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Tuesday, April 13, 2021











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Subject: Election Procedure Violation
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RichardJ7
(Virginia)

Posts:4


03/26/2021 10:09 AM  
Virginia Nonstock Corporation Act 13.1-814.1 C (i)(ii) mandates that the provisions of the bylaws of any community association in existence on or before January 1, 1986, shall continue to govern (i) the procedures for and election of the board of directors, (ii) the amendment of the bylaws...." Our Nonstock association was incorporated in 1982. Likewise, VNSCA 13.1-855 D requires "Directors be elected or appointed in the manner provided in the articles of incorporation." Virginia Property Owners' Association Act 55.1-1815 G requires "Meetings of the association shall be held in accordance with the provisions of the bylaws at least once each year after the formation of the association."
There is no evidentiary record or proof that the Ruxton Board of Directors followed association bylaws as prescribed by state laws referenced above, or as required in the association's bylaws for the election of directors. Besides electing a new board, what can be done to rectify this situation?
TimB4
(Virginia)

Posts:17532


03/26/2021 3:06 PM  
Richard,

Please follow the posting rules of this site and do not post names.
You can read the posting rules by clicking on the smiley face that says "our posting rules"


Regarding your issue,

I am not sure if you are still under developer control or not.
If you are, there may be specific rights that the developer has until control is turned over to the membership. One of these may be appointing the Directors.
If you are under developer control, read all of your governing documents to determine what those rights may be.

I would then verify that annual meetings were not held.
This can be done by requesting to review the minutes of the annual meetings.

If they were not done, ask why not.
It is possible that meetings were attempted but a quorum was not achieved, preventing elections.
If the boards answer is not satisfactory, the options are limited:

1) Follow procedure for an adverse statement with the ombudsman office.
See: Office of the Common Interest Community Ombudsman
Note: the ombudsman will not deal with violations of your governing documents.
They will only deal with violations of the VPOAA

2) follow procedure to gather support and petition for a general membership meeting for the purpose of holding elections.

3) Talk to an attorney to consider legal options.


However, if meetings were held, it's possible that you failed to get a notice.
Make sure that the board is aware of your correct mailing address and contact info.
RichardJ7
(Virginia)

Posts:4


03/27/2021 7:10 AM  
Thank you TimB4...it was my mistake naming the community. Is there an edit feature I may use to make a correction or are you the only one who is able to perform that function?
RichardJ7
(Virginia)

Posts:4


03/27/2021 8:18 AM  
I also failed to mention in my post that the bylaws require appointment of an Elections Committee comprised of Chairman, and at least three other persons whose duty is to provide supervision of the nomination and election of directors. That has never happened. The persons occupying the offices of directors have never followed these bylaw requirements...ever. The bylaws require a Budget Committee and there has never been one...ever. After some research into the manner our BOD operates I've discovered that they entered into a management contract years ago and shifted all the volunteer community functions to the management company's manager. Each year elections are managed by the managing agent, not an Elections Committee made up of owners. The BOD Pres. supervises the managing agent. Proxies are collected by the same persons who are Pres and Secy. These persons have been running the community continuously for 20 years getting reelected year after year.
There's no oversight of anything the BOD does.
TimB4
(Virginia)

Posts:17532


03/29/2021 5:02 AM  
Posted By RichardJ7 on 03/27/2021 7:10 AM
Thank you TimB4...it was my mistake naming the community. Is there an edit feature I may use to make a correction or are you the only one who is able to perform that function?




Richard, I suspect that only the moderators have any edit authority. I know that users do not.
I am not a moderator.
TimB4
(Virginia)

Posts:17532


03/29/2021 5:22 AM  
Posted By RichardJ7 on 03/27/2021 8:18 AM
I also failed to mention in my post that the bylaws require appointment of an Elections Committee comprised of Chairman, and at least three other persons whose duty is to provide supervision of the nomination and election of directors. The persons occupying the offices of directors have never followed these bylaw requirements...ever.




Our documents require a nominating committee. When I was on the Board, we made the board a committee of the whole for this purpose. This is mainly because asking for volunteers is often met with silence.

Since you don't specify that the committee must be non-board members, is it possible that the board is acting as this committee?


Posted By RichardJ7 on 03/27/2021 8:18 AM

The bylaws require a Budget Committee and there has never been one...ever.




Have you volunteered to serve on a budget committee and been turned down?

Keep in mind that it's typical for the board to appoint committee members. In my Association, we usually accepted anyone who volunteered as the volunteers were few and far to be seen.

Posted By RichardJ7 on 03/27/2021 8:18 AM

After some research into the manner our BOD operates I've discovered that they entered into a management contract years ago and shifted all the volunteer community functions to the management company's manager.




I know from experience that it is a lot of work to be self managed.
As Treasurer, I spent 20 hours a month on HOA business.

If those serving do not have the time to perform the day to day tasks, or if there aren't enough volunteers to do the day to day tasks, many boards will seek outside help with independent contractors (a bookkeeper for example) or a full service management company.

Posted By RichardJ7 on 03/27/2021 8:18 AM

Each year elections are managed by the managing agent, not an Elections Committee made up of owners. The BOD Pres. supervises the managing agent.




Running elections are one of those tasks that most Management companies perform.

Do you know if anyone has volunteered to serve on an election committee and been turned down?

Posted By RichardJ7 on 03/27/2021 8:18 AM

Proxies are collected by the same persons who are Pres and Secy.




This would be normal.
Proxies that name the board as the proxy representative would be given to the board (perhaps through the management company) and collected by the Secretary to become part of the records.

Proxies that name someone other then the board as a proxy representative, would be collected by the Secretary at the meeting.

Have you solicited proxies from your neighbors vs. having proxies sent to the board?


Posted By RichardJ7 on 03/27/2021 8:18 AM

These persons have been running the community continuously for 20 years getting reelected year after year.




Have you tossed your hat into the ring (so to speak) to serve on the board?

I know that in my Association, if there are enough people running, others often do not volunteer to serve. I've heard many reasons for not serving. If there is no choice at the election, then those who are willing to serve are the ones elected to do so.


Posted By RichardJ7 on 03/27/2021 8:18 AM

There's no oversight of anything the BOD does.




Oversight of the boards actions are the responsibility of the membership.
You are doing that now and I applaud you for it.
Make your neighbors aware of what you have found and see if there is support (and volunteers) to not reelect these individuals at the next election.


Hope this helps,

Tim

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