DonnaS in 720 law, etc, but there is a common sense way to approach this. Your term as a Board Director is 1 year old, you were elected by the people, not the Board. Typically, the Board only chooses officers, not Directors. You were elected by the people to serve and it is one of the other 7 BOD's that you should have replaced. They are serving illegally, not you. Now, those 6 BOD (7 minus the Pres.) permitted the Pres to get away with the motion. That is troubling because it's my suspicion that together they will make you a lame duck Director. So you have to ask yourself is it worth serving with those that didn't oppose the President's actions? If you think it is worth serving you should provide the Board c/o the Management Company a written letter stating your position, that you consider their actions to be unwarranted and why, and that you are not stepping down from your BOD position, they are to immediately recognize this, or something to that effect. In the future, you should be the one to make a motion and gather your supporters to second it.

DanaA
(Florida)

Posts:116

01/22/2008 9:02 AM
I am calmer today, so let me explain what happened. I discovered that our Articles of Incorporation say 7 BOD. Our amended bylaws (15 years later) show 9. My President has been on the BOD for 6 years, which is when the 9 BOD began. I pointed this incorrect number of BOD out to my President and Property Manager, (after confirming heirarchy of documents here on this site) and suggested, with upcoming BOD election next month, that we fill only 2 vacating positions, which would bring total to 7 BOD, vs. filling 4 vacating positions, totally 9. This would bring us into compliance. Each BOD is elected for two year terms. I am in the group of 5 current BOD who have one year remaining on our term. My President is up for reelection next month. Instead of dealing with this issue of reducing the BOD number to 7 with the upcoming election in thirty days, he decided to look at the vote tally from LAST YEAR'S BOD election, and "says" that the two board members with the least votes (myself and the other board member who is trying to do things right) had to be removed immediately. Secretary made a motion to terminate the two of us from the board, effective last night. President stated that he had spoken with our attorney to ask about the correct number of board members we should have, and that our attorney said we "needed to correct this immediately". President then stated that he had personally thought about it, and the "only fair way" to correct the situation would be to remove the two of us who were elected last year, and run the election as planned, thereby having 4 open spots. This is an out of control President, and I have been diligent in my research to operate by the book. He can not stand that, and this is his way of eliminating the two challenging BODs. I do not feel that this was a legal course of action, as we have been operating with 9 BOD for 6 years. It was his method to insure reelection. However, by stating that he had contacted our attorney, my other BODs voted in favor because they do not challenge him and have no knowledge of the statutes or even our documents. Pres carefully did not state the attorney advised him to do this, but it was implied. Irony is I try to abide by the docs and get the boot, go figure. I have support of the membership, but not the board who have dictated things for years. It is not personal to me, it is business, and I want to know if this was legal. It has been a challenging year at best.

GeraldT4

Posts:932

01/22/2008 10:34 AM
DanaA - Wait a minute. Are you saying your bylaws were amended to increase the BOD from 7 to 9 members? If so, what justification do you have to say the existing number of 9 members is wrong? Please explain.

DonnaS
(Tennessee)

Posts:2832

01/22/2008 11:16 AM
Dana, Dana, Dana, What the heck, I leave you alone with the monsters and they throw you to the wind. I'm not liking what I read here. Gerald, Dana's Articles and ByLaws state 7 Board members. Somewhere years ago, they increased the Board to 9 members WITHOUT possibly an amendment to the docs. It just somehow happened. Dana spotted it, made a point of it at her meeting as she and another Board member were #8 and #9., got removed from the Board by strictly a Board vote from the highest vote getters from the last election. Dana, THIS IS IMPORTANT!!! In your second post above, you say that the amended ByLaws say 9. Were they or were they not amended to say 9? If indeed they were amended to allow the 9, then they are in conflict with your Articles, which say 7. The Articles are the higher document. The Articles should have been amended at the same time. Okay, beyond that, I am not a legal person and only state what I can document. There is no place in either the 617 (Not for Profit Laws) or 720 (HOA Statutes) that covers a situation like this. The Board made a very poor decision to remove both of the extra Directors without seeking a legal opinion. The P.M. is not leading your association as this is her job to know how the HOA laws read. Lets get the number of members from the Articles and ByLaws down first. 7 in the Articles and how many in the ByLaws? (as amended) This is going to take me a couple of posts to figure this out. I feel a headache coming on.

GeraldT4

Posts:932

01/22/2008 12:09 PM
DonnaS - Uh...., you notice my post where I ASKED Dana the question on the amended 7 to 9 for her to clarify? I'm aware of the possibility that the amendment may not have been done to protocol. Who are you characterizing as a "monster", and who is throwing Dana to the wind?

DonnaS
(Tennessee)

Posts:2832

01/22/2008 12:25 PM
Gerald, Dana has been very sweet and kind with her posts and there is a certain amount of commorodity between us Florida gals. The addressing sentence was in "jist" Yes, I read your asking of Dana the same question that I had asked of her originally. I need to have that part perfectly clear, what was amended? Was it the ByLaws to read what which is what she has said was done. I think what happened is that they did amend the ByLaws to allow 9 BOD and never amended the Articles which are required to also be done. Articles supercede the ByLaws so it is still a 7 member Board according to her Articles.

RobertR1
(South Carolina)

Posts:2147

01/22/2008 1:07 PM
Donna, These two board members were voted in, I think. The action may be wrong but the elction has validity until proven otherwise, so, the President and Board are double wrong, in my opinion.

GeraldT4

Posts:932

01/22/2008 1:22 PM
LOL. Yes, it seems Dana's BOD amended the by-law, not the article, and yes the articles of incorporation trump, and all else must not be in conflict. Further reason why someone other than Dana should leave the BOD, like....THE PRESIDENT.

DonnaS
(Tennessee)

Posts:2832

01/22/2008 1:26 PM
Robert, Yes, I feel that you are right and I absolutely have gone up and down the Not For Profit 617 Articles which is our filing requirements for Florida HOA's I cannot find any references to Board members being removed by other Board members because of the number discrepency. Our 720 only is for recalling of Board members by the general membership so I am batting ZERO so far. I'm still working on it. I think that her Board jumped the gun and had no rights to dismiss the bottom 2 Board members. They should have gotten a legal opinion on this one but this sounds like a case of Board members not liking someone who asks questions and rocks the perverbial boat.

SusanW1
(Michigan)

Posts:2171

01/22/2008 1:32 PM
The president was in his rights to take action WHEN THE BOARD WAS NOT IN COMPLIACE with governing documents. If he were wise, he should have conducted a discussion session to figure out the best way to remove two members. Instead, he entertained the motion that moved to remove the last two elected board members, those that just came on having the lowest vote count. I don't think there is any other way to do this. Sorry. There's always another election coming up.

DonnaS
(Tennessee)

Posts:2832

01/22/2008 1:44 PM
The only hitch in that Susan is that there are no provisions for the Board to do this action--that I have found --yet. The Statutes allow for the membership to recall and remove, but not the Board. It must be in there someplace but I am not finding it.

GeraldT4

Posts:932

01/22/2008 1:47 PM
SusanW1 - If I'm reading this right, the Pres. eliminated the two elected with the lowest # of votes out of the 5 that were recently elected, Dana being one of the two lowest vote getters. The Pres. also motioned and motions take a second, and may also poll all the other members as well. Hence my statement to Dana that she has to consider being a part of a Board that doesn't really want her in the first place. Now, by removing the 2 BOD's, won't that undo the by-law. Why is it the Pres. didn't realize that it's the Article of Incorporation that should have been changed, in other words it was a simple oversight not to do so. A by-law amendment shouldn't just happen out of nowhere.

SusanW1
(Michigan)

Posts:2171

01/22/2008 1:48 PM
Then a Special Meeting of the Members can be called for the purpose of adjusting the number of Board members to be in compliance with the Articles of Incorporation. Then "WHO goes" may get real interesting at this meeting! Nominations for removal???

DonnaS
(Tennessee)

Posts:2832

01/22/2008 1:52 PM
To me, this is a perfect example of when a Board should seek legal advice from an attorney. The way that this Board handled this was what I call a "knee jerk" reaction. The problem with the BOD number being questioned, no one seemed to find out the right proceedure to remove or to allow the 9 members so they just removed 2 as soon as the issue was brought up instead of doing some homework. In the end, if indeed the 7 will be seated, that is fine but the membership and removed 2 directors are due the reason according to whatever law is applicable and to proper proceedings to remove them. I see and feel Dana's humiliation and frustration. Dana was the person who pointed out the discrepancy in the numbers to her Board. Good Job Dana as you did the right thing.

DanaA
(Florida)

Posts:116

01/22/2008 2:52 PM
Thanks Donna and everyone. I brought this issue up so it could be discussed thinking if we were going to correct it, we would do so with NEXT MONTH'S election. 5 of us had another year remaining on our term. We could elect 2, then total 7. We have staggered terms. 4 of our BODs have terms expiring next month!If the President was truly a "fair" person, and needed this corrected that minute, he could have had two of these members removed (the two lowest votes BODs elected two years ago), as they have served their two years and would have to run again anyway next month. Why choose to take the low number votes from last year's election of BODs who have one year remaining? I will tell you it is because my President didn't want to reduce any chance of his being reelected, and he has not likeD the way the 2 of us have challenged him this year, even though it was done professionally, not spitefully. Our Articles were written in 1975. No one has ever located original bylaws. The amended bylaws that state 9 BODs is dated 1988, thirteen years after the Articles. We have a runaway President, and the two of us who were booted were trying to adhere to our CCRs, etc. The President wanted no part of us, and likes to run things his way. The rest of the board have been in place for years, and also like things the way they are because they don't get involved at all,then go up north for the summer. It is a win/win for them, the President gets his power and they have a title. I am so disappointed, and he is clever as a fox to jump on his chance to remove us. I just did not want to go easily if this was not legal because he does so many things that are not legal it is beyond belief. Our 617 annual report was signed and certified by our President the last two years that we had 6 directors, he left three names off. And furthermore, I have never seen board of election tallies, and I have no idea if the vote count he stated is correct or fabricated.

AnnaD2
(Florida)

Posts:335

01/22/2008 3:32 PM
That was going to be MY next question....WHO said that the two of you got the least amount of votes??? Voting materials are usually only kept for one year; yours should still be on file. Can they produce those voting results? Can they verify that the votes/proxies received coincide with the total number of votes counted? They've got a lot of explaining AND proving to do before your MEMBERSHIP has to accept what they claim. The members had voted you in.....the members need to vote you out; or at least be proven to what their voting results were.

KevinH
(Texas)

Posts:53

01/22/2008 3:35 PM
As others have already stated, in most HOAs, only the homeowners can remove a board member (often requiring 2/3 - 75% vote). The board should not be able to 'fire' another board member. They can remove them as an officer, but they still can vote as a board member and should receive any notices of board meetings etc. Keep in mind, to change your HOA documents (bylaws, CC&Rs, etc) also requires this kind of homeowner participation. In most cases, the board can not just vote amongst themselves to change HOA documents. Also as some have stated, certain documents have precedence over others. Therefore if their is a discrepancy between documents, base the decision on the one with precedence. Not only should the legality of the actions taken since the change took place, but the board and the members should decide which way do they want it to be and begin moving towards that goal appropriately. Just be careful not to get so wrapped up in the drama of the people involved and stay focused on what is best for the HOA as a whole (ie the reason you chose to serve on the HOA). If you lose sight of WHY you are doing what you are doing and fail to ensure you stay true to that path in your actions and words, then you may find yourself on the losing end of a long and costly battle. Avoid the drama if you can and do what is best for the whole.

If you cannot see the forest for the trees, back up and get a better view. Don't start to clear a path while still blind.

DonnaS
(Tennessee)

Posts:2832

01/22/2008 3:45 PM
Anna, That is another great point and that is to see the vote count. That should be still on record. I strongly feel that the removal was not to be a Board action and vote because Dana and the other member still had the right to vote and I am sure that they did not vote for their own removal from the Board. The plot thickens and I see that a call to the Attorney General is in need as they interpret the Statutes and Laws. There are some nice people in that office and they might solve this easily. But my first call would be to the association Attorney. You probably have it so that only the Pres can phone him. Have you got his E-Mail? I'll bet he would like to know about this.

DanaA
(Florida)

Posts:116

01/22/2008 4:36 PM
At present, only our President (his words) is allowed to communicate with the association attorney. As a "fired" BOD, will the association attorney need to respond to me? Chances are that my Pres has already circled the wagon. Thought: My President's famous phrase is "grandfathered in", because when I would see something that was not according to CCRs, he would respond that because we have always let certain things be done, then it is grandfathered in. I am wondering if this is not the case with the board of director number, that because we have had 9 BOD for the past 6 years (when it was supposed to be 7), the house was not on fire, and we did not need to extinguish the problem last night. I will try to email the attorney (have his email from forwarded ones from Pres), and I will definately communicate with the Attorney General as suggested (thanks Donna). If there is any way to overturn this, I am willing to do this for the principal of correctness. This "firing" was only done, from a clearer perspective today, as a way to eliminate my challenging this President who makes up rules, decides things unilaterally (and other new BOD with similar views). This is very important to me, this community needs to begin to follow law and order. If Pres gets his way with this, I feel he has added another checkmark to his list of unsavory decisions for personal benefit. If you could have walked in my shoes this past year, you would understand, and please know if you have seen any previous posts from me that I have tried in a most professional and polite manner to handle the dealings that go on. I am not in any way some sort of renegade. Does everyone remember Nancy who used to respond to posts, though not lately? She recognized my President's personal agenda from day one. I wish she could see this. Please send any advice my way, it is truly appreciated, as I must move forward on this. Thank goodness for this site.

GeraldT4

Posts:932

01/22/2008 4:46 PM
DanaA - I can't speak for everyone but it does seem that many of us have dealt with similar situations. I have in my HOA/COA. But, unilateral control is only fueled ironically by the lack of will/interest of other BOD members. Unlike the Wizard of Oz, it takes a bit more than one girl with moxy to throw some water on a tyrant and free those under the spell. I think what you should do is write the BOD care of the MC with cc to the Attorney General and Association Attorney an official letter spelling out your position and the conflict between the Articles and the by-laws and explain what should occur. If there is an election coming up you should re-run. This will get the attention of all the owners that voted for you and should raise the question, "How come she's running again". Remember you need other BOD members on your side in order to effect change. You absolutely should not try to do this on your own, it will consume you. We know you are right, you know you are right, but there is more to life than being right.

DonN
(Michigan)

Posts:240

01/22/2008 5:56 PM
DanaA Your association has many other problems besides not just having an incorrect number on the board. Likely, there is no authority for the board to "unelect" a board member. With regard to relationships with the attorney, the client is the association, not the board, not the members and not the agent who may contact the attorney. The decision to contact the attorney should be by board motion that clearly defines the problem and the advice sought. The attorney's advice should repeat the problem and the advice sought and then provide the legal advice to keep the problem and the advice together. All members of the board should get copies of both the communication to the attorney and the advice back from the attorney. Without the board controlling the interface with the attorney, the matters are basically out of control and prone to abuse by the president who claims to be the sole agent and does not provide the attorney's advice to the board members. As a practical matter, all the members should have access to communications to and from the attorney. The members pay for the advice. The client is the association. Members could be affected by the advice and therefore have a right to its access. Also as a practical matter, the reduction to 7 board members is best handled in future elections. Only two board members should be elected at the coming election which would bring the total to 7. At the next year's election, 5 should be elected, but with the condition that lowest vote getter of the 5 is elected for only one year. Your association would then be on the 3-4 election cycle. By handling the matter in the future elections, the members decide how to effect the reduction of two board members. There is no reason for all the heartburn, except for people who want to control rather than to trust the members.

Don Nordeen Governance of Property Owners Associations

DanaA
(Florida)

Posts:116

01/22/2008 6:09 PM
Thank you Don for your guidance and knowledge. Have you ever met someone who had the answer for everything? And when you listen to that person you absolutely know they are incorrect, but all the tea in China would not convince them? That would be my President. I am not getting heartburn over anything personal, I am so upset that our President makes the rules as he goes along. And the apathy of the other board members is astonishing. They just do whatever he says, it is amazing. I will speak to the other ousted board member. We are only trying to do what is right,thank you again, and I will send an update tomorrow. My hope is that this is not put to bed yet. This morning I viewed our community television channel, and he had already removed me from the directory of board members, as well as the removed from the list of the several committees I was on, which was never discussed, nor was I contacted about. Again, I must emphasize that I am not an out of control board member, and I have been more than respectful this year in my dealings on the board.

RobertR1
(South Carolina)

Posts:2147

01/22/2008 7:10 PM
Dana, Set yourselve a time limit of two weeks to fing out all you can about your association. You need all the documents that are available, you need to know more about your documents than anyone else. How can you have elctions for anything. Do you have regular Board meetings? Have you registered a Point of Order at the begining of one of these meetings and made a motion that some specific action by the board is an illegal act and you motion that the attorney you have be consulted and a written report made? Make sure you have someone that will second the motion, then it has to go to discussion and then a vote of the owners present. If you don't get the vote make sure it is recorded ion the minutes, record it all if you want, you have that right in an open meeting. You need to convince this president and Board they are not conducting themselves properly and you can prove it. I am at a lose as to how you can have election and yet the people voting have no interest if the elections are valid. Over time you will prevail if you act with knowledge. Again take notes, build your case from facts you can prove. If all you say is accurate you have two choices. Force a change or forget it. Sounds awful but it is true, and people will drop out or not do a good job. I hope you decide to fight them and second you need some support. It is not easy to do, but it is doable. You have top keep punching away until you crack the shell this president has built up. Be smart, very smart.

DonN
(Michigan)

Posts:240

01/23/2008 7:07 AM
DanaA The board acts through its motions, not by decree of the president. Unless the board members insist on action by approved motions, it sounds like your president will continue to act as dictator. The president seems to be taking the view of "stop me if you can." Ask the other board members to intervene and declare the president's action to be invalid. If they refuse, your likely course of action is through an attorney. Typically, people are reluctant to take this step with the result that the dictator is reinforced. If the president is up for re-election, organize a campaign to not vote for the president with a positive emphasis of support for other candidates.

Don Nordeen Governance of Property Owners Associations

TracyT
(Maryland)

Posts:220

01/23/2008 11:15 AM
Dana said in her OP "and then stated that he had spoken with our association attorneey who adviced Pres to get rid of the two board members from last election Feb. 2007". IMO that advice is just wrong and the statutes referenced seem to back that up if by nothing else, by virtue of the recall process. The fact that 9 people can’t come up with idea of having the two out going directors, step down one month early or to correct in the manner Dana described, just goes to show you the sad state of some boards. Regardless, the Board can’t vote amongst themselves to remove directors that were elected by the membership. I liked the suggestions for the two of you to write to the BOD (each director), citing your docs and state laws etc. I would state that you have not resigned from the Board and demand that your names be put back on the community directory, immediately. If you can stomach it I’d hand deliver the letter to each member, particularly those who have a year left, to ensure they have a proper education on what transpired. I also, like the suggestion to campaign for someone other than the current Pres. There really is nothing to “put to bed”. The action/motion is in and of itself unenforceable. Just show up at the annual meeting and sit at the table with the rest of members. Unless you get any flack, I don’t see the need to involve the AG at this point. Good luck.

DanaA
(Florida)

Posts:116

01/24/2008 5:27 AM
Thank you everyone, for all the advice. I met with the other ousted board member last night, and we have decided to pursue action to have us reinstated, or nullify the board removal, however it be described. We must be be sure we have our ducks in a row, and documentation as per the statutes, etc., and we will proceed. Our President has done things wrong for so long, it must be stopped. I will update. Dana

GeraldT4

Posts:932

01/24/2008 6:00 AM
DanaA- go get em.

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Forums > Homeowner Association > HOA Discussions > Help! I have been illegally "fired" from the BOD tonight!