Who is Right the BOD or ME?

It has been a few weeks since I have had time to post here. I have been busy fighting with the BOD. We do not use a management company, it is made up of Homeowners. I have brought this up before on HOATalk and I belive I am right but what is my next move.

A brief background, we never have a qourum at a meeting. Our BOD adjorns the meeting waits a few minutes and calls another meeting. Below is the two paragraphs that deal with my issues:

Section 7.03. Notice of Meeting. Written notice of each meeting of the Members shall be given by, or at the direction of, the Secretary or person authorized to call the meeting, by mailing a copy of such notice, postage prepaid, at least ten (10) days before such meeting to each Member entitled to vote thereat, addressed to the Member’s address last appearing on the books of the Association, or supplied by such Member to the Association for the purpose of notice. Such notice shall specify the place, day, and hour of the meeting and, in case of a special meeting, the purpose of the meeting.

Section 7.05. Quorum. At any annual or special meeting the presence of Members or of proxies entitled to cast one-half (1/2) of all votes of the membership shall constitute a quorum. At the first such meeting called, the presence of Members or of proxies entitled to cast one-half (1/2) of all votes of the membership shall constitute a quorum. If a quorum is not present, another meeting may be called and the required quorum at the subsequent meeting shall be one-half of the required quorum at the preceding meeting. No such subsequent meeting shall be held more than ten (10) days following the preceding meeting.

These are my questions and the BOD answers

1) Do you agree with your proposed by-laws Article 7 Section 7.03. A written notice is needed for each meeting. YES or NO

BOD Reply:
I’m not sure what proposed by-laws are being referenced here. The By-Laws that govern the Association Section 7.03 states ‘Written notice of each meeting of the Members shall be given …’

2) Do you agree with your proposed by-laws Article 7 Section 7.05 If quorum is not present at the first meeting you can call a second (NEW) meeting requiring a written notice? YES or NO

BOD Reply
The By-Laws that govern the Association Section 7.05 does not state ‘(NEW)’. It states another meeting may be called. As I tried to explain in the previous email any of us that have belonged to a Homeowners Association in the past are very familiar with turnouts at meetings and this section was written specifically to address low turnout so we could conduct the business of the Association.

I brought this up at a meeting and argued until they said they would not listen no more. Then I started emails with the whole neighborhood getting copies and while there were other question and comments all their actions are based on who is right here.
When you adjourn one meeting and call another 10 minutes later is that a new meeting and can it be called with the same written notice.
Some of you will remember this from a few weeks ago. I went out with the fire power HOATalk gave me but the BOD did not budge. I the meeting minutes they always make it sound like I just dont get it.

The biggest thing I am going to do is run for a board position next year. I hope to get at least two of these people off at that time.

Comments????????? Right or Wrong let'm fly
Charlie

You are wrong.

There are two types of meetings. The first type that your by-laws refer to is a members meeting. This is where members on the association can make changes that are proposed and have a personal say in matters like voting for a new board member, voting on special assessments. etc. The second meeting refered to in your bylaws is a second members meeting. That meeting may occur if requested but for any action of the members you need a quarum at that meeting. the new quarum amount would be half of what was required at the first.

The second type of meeting is a BOD meeting where the board conducts it's business. This meeting needs a quarum of the board and may or may not have any member partcipation. It is this meeting that people get upset about because they thing the board is ignoring them and acting like dictators. What they are doing is conducting board business like reviewing contracts, reviewing bills, reviewing and taking action on late assessments, CC&R violations etc. It is a board od directors meeting and not a members meeting.

From your explanation it sounds like the board has tried to explain to you what is going on but you have your listening turned off. You need to go back and read your cc&r's and bylaws and understand them. They are the by-laws not the proposed bylaws.

hope this helps

Glen I agree with you. They could annouce both meetings in one notice but they do not do this. Section 7.04 is Parliamentary Rules. Robert's Rules of Order (lastest edition) shall govern the conduct of the meetings.
One thing I would like to add to this is we had our orginal "Declaration of Protective Covenants, Conditions and Restrictions" At our very first meeting they gave us a copy of "Proposed By-Laws" It was explained to us that it was only a formality to remove our builder from our HOA and we take it over. Everyone, including me voting it in not knowing any better. What I typed in the above post was from the "Proposed By-Laws" our orginal CCR was a little bit more clear on calling a meeting. The Proposed By-Laws also has a little line in it about in the event of a conflict between the Declaration and these By-lays, these By-laws shall control. This does not change any part of my questions, it does help to show what I am up against.
Charlie

OMG

Robert's Rules? They have a something to say about an inquorate meeting. If I recall correctly, you're supposed to recess the meeting and try to obtain a quorum. You don't just convene one meeting after another. However, the pecking order is, in case of a conflict between Roberts Rules and the bylaws, the bylaws win.

Bylaws supercede your Declaration? Does your state law allow this? What if your Declaration or state law includes a provision that in case of a conflict the Declaration wins?

There's too much here for me to handle tonight.

Thanks for all your advice every bit of it is helpful. I agree I am not going to change the BOD and I am beating a dead horse. I am concerned if I keep fighting this at the meetings I'll be the "Oh No Here He Goes Again" guy. I am going to start a new topic and seek advice on getting the neighbors involved when we do have our next election. I will read all the post that are added here but I am going to start "Help me get elected!"
Thanks again Everyone!

The question seems to be "What is the meaning of the bylaws? One of the rules of interpretation is that bylaws (a contract under the law between the association and the members) must be read in the whole. All words have to be given meaning. Interpretations can't be absurd or a nullity. Where there are no ambiguities, the words are given their common and ordinary meaning.

Section 7.03 defines the calling and notice requirements and requires at least ten days written notice by mail. The meaning is clear and applies to the initial and subsequent meetings.

However, there is an ambiguity. Section 7.05 requires the subsequent meeting to be held within 10 days, but the notice requires at least 10 days notice. Taken together, the second meeting would have to be called exactly 10 days after the first and notice mailed the day of the first meeting. Where there are no ambiguities, the interpretation typically involves determining the intent of the drafter. The intent of the drafter for the calling and meeting requirements is clear. The intent of the "within 10 days" for the subsequent meeting is likely to be ASAP, or without delay.

The procedure for calling a meeting is defined in Section 7.03 requiring a written notice sent to all members by mail. In my view, the calling of the subsequent meeting must be by written notice mailed to all members at least 10 days in advance of the meeting. I didn't read anything in the bylaws about waiting ten minutes. That is an invention of the board. It clearly has no validity.

The "step-down" quorum requirement is not unusual. The Michigan Court of Appeals has ruled on similar language (without the ambiguity) and similar action by the board (calling the subsequent meeting without written notice). The ruling is that the subsequent meeting does require written notice with the time limits. See case at < 20060124_C263459_37_263459.OPN.PDF >.

It seems likely that a court would support an action of the board to immediately call the subsequent meeting by written notice mailed to all members 10 days in advance of the subsequent meeting with a date as soon as practical.

First, I will agree that you should always be first concerned about what is best for the neighborhood. I also think your association is in need of an amendment because of the conflict/ambiguity. If you consider it the second meeting is next to impossible to hold. You have to have the notices prepared before the first meeting to make the second with notice.

My guess (and it is only that) is that the intent was to allow a second meeting without the notice requirements. The idea is that you could potentially get more people in the interim. But there is a limit because if you take more then 10 days you should send a new notice.

You should work to amend your bylaws in my opinion. Having the ambiguity leaves open the possibility that someone might challenge the meeting in court one day. And that is not in the best interest of the neighborhood.

I would suggest that you do two things:
1) Lower the quorum requirement to 25% since you seem to meet that requirement.
2) Specify the notice requirements for the second meeting should it be needed.

Apathy reigns supreme. Consider that 10% voter turnout is considered good for a typical election in government.

MaryA and Charlie, Lots of time on this site things get lost in the rhetoric. Charie take the time to really read and understand what MaryA is saying, and anyone else witha question about this. Our CC&R's (God knows they are no shining example) spell out the the authority in the event of conflict, and they ascribe to what MaryA says. Just opinions here, but a lot of them are worthy.

Charlie,

Good choice! And, good luck!!

BTW, my bylaws of my former assn state the ballot and agenda must be mailed with the notice for the annual meeting. But then the bylaws also allow the ballot to be mailed in. In my present assn we have mail-in voting - all ballots must be received by the assn no later than 5 days prior to the annual meeting. However, I've noticed that the board always asks if anyone present at the meeting has a ballot and if so it is counted at the meeting. Perhaps if you are elected to the board you will be successful in getting some of these procedures changed. What's most important is to ensure that everyone has the opportunity to vote.

Charlie,

Perhaps the reason your board never explained proxies, and perhaps the reason they don't accept them, is because they don't understand them. It would seem to me that if they truly understood proxies they would realize that it may be possible for them to abuse the proxies to make things go their way. (I'm not suggesting this).

You do realize, I hope, that a proxy is not the same thing as an absentee ballot. You did mention the board not sending out a ballot in a previous post, so I'm not sure you are familiar with the difference.

Reviewing your original post, I notice that proxies are mentioned in section 7.05 of your bylaws as counting towards a quorum. Thus, I assume that proxies must be allowed.

So, your board must really be out of touch because if they have trouble reaching a quorum they could simply gather proxies to meet the quorum requirement for the first meeting and there would be no need to call a second meeting. (I don't know how I missed that the first time around.)

So, if proxies are really allowed, legally, your board has to accept them if they are done properly. However, you will probably never succeed in convincing your board of this and you would have to take your case to court. That's probably not worth it, and your best bet is to try to get better people on the board and get enough homeowners interested to put them there.