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Subject: Fraud and bad board
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MichaelH31
(California)

Posts:28


11/17/2020 2:54 PM  
Posted By MichaelH31 on 11/17/2020 2:04 PM
Posted By KerryL1 on 11/17/2020 1:50 PM
So it IS a director who's the janitor. That simply wasn't clear to me.

When you read Augustin's citation, remember that the VP still can attend the rest of the meeting. He cannot discuss or vote on anything having to do with his portion as janitor and direct employee of your HOA. It's best if he'll leave the room which janitor-stuff is being discussed.

Did you place the portion on an executive session agenda? This IS a personnel matter and your board can discuss the topic there.


When does his contract expire????





HI Kerry, so let me get this straight.....he can be in on the meeting and listen to us discuss his janitorial contract if he doesn't want to leave? I asked to have it on the agenda and was told it was already prepared, but that we could discuss it........tonight in a few hours.





Whoops sorry, his contract has no expiration date. It's been since 4/16.
JohnC46
(South Carolina)

Posts:10130


11/17/2020 2:55 PM  
Posted By MichaelH31 on 11/17/2020 2:19 PM
Posted By MarkM19 on 11/17/2020 2:11 PM
Michael,
Typically it has to be on the agenda 72 hours prior to the meeting. If it is not on the agenda no action can be taken or voted on during the main meeting. It can be discussed in executive session because it covers the 4 topics that are executive type discussions. Kerry is usually always right with her comments. Typically I would say that the VP should not be in the room when any janitorial talk is going on because if other rates were discussed he should not be aware to any of that information.




HI Mark, thanks for the timely information. My MC says he's able to be there but not discuss, so I will bring up your point on rates.




I say the VP can be in the room when discussed but as they are discussing him, he cannot talk nor vote. He can only listen. I have also said, do it in Executive Session.
KerryL1
(California)

Posts:7660


11/17/2020 5:02 PM  
First, Michael, it appears to me that you do not have a valid contract with your VP for janitorial services. I know Augustin & Chris will know this, and others too, since I'm not sure. I believe that a contract must have a "term," i.e., when it starts and ends, in it to be valid. (Not a CA thing.)

2nd, in CA, agendas must be publicly posted 72 hours in advance of open meetings. The board may not discuss let alone vote on anything that is not on the agenda (unless urgent). For executive session, where this topic belongs, you need 48 hours posted notice.

You COULD BRING it up in open forum and see were that gets you. Probably not far, but ask the Board to place it on the next executive session agenda. I know you want to "out" this guy, but since it's a contact matter, it can be in Ex. session. There is NO requirement that it be, though.

You didn't read Augustin's citation about conflict of interest, Michael? I don't have time as we have a big meeting tonight too. My recollection is that he must recuse himself from discussion and voting. In our HOA directors do leave the room when they have a conflict so that discussions can be frank. But I don't know if it's required.
MichaelH31
(California)

Posts:28


11/17/2020 5:07 PM  
Posted By KerryL1 on 11/17/2020 5:02 PM
First, Michael, it appears to me that you do not have a valid contract with your VP for janitorial services. I know Augustin & Chris will know this, and others too, since I'm not sure. I believe that a contract must have a "term," i.e., when it starts and ends, in it to be valid. (Not a CA thing.)

2nd, in CA, agendas must be publicly posted 72 hours in advance of open meetings. The board may not discuss let alone vote on anything that is not on the agenda (unless urgent). For executive session, where this topic belongs, you need 48 hours posted notice.

You COULD BRING it up in open forum and see were that gets you. Probably not far, but ask the Board to place it on the next executive session agenda. I know you want to "out" this guy, but since it's a contact matter, it can be in Ex. session. There is NO requirement that it be, though.

You didn't read Augustin's citation about conflict of interest, Michael? I don't have time as we have a big meeting tonight too. My recollection is that he must recuse himself from discussion and voting. In our HOA directors do leave the room when they have a conflict so that discussions can be frank. But I don't know if it's required.




Kerry, can't thank you and the others enough. I did read the conflict of interest.
AugustinD


Posts:4421


11/17/2020 6:28 PM  
Posted By KerryL1 on 11/17/2020 5:02 PM
First, Michael, it appears to me that you do not have a valid contract with your VP for janitorial services. I know Augustin & Chris will know this, and others too, since I'm not sure. I believe that a contract must have a "term," i.e., when it starts and ends, in it to be valid. (Not a CA thing.)
To my knowledge, the existence of a defined end date is not required for a contract to be legally enforceable.

Regarding breach of contract: Either the HOA or the state of California chose to shut down the bathroom and meeting rooms et cetera, correct? Per chance did the contract cover this specific scenario (of certain line items in the contract no longer having validity because of xyz)? If not, then I think that, if the HOA stopped paying the janitor the full amount (on account of the fault of the HOA or the state of California), it is the HOA might be in breach.

It does help that there is no end date. I expect this means the contract can be re-negotiated at any time.

I think the forum would have to see the contract to be able to judge whether it is legally reasonable to ask the janitor for reimbursement for prior months. It may not be.

Of course going forward, the contract should be changed.

I am curious as to whether this contract with the Director-VP-Janitorial Service Provider is written down. Granted contracts do not have to be in writing to be legally enforceable, but I believe it's certainly far better if they are.

Do the covenants or state law require the contractor to be bonded or have workers comp insurance?


JohnC77
(Washington)

Posts:245


11/18/2020 12:59 PM  
Posted By KerryL1 on 11/17/2020 5:02 PM
First, Michael, it appears to me that you do not have a valid contract with your VP for janitorial services. I know Augustin & Chris will know this, and others too, since I'm not sure. I believe that a contract must have a "term," i.e., when it starts and ends, in it to be valid. (Not a CA thing.)

2nd, in CA, agendas must be publicly posted 72 hours in advance of open meetings. The board may not discuss let alone vote on anything that is not on the agenda (unless urgent). For executive session, where this topic belongs, you need 48 hours posted notice.

You COULD BRING it up in open forum and see were that gets you. Probably not far, but ask the Board to place it on the next executive session agenda. I know you want to "out" this guy, but since it's a contact matter, it can be in Ex. session. There is NO requirement that it be, though.

You didn't read Augustin's citation about conflict of interest, Michael? I don't have time as we have a big meeting tonight too. My recollection is that he must recuse himself from discussion and voting. In our HOA directors do leave the room when they have a conflict so that discussions can be frank. But I don't know if it's required.



Actually notice is 96 hours or 4 days
KerryL1
(California)

Posts:7660


11/18/2020 1:07 PM  
My DOH, I'm terrible at math. Yes, 4 days is correct.
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