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Subject: HOA President Acting w/o Board Members
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TanyaH
(Maryland)

Posts:4


09/27/2020 7:36 AM  
I am VP of a newly elected Board. The new President is was being outwardly disrespectful to the new Treasurer and causing emotional strife to the Treasurer. I noticed this and sent an email to the Board suggesting we get together "unofficially" to try to clear the air so we could all get along. The President emailed back saying that he agreed, then retracted saying the Board could not meet in the capacity. Then immediately after that he calls a 2 week hiatus from any HOA business being conducted. During this self-imposed hiatus he sent a "President's Message" that never existed until now out to the members. He did not consult the Board about this communication and in his communications made some comments that some of the Board members too issue to. Also during this 2 week hiatus, he has met with the management company and the community manager..all w/o the Board's knowledge. In addition to all of this he is giving his wife little jobs to do, ie, like contacting people, managing a gmail account for the association just to name a few. Our bylaws state that "Upon an affirmative vote of a majority of the members of the Board, any officer may be removed either with or without cause, and his successor elected at any regular meeting of the Board of Directors, or any special meeting of the Board called for such purpose." Does this mean we, the Board, don't have to call a meeting with the members to remove the President?

I really would appreciate any legal advise on this matter,...but all advise is welcome.

Thank you
TimB4
(Virginia)

Posts:17008


09/27/2020 8:02 AM  
Tanya,

If there is support, the Board may remove the individual from the office of President.
The individual would still be a Director, attend board meetings and vote on board business.


Keep in mind that Directors and Officers are two different positions (even if filled by the same individual - it's like having two jobs).
Directors make the decisions.
Officers carry out those decisions along with handling the day to day business of the Association.

I know it can be confusing.
Keep looking at it as two different jobs.

Directors - elected by members and can only be removed by members
Officers (president, VP, etc.) - appointed by the board and can be removed by the board.


Also - you will need someone willing to step up and serve as President if you do remove the individual from that position.
SheliaH
(Indiana)

Posts:3512


09/27/2020 9:03 AM  
What Tim said. Also, if you want legal advice, go to an attorney - most of us aren't attorneys and what may be true in one state may not be in another.

You'll probably need an executive session to hash this out - if the president did these things a strong censure is in order and he should be relieved of his position. Someone else (like you?) will have to be appointed as the new president. You may be vice president, but that doesn't mean you automatically ascend to the position.

After you get through this, it would be helpful to pass a board resolution reiterating that no single board member of officer has the power to make it amend decisions on association affairs without proper review and approval by the entire board.
ChrisE8
(New York)

Posts:134


09/27/2020 10:04 AM  
The posts above are correct in all respects (including that nobody on this board will give legal advice).

If you want to get rid of this individual from HOA governance, an owner vote is likely needed to remove the person from the board. You don't want the individual to get mad and try to get other board members voted out at the next election of board members by owners. I would try to be ahead of the curve and get someone to run to take that person's spot on the board.
KerryL1
(California)

Posts:7582


09/27/2020 10:06 AM  
Unless your Bylaws say so, the presidnet should not be doing all of things you mention or make any decisions outside of board meetings where the Board decides.

Given your citation, Tanya, and agreeing with Tim & Sheila, your Board may remove the president from that office. You need to see in your bylaws how to call & hold a meeting. Is a regular meeting scheduled soon? If not, follow your Bylaws' directions to hold a "special meeting of the Board." Usually the president or any two directors may call a meeting. If your bylaws don't say how to do this, your state's corporations codes will tell you (assuming you're a corporation).

Whoever calls the meeting needs to make sure you allow enough notice to give to Owners. Your bylaws may say owners must be given 4 days notice before and you may need to post this notice.

Yes, you could censure the prez in an executive or open meeting, but he sounds pretty bad and I'd worry that he'll actually sign a so contract or otherwise committed you HOA to something that the boar did not approve.
AugustinD


Posts:4160


09/27/2020 11:26 AM  
Posted By TanyaH on 09/27/2020 7:36 AM
Our bylaws state that "Upon an affirmative vote of a majority of the members of the Board, any officer may be removed either with or without cause, and his successor elected at any regular meeting of the Board of Directors, or any special meeting of the Board called for such purpose." Does this mean we, the Board, don't have to call a meeting with the members to remove the President?
Correct: A meeting of the HOA's membership is not necessary for the Board to vote to remove this person as an officer (in this case, President). This is true at nearly all HOAs/condos nationwide. For Maryland, the applicable corporate statute appears to be MD Corp & Assn Code § 2-413. It states:
====
(a) Unless the bylaws provide otherwise, the board of directors shall elect the officers.

(b) Unless the bylaws provide otherwise, an officer serves for one year and until his successor is elected and qualifies.

(c) (1) If the board of directors in its judgment finds that the best interests of the corporation will be served, it may remove any officer or agent of the corporation.

(2) The removal of an officer or agent does not prejudice any of his contract rights.

(d) Unless the bylaws provide otherwise, the board of directors may fill a vacancy which occurs in any office.
=====

Nearly all the advice you are receiving here is legal advice or legal information. As long as anyone here dispensing legal advice is not an attorney and takes no payment for this advice, under the law the advice is lawfully given. This free legal advice is also often, but not always, worth what you paid for it.
AugustinD


Posts:4160


09/27/2020 11:30 AM  
Posted By KerryL1 on 09/27/2020 10:06 AM

Yes, you could censure the prez in an executive or open meeting, but he sounds pretty bad and I'd worry that he'll actually sign a so contract or otherwise committed you HOA to something that the boar did not approve.
This option of "censure" is often suggested here. Lately though I am reading Bylaws and Declarations for the many express powers the Bylaws and Declarations give to boards. I have never seen a Bylaw or Declaration that authorizes a Board to "censure" a director or officer as the Board sees fit. I continue to think "censure" is a silly use of a Board's time. Either remove the officer; disagree before the board and/or the membership with the officer's (or director's) decisions; have a board vote to have the HOA attorney send a warning to the officer or director; or similar.

To me, the act of a HOA's "censuring" is the stuff of soap opera. It depletes energy and emotions, afaic. Volunteer directors/officers have enough to do.
KerryL1
(California)

Posts:7582


09/27/2020 1:16 PM  
I agree with you, Augustin. In this case, imo, they should get rid of the guy as prez. If he's merely a director, there are other ways to "discipline him."

To actually hold a vote by owners to get him off the board seems premature and also a waste of time.

JohnC46
(South Carolina)

Posts:10017


09/27/2020 2:51 PM  
Tanya

Unless the BOD appointed the Pres to the BOD, the BOD cannot remove him from the BOD. Only those that elected him to the BOD can remove him.

That said, the BOD can vote him out as Pres by the majority of the BOD calling for a new Election of Officers. He will still be on the BOD regardless of the BOD Election outcome. but if no longer Pres then he will do less harm.

Typically all Officers are Members of the BOD but not all BOD Members are Officers.

Why do people have a hard time understanding this?
GenoS
(Florida)

Posts:4133


09/27/2020 4:17 PM  
Posted By KerryL1 on 09/27/2020 1:16 PM
I agree with you, Augustin. In this case, imo, they should get rid of the guy as prez. If he's merely a director, there are other ways to "discipline him."

To actually hold a vote by owners to get him off the board seems premature and also a waste of time.


I agree with Augustin, too. I do have one question. If the board wants to remove an officer, such as the president, and elect someone else to fill that officer position, does that action have to be on the agenda for the board meeting where they expect to take that vote? I'm going to guess that the answer is yes.
GeorgeS21
(Florida)

Posts:3279


09/27/2020 4:57 PM  
I’m going to guess and say, no ...
KerryL1
(California)

Posts:7582


09/27/2020 6:40 PM  
In CA, Geno, it would have to be in an open meeting and the topic would have to be on the agenda posted four days in advance of the meeting. If directors are uncomfortable with voice votes on removing the person as prez, it's fine to have secret paper ballots. I think the latter point is from Robert's rules of Order, but can't quite remember.

But I don't know about MD, or FL.
AugustinD


Posts:4160


09/27/2020 6:55 PM  
Posted By GenoS on 09/27/2020 4:17 PM
If the board wants to remove an officer, such as the president, and elect someone else to fill that officer position, does that action have to be on the agenda for the board meeting where they expect to take that vote? I'm going to guess that the answer is yes.
Because this is a very official board action taken pursuant to statute and covenants, I say yes. Folks need to know the old President is gone. The old President should be given a chance to make a statement and give his side.

At times I suppose removal should be done in executive session. E.g. if litigation is possible by one side or another as a consequence of the removal or things said during the meeting to remove the President.


GenoS
(Florida)

Posts:4133


09/27/2020 10:20 PM  
Posted By KerryL1 on 09/27/2020 6:40 PM
In CA, Geno, it would have to be in an open meeting and the topic would have to be on the agenda posted four days in advance of the meeting. If directors are uncomfortable with voice votes on removing the person as prez, it's fine to have secret paper ballots. I think the latter point is from Robert's rules of Order, but can't quite remember.

But I don't know about MD, or FL.

In Florida the only time a board can vote by secret ballot is when it's electing Officers.
GenoS
(Florida)

Posts:4133


09/27/2020 10:24 PM  
Posted By AugustinD on 09/27/2020 6:55 PM
Because this is a very official board action taken pursuant to statute and covenants, I say yes. Folks need to know the old President is gone. The old President should be given a chance to make a statement and give his side.

The only time I remember my Board voting to re-shuffle officers was the year the president resigned, sold his house and moved away in July. An election of officers was held the next month where the resignation of the president was announced. It was a surprise to most of the homeowners since many didn't realize he had sold his home, and wasn't on the agenda posted in advance of that board meeting.
GeorgeS21
(Florida)

Posts:3279


09/28/2020 5:22 AM  
So, I was considering a circumstance like pres quits 24 hours in advance of board meeting - need to be able to replace immediately, right?

Pres quits at the board meeting - in writing?

Board finally has enough, notes the illegal actions of the pres at the meeting, and votes to remove and replace?
TanyaH
(Maryland)

Posts:4


09/28/2020 8:43 AM  
Thank you for your input. We, the Board, are putting things in motion.
TanyaH
(Maryland)

Posts:4


09/28/2020 8:45 AM  
Thank you.
TanyaH
(Maryland)

Posts:4


09/28/2020 9:15 AM  
I am thinking "yes". Because what I'm hearing is that you must be very specific in your meeting agenda, otherwise your purpose is left to speculation.
AugustinD


Posts:4160


09/28/2020 9:22 AM  
Posted By TanyaH on 09/28/2020 9:15 AM
I am thinking "yes". Because what I'm hearing is that you must be very specific in your meeting agenda, otherwise your purpose is left to speculation.
... and so HOA owners will not have a correct basis for deciding whether to attend the Board meeting or not. This violates the whole purpose of giving "notice."
GenoS
(Florida)

Posts:4133


09/28/2020 2:23 PM  
Posted By AugustinD on 09/28/2020 9:22 AM
... and so HOA owners will not have a correct basis for deciding whether to attend the Board meeting or not. This violates the whole purpose of giving "notice."

Exactly.
JohnC46
(South Carolina)

Posts:10017


09/28/2020 3:31 PM  
If it has to be on the Agenda, and I question if it must be, it is easy enough to say BOD Officer Election Discussion. This is enough notice to call for an election. It will require:

1. A Motion to hold a BOD Officer Election including Secret Ballots.
2. A 2nd.
3. A BOD discussion including people announcing they are running for a specific position.
4. A Vote.
KerryL1
(California)

Posts:7582


09/28/2020 5:30 PM  
JohnC46, in some states items must be on an agenda posted xx days in advance for the Board to act on the matter (except for emergencies). Your agenda item title sounds pretty good. Simply: section of Officers.

We don't know about MD and apparently Tanya doesn't know about MD either. Your PM should know, Tanya. but I wonder about that person. There should be a formal vote for officers. For the PM to ask : "is that OK with everyone?" sounds very sloppy to me.

Not sure why, but I have the feeling that the meetings of your board could be better organized and led.
KerryL1
(California)

Posts:7582


09/28/2020 5:35 PM  
oOoops, sorry, Tanya, I had you & Anna of a different post mixed up.

And I see I don't quite get George's questions.
GenoS
(Florida)

Posts:4133


09/29/2020 12:01 PM  
Posted By JohnC46 on 09/28/2020 3:31 PM
If it has to be on the Agenda, and I question if it must be, it is easy enough to say BOD Officer Election Discussion. This is enough notice to call for an election. ...

It could be that simple, I agree. I think it should be on the agenda just to give the members a heads-up that it's going to happen at the meeting.
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