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Subject: Restraining Order/Elected Board Appointing Positions in secret meeting
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JanetS6
(California)

Posts:10


11/13/2009 10:39 AM  
We recently had our elections in our community. One of the elected board members is a bully and he does not respect the board or the rest of the community. He constantly bothers others and he even has made trouble for people who come to fix things on our property. This elected board memeber currently has a restraining order against him by someone who lives in our community. He has caused problems in the past and he was elected because of others who think he is a friend and can do things for people who are behind in dues or do not follow rules.
We also have a new board that wants to elected positions without anyone else knowing. They have already called an executive session to discuss new board positions without the homeowners knowing about this.

My questions are can that board member with the restraining or still be on the board?
Can the new board elect positions without the rest of the homeowners present?
GlenL
(Ohio)

Posts:5205


11/13/2009 10:50 AM  
Posted By JanetS6 on 11/13/2009 10:39 AM

My questions are can that board member with the restraining or still be on the board?
Can the new board elect positions without the rest of the homeowners present?



Yes the person with the restraining order can serve unless there is something in the CC&R's that prohibit it. The organizational meeting where the Board members elect officers should be open and doesn't qualify as an executive session.

"Common sense is like deodorant--the people who need it most never use it."
JanetS6
(California)

Posts:10


11/13/2009 11:09 AM  
Thanks for your response Glen. This person with the restraning order can serve on the board but if the person that he assaulted shows up to the meetings, does he have to leave or can he stay. This person has a bad temper and will not stop at this. He will boss people around and have no issues with confronting people. There has to be something that can be done to help get this person off the board...He is a very stupid person and he has no reason to be on the board...its very upseting.
VeronicaG
(California)

Posts:12


11/13/2009 11:12 AM  
From what I understand, appointing positions to the board HAS AND MUST be done on an OPEN FORUM MEETING. Homeowners should be able to attend the meeting and have a say so whether they agree or not on how the positions are being appointed.
It sounds fishy to me that they would want to do this on an executive meeting... Are they trying to hijack the open meeting, to make sure that this guy with the restraining order can be present and make decisions that need to made on an open forum? I truly believe that this is ilegal. CONTACT AN HOA ATTORNEY IMMEDIATELY! I can even refer you to one!
DonnaS
(Tennessee)

Posts:5671


11/13/2009 11:14 AM  

Glen,

That is an example of how governing documents are so different. Mine state that after the annual elections, the new Board electees meet immediately after the meeting has been ajourned for the purpose of organization of the officers. The select or elect amoung themselves what officer positions they will hold.

Now the question is why would members elect a person who they all know has a restraining order against. The O.P said that the members feel that he can get things done from the non complyers? Boy, he is going to strong arm everyone? Sounds like a lawsuit waiting to happen.
TracieS
(Colorado)

Posts:460


11/13/2009 11:29 AM  
What an interesting situation.

So, you have a BOD member who is a "restrained person" from another of your member/owners? What if the member/owner wanted to attend your meeting? Do you have someplace both could participate in the meeting, while maintaining the court-required distance between the two?

A standard restraining order requires the restrained person to not be in the same vicinity as the "complainent". HOWEVER, in order to enforce it, the location (in this instance, the annual meeting/board meeting) needs to see a copy of the restraining order in order to make sure it is upheld. The "complainent" must offer up a copy, so the Association can try to comply. Has that happened?

I must say, though...I really don't think we have enough information, or enough UNBIASED information to say much of anything. We don't know if it's a Temporary Restraining Order, a Permanent Restraining Order, a restraining order with any special restraints contained within it... We also don't know WHY the restraining order was granted...

It is, though, a VERY interesting situation, and I'm certainly watching this thread.
GlenL
(Ohio)

Posts:5205


11/13/2009 11:54 AM  
Donna that's what our documents require also but they don't say it can be a closed meeting only that notice is not required. I don't remember having an organizational meeting being one of the reasons for going into executive session.

As to the person with the restraining order serving on the BOD, obviously enough homeowners thought it was a non-issue and elected the guy. Remember that the characterization of bully was given by the OP who doesn't want the person to serve. There are also different types of restraining orders the easiest being a Temporary Restraining Order which is almost always granted until the case can be heard by a judge. At that time the order can become permanent for a set period of time either on its merits or because the defendant doesn't show up and show cause why it shouldn't become permanent.

Section 2.5. Organization Meeting. Immediately after each annual meeting of members of the Association, the newly elected Board of Trustees shall hold an organization meeting for the purpose of electing officers and transacting any other business. Notice of such meeting need not be given. A meeting of the Board of Directors may be held by any method of communication, including electronic or telephonic communication, provided that each member of the Board can hear, participate, and respond to every other member of the Board.

"Common sense is like deodorant--the people who need it most never use it."
MicheleD
(Kentucky)

Posts:4491


11/13/2009 12:32 PM  
Posted By JanetS6 on 11/13/2009 10:39 AM
He has caused problems in the past and he was elected because of others who think he is a friend and can do things for people who are behind in dues or do not follow rules.


This seems odd.

First, do people who are behind in dues actually have the ability to VOTE in elections? In our HOA, a member not in good standing cannot vote. For our association a member is considered in good standing only if he/she is up-to-date in assessments, has no outstanding fines, has no unresolved covenant violations.

So, not knowing how many people are in your development, it would seem fairly difficult for someone who advocates for deadbeats and covenant violators to get himself elected. Not impossible, obviously, but easy to remedy at the next election, at the very least.



I have absolutely no idea what this means:

They have already called an executive session to discuss new board positions without the homeowners knowing about this. *snip* Can the new board elect positions without the rest of the homeowners present?

What do you mean by "new board positions"?

Do you mean your board can have up to a certain number of directors, and the election left some slots unfilled, so the board is appointing people to those vacant spots?

Do you mean your board is considering adding new directors over and above the maximum number allowed in your governing documents?

If what you mean is the first one (filling "slots" that are currently empty), then very likely your governing documents give the board the ability to do that. Many governing documents do, and the general membership does not have to either be advised or even necessarily present at the meeting where that happens (at least here in KY, as our HOAs are not subject to Open Meeting laws and our docs don't require open board meetings).

If you mean the second one (adding more directors than your documents allow), then that is contrary to the abilities given to them through the governing documents.


JanetS6
(California)

Posts:10


11/13/2009 12:47 PM  
Thanks for all of your answers... it helps when you feel trapped like we do.

To answer some questions:

The person with the restraining order is dealing with another homeowner not a board member. If the elected board makes a move to have the meeting at a restaurant lets say, the restraining order, which is a temporary one, but will be made permanent very soon has already been delivered.

The elected board is trying to make the positions without the homeowners because they have an idea that they are going to run the community and fire our management company. Two of the elected board members tried to get people they know to do work in our complex. They had no insurance and one of the board members boyfreind is doing the work for the complex and being paid.

It does sound one sided but this is the way it is with our community. The peroson with the restraining order against them is nothing more than a criminal hiding in the shadows. And yes, Im trying to figure out why the elected board would want this person on the board when the have a restraing order against them.

As far as the dues not being paid and they are able to vote. It is not in our CCR's that they cannot participate.
One of the elected board memebers was going to the people who were behind on dues and demanding they turn over their ballots because they did not have the right to vote.

Any comments would be nice.....
Thanks.
MicheleD
(Kentucky)

Posts:4491


11/13/2009 1:16 PM  
Janet, I hate to sound harsh, but it appears to me that you may need to read your CC&Rs closer.

And I'm still having an extremely difficult time figuring out what you mean by "adding positions."

With all due respect, that phrase makes absolutely no sense at all.

The board can most likely appoint whomever they want to open spots, with or without the rest of the membership even being present.

How many members are in your association? An estimate will do.

Also, please go find your CC&Rs and bylaws and carefully read it for sections that address voting rights.

I'm not saying you're wrong, but I find it highly unlikely that members who are not current on their assessments are allowed to vote.

It's possible, and if it is, then what you need to do is rally the majority of people in your association who ARE current and who WANT covenants enforced to rout the current board members who are not following the covenants and who may be trying to ruin your HOA.
VeronicaG
(California)

Posts:12


11/13/2009 2:31 PM  
Hi Michelle,
I am a homeowner in a townhouse complex in Rowland Heights, and I hate to contradict you, but according to the Davis Sterling Act, after you have had your Annual Election meeting, every Associacion has to have what is called an "ORGANIZATIONAL MEETING" in an open forum.

Please keep in mind that this is an Annual Organizational Meeting that is held after the results of the elections are disclosed to the homeowners. The homeowners were the ones who elected the new board, therefore they have a right to participate in this meeting.

After this Organizational meeting is held, and if down the line, there are vacancies on the BOD, whenever a new director is voted in (By the Board), that is when the BOD appoints a position without the homeowners having to be present.

I hope my explanation was clear enough.
JanetS6
(California)

Posts:10


11/13/2009 3:43 PM  
Hey Mike D.,

There were no added positions... there are 7 board members and this was our annual elections. Our old board didnt get along and they were devided. Now this new board that was elected are only in it for themselves and the people who elected them have no idea what they are doing. There is nothing in our CCR's that makes any mention of our situation. They are old and as far a I know we dont have new ones. Ive been living here for the past 6 years and the past boards were always argueing with each other. Its a complex of 80 or so units probably a little more than that. I guess Im looking for a little help on this because our management company cant seem to get to our board... the new board wants them out and I don't see why. The last board complained about no money in our budget because there are alot of people behind in the dues. This new board I belevie is corrupt and does not have the best interest of the homeowners in mind.

JanetS6
(California)

Posts:10


11/13/2009 3:45 PM  
Hello Veronica,

Thank you for your input. I would like to have the name of your attonrey so I can tell others what we can do with this situation.
JanetS6
(California)

Posts:10


11/13/2009 3:51 PM  
Also, after the election all the elected board members accept for one left the area so there could not be an meeting a elect posisitions.. we dont know why the left. I seem to think that these newly elected board memebers have no idea what the rules are for an association. They just do what they want and they dont follow the rules that have been put into place.
RobertR1
(South Carolina)

Posts:5164


11/13/2009 4:12 PM  
Janet,
Let's accept everything you say as gospel and look at the big picture. All things considered your HOA doesn't stack up too well. You seem to agree. Now look at how you all ended up as you did. Seems, if all holds true, you all as a group allowed a rogue Board to take over your organization. Right? So what do you all do? Not much else to do accept go and try to do it all over again, but this time, devote the time and effort, and that is huge, to do the job right this time. If homeowners get involved nothing about your organization will remain static, change will happen, circumstances will create change. This restraining order thing will run it's course, or worse. Unless there is specific restriction against this kind of stigma, I doubt the board can restrict any of the owners from the meetings. I would suggest if this knowledge is commonly known, then there should be a police office at the door to make the decision of who to let in. I doubt that this restraining order is strong enough to override the right to assemble peacefully. Petition the judge who wrote the order and ask for clarification, if you can swing it. But all in all you all have made your bed, it looks like you may have to re-make it again. But changes will come and a slow slow steady pressure by concerned owners may right the ship.........a long process but doable.
MicheleD
(Kentucky)

Posts:4491


11/13/2009 7:47 PM  
Veronica, that's okay, I don't consider it a "contradiction."

Obviously in all posts, local and state laws may vary.

But to be clear, I wasn't speaking about an "organizational" meeting, annual or otherwise.

But it's obviously moot due to DS.

Janet, I'm not a "Mike" I'm a "Michele" (female).

And, again, I really really hate to keep harping on this but your terminology is awkward and I still have absolutely NO idea what it is you are claiming the new board is doing with "positions."

You really have to be more specific before we can even determine what it is they are doing.

WHAT do you mean by "positions"???

You have 7 board members. Are they trying to add more board members, beyond the number that the CC&Rs say you can have?



GlenL
(Ohio)

Posts:5205


11/14/2009 12:45 AM  
Posted By MicheleD on 11/13/2009 7:47 PM

WHAT do you mean by "positions"???



I thought of an extremely inappropriate answer for this question but everyone else is assuming she's talking about appointing the officer "positions" - President, V.P., Secretary and Treasurer.

"Common sense is like deodorant--the people who need it most never use it."
RobertR1
(South Carolina)

Posts:5164


11/14/2009 1:24 AM  
Is this "position" you reference the same as the military expression, "Assume the position"?
If so, I imagine there is some of that going on here. However it seems unclear who is doing the doing and who is the do-ee.
Maybe the picture will clear. The OP seems to have some valid concerns, albeit a long time invested watching association spiral downward. With strong proper Board control, this restraining order issue would not be out of control, even if it meant dissolving the relationship of the board nenber involved.

Anyone have an idea of the legal responsibility of the Board when faced with a member under a court order? This seems past the, "not guilty until proven guilty." And would other court orders for other issues apply?

This is a job for Gloria, our NC legal expert.
GlenL
(Ohio)

Posts:5205


11/14/2009 2:13 AM  
Robert a TRO (Temporary Restraining Order) which the OP admits this is - does not necessarily mean this man is guilty of anything. TRO's are extremely easy to get, all you basically have to do is allege the other guy threatened you and you're scared. There still has to be a hearing before a judge to determine whether or not it becomes permanent and for how long.

"Common sense is like deodorant--the people who need it most never use it."
RobertR1
(South Carolina)

Posts:5164


11/14/2009 5:10 AM  
Glen, Thank you.
Raises a interesting situation. Suppose this guy is a threatening personality and is now in a Board position. Does the rest of the Board have any obligation to make a valued judgement, considering the unpredictable world we live in, to take defensive steps to insure peace at there meetings? I have no idea of who or what is going on here but, we do not hesitate to provide security at our meeting if circumstances indicate there may be a threat to security. Given what you say about a TRO, and I believe you are right, does the board just ignore the whole thing, I suppose that would be proper.
MaryA1


Posts:0


11/14/2009 6:02 AM  
As Glen has said, a TRO is really meaningless. I have a 100-yr old friend who had a TRO issued against her claiming she was a threat because she uses a cane! She was so upset over the ordeal that she did not dispute the allegation so the TRO was issued.

Janet needs to let us know exactly what the board is doing wrong. Like Michele I'm a bit confused. Right now it just appears that she's making allegations based upon what she's assuming, rather than based upon actual facts.
MicheleD
(Kentucky)

Posts:4491


11/14/2009 6:25 AM  
Posted By GlenL on 11/14/2009 12:45 AM
Posted By MicheleD on 11/13/2009 7:47 PM

WHAT do you mean by "positions"???



I thought of an extremely inappropriate answer for this question but everyone else is assuming she's talking about appointing the officer "positions" - President, V.P., Secretary and Treasurer.


But I don't thing we can assume that, that she means "officer" positions, because the board is pretty much at capacity and she used the term "new" to describe them (the positions).

She said they called an executive session to discuss "new board positions."

I guess I'm just looking at this too narrowly.

I'm very confused by her phraseology and verbiage.
MichaelK11
(Texas)

Posts:432


11/14/2009 6:28 AM  
She may mean some resigned and the Board is selecting replacements. (I have not read through to see if someone already suggested that.)
JanetS6
(California)

Posts:10


11/14/2009 8:55 AM  
Sorry for the confusion everyone... The positions on the board mean the elected positions such as President, Vice President, Secratary...Again my concerns are that the board knows that this future member of the board is violent and he has been a bully to others in our community. I am afraid that he will assault someone else and they will sue us as an association. We dont have alot of money in our accounts. The past board has told us this many times.

I know this has been confusing to all, and I REALLY thank you for your help. I will try to clear things up on these messages one at a time ....
RobertR1
(South Carolina)

Posts:5164


11/14/2009 9:56 AM  
Janet,
Whatever your evaluation of your board is, I am sure all will agree, routinely the Board does have the Power to select their Board Officers. It is possibly your California docs might say different, I doubt it.

Remember, the people elect the Board to do the association business, the Board selects the officers to do the Board business, and the Board also should have complete control over any management arrangements.

I expect how the TRO order is or is not going to be addressed by the Board is another duty of the Board.

Do not take this to mean the members have no say or no power. That would be wrong, the members wag the tail because they hold the power to elect the Board, then can also recall the Board. The problem with all this is that members don't participate enough. Sometimes this results in members having to trust an untrustworthy Board. But generally, the few members that do step forward to take a hold and serve on the Board or participate in the association business, do a creditable job for the association. There is little reward and a tough job to serve on the board and the good ones don't seek reward, except to serve their community. Does your Board do all this........I can't say from reading this thread. Nor should you be discouraged because others can't see your concerns from ground Zero, so to speak. Have patience, stay focused, learn all you can, continue to post here, as I said things change quickly in HOA and this weeks Hot Topioc could be off the charts next week.
MaryA1


Posts:0


11/14/2009 12:33 PM  
Janet,

If this board member is such a threat to the community, how in the world did he get enough votes to be elected to the BOD? But, now that he's elected, why not start a campaign to have him recalled? If he assaults someone that is not the fault of the board. The BOD cannot be sued for his actions.
JanetS6
(California)

Posts:10


11/14/2009 11:37 PM  
Robert, I have not given up hope yet. This new board is up to no good and no one seems to care. You are so right on the fact that no one wants to get involved. They only bitch and complain when they need something done to their home.

Mary A1, I would like to tell you the real reason that this person was elected to this board. I can tell you this, this person was not elected because of smarts, this person was not elected because of popularity, this person was elected because if this ethinicity not his ability to be on a board. I wish I could give you a better explanation but I dont want to sound like a racist. Oh by the way there are others on the board of different races and the same race...each of them has their own little problems but not like this one.
JanetS6
(California)

Posts:10


11/14/2009 11:38 PM  
But the association can be sued because they new he was on the board to begin with and no one did anything to stop it.
RobertR1
(South Carolina)

Posts:5164


11/15/2009 5:48 AM  
Janet,
Be assured all responding to you want to help. However I must say you seem to be in such a big hurry to get the post up there, you don't spend the time insuring what you want to say. That, of course is the most difficult challenge in the written word or conversation; articulating what you want to say. All have trouble with that.

"But the association can be sued because they new he was on the board to begin with and no one did anything to stop it."

The above is an example. No one is looking for another to apologize, just interested in what is going on. In my opinion your posts raise serious concerns about your association, but not all is clear.
What I suggest you do, and you will have to do it sooner or later, would be to find a couple of neighbors that are as concerned as you and have a social meeting to discuss where you all stand. Get some different opinions, maybe select a spokesperson, write the concerns down, consider the situation as you all view it and define exactly what you are looking for. This is a hard job, but you alone can not change your world, you need support. Meet with the intention of presenting your concerns to your management (Board), not Management Co. The M/'C works for the Board, remember. Get recognized as a force in your association, offer to take on assignments for the Board, offer to join committees, put up a group member to run for the board. Have a couple of your group assigned to get the complete active copy of your documents, get to know them. You are scrapping the surface of the core that
controls, by law, your association.
Use the search feature on this page to clarify and gain knowledge. Keep posting, take baby steps, have patience and it time little cracks will appear that will allow you the means to influence your life style. This guy won't be around forever, remember, running an association, whether badly or well, is hard work and the guy with the most knowledge will be the last guy standing. Been done plenty of times.
MaryA1


Posts:0


11/15/2009 6:01 AM  
Posted By JanetS6 on 11/14/2009 11:38 PM
But the association can be sued because they new he was on the board to begin with and no one did anything to stop it.




Janet,

Perhaps they know he is a "hot-tempered" person, but that doesn't mean they knew he would assault anyone. The meekest person in the world could just snap and assault someone, or even do worse. I still do not believe the HOA BOD (actually the assn as represented by the BOD) could be held liable for any criminal acts this person commits. The assn would only be liable for misdeeds performed in conjunction with his duties as a board member and even then he, alone, could be prosecuted, not the whole board. At least that's my interpretation of how the law works, but, then I'm not an attorney.
MicheleD
(Kentucky)

Posts:4491


11/15/2009 11:35 AM  
Posted By JanetS6 on 11/14/2009 11:38 PM
But the association can be sued because they new he was on the board to begin with and no one did anything to stop it.

No, Janet, they could not be sued because they knew he was on the board and did not "stop" it.

By "it" I assume you mean stop his being elected.

They (the others on the board) cannot legally prevent someone elected to the board by the members unless there is some concrete language in your governing documents that allow them to do that.

If you want to blame someone for his election, then you must blame your fellow resident/owner/members.

I seriously doubt that he was elected solely because of his ethnicity.

I seriously doubt that only deadbeats and covenant violators elected him.

You still have not told us how large your association is.

How many members do you have?

It would also be in your best interest to follow Robert's advice.

Get with other like-minded residents and begin your campaign to have him recalled if what you say about him is accurate.

While you and the other like-minded residents are at it, if the rest of the board is acting improperly, then recall them as well.





JanetS6
(California)

Posts:10


11/15/2009 4:16 PM  
Our community is only 90 units. I hear what you all are saying and I think this is just going to be a process. Thanks to all of you for your advise. I will start collecting more information and get some others to help me. I will keep everyone informed on this matter.
MicheleD
(Kentucky)

Posts:4491


11/15/2009 5:29 PM  
Janet, that sounds like a very manageable number of homes to lobby.

We have over 600 residents, so ours is a little more difficult to do a door-to-door, face-to-face lobbying campaign.

Best of luck to you.

Keep us posted.
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Forums > Homeowner Association > HOA Discussions > Restraining Order/Elected Board Appointing Positions in secret meeting



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