Help! I have been illegally "fired" from the BOD tonight!

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

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!

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.

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.

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.

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.

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.

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.

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.

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.

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 - 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.

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.

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.

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

DanaA,
I think you are headed in the correct direction. I don't recall how much this particular subject has been discussed but in any event you and your fellow owner should discuss it in some length,

The question of doing this in a private manner or going completely public with your actions. It is hard and probably not right just to give your fellow owners just part of what you are attempting to do.
On the other hand you both have been wronged publicly by the Board but it could be considered a personal concern.

Then you write that there are lots of other things that need to be done to get things right and they would require changes that effect the members.

May I suggest you ask around indirectly about how your neigghbors are feeling and convey this impression to your legal concil and discuss with them a class action suit. I'm no expert but it may have advantages (helping with your attorneys fees).

Just something to think about and including more members into the fray.

Crap,
I didn't mean "leave" there, I meant "Live there."

DanaA - DonN previously posted, "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.".

Honestly I don't see why you contacted the attorney. Even if you were not removed (however illegally it may be) from the Board, the decision to contact the attorney should be with consensus of the Board. Here you are fighting for change of the activity that you just did (no matter how well intentioned). What do you think the President is going to do with that bit of information when the attorney contacts him?

My suggestion is don't shoot yourself in the foot. Show up and sit at the front of the table at the next meeting as if you are still a Board member, or run for election, or get a petition to recall the Pres. and his team of idiots.

Continuation of my post that is next to this one. Too lengthy. Please read other one first, thanks!
Attorney XXXX advised that the present nine seat Board is not legal and that any actions taken by this and prior nine seat boards were not legal and subject to challenge. Considering the number and impact of actions taken and the repercussions of challenges, he advised that we immediately reduce the number of Board seats to seven and then with the new legal Board of seven, ratify and affirm all prior Board actions as being lawful actions. President XXXX and Attorney XXXX reviewed alternatives and decided that removal of the two seats that received the least votes in the last election at the 2007 Annual Meeting was the most timely, fair and equitable method. President XXX explained that the 2007 election created an illegal Board by filling five seats instead of three seats as required by the Articles of Incorporation. Therefore, a wrong is turned into a right by removing two seats from the present nine seat Board and creating the seven seat Board that would have been created had the Articles of Incorporation have followed.

(Dana comments: Attorney did not provide written opinion to our board.)

President XXX explained that a vote on the method of removing the two seats with the least votes does not entail a conflict of interest because Board election results do not disclose the candidate’s number of votes or place in the group and therefore the Board members voting do not know the names of the two with the least votes except the President knows and will abstain. This information is contained in the report of the Inspectors of Election given to the President to announce the Directors elected and the details of number of votes and place in the group are kept confidential. This method is fair because the Directors are removed based on seat elimination and votes received as opposed to anything personal. They can also run for re-election in the upcoming Annual Meeting election.
Inspectors of Elections for the 2007 Annual Meeting XXXXXX, Property Manager (CAM) and XXXXX member, not board member, were asked to review their report and announce the names of the two candidates elected who received the least votes. Property Manager XXXX announced and XXXXX member agreed that that two with least votes were XXX(Dana) and XXX Board member.

Secretary XXXX made the following motion, “I move that the number of seats on the Board of Directors be reduced to seven per the Articles of Incorporation by removing the seats of the two Board members who received the least votes at the 2007 Annual Meeting”. The motion was seconded by XXXX Board member, and passed with President XXXX abstaining.

With the Board of Directors now being a legal seven seat Board per the Articles of Incorporation, Secretary XXXX made the following motion, “I move to ratify and affirm all prior Board of Directors actions as being lawful actions of the XXXXX community association.” The motion was seconded by XXXX and passed unanimously.

Dana - Have these minutes been officially voted on for approval by the BOD in an open meeting? Usually the previous meetings minutes are approved at the next meeting. If not the BOD that gave them to you did a "no, no", but you may have an alliance there. It's nice to see that the BOD had an agenda for the meeting but it's interesting that 7.1 needed to be written in.

"OTHER BUSINESS"?? There's New Business and Old Business.

IMHO, whether you prove the BOD of acting in the wrong or not, I suggest you and the other member that was removed re-run for election and replace two of the other ones. That's the only way that change will ever occur. In with new, out with the old.

Dana - this is such a mess, and since elections are in 30 days, why don't you spend time on campaigning for one of the seats instead of re-hashing this over and over?

Some other thoughts --

This "removal" of the 2 Board members was not the kind of removal that the Membership takes to get rid of bad board members.

The Board had no choice other than to adjust itself to be in compliance with the Articles. I know you are upset with HOW that was done, but under the circumstances, they had no other choice (I believe that any judge would have done the same. What else is there, drawing straws?)

The results of all election should be posted and included in the minutes. This should have been caught long ago. There are no secrets in elections!

Good luck and focus on the future . . .

Exactly my thoughts, Gerald. Which is why the other board member removed and I met with a lawyer today, who is requesting documentation on our behalf. Will update you all, probably next week before I hear anything. If this was legal, so be it. If not, the members deserve another year with us on the board, as elected. I will post an outcome, upon receipt. Thanks! Dana

Hi Dana,

I was searching for information on hierarchy of documents and came upon your post. Now that I’ve read it, I am curious about the ending…what was the outcome? Did you run for re-election?

Thanks - Bonnie

As a side note, in Texas the way to amend the number of Board members for a non-profit is through the by-laws (according to the law governing non-profits). Just came across that last night. One may want to check for the same in Florida. Nothing is straight forward when the legislatures get involved.

It could be that the amended by-laws were in fact the proper way to increase the number of directors.

Donna – thanks so much for posting the hierarchy again! I had started with one of your posts and was looking for other posts on the topic. I also came across a post by RogerB who had noted that while a Rule can not violate a higher order document, it can make it more restrictive.

My interest in this topic stems from our Rules/Regs which are more restrictive than the CCRs in certain instances. As a result, my questions on this topic (at least for now) have been answered.

Meanwhile…I am still wondering about the outcome of Dana’s issue with her BOD.

Bonnie