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Subject: Board Expansion and Appoinitment
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CjB2
(Texas)

Posts:10


03/19/2020 2:38 PM  
Good day, I am in Texas in our current board is looking to expand from the three members are currently reside on the board today. This board has had questionable items and choices occur previously so the question becomes can they appoint their other friends to the board? Or do they have to hold a special election in order to facilitate these new seats on the board.


BOARD OF DIRECTORS -NOMINATION AND ELECTION

Nomination. Nomination for election to the Board of Directors shall be by nominating committee. However, nominations may also be made from the floor at any annual meeting of Members. The nominating committee shall consist of a chairman who shall be a Member of the Board of Directors, and two (2) or more Members of the Association. The committee shall be appointed by the Board of Directors prior to each annual meeting to serve from the close of such meeting until the close of the next annual meeting, and such appointment shall be announced at each annual meeting. The nominating committee shall make as many nominations for election to the Board of Directors as it shall in its discretion determine, but in no event shall it nominate less than the number of vacancies to be filled.


OFFICERS AND THEIR DUTIES


9.1 Enumeration of Offices. The officers of the Association shall be a President and Vice President, who shall at all times be Members of the Board of Directors, a Secretary and Treasurer who need not be Members of the Board of Directors, and such other officers as the Board may from time to time by resolution create.
9.2 Election of Officers. The election of officers shall take place at the first meeting of the Board of Directors following each annual meeting of Members.
9.3 Term. The officers of the Association shall be elected annually by the Board. Each shall hold office for a term of one (1) year unless he shall sooner resign, or shall be removed or otherwise disqualified to serve.
9.4 Special Appointments. The Board may elect such other officers as the affairs in the Association may require, each of whom shall hold office for such period, have such authority, and perform such duties as the Board may from time to time, determine.
9.5 Resignation and Removal. Any officer may be removed from office by the Board at any time with or without cause. Any officer may resign at any time by giving written notice to the Board, the President, or the Secretary. Such resignation shall take effect on the date of receipt of such notice or at any later time specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
9.6 Vacancies. A vacancy in any office may be filled by appointment of the Board. The officer appointed to such vacancy shall serve for the unexpired term of the officer he replaces.

Thank you,
AugustinD


Posts:2906


03/19/2020 2:48 PM  
Officers and Directors are legally two different things. Do you see a section in your Bylaws that talks about how many directors there are supposed to be? If so, please quote it verbatim.

Also is your HOA a condominium?

Is your HOA under Declarant control?
MarkW18
(Florida)

Posts:707


03/19/2020 3:02 PM  
How many directors does your Bylaws say you are supposed to have?
CjB2
(Texas)

Posts:10


03/19/2020 3:38 PM  
It says 3 here but in the meeting the last month 2 of the present board members made an amendment;



5. BOARDOFDIRECTORS-TERMOFOFFICE;FIRSTELECTION;REMOVAL

Number. A Board of three (3) Directors, who must be Members of the Association, shall manage the affairs of the Association.
TermofOffice. TheinitialBoardofDirectorsshallserveuntiltheControlTransfer Date (as defined in the Restrictions) occurs. Upon the Control Transfer Date, the Developer shall appoint the Board of Directors. The Directors shall be classified with respect to the time for which they hold office by dividing them into three classes, each class consisting of one Director, and each Director shall hold office until his successor shall be elected and shall qualify. At the first annual meeting of the Members, the Members shall elect a Director in the first class, who shall serve for a three (3) year term. At the second annual meeting, the Members shall elect a Director in the second class, who shall serve for a three (3) year term and at the third annual meeting, the Members shall elect the Director in the third class who shall serve for a three(3)year term. Ateachannualelectionthereafterthesuccessorsto the class whose term shall expire that year shall be elected to hold office for the term of three (3) years, so that the term of office of one class shall expire in each year.
Removal. AnyDirectormayberemovedfromtheBoard,withorwithoutcause,by a majority vote of the Members of the Association. In the event of death, resignation, or removal of a Director, his successor shall be selected by the remaining Directors of the Board and shall serve for the unexpired term of his predecessor.
Compensation. No Director shall receive compensation for any service he may render to the Association. However, any Director may be reimbursed for his actual expenses incurred in the performance of his duties.

Our association is a POA and is single family homes. It is not on developer control.
MarkW18
(Florida)

Posts:707


03/19/2020 3:44 PM  
There should be a provision, towards the end of the Bylaws stating exactly how and who can amend the Bylaws. I'm 99.9% certain the Board CANNOT do it on their own, it much be at least a majority of the membership voting to amend.
CjB2
(Texas)

Posts:10


03/19/2020 3:50 PM  
Think you are referring to the following, which there was not a "Speical Meeting" had only 4 HOs preseent out of 200+ it was done quite hush hush.


AMENDMENTS
14.1 These Bylaws may be amended by the Board of Directors at any annual or special meeting, or by the Members at a regular or special meeting of Members, by vote of a majority of a quorum of Members present in person or proxy.

Question then comes, this is the type of things this board and HOA company do, who can enforce these items in Texas? There does not seem to an regulatory agency here.
MarkW18
(Florida)

Posts:707


03/19/2020 3:58 PM  
Based on what you posted, the Board alone CANNOTamend the Bylaws. But, it only requires a majority of quorum. For instance, if you had 100 homes and quorum is 10%, then 6 present, either in person or by proxy can make such changes.

If a Board knows how to manipulate proxies, you're screwed.
GeorgeS21
(Florida)

Posts:2299


03/19/2020 5:11 PM  
My read, even though the wording is odd, is that the Board can amend the Bylaws ...
GeorgeS21
(Florida)

Posts:2299


03/19/2020 5:12 PM  
Quick followup ...the last three Boards I served on could, and did modify the Bylaws, per the ability to do so in the Bylaws.
CjB2
(Texas)

Posts:10


03/19/2020 5:13 PM  
There were no proxies present and quorum was not meet either.
MarkW18
(Florida)

Posts:707


03/19/2020 5:21 PM  
Posted By GeorgeS21 on 03/19/2020 5:11 PM
My read, even though the wording is odd, is that the Board can amend the Bylaws ...



The reading is either the Board or the Members, by vote of a majority of a quorum of Members present in person or proxy.
GeorgeS21
(Florida)

Posts:2299


03/19/2020 6:27 PM  
I’m gonna stick with my interpretation of “or.”
AugustinD


Posts:2906


03/19/2020 6:54 PM  
"These Bylaws may be amended by the Board of Directors at any annual or special meeting... "

I say that, with no quorum, there is no annual nor special meeting.
MarkW18
(Florida)

Posts:707


03/19/2020 7:24 PM  
The way it work is that either the Board can amend, or the members can amend, only at a annual or special meeting, called for such purchase. To pass, it must be approved by a majority of the required quorum.

If just the Board can approve, why not have them do so at a Board meeting?
AugustinD


Posts:2906


03/19/2020 7:53 PM  
... plus an annual or special meeting customarily refers to a meeting of the membership, not the directors.

I like explanations for the wording in governing documents to be reasonable. But for this one, I think the authors were sloppy.
JohnC46
(South Carolina)

Posts:9299


03/20/2020 10:10 AM  
Posted By AugustinD on 03/19/2020 6:54 PM
"These Bylaws may be amended by the Board of Directors at any annual or special meeting... "

I say that, with no quorum, there is no annual nor special meeting.




I agree.
GeorgeS21
(Florida)

Posts:2299


03/20/2020 11:12 AM  
So sloppy as to sow confusion re how the Bylaws can be amended.

I would still, unless the HOA attorney advised otherwise, believe the "or" component of the text. i.e. that the Board can amend he Bylaws.
CjB2
(Texas)

Posts:10


03/24/2020 4:03 AM  
So this getting better, now that the board believes they can amend the bylaws , they are now having another meeting, to appoint the two expanded seats. Don't they need to be voted in like any other BoD seat? Here is the bylaws; for voting


6. BOARD OF DIRECTORS -NOMINATION AND ELECTION
6.1 Nomination. Nomination for election to the Board of Directors shall be by nominating committee. However, nominations may also be made from the floor at any annual meeting of Members. The nominating committee shall consist of a chairman who shall be a Member of the Board of Directors, and two (2) or more Members of the Association. The committee shall be appointed by the Board of Directors prior to each annual meeting to serve from the close of such meeting until the close of the next annual meeting, and such appointment shall be announced at each annual meeting. The nominating committee shall make as many nominations for election to the Board of Directors as it shall in its discretion determine, but in no event shall it nominate less than the number of vacancies to be filled.
6.2 Election. Election to the Board of Directors shall be by secret written ballot. At such election the Members or their proxies may cast, in respect to each vacancy, as many votes as they are entitled to exercise under the provisions of the Declarations. Persons receiving the largest number of votes shall be elected. Cumulative voting is not permitted.

9. OFFICERS AND THEIR DUTIES
9.1 Enumeration of Offices. The officers of the Association shall be a President and Vice President, who shall at all times be Members of the Board of Directors, a Secretary and Treasurer who need not be Members of the Board of Directors, and such other officers as the Board may from time to time by resolution create.
9.2 Election of Officers. The election of officers shall take place at the first meeting of the Board of Directors following each annual meeting of Members.
9.3 Term. The officers of the Association shall be elected annually by the Board. Each shall hold office for a term of one (1) year unless he shall sooner resign, or shall be removed or otherwise disqualified to serve
9.4Special Appointments. The Board may elect such other officers as the affairs in the Association may require, each of whom shall hold office for such period, have such authority, and perform such duties as the Board may from time to time, determine.
9.5 Resignation and Removal. Any officer may be removed from office by the Board at any time with or without cause. Any officer may resign at any time by giving written notice to the Board, the President, or the Secretary. Such resignation shall take effect on the date of receipt of such notice or at any later time specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
9.6 Vacancies. A vacancy in any office may be filled by appointment of the Board. The officer appointed to such vacancy shall serve for the unexpired term of the officer he replaces.
SueW6
(Michigan)

Posts:654


03/24/2020 6:34 AM  
First motion: The Board is creating “vacancy positions.”

Second motion: Follow the guidelines for filling vacancies, which last until the next election of that term. Be sure to define the term in each person’s appointment.

PS Your bylaws need to remove anything that has to do with the developer. You are way past that.
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